Terms of Service
Last Updated: March 15, 2019
Please note that our Terms of Service were updated on March 15, 2019, and that the updated terms will apply to your Alchemy Cloud, Inc. (
“Alchemy”) service upon any renewal, upgrade, or additional service purchase made after March 15, 2019.
Terms of Service, together with the
Professional Services Terms any applicable Supplemental Term(s), Order Form(s) and Statement(s) of Work (collectively, the
“Agreement”) constitute a binding agreement between Alchemy and Customer (each, a
“party”) under which Alchemy provides Customer access to Alchemy Cloud Services and/or provides the Professional Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Form for the Alchemy Cloud Services
or by using Alchemy Cloud Services.
DEFINITIONS. As used in this Agreement:
“Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the Alchemy Cloud Services.
“Admin User” means the employees and/or contractors of Customer for which Customer has purchased an Admin User license to enable access and use of the Admin Portal.
“Admin Portal” means the interface of the Alchemy Cloud Services that Admin Users are able to access and use for purposes of using the administrative functionality of the Alchemy Cloud Services.
“Alchemy Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions, and use of the Alchemy Cloud Services and which are made available to Customer.
“Alchemy Cloud Services” means the version of the Alchemy software as a service offering made generally commercially available by Alchemy as of the Effective Date, and all Updates thereto made generally commercially available by
Alchemy to its customers during the term of this Agreement, including without limitation the User Portal and the Admin Portal.
“Alchemy Professional Services” or
“Professional Services” means any requirements gathering, configuration, implementation, integration, or training services provided by Alchemy to Customer pursuant to an Order Form and/or Statement of Work. Performance of Professional
Services is governed by these Terms and the
Professional Services Terms. Customer accepts and agrees to be bound by the Professional Services Terms by executing an Order Form and/or Statement of Work for the Professional Services or by using Professional Services.
“Alchemy System Analytics” means anonymized information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived from the use of the Alchemy Cloud Services and/or Technology, expressly
excluding Customer Inputs, and which is used by Alchemy to provide and improve the Alchemy Cloud Services and to improve the Alchemy Technology.
“Alchemy Technology” means the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, reports, workflows, diagrams, tools, algorithms,
formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, third-party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available
the Alchemy Cloud Services, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
“Authorized User” means the employees and/or contractors of Customer for which Customer has purchased an Authorized User license to enable access and use of the User Portal.
“Beta Versions” means versions of new functionality for the Alchemy Cloud Services and/or Updates that are not generally commercially available and which Alchemy may pre-release to all or some of its customers for which customers
are expected to report any bugs they encounter and provide feedback before the general release.
“Customer Inputs” means information, data, text, content, videos, images, audio clips, photos, graphics, and / or other types of content, information and/or data posted, provided and/or uploaded to the Alchemy Cloud Services by Customer
and/or its Users.
“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade
secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar
rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
“Order Form” means Alchemy’s standard order form signed by an authorized representative of each party and pursuant to which Customer orders the Alchemy Cloud Services or Professional Services.
“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the Alchemy Cloud Services made generally commercially available as part of the Alchemy Cloud Services during the Term
of this Agreement. Updates may also include new features and/or functionality for which Alchemy reserves the right to charge an additional fee if Customer elects to activate such new features and/or functionality.
“User” means Admin Users and Authorized Users who have been assigned Access Credentials.
“User Portal” means the interface of the Alchemy Cloud Services that Users are able to access.
ALCHEMY CLOUD SERVICES
Alchemy Cloud Services. Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees, Alchemy will use reasonable commercial efforts to make the Alchemy
Cloud Services available to Customer. In addition to making available the Alchemy Cloud Services to Customer, Alchemy may, from time to time in its sole discretion, make available to Customer Beta Versions. Use of Beta Versions is at
Customer’s sole risk.
Customer Access. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Alchemy Cloud Services is dependent upon access to telecommunications and Internet services. Customer will be solely responsible
for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Alchemy Cloud Services, including, without limitation, all costs, fees, expenses, and taxes of
any kind related to the foregoing. Alchemy will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any
such hardware or software.
