Please note that our Terms of Service were updated on March 3, 2021, 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 3, 2021.
These 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.
1. DEFINITIONS. As used in this Agreement:
1.1 “Access Credentials” mean login information, passwords, security protocols, and policies through which Users and Collaborators access and use the Alchemy Cloud Services as permitted herein.
1.2 “Admin User” means the uniquely identified employees and/or contractors of Customer for which Customer has purchased an Admin User subscription to the Alchemy Cloud Service to enable such Admin Users to access and use of the Admin Portal and who have been assigned Access Credentials and for which Customer has paid the applicable fees.
1.3 “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.
1.4 “Alchemy API Specification” means a written description or definition of the APIs, routines, classes, function parameters, protocols, webhooks, related libraries and other instructions that allow a Third Party Service and/or Supported Equipment to interoperate with the Alchemy Cloud Services.
1.5 “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 define User and Collaborator entitlements, which materials are made available to Customer by Alchemy from time to time during the Term.
1.6 “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.
1.7 “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.
1.8 “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.
1.9 “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, APIs, API Specifications, Connectors, 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.
1.10 “API” means a collection of routines, classes, function parameters, protocols, webhooks, related libraries and other instructions provided in source code or object code form.
1.11 “API Limits” means the rate limits applicable to API calls to the Alchemy Cloud Services, which API Limits are as set forth in the Alchemy API Specifications.
1.12 “Authorized User” means the uniquely identified employees and/or contractors of Customer for which Customer has purchased an Authorized User subscription to the Alchemy Cloud Service to enable the Authorized User to access and use the User Portal and who have been assigned Access Credentials and for which Customer has paid the applicable fees.
1.13 “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.
1.14 “Connectors” means the object code version of any components, connecters, middleware or other code made available by Alchemy to enable the Alchemy Cloud Services to connect to Third Party Services or Supported Equipment, including all Updates to Connectors provided by Alchemy to Customer.
1.15 “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.
1.16 “Collaborator” means a (i) person that Customer desires to access certain portions of Customer’s Alchemy Cloud Services account for the sole purposes of viewing, printing, or downloading certain Customer Inputs and results generated through Customer’s use of the Alchemy Cloud Service or providing feedback on such Customer Inputs and (ii) who have registered with Alchemy and have been assigned Access Credentials.
1.17 “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.
1.18 “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 and which sets forth the number of Authorized Users, Admin Users, and Workflows, the applicable subscription fees and other information relevant to Customer’s access and use of the Alchemy Cloud Service and entitlements.
1.19 “Supported Equipment” means any hardware, instruments, or other devices or equipment for which Alchemy makes available Connectors.
1.20 “Third Party Services” means any software, software-as-a-service, data sources or other products or services separately procured by Customer from a third party that are integrated with the Alchemy Cloud Services by Customer or by Alchemy including without limitation through use of the Alchemy APIs.
1.21 “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 updates to Connectors and new features and/or functionality for the Alchemy Cloud Services, for which Alchemy reserves the right to charge an additional fee if Customer elects to engage Alchemy to update Connectors or activate such new features and/or functionality of the Alchemy Cloud Services, as applicable.
1.22 “User” means Admin Users and Authorized Users.
1.23 “User Portal” means the interface of the Alchemy Cloud Services that Users and their Collaborators are able to access.
1.24 “Workflow” means the number of processes that a User is permitted to create and manage within the Alchemy Cloud Service.
2. ALCHEMY CLOUD SERVICES
2.1 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.
2.2 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.
2.3 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.
2.4 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.
2.5 Third Party Services and Supported Equipment. The Alchemy Cloud Services may support or include connections with certain Third Party Services and Supported Equipment, referred to as “Connectors”. Such Connectors may be developed or made available by Alchemy for an additional fee or may be developed by Customer through APIs provided by the Third Party Services or through use of Alchemy’s APIs for the Alchemy Cloud Services or, for Supported Equipment, or device drivers provided by the manufacturer of the Supported Equipment. In order for the Alchemy Cloud Services to communicate with such Third Party Services, Customer may be required to input credentials to authorize the Alchemy Cloud Services to connect to Customer’s account with the Third Party Services in order to transmit and receive information and data from such Third Party Services as directed or enabled by Customer. Customer is solely responsible for complying with the Alchemy Cloud API Specifications and any relevant terms and conditions of the Third Party Services and maintaining appropriate accounts in good standing with the providers of the Third Party Services. Customer acknowledges and agrees that Alchemy is not the provider of the Third Party Services or Supported Equipment and has no responsibility or liability for any Third Party Services or Supported Equipment, including without limitation the availability of any Third Party Services or Supported Equipment, for any damage or loss caused or alleged to be caused by or in connection with Customer’s or its Users’ enablement, access or use of, any Third Party Services or Supported Equipment, or for any Customer Inputs exported to a Third Party Service or for verifying any Customer Inputs that Customer imports from a Third Party Service. If the Third Party Services APIs or the Supported Equipment device drivers change or are no longer made available by the provider of the Third Party Services or Supported Equipment, as the case may be, the Connectors which enable connections between the Alchemy Cloud Services and the Third Party Services and/or Supported Devices, as the case may be, may stop working, without entitling Customer to a refund, credit or other compensation. In the event of a change to the Third Party Services APIs or Supported Equipment device drivers, if Customer has developed the Connector to the Alchemy Cloud Services, Customer shall be solely responsible for making any necessary updates to its Connector to re-enable the connection to the Alchemy Cloud Services. If Alchemy has developed the Connector to the Alchemy Cloud Services, Customer agrees to provide Alchemy with as much advance notice as possible of a change in the Third Party Services APIs and any Supported Devices device drivers, but in any event at least ninety (90) days prior notice, and if Alchemy deems it reasonable to re-enable the connection, the parties will negotiate in good faith a Statement of Work for Professional Services pursuant to Section 2.4 whereby, subject to execution of the Statement of Work, Alchemy will undertake commercially reasonable efforts to deploy an Update to the Connector to re-enable the connection to the Third Party Services and/or Supported Equipment, as the case may be, in consideration of Customer’s payment of the associated fees for such Professional Services mutually agreed to by the parties in the Statement of Work and subject to any necessary changes in the associated API Limits.