Modifications to the Alchemy Cloud Services. Alchemy reserves the right to modify the Alchemy Cloud Services on a continuous basis and if any such modification materially and adversely reduces the functionality of the Alchemy Cloud
Services, Customer may terminate its subscription for the Alchemy Cloud Services pursuant to Section 10.2(a). Alchemy may condition the implementation of new features, functionality or other modifications to the Alchemy Cloud Services
on Customer’s payment of additional fees provided that Alchemy generally charges other customers for such modifications.
Professional Services. Customer may request that Alchemy provide certain Alchemy Professional Services related to Customer’s use of the Alchemy Cloud Services. These Terms and the Professional Services Terms set forth at
Professional Services Terms shall govern the performance of any Alchemy Professional Services by Alchemy for Customer, along with the applicable Order Form and/or Statement of Work for such Alchemy Professional Services entered into
by the parties.
ACCESS GRANT; LICENSES; OWNERSHIP
Access Grant. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Alchemy Documentation, and each Order Form, Alchemy grants to Customer during the Term a non-exclusive, non-transferable,
worldwide, revocable, nonsublicensable right to allow: (a) Users to access and use the Alchemy Cloud Services for Customer’s internal business purposes and (b) Users to access and use Beta Versions for the purpose of evaluating the features
and functionality of the Beta Versions. The rights set forth in Section 3.1(a) may be exercised by Customer’s third-party contractors and service providers that are not competitors of Alchemy and which perform services for or on behalf
of Customer; provided, that (i) Customer requires such third parties to execute a written agreement with Customer that is at least as protective of the Alchemy Cloud Services as this Agreement and which does not grant any greater rights
than those granted to Customer in Section 3.1(a) and includes all restrictions set forth in Section 4 and (ii) Customer shall be responsible for any breach of this Agreement by any such third party.
Customer Inputs. To enable Alchemy to provide the Alchemy Cloud Services, Customer grants to Alchemy a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to host,
use, serve, render, store, access, copy, test, analyze, and create derivative works of the Customer Inputs for the sole purposes of providing the Services and improving and enhancing the Services. In addition, Customer agrees that Alchemy
may use its third-party contractors and services providers to exercise the licenses granted to Alchemy in this Section to perform services for or on behalf of Alchemy. Customer owns all right, title and interest in and to the Customer
Inputs and reserves all rights not expressly granted to Alchemy under this Agreement.
Users. The number of Users who are permitted to access and use the Alchemy Cloud Services is set forth in an Order Form. Alchemy will provide an individual appointed by Customer (which may be an employee or consultant of Customer
or may be the Customer’s Alchemy account manager). in writing with administrative access to Customer’s account so that Customer can provide access to the Alchemy Cloud Services to the Users. Customer may increase the number of Users
at any time during the term of an Order Form by making a written request to Alchemy and upon written approval by Alchemy and Customer’s payment of the applicable fees in accordance with the Order Form, the number of Users will be increased
for the remainder of the term of the Order Form. The number of Users may not be decreased during the term of an Order Form. Customer will ensure that all its Users comply with the terms and conditions of this Agreement. Customer will
promptly notify Alchemy of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Alchemy with respect to: (i) investigation by Alchemy of any suspected or alleged violation of this Agreement,
and (ii) enforcement of this Agreement. Alchemy may suspend or terminate any User’s access to the Alchemy Cloud Services upon notice to Customer in the event Alchemy reasonably determines that such User has violated any terms of this
Agreement. Customer will at all times be responsible for all actions taken under a User’s account, whether such action was taken by a User, or by another party, and whether such action was authorized by a User.
Service Level Agreement. The service levels applicable to the Alchemy Cloud Services are set forth at the
“Service Level Agreement”. Customer’s sole and exclusive remedy and Alchemy’s sole and exclusive obligation, for any failure to meet the service levels are as provided in the Service Level Agreement.