2.6 Trial Period. If Customer orders a trial subscription to the Alchemy Cloud Services, Alchemy will make the Alchemy Cloud Services available to Customer on a trial basis (the “ Trial”) until the end of the trial period ordered by Customer set forth on the corresponding Order Form (“Trial Period"). During Trial Period, Customer may only use the Alchemy Cloud Services to review, demonstrate, and evaluate the Alchemy Cloud Services. Access to Alchemy Cloud Services will cease after the applicable Trial Period has expired and Customer must stop use at the end of the Trial Period. Additional trial terms and conditions may appear on the Order Form for the Trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. During a Trial Period, Customer shall not use the Alchemy Cloud Services for any purpose other than the sole purpose of determining whether to subscribe to Alchemy Cloud Services for a longer period of time. DURING A TRIAL PERIOD, THE ALCHEMY COULD SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY. FURTHER, SECTIONS 7.2 AND 8.1 OF THIS AGREEMENT SHALL NOT APPLY TO A TRIAL. ANY DATA CUSTOMER ENTERS INTO THE ALCHEMY CLOUD SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE ALCHEMY CLOUD SERVICES BY OR FOR CUSTOMER, DURING A TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME ALCHEMY CLOUD SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED ALCHEMY CLOUD SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
3. ACCESS GRANT; LICENSES; OWNERSHIP
3.1 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, (b) Users to access and use Beta Versions for the purpose of evaluating the features and functionality of the Beta Versions, and (c) Collaborators to access Customer’s account to the Alchemy Cloud Service for the sole purposes of viewing, printing, downloading or providing feedback on Customer Inputs as configured by Customer for each Collaborator. 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. In providing such access to Collaborators pursuant to Section 3.1(c), (i) Customer acknowledges that Collaborators will be required to register with Alchemy Cloud and will be assigned Access Credentials, (ii) Customer may not act as “Managed Service Provider”, “Service Bureau”, “Reseller” or other entity with a similar business model, (iii) Collaborators may not use or access Alchemy Cloud Services for any other purposes except as expressly permitted in Section 3.1(c) or as authorized in the Documentation, and (iv) Customer shall be solely responsible for its relationships with Collaborators and shall be liable for all acts and omissions of Customer’s Collaborators.
3.2 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.
3.3 Users; Collaborators; Workflows. The number of Users who are permitted to access and use the Alchemy Cloud Services pursuant to the access grants set forth herein, and the number of Workflows for such Users are 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 and provision the number of Workflows assigned to each User. Collaborators will be required to register with Alchemy prior to obtaining access to Customer’s account. Customer may increase the number of Users and/or Workflows per User at any time during the term of an Order Form by making a written request to Alchemy, and upon mutual written agreement to an expansion Order Form to add such additional Users and/or Workflows per User to Customer’s subscription and Customer’s payment of the applicable fees in accordance with the Order Form, the number of Users and Workflows will be increased for the remainder of the term of the Order Form. The number of Users and/or Workflows per User, as applicable, may not be decreased during a Subscription Term. Customer will ensure that all its Users and Collaborators 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 or Collaborator’s access to the Alchemy Cloud Services upon notice to Customer in the event Alchemy reasonably determines that such User or Collaborators has violated any terms of this Agreement. Customer will at all times be responsible for all actions taken under Customer’s account or using any of its Access Credentials, whether such action was taken by a User, Collaborator, or by another party, and whether such action was authorized by Customer.
3.4 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.
3.5 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 INPUTS.
3.6 Alchemy APIs and Alchemy API Specifications. If Customer’s Order Form includes a subscription to Alchemy’s APIs, Alchemy grants Customer a worldwide, revocable, non-exclusive license, to use the Alchemy APIs and the Connectors in accordance with the Alchemy API Specifications for the sole purposes of facilitating the interoperability of the Alchemy Cloud Services with Third Party Services and Supported Equipment and subject to Customer’s adherence to the API Limits. Customer agrees it will not directly or indirectly attempt to circumvent any such API Limits. Customer acknowledges and agrees that all of the restrictions set forth in this Agreement that apply to the Alchemy Cloud Services also apply to the Alchemy APIs and the Connectors. Alchemy may limit the number and/or frequency of API requests to the Alchemy Cloud Services, or any use of the Alchemy APIs or Connectors that could damage, disable, overburden, impair or otherwise interfere with the Alchemy Cloud Services.
3.7 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.
3.8 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.
3.9 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 at its own expense a Customer-approved 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.
4. CUSTOMER RESPONSIBILITIES
4.1 Access Credentials. Users and Collaborators will receive Access Credentials to access the Alchemy Cloud Services. These Access Credentials are granted to individual, named persons and may not be shared. Each access right may be further specified in the Documentation and on the applicable Ordering Document as “Admin User”, “Authorized User” or “Collaborators”, and the technical capabilities available to each type of access right within the Alchemy Cloud Services shall be as set forth in the Documentation. Customer will safeguard, and require that all Users and Collaborators 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 and Collaborators. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Users or Collaborators 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 or Collaborators, 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 or Collaborators, changing passwords, or requesting additional information to authorize activities related to Customer’s account. Subscriptions to the Alchemy Cloud Services may be permanently reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of a single subscription between multiple Users or Collaborators.
4.2 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 and Collaborators will, use the Alchemy Cloud Services subject to the limited access rights granted in this Agreement and 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 distribute malware.
4.3 Restrictions. Customer will not directly or indirectly: (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.
4.4 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.
5. FEES AND PAYMENT
5.1 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.
5.2 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.
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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.
7.1 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.
7.2 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).
8.1 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.
8.2 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.
8.3 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.
9. LIMITATION OF LIABILITY
9.1 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.
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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 liability.
10. TERM AND TERMINATION
10.1 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.
10.2 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 Cloud Services;
(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.
10.3 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.
10.4 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.
10.5 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.
10.6 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 Users’) right to use the Services under that Order Form will also terminate.
10.7 Survival. Sections 1, 3.5(b), 3.7, 3.8, 5, 6, 7.3, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 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.
11.6 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.
11.7 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.
11.8 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.
11.9 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.
11.10 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.
11.11 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.
11.13 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.
11.14 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.
Service Level Agreement
March 15, 2019
This Alchemy Service Level Agreement (“Service Level Agreement”) outlines the service level performance targets applicable to the Alchemy Cloud Services. For the avoidance of doubt, this Service Level Agreement does not apply to Beta Versions. This Service Level Agreement is subject to the Terms of Service and all defined terms used herein shall have the meaning accorded to such terms in the Terms unless otherwise defined herein.
1.1 “Downtime” means that the Alchemy Cloud Services are offline and unavailable for the Customer’s use. Downtime excludes downtime and unavailability resulting directly or indirectly from any Service Level Exclusion.
1.2 “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes in the calendar month. The applicable formula is:
Monthly Uptime Percentage = (Total Minutes in Month) – (Total Minutes of Downtime) / (Total Minutes In Month)) X 100
For any partial calendar month during which the applicable Customer has access to the Alchemy Cloud Services, the Monthly Uptime Percentage shall be calculated based on the entire calendar month, not just the portion for which the Customer has access to the Alchemy Cloud Services. The determination of whether the Alchemy Cloud Services is available will be made in good faith by Alchemy based on monitoring performed by Alchemy.
1.3 “Service Level Credit” means the credit provided by Alchemy in accordance with Section 2 (Subscription Service Availability and Credits) below.
1.4 “Service Level Exclusions” Downtime does not include unavailability, suspension or termination of the Alchemy Cloud Services that result from: (a) termination or suspension of the Alchemy Cloud Services described in Section 10.4 (Suspension of Services) of the Terms of Service; (b) factors outside of Alchemy’s reasonable control, including force majeure events, denial of service attacks, or Internet access or related problems beyond the demarcation point of Alchemy and its third-party hosting providers; (c) any actions or inactions of Customer or any third party; (d) Customer infrastructure, equipment, software or other technology and/or third party equipment, software or other technology or Customer’s use of the Alchemy Cloud Services in a manner inconsistent with the Documentation; (e) any scheduled or emergency maintenance of the Alchemy Cloud Services; (f) Alchemy’s suspension and termination of a Customer’s right to use the Alchemy Cloud Services in accordance with the Agreement; or (g) license restrictions or other limitations as set forth in each Order Form.
2. Subscription Service Availability and Credits
2.1 Service Levels. Alchemy will use commercially reasonable efforts to make the Alchemy Cloud Services available with a Monthly Uptime Percentage of at least 99.5% during any calendar month (the “Availability Service Level”). In the event Alchemy does not meet the Standard Availability Service Level (a “Service Level Failure”), Customer will be eligible to receive a Service Level Credit as described below.
2.2 Calculation of the Credit. Service Level Credits are calculated by multiplying (x) the applicable Service Level Credit Percentage by (y) the product of the total annual Subscription Fees (as defined in an Order Form) actually paid by Customer to Alchemy for the Alchemy Cloud Services under an affected Order Form divided by twelve (12) months.
2.3 Maximum Service Level Credit. The Service Level Credits awarded in any month shall not, under any circumstance, exceed thirty percent (30%) of the total Subscription Fees actually paid by Customer to Alchemy for access to the Alchemy Cloud Services under the affected Order Form for the affected month.