Data Backup.(a) Alchemy will follow its standard archival procedures for storage of Customer Inputs. In the event of any loss or corruption of Customer Inputs, Alchemy will use commercially reasonable efforts to restore the lost
or corrupted Customer Inputs from the latest backup of such Customer Inputs maintained by Alchemy or its third-party service provider in accordance with its archival procedures. (b) Alchemy will not be responsible for any loss, corruption,
destruction, alteration, or unauthorized disclosure of or access to Customer Inputs directly or indirectly arising from acts or omissions of Customer, its Users or a third party. ALCHEMY’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER
INPUTS PURSUANT TO THIS SECTION 3.5 WILL CONSTITUTE ALCHEMY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS, CORRUPTION, DESTRUCTION, ALTERATION, OR UNAUTHORIZED DISCLOSURE OF OR ACCESS TO CUSTOMER
Feedback. In the event Customer provides Alchemy any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Services, the Alchemy Cloud Services or the
Alchemy Technology (including Customer and its Users), (collectively
“Feedback”), including without limitation in response to any product plans or roadmaps shared with Customer, unless otherwise agreed in writing prior to such disclosure, Customer grants to Alchemy a worldwide, royalty-free, fully
paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether
now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services
any service, product, technology, enhancement, documentation or other development (“
Improvement") incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
Ownership. The Alchemy Cloud Services, the Alchemy Technology, the Alchemy System Analytics, and the Alchemy Documentation and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Alchemy
and its licensors. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Alchemy and its licensors. Nothing in this Agreement will be deemed to grant to Customer any right
to receive a copy of software platform underlying the Alchemy Cloud Services, or any other Alchemy Technology, in either object or source code form.
Marketing. Alchemy may publicly refer to Customer as a customer of Alchemy, including on Alchemy’s website and in sales presentations, and may use Customer’s logo for such purposes. Similarly, Customer may publicly refer to itself
as a customer of Alchemy’s software as a service, including on Customer’s website and in sales presentations. Customer agrees that Alchemy may issue a press release after the Effective Date regarding Customer’s use of the Alchemy Cloud
Services. The parties agree to cooperate in the development of a case study, the content of which will be directed by Alchemy and approved by Customer, and which will include an impact analysis and which Customer agrees that Alchemy
may publish on its website or in its marketing materials.
Access Credentials. Customer will safeguard, and ensure that all Users safeguard the devices, computers, and networks used to access the Alchemy Cloud Services and safeguard all Access Credentials. Customer will be responsible for
all acts and omissions of Users. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Users to provide their Access Credentials to anyone else; and (2) not permit others to use
Customer’s Access Credentials. Customer will notify Alchemy immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security. Alchemy reserves the right, in its sole discretion
and without liability to Customer or its Users, to take any action Alchemy deems necessary or reasonable to ensure the security of the Alchemy Cloud Services and Customer’s Access Credentials and account, including terminating Customer’s
access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account.
Use Guidelines. Customer shall comply with all applicable laws, rules, and regulations in its use of the Alchemy Cloud Services. Customer shall, and shall ensure that its Users will, use the Alchemy Cloud Services solely for Customer’s
internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Alchemy Cloud Services
available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Alchemy Cloud Services, the Alchemy Technology or the data contained therein or disrupt
any servers or networks connected to the Alchemy Cloud Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Alchemy Cloud Services; (iii) attempt to gain unauthorized access to the Alchemy
Cloud Services or the Alchemy Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Alchemy Cloud Services; (v) access or use Alchemy Cloud Services in a United States
embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations); (vi) use the Alchemy Cloud Services in violation of any applicable, law, rule regulation or guideline;
(vii) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the Alchemy Cloud Services or breach any security or authentication
measures; or (viii) utilize the Alchemy Cloud Services in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise
unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store material containing software viruses, worms, Trojan horses or other harmful
computer code, files, scripts, agents or programs or plant malware on Alchemy’s computer systems, those systems of Alchemy’s third party service providers or vendors, or otherwise use the Alchemy Cloud Services to attempt to upload and/or
Restrictions. Customer will not: (a) adapt, alter, modify, improve, translate or create derivative works of the Alchemy Cloud Services (or any part thereof including the Alchemy Technology); or (b) reverse engineer, decompile, disassemble
or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Alchemy Cloud Services; or (c) provide, maintain access to, or use the Alchemy Cloud Services in any manner inconsistent with this Agreement.