3. Service Level Credit Request and Payment Procedures
3.1 Requesting a Service Level Credit. To receive a Service Level Credit, Customer must submit a claim by email to SLAcredit@alchemy.cloud (a “Service Level Credit Request”). To be eligible, the Service Level Credit Request must be received by Alchemy within thirty (30) days of the occurrence of the Service Level Failure and must include: (a) the words “Service Level Credit Request” in the subject line; and (b) the dates and times of each Service Level Failure that Customer is claiming, including the dates and times of the Downtime that caused the Service Level Failure.
3.2 Issuance of Service Level Credits. If the Monthly Uptime Percentage of such request is confirmed by Alchemy and is less than the applicable Availability Service Level, then Alchemy will issue the Service Level Credit to Customer within thirty (30) days following the month in which Customer’s request is confirmed by Alchemy. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Level Credit. Alchemy will notify Customer of the amount of any Service Level Credit, which shall be applied against future amounts owed by Customer. Service Level Credits will not entitle Customer to any refund or other payment from Alchemy. Service Level Credits are not payable in cash and will only be applied against future amounts owed by Customer to Alchemy.
3.3 Sole and Exclusive Remedy. The Service Level Credit is Customer’s sole and exclusive remedy and Alchemy’s sole and exclusive liability for any Downtime, unavailability, non-performance, or other failures by Alchemy to provide the Alchemy Cloud Services.
Professional Services Terms
March 15, 2019
Please note that our Professional Services Terms were updated on March 15, 2019, and that the updated terms will apply to your purchase of Alchemy Cloud, Inc. (“Alchemy”) professional services made after March 15, 2019.
These Professional Services Terms, together with the Terms of Service any applicable Order Form(s) and applicable Supplemental Terms (collectively, the “Agreement”) constitute a binding agreement between Alchemy and Customer (each, a “Party”) under which Alchemy provides Customer Professional Services. Customer accepts and agrees to be bound by these Professional Services Terms by executing an Order Form and/or Statement of Work that references these Professional Services Terms or by receiving the Professional Services.
1. PROFESSIONAL SERVICES
1.1 Professional Services. Subject to the terms and conditions set forth in these Professional Services Terms, Alchemy will use commercially reasonable efforts to perform the services set forth in all Order Forms and Statements of Work (as defined below) subsequently executed by the parties (the “Professional Services”). Each Order Form and Statement of Work shall incorporate by reference these Professional Services Terms. Alchemy will perform the Professional Services in a professional and workmanlike manner in accordance with professional industry standards of quality and integrity. As Customer’s sole remedy and Alchemy’s sole liability for any breach of the foregoing warranty, Alchemy will reperform any nonconforming Professional Services without charge. Other than the applicable fees set forth in the Order Form and/or Statement of Work, as applicable, and any applicable Change Order or amendment to the Order Form and/or Statement of Work, as applicable, no additional cost or expense shall be required of Customer in order for Alchemy to be able to provide the Professional Services as required under the Order Form and/or Statement of Work, as applicable.
1.2 Issuance of Statements of Work. Customer may request and propose in writing that Alchemy perform certain Professional Services, and one or both parties, as determined by Alchemy, in its sole discretion, will prepare either (a) an Order Form or (b) a draft work statement in response thereto (each, a “Statement of Work”). All Order Forms and Statements of Work for Professional Services will reference these Professional Services Terms and will set forth: (i) the scope of the Professional Services, and to the extent possible, the applicable deliverables to be provided by Alchemy thereunder; (ii) any applicable timeline and (iii) the applicable fees payable by Customer to Alchemy for the Professional Services to be provided by Alchemy thereunder. No Order Form or Statements of Work, regardless of whether it relates to the same subject matter as any previously executed Order Forms or Statements of Work, will become effective, and Alchemy will have no obligation to perform any Professional Services proposed thereunder until executed by authorized representatives of both parties.
1.3 Change Orders. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Order Form or Statement of Work by delivering a written request to Alchemy signed by a Customer representative, specifying the desired modifications (a “Change Request”). Alchemy will, within a reasonable time following receipt of a signed Change Request, submit to Customer a written: (i) detailed description of the requested modifications agreed to by Alchemy; (ii) estimate of the fees for the requested modifications agreed to by Alchemy; and (iii) revised estimate of the time for performance of the Professional Services pursuant to the Order Form or Statements of Work (collectively, a "Change Order"). No Change Order will become effective, and Alchemy will have no obligation to perform the Professional Services as modified by the Change Order, until executed by authorized representatives of both parties.
1.4 Delays. If either party is aware or becomes aware, of a delay that will prevent Alchemy from meeting any scheduled milestone, such party will promptly inform the other in writing of the delay and the reason, therefore. If such delay is caused by Customer, the project schedule will automatically be deemed extended for the applicable service or deliverable and all subsequent services or deliverables, if and to the extent necessitated by the original delay. If such delay is caused by Alchemy, Alchemy will use proactive and reasonable efforts to complete the delayed service or deliverable.
2.1 Suitability. Alchemy will assign employees and consultants with qualifications suitable for the work described in the relevant Order Form or Statement of Work, as applicable. Alchemy may replace or change employees and consultants in its sole discretion with other suitably qualified employees or consultants. Should Customer be reasonably dissatisfied with the performance of an Alchemy employee or consultant, Customer may request the replacement of that person; provided, however, before Alchemy shall be required to remove such individual, Alchemy shall have a reasonable opportunity to remedy such situation to the reasonable satisfaction with the Customer.
2.2 Customer Responsibilities. Customer will make available in a timely manner, at no charge to Alchemy, all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources required by Alchemy, as well as all office space, services and equipment (such as copiers and broadband Internet access) as Alchemy reasonably requires to perform the Professional Services. Customer will be responsible for and assumes the risk of, any problems resulting from the content, accuracy, completeness, consistency, facilitation, or provision thereof to Alchemy by Customer.
2.3 Configuration Information. Customer will name a subject matter expert and business owner for every team and the Customer’s SMEs will provide to Alchemy, per a mutually agreed to timeline, the information required for Alchemy to perform the Professional Services and deploy the Alchemy Cloud Services. This information will include but not be limited to processes to be digitized, the workflows of these processes including the logic to get from step to step, forms to be digitized, tests to be digitized, data to be captured. Additionally, the Customer’s business owner will provide the names and emails of all users, access rights and permissions for each user and for each team and such other information reasonably required by Alchemy to configure and deploy the Alchemy Cloud Services.
3. FEES AND PAYMENTS. In consideration of the Professional Services, Customer will pay, and Alchemy will be compensated at, the rates outlined in the applicable Order Form or Statement of Work. If mutually agreed and provided for in the applicable SOW, Customer will also reimburse Alchemy for: (i) all reasonable travel and living expenses incurred by Alchemy’s employees and contractors for travel from Alchemy’s offices; and (ii) any other expenses agreed to as part of the applicable Order Form or Statement of Work. Except as provided above, each party will be responsible for its own expenses incurred in rendering performance under each Order Form and Statement of Work, including without limitation the cost of infrastructure, facilities, workspace, computers and computer time, development tools and platforms, utility management, personnel, supplies and the like.
4.1 Unless otherwise stated in the applicable Order Form or Statement of Work or Change Order, each term thereof will last until performance thereunder is completed. Upon such termination: (i) Alchemy will wind up and preserve their work in a commercially reasonable manner; (ii) subject to Customer’s payment of all fees due and payable for Professional Services, Alchemy will collect and deliver all work in progress, provided that Alchemy will have no obligation to transfer to Customer, unless otherwise expressly agreed to in writing by the parties, any Confidential Information or Intellectual Property Rights of Alchemy related to the Professional Services provided hereunder; and (iii) Alchemy will inform Customer of the extent to which performance hereunder has been completed through the date of termination. Customer will pay Alchemy all amounts due and payable for Professional Services performed through the date of termination.
4.2 Survival. The provisions of Sections 3 through 5 will survive the expiration or termination of an Order Form or Statement of Work for Professional Services.
5. PROPRIETARY RIGHTS
5.1 Work Product. The term “Work Product” means any original software, documentation, reports, designs, specifications, works of authorship and data that are created by Alchemy personnel in the course of Alchemy’s performance of the Professional Services, including original computer software, algorithms and related documentation created under and to be delivered pursuant to an Order Form or Statement of Work. Unless otherwise set forth in a Statement of Work, all Work Product, and all Intellectual Property Rights in the Work Product, will be owned by Alchemy. Subject to Customer’s payment of all applicable fees for the Professional Services, Alchemy grants Customer a royalty-free, non-exclusive, nontransferable, revocable, limited license for the Term of the Agreement to use the Work Product solely with the Alchemy Cloud Services.
January 28, 2020
Welcome to www.alchemy.cloud (and any variations of or successors to this website, collectively, the " Site") a website operated by Alchemy Cloud, Inc. (" Alchemy", " we", " us", or " our"). We offer digital solutions for the global chemical industry.
These Terms are subject to revision. If we make any material changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and / or by prominently posting notice of the changes on our Site. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. We encourage you to periodically review these Terms to be informed with respect to your and Alchemy’s rights and obligations with respect to the Site. Continued use of our Site following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the new, modified Terms.
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SITE YOU AGREE TO BE BOUND BY THESE TERMS AND ANY OTHER POSTED GUIDELINES OR RULES APPLICABLE TO THE SITE OR ANY PORTION OF THE SITE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE. YOU ALSO AGREE TO THE USE OF ELECTRONIC COMMUNICATIONS (WE DON'T USE PAPER) IN ORDER TO ENTER INTO THIS AGREEMENT AND TO THE ELECTRONIC DELIVERY OF NOTICES AS DESCRIBED BELOW.
2. OTHER SERVICES. Alchemy may, from time to time, establish separate registration procedures and separate terms and conditions, terms of service, user agreements, or similar legal agreement/s for certain of its software as a service solution "Alchemy Cloud Services" which is governed by the Terms of Service between you and/or your employer and Alchemy.
3. OWNERSHIP; FEEDBACK; YOUR CONTENT. You understand and acknowledge that the Site and the information, materials, tools, libraries, software development kits, software code and associated documentation made available through the Site (collectively, the "Alchemy Property") are: (i) copyrighted by us and / or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Except as expressly provided in our documentation, Alchemy Property may not be copied, modified, reproduced, republished, displayed posted, transmitted, sold, offered for sale, or redistributed in any way, and you may not make any derivative works of Alchemy Property, without our prior written permission. You must abide by all copyright notices, information, or restrictions contained in or attached to any of the Alchemy Property. Certain of the names, logos, slogans and other materials displayed on the Site constitute trademarks, tradenames, service marks or logos (" Marks") of Alchemy or other entities. You are not authorized to use any such Marks without our written consent. Ownership of all such Marks and the goodwill associated with them remains with us or those other entities.