Customer Input Restrictions. The Alchemy Cloud Services includes the ability for the Customer to upload Customer Inputs. The Customer is responsible for all Customer Inputs. Customer represents, warrants and covenants that the Customer
and its Users have all rights and licenses necessary to upload the Customer Inputs, to grant the licenses granted hereunder and to enable each party to exercise its rights and perform its obligations under this Agreement. Customer represents,
warrants and covenants that the Customer Inputs:
- i. will not and does not infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- ii. will not and does not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation;
- iii. is not and will not become unlawful, tortious, fraudulent, defamatory or harmful to minors, obscene, pornographic, or offensive as determined by Alchemy in its sole discretion;
- v. will not and does not misrepresent the source of the Customer Inputs;
- vi. will not and does not disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to, proprietary or confidential information of others for which Customer does not have
the right or license to use and provide Alchemy the rights granted hereunder;
- vii. will not and does not misrepresent the Customer’s identity in any way;
- viii. will not and does not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal information; and
- ix. will not and does not advocate or encourage any illegal activity; and
- x. will not violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
FEES AND PAYMENT.
Fees. In consideration for the rights granted hereunder, Customer will pay to Alchemy the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Unless otherwise specified in any Order
Form, all invoices issued by Alchemy will be due and payable thirty (30) days after Customer’s receipt. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable
sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
Taxes. Customer will make all payments to Alchemy free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Alchemy will be Customer’s sole responsibility, and Customer will
provide Alchemy with official receipts issued by the appropriate taxing authority, or such other evidence as Alchemy may reasonably request, to establish that such taxes have been paid.
Confidential Information. Each party (the
“Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the
“Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed
orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances,
was considered confidential or proprietary by the Disclosing Party (
“Confidential Information”). For the avoidance of doubt, the Alchemy Cloud Services, Alchemy Technology, Alchemy System Analytics, and Alchemy Documentation constitute Confidential Information of Alchemy. Further, for the avoidance
of doubt, the Customer Inputs constitute Confidential Information Customer.
Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information
of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving
Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary
information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this
Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Article 6 (Confidentiality)
and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with
the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining
such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of
this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a
trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years
following the termination or expiration of this Agreement.
Exceptions. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully
known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through
no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the
Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its
rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such
required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic
copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will
certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law;
(b) pursuant to a mutually agreeable press release; or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs
a confidentiality agreement reasonably satisfactory to the other party to this Agreement.
Warranties by Both Parties. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized
and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations, and guidelines, including, without limitation, those
related to privacy and data security.
Alchemy Cloud Services Warranty. Alchemy represents, warrants and covenants that the Alchemy Cloud Services will include the functionality provided in the Alchemy Documentation.
7.3 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTIES) AND EXCEPT FOR THE PROFESSIONAL SERVICES WARRANTY SET FORTH IN SECTION 1.1 OF THE PROFESSIONAL SERVICES TERMS, ALCHEMY MAKES NO OTHER REPRESENTATIONS
OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE ALCHEMY CLOUD SERVICES, THE ALCHEMY DOCUMENTATION, THE ALCHEMY TECHNOLOGY, THE PROFESSIONAL SERVICES, OR OTHERWISE WITH RESPECT
TO THE SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTY, ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AS BETWEEN ALCHEMY AND CUSTOMER, THE BETA VERSIONS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND ALCHEMY SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, ASSOCIATED WITH THE BETA VERSIONS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY WARRANTY ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALCHEMY’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF
THE SERVICES TO SUPPLYING THE ALCHEMY CLOUD SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE ALCHEMY CLOUD SERVICES AGAIN.
Alchemy shall not be responsible for ensuring and does not represent or warrant that: (i) the Alchemy Cloud Services will meet Customer's business requirements; (ii) the Alchemy Cloud Services will be error-free or uninterrupted
or that the results obtained from its use will be accurate or reliable; or (iii) all deficiencies in the Alchemy Cloud Services can be found or corrected. Alchemy will not be responsible for: (a) any failure to meet the Alchemy Cloud
Services warranty of Section 7.4 caused by acts within the control of Customer or any User or interoperability of Customer infrastructure with the Alchemy Cloud Services; (b) loss or corruption of data; (c) the inability of Customer
to access or interact with any other service provider through the internet, other networks or users that comprise the internet or the informational or computing resources available through the internet; or (d) Force Majeure Events
(as defined in Section 11.8 below).
Alchemy Indemnity. Alchemy shall defend (at Alchemy’s expense), Customer and its officers, directors and employees from and against any third-party claims, suits, or proceedings (
“Claims”) brought against Customer or its officers, directors or employees by a third party contending that Customer’s use of the Alchemy Cloud Services in accordance with the Alchemy Documentation infringes any copyright or trade
secret rights of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Alchemy in settlement of the Claim. In the event that the Alchemy Cloud Services or any part thereof is likely
to, in Alchemy’s sole opinion, or do become the subject of an infringement related Claim, and Alchemy cannot, at its option and expense, procure for Customer the right to continue using the Alchemy Cloud Services, or any part thereof,
or modify the Alchemy Cloud Services, or any part thereof, to make them non infringing, then Alchemy may terminate this Agreement with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired
portion of the remaining subscription term. Alchemy shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Alchemy Cloud Services is the basis of the Claims; (ii)
the use or combination of the Alchemy Cloud Services or any part thereof with software, hardware, or other materials not developed by Alchemy if the Alchemy Cloud Services or use thereof would not infringe without such combination; (iii)
modification of the Alchemy Cloud Services by a party other than Alchemy, if the use of unmodified Alchemy Cloud Services would not constitute infringement; (iv) a breach by Customer of any obligation under this Agreement or a use of
the Alchemy Cloud Services by Customer or any User in a manner outside the scope of any right granted herein or not in accordance with the Alchemy Documentation if the claim would not have arisen but for such breach or unauthorized use;
(v) an allegation made against Customer arising out of or related to the Beta Versions, open source software, or Customer Inputs; or (vi) an allegation made against Customer prior to the execution of this Agreement or any allegation
based upon any action by Customer prior to the execution of this Agreement.
The foregoing states Alchemy’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.
Customer Indemnity. Customer shall defend, indemnify and hold Alchemy, its affiliates, employees, officers, and directors harmless from and against any loss or damage (including reasonable attorneys' fees) incurred in connection
with Claims (i) made or brought against Alchemy by a third party alleging that the Customer Inputs infringes the intellectual property rights of, or has otherwise harmed, a third party; (ii) based upon any User’s use of the Alchemy Cloud
Services not in accordance with the terms hereof or not in accordance with the Alchemy Documentation or violation of 4.2 (Use Guidelines), 4.3 (Restrictions) or 4.4 (Customer Input Restrictions); or (iii) based on any failure or alleged
failure of the Customer to comply with any applicable law, rule or regulation in connection with its use of the Alchemy Cloud Services for Customer’s business.
Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such
defense at the indemnifying party’s expense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in
a manner that admits guilt or otherwise prejudices the indemnified party, without the indemnified party’s prior written consent.
LIMITATION OF LIABILITY.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH
CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS,
LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER
ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION
OF THE PARTIES.
Exclusions. The foregoing limitations shall not apply to (i) amounts payable by Customer to Alchemy under an Order Form or Statement of Work, (ii) liability arising from the indemnification obligations in Section 8, (iii) damages
arising from a breach by Customer of Section 3.1, 3.2, 3.3, or 4, (iv) damages arising from misappropriation of a party’s Intellectual Property Rights; or (iv) damages arising from a party’s gross negligence or willful misconduct.
Savings Clause. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience
suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
Limitation of Action. To the maximum extent permitted by applicable law and except for actions for non-payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement
may be commenced by either party more than one (1) year after the cause of action has accrued.