4. GENERAL RULES OF CONDUCT. You agree you will not:
Use, reproduce, duplicate, copy, sell, resell or exploit any portion of the Alchemy Property, for any purpose other than that for which the Alchemy Property is being provided to you and subject to any applicable licenses;
Use the materials made available through the Site for any purpose other than for use with the Alchemy Cloud Services governed by the Terms of Service;
Conduct or promote any illegal activities while using the Site;
Attempt to reverse engineer or jeopardize the correct functioning of the Alchemy Property, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Alchemy Property;
Attempt to gain access to secured portions of the Site to which you do not possess access rights;
Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
Use the Site to stalk, harass or harm another individual; use any high volume automatic, electronic or manual process to access, search or harvest information from the Site (including without limitation, robots, spiders or scripts);
Interfere in any way with the proper functioning of the Site or interfere with or disrupt any servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
Use any robot, spider, other automatic device, or manual process to extract, "screen scrape", "monitor", "mine", or copy any static or dynamic web page on the Site, or any content contained on any such web page for commercial use without our prior express written permission;
Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
Mirror or frame the Site or any content made available through the Site, place pop-up windows over its pages, or otherwise affect the display of the Site pages.
5. MODIFICATIONS; TERMINATION. We reserve the right to modify the Site from time to time, including without limitation modifying the information, materials, software development kits and software code made available through the Site, if any. If you object to any such changes, your sole recourse will be to cease access to the Site. Continued access to the Site following notice of any such changes will indicate your acknowledgement of such changes and satisfaction with the Site as so modified. You agree that we, in our sole discretion, may immediately terminate your access to the Site at any time, for any reason. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY MODIFICATIONS TO THE SITE OR FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE.
6. THIRD PARTY SERVICES, CONTENT AND OTHER WEBSITES. Content, software or services provided by third parties may be made available to you through the Site. Your use of any third party content, software or services is governed by the terms of the applicable provider, not these Terms. By accessing third party content, software or services, you agree to comply with the applicable terms and acknowledge, that you, and not Alchemy, are party to such terms. In addition, the Site may contain links to websites, content and services not operated by us. Your use of such websites, content and services is subject solely to the terms of the agreements between you and such third party.
In all cases, Alchemy is not responsible for the accuracy, legality, currency, suitability or quality of services, content, products, materials, or practices (including privacy practices) of such third parties. We assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH THE WEBSITES, CONTENT, MATERIALS OR PRACTICES OF ANY THIRD PARTY.
7. DISCLAIMER OF WARRANTIES. THIS SITE AND ALL CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ARE PROVIDED BY ALCHEMY "WITH ALL FAULTS" AND ON AN "AS IS" AND "AS AVAILABLE"; BASIS. We make no representation as to the completeness, accuracy, legality, reliability, operability, or availability of any information on this Site, and we undertake no obligation to update or revise the information contained on this Site, whether as a result of new information, future events or circumstances or otherwise. It is your responsibility to verify any information contained in this Site before relying upon it. ACCORDINGLY, ALCHEMY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE OPERATION OF THIS SITE OR OUR CONTENT INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THIS SITE, AND WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, TITLE AND ACCURACY. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. We make no warranty that the Site will meet your requirements, or that the Site will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Site, or that defects in the Site will be corrected.
ALCHEMY DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. ALCHEMY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, MALICIOUS CODE OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. You understand and agree that you will be solely responsible for any damage to your computer or loss of data that results from the use of or download of any material, software code and/or content from the Site. No advice or information, whether oral or written, obtained by you from us through the Site or otherwise will create any warranty, representation or guarantee not expressly stated in these Terms.
Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
8. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS ARISING OUT OF OR RELATED TO THE SITE, 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.
SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SITE, FROM INABILITY TO USE THE SITE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).
SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES THROUGH ANY LINKS PROVIDED IN THE SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SITE. WE WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTIES OR FOR ANY INFORMATION APPEARING ON THIRD PARTY SITES OR ANY OTHER WEBSITES LINKED TO OUR SITE. YOU SPECIFICALLY ACKNOWLEDGE THAT ALCHEMY IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, INFRINGING, HARMFUL, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, ALCHEMY WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD PARTY CONTENT UPLOADED ONTO OR DOWNLOADED OR THROUGH THE SERVICES, OR IF YOUR DATA IS LOST, CORRUPTED OR EXPOSED TO UNINTENDED THIRD PARTIES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU.
9. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Alchemy, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all claims, suits, proceedings, investigations, allegations, demands, damages, costs, expenses, amounts agreed to in settlement, losses and any and all other liabilities (including reasonable attorneys’ fees and court costs) arising out of or resulting from: (i) your use of the Site and your use of any information, materials, software development kits, or software downloaded or obtained from the Site; (ii) a violation of these Terms; (iii) a violation of any rights of any other person or entity; (iv) your registration; or (v) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you.