Allocation of Risk. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its
TERM AND TERMINATION.
Term. The term of this Agreement will commence on the Effective Date and remain in effect until all Order Forms and Statements of Work have terminated or expired or until earlier termination of this Agreement as provided in this
Section 10 (the
“Term”). The term for each Order Form and Statement of Work shall be as set forth therein. Upon termination of this Agreement for any reason, all Order Forms and Statements of Work shall immediately terminate.
Termination. This Agreement and any Order Form or Statement of Work may be terminated:
- (a) by Customer (i) in accordance with Section 2.3 by providing written notice to Alchemy within thirty (30) days of any modification to the Alchemy Cloud Services which materially and adversely reduces the functionality of the Alchemy
- (b) by Alchemy if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from Alchemy of such failure (whether or not Alchemy avails itself
of its right to suspend Services pursuant to Section 10.4 hereof); or
- (c) by either party (the
“Non-breaching Party”) effective immediately upon written notice containing an explanation of the alleged breach to the other party (the
“Breaching Party”), if the Breaching Party breaches any provision of this Agreement, and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.
Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other, in the event (a) that the other party becomes insolvent or unable to pay its debts
when due; (b) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other party discontinues its business;
or (d) a receiver is appointed or there is an assignment for the benefit of the other party’s creditors. Upon termination of the Agreement by Customer due to Alchemy’s bankruptcy or insolvency, Alchemy shall refund to Customer any pre-paid
fees previously paid by Customer for services not performed as of the date of termination.
Suspension of Services. At any time during the Term, Alchemy may, immediately upon notice to Customer, suspend its performance under this Agreement and any Order Form or may suspend any and all Users’ access to the Alchemy Cloud
Services, in Alchemy’s sole reasonable discretion, including, without limitation, for any of the following reasons: (a) a reasonable threat to the technical security or technical integrity of the Alchemy Cloud Services exists as determined
by Alchemy in its sole and absolute discretion; provided that Alchemy promptly recommences performance upon the cessation of the threat, or (b) if any amount due under this Agreement is not received by Alchemy within fifteen (15) days
after it was due and Alchemy provided written notice of same.
Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Alchemy prior to the effective date of termination. In the event of termination by Customer pursuant to Section 10.2(a),
10.2(c), or 10.3, promptly after the effective date of such termination, Alchemy shall refund to Customer on a pro-rata basis any prepaid fees paid by Customer for the remainder of the then current subscription term under the terminated
Order Forms and any terminated Statement of Work. In the event of termination by Alchemy pursuant to Section 10.2(b) 10.2(c) or 10.3, all amounts payable by Customer under this Agreement and all Order Forms and Statements of Work will
become immediately due and payable.
Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the Alchemy Cloud Services will immediately terminate, Customer and its Users
will immediately cease all use of the Alchemy Cloud Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Alchemy
may destroy any Customer Inputs in its possession or control unless Alchemy receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer
of the then most recent back-up of the Customer Inputs. Alchemy will use all reasonable efforts to deliver the back up to Customer within thirty (30) days of its receipt of such a written request. Also upon expiration or termination
of this Agreement, Alchemy will cease use of the Customer’s name, logo, and trademarks (
“Customer Marks”); provided, however, that (a) Alchemy will have a reasonable time to remove the Customer Marks from promotional materials, and (b) Alchemy will not be required to remove any printed materials from circulation. Without
limiting the generality of the foregoing, Customer’s right to use the Alchemy Cloud Services under a particular Order Form is based upon the terms and conditions of that Order Form in addition to the terms and conditions of this Agreement.
Accordingly, upon the expiration or termination of an Order Form, Customer’s (and its Authorized Users’) right to use the Services under that Order Form will also terminate.
Survival. Sections 1, 3.5(b), 3.6, 5, 6, 7.4, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require
the application of the law of a different state. Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the State of California. The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this Agreement.
Export; Anti-Corruption. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Alchemy Cloud Services. Without limiting the foregoing, (i)
each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Alchemy Cloud Services in violation of any U.S.
export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Alchemy’s employees or agents in connection
with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts
to promptly notify Alchemy.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified
so that it is valid and enforceable to the maximum extent permitted by law.
Waiver; Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein,
the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms and Statements of Work executed hereunder, constitute the entire agreement between
the parties as to its subject matter, and supersede all previous and contemporaneous agreements, (including without limitation any nondisclosure agreements previously executed by the parties), proposals or representations, written or
oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement
except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made
fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery
of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Alchemy with respect to future functionality or features for the Alchemy Cloud
Services. In the event of any conflict between the provisions in this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions stated in a Customer purchase
order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Attorney’s Fees. Customer shall pay on demand all of Alchemy’s reasonable attorney fees and other costs incurred by Alchemy to enforce this Agreement or to collect any fees or charges due to Alchemy under this Agreement following
Customer’s breach of its payment obligations under this Agreement or any Order Form.
No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment,
subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including
without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of
materials, fire, earthquake, flood, or any other event beyond the control of such party (“Force Majeure Events”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such
delay and to resume performance as soon as possible.
Independent Contractors. Alchemy’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has,
any authority to act on behalf of the other.
Notices. All notices under this Agreement shall be in writing. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage
prepaid, (iv) by facsimile or (v) by electronic mail to the address of the party specified in this Agreement or an Order Form. All notices shall be effective upon (i) receipt by the party to which notice is given, (ii) the second (2nd)
day following sending by electronic mail or facsimile, or (iii) on the fifth (5th) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party.
Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically
signed copy of this Agreement, any Order Form or any Statement of Work delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the
Agreement, the Order Form or Statement of Work.
- a. Subject to the restrictions in this Section 11.12 (Modifications), Alchemy may modify these Terms, the Professional Services Terms, and the Service Level Agreement. If Alchemy modifies these Terms, the Professional Services Terms,
and the Service Level Agreement, it will provide prior written notice (
“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. Notwithstanding the previous sentence, Alchemy may not provide prior notice if modifications are necessary
to comply with applicable laws, rules, regulations or guidelines but will use commercially reasonable efforts to provide prior notice when practicable. If the modifications materially and adversely affect Customer, and Customer does
not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Alchemy Cloud Services or Professional Services, as applicable, by written notice to Alchemy within the 30-day period following
the date of the Modification Notice, subject to the terms of this Section 11.12 (Modifications).
- b. If the Modification Notice states that the modifications will become effective upon commencement of a renewal Subscription Term, then the modifications will become effective for all Alchemy Cloud Services or Professional Services,
as applicable, affected by the changes upon renewal of the applicable Subscription Term. Customer may avoid the applicability of the changes only by cancelling the renewal of the SubscriptionTerm prior to the commencement of the
renewal Subscription Term.
- c. If the Modification Notice states that the modifications will become effective during the then-current Subscription Term, then Customer may terminate Customer’s subscription to the affected Alchemy Cloud Service or Professional
Services, as applicable, at any time within the 30-day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (i) the date on which Customer delivers the termination
notice, or (ii) the date on which the applicable modifications become effective; provided, that in each instance Alchemy shall provide Customer with a data file in an industry standard form of the Customer Inputs as of the date of
termination. If Customer terminates an Alchemy Cloud Service subscription pursuant to this Section 11.12(c), then Alchemy shall refund Customer a pro rata amount of any prepaid Alchemy Cloud Service subscription fees applicable to
the unused portion of the Subscription Term for the terminated Alchemy Cloud Services (excluding any activation or other one-time fees).
- d. If Customer does not terminate the affected Alchemy Cloud Service subscription as specified in this Section 11.12 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in
the Modification Notice.
Federal Government End Use Provisions. Alchemy provides the Alchemy Cloud Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical
data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data)
and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Alchemy Documentation). If
a government agency has a need for rights not conveyed under these terms, it must negotiate with Alchemy to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically
conveying such rights must be included in any applicable contract or agreement.
Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references
to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified
with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation
or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly
interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.