10. GOVERNING LAW; ARBITRATION; JURY TRIAL WAIVER; CLASS ACTION WAIVER; FORUM SELECTION CLAUSE.
These Terms and the relationship between you and Alchemy shall be governed by the laws of the State of California, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. You agree to submit to the personal and exclusive jurisdiction of the courts located within the State of California for the adjudication of any and all claims arising out of your use of the Site and your relationship with Alchemy, and you waive any objection thereto.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Alchemy or Alchemy’s employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (" AAA"). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively " Rules and Procedures"). You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights 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. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Alchemy must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR ALCHEMY MUST BE BROUGHT IN THE PARTIE’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Alchemy will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) Alchemy also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Notwithstanding the foregoing, either you or Alchemy may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in San Francisco, CA. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco, CA in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco, CA for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate. With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor Alchemy will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in San Francisco, CA. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
11. ELECTRONIC COMMUNICATIONS. You consent to our giving you Communications (defined below) electronically. This Section 11 informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive Communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications ("Communications") that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if they were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-savable rights. You may also receive a copy of these Terms by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
12. GENERAL TERMS. You are responsible for compliance with all applicable laws. These Terms are personal to you, and you may not transfer, assign or delegate your rights and/or duties under these Terms to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms, shown in boldface type, are included only to help make these Terms easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. These Terms constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersede all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms, or portion thereof, to be unenforceable, that provision of the Terms will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms will continue in full force and effect. Where Alchemy has provided you with a translation of the English language version of the Terms, and/or any other documentation, you agree that the translation is provided for your convenience only and that the English language versions will govern.
13. CONTACTING US; NOTICE; VIOLATIONS. If you have any questions or concerns about our Site, your registration, or anything else, please click on the Contact Us page on the Site, or send an e-mail to firstname.lastname@example.org. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to email@example.com or as otherwise expressly provided. Please report any violations of these Terms to firstname.lastname@example.org.
January 1, 2021
Personal Information Disclosures
When we use the term "personal information" in these CA Disclosures, we mean information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.
For the purposes of these CA Disclosures, personal information does not include:
Publicly available information from government records.
Deidentified, aggregated or anonymized data (not capable of being associated with or linked to you).
Information relating to our job applicants, employees, contractors and other personnel, which is not governed by these CA Disclosures.
Information excluded from the CCPA's scope, such as: (i) Health or medical information covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the California Confidentiality of Medical Information Act (CMIA) or clinical trial data; (ii) Information covered by certain sector-specific privacy laws, including the Fair Credit Reporting Act (FRCA), the Gramm-Leach-Bliley Act (GLBA) or California Financial Information Privacy Act (FIPA), and the Driver's Privacy Protection Act of 1994.
Collection and Use of Personal Information
In the last 12 months we have collected the following categories of personal information:
Identifiers, such as name, address, email address, account information or other similar identifiers. These are collected directly from you, our business partners and affiliates, your browser or device and third parties you direct to share information with us.
California Customer Records (Cal. Civ. Code § 1798.80(e)), such as financial information. These are collected directly from you, our business partners and affiliates and third parties you direct to share information with us.
Commercial Information, such as information about products or services purchased or considered and your use of our Website and Alchemy Cloud Services. These are collected directly from you, and third parties you direct to share information with us.
Internet/Network Information, such as log data and analytics data (including your usage and activity on our website). These are collected from your browser or device.
Geolocation Data, such as your general geographic location. These are collected from your browser or device.
Sensory Information, such as audio recordings (i.e. if you use Zoom) of phone calls you have with us or photographs and video footage you choose to provide or we otherwise record as permitted by law. These are collected directly from you.
Professional/Employment Information, such as current occupation, job title, company/employer, industry and employment history. These are collected directly from you, your employer if they have subscribed for Alchemy Cloud Services and third parties you direct to share information with us.
Other Personal Information, such as messages or requests you provide to us directly or through a third-party service, such as social media. These are collected directly from you, our business partners and affiliates, and third parties you direct to share information with us.
Inferences, including information generated from your use of our Website or Alchemy Cloud Services reflecting your preferences. These are collected from your browser device, and from information generated or derived from the personal information described above.
Disclosure of Personal Information
Recipients of Personal Information
Your California Privacy Rights
As a California resident, you may be able to exercise the following rights in relation to the Personal Information about you that we have collected (subject to certain limitations at law):
The Right to Know
You have the right to request any or all of the following information relating to the personal information we have collected about you or disclosed in the last 12 months, upon verification of your identity:
The specific pieces of personal information we have collected about you;
The categories of personal information we have collected about you;
The categories of sources of the personal information we have collected about you;
The categories of personal information that we have disclosed about you to third parties for a business purpose, and the categories of recipients to whom this information was disclosed;
The categories of personal information we have sold about you (if any), and the categories of third parties to whom this information was sold; and
The business or commercial purposes for collecting or, if applicable, selling personal information about you.
The Right to Request Deletion
You have the right to request the deletion of personal information that we have collected from you, subject to certain exceptions.
The Right to Opt Out of Personal Information Sales
You have the right to direct us not to sell personal information we have collected about you to third parties now or in the future.
If you are under the age of 16, you have the right to opt in, or to have a parent or guardian opt in on your behalf, to such sales.
The Right to Non-Discrimination
You have the right not to receive discriminatory treatment for exercising any of the rights described above.
However, please note that if the exercise of the rights described above limits our ability to process personal information (such as in the case of a deletion request), we may no longer be able to provide you our products or services or engage with you in the same manner.
How to Exercise Your California Privacy Rights
To Exercise Your Right to Know or Right to Deletion
To exercise your right to know and/or right to deletion, please submit a request by emailing email@example.com with the subject line "California Rights Request". We will need to verify your identity before processing your request. In order to verify your identity, we will generally either require the successful login to your account or the matching of sufficient information you provide us to the information we maintain about you in our systems. Although we try to limit the personal information collected in connection with a request to exercise the right to know and/or the right to deletion to that personal, certain requests may require us to obtain additional personal information from you. In certain circumstances, we may decline a request to exercise the right to know and/or right to deletion, particularly where we are unable to verify your identity.
To Exercise Your Right to Opt Out of Personal Information Sales
Updates to These CA Disclosures
We will update these CA Disclosures from time to time. When we make changes to these CA Disclosures, we will change the "Last Updated" date at the beginning of these CA Disclosures. If we make material changes to these CA Disclosures, we will notify you by email to your registered email address, by prominent posting on our online services, or through other appropriate communication channels. All changes shall be effective from the date of publication unless otherwise provided in the notification.
If you have any questions or requests in connection with this Notice or other privacy-related matters, please send an email to firstname.lastname@example.org.
January 1, 2018
Notice of Copyright Infringement
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, and you believe in good faith that your copyright was infringed, you may provide a written communication via mail or e-mail to Alchemy’s Copyright Agent below. Your notice must contain the following:
A description of the copyrighted work that you claim has been infringed.
A description specifying the location of the material that you claim is infringing, including at a minimum, the URL of the link or the exact location where such the material that you claim is infringing (or the subject of infringing activity) may be found.
Your name, company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law as follows:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as fair use).”
A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf as follows:
“I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Your physical or electronic signature.
Submit your notice to Alchemy’s Copyright Agent by mail or e-mail at:
By Mail:Copyright AgentAlchemy Cloud, Inc.2443 Fillmore Street; Suite #430San Francisco, CA 94115
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a Counter-Notice, pursuant to Sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. You may provide a written communication to Alchemy’s Copyright Agent which contains:
A description of the material removed or to which access has been disabled.
A statement by you, made under penalty of perjury, that you have a good faith belief that the removal or disablement of the material was a mistake or that the material was misidentified as follows:
“I hereby state that the information in this notice is accurate and, under penalty of perjury, that the removal or disablement of the material was a mistake or that the material was misidentified.”
Your name, company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
A statement that you consent to the jurisdiction of the Federal District court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in San Francisco, California, if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or his/her authorized agent.
Your physical or electronic signature.
Submit your Counter-Notice to Alchemy’s Copyright Agent via e-mail or mail to the applicable address specified above.
January 12, 2021
2. You Can Contact Us
If you have privacy-related questions that are not addressed here, please write us at: email@example.com
3. Personal Information We Collect
By visiting or using our Site or using Alchemy Cloud Services, you voluntarily and willingly provide us with certain information, including Personal Information, which we collect in connection with you use of the Alchemy Site and Alchemy Cloud Services to you. Personal Information refers to information about you that can be used to contact or identify you, and information on your visit to and activities at our Site and through usage of Alchemy Cloud Services. When we ask you for information, we will tell you, or it will be clear, what we need to know to fulfill your request. We will also tell you how we will use the information we are asking for. Our Site is not designed to appeal to children under the age of 13. We do not knowingly request or receive any information from children.
California Do Not Track Notice. Although Alchemy does not track its customers over time and across third party websites to provide targeted advertising and therefore does not respond to Do Not Track (DNT) signals, some third party sites do keep track of your browsing activities when they serve you content, which enables them to tailor what they present to you. If you are visiting such sites, your web browser allows you to set the DNT signal on your browser so that third parties (particularly advertisers) know you do not want to be tracked.
Analytics Information. We and our analytics providers collect and store analytics information when you visit our Site and/or use Alchemy Cloud Services to help us improve our Site and Alchemy Cloud Services.
3.1 On our Site, Analytics Information from our Site consists of web browsing behavior collected through a combination of HTTP beacons and cookies. Analytics information also consists of data we collect as a result of running queries against aggregate clickstream data of the Site for the purpose of understanding degree of interest in content served on the Site as well as usability of the Site. Clickstream data is aggregated data about usage of the Site that does not contain Personal Information. Some of our third party service providers send information about the version of the products on your systems ("System Information") to us. System Information includes information about (i) the server environment in which the product is operating: OS type and version, language and locale settings; (ii) user client information, for example: browser type and version, native client type and version, and client device specifications (e.g. screen resolution, OS version, device type, etc.). You can disable our collection of analytics information from products via the administrator settings or by blocking collection at the local network level.
4. How We Collect Information
4.1 We collect your information in the following ways on our Site:
4.1.1 Third-party Services. We may collect anonymous demographic information, which is not unique to you, such as your ZIP code, age, gender, preferences, interests and favorites using log files, when you visit our Site There is also information about your computer hardware and software that is automatically collected by analytics providers. This information may include, but is not limited to, your computer’s Internet Protocol address, browser type, the web page you were visiting before you came to our site, information you search for, domain names, access times and referring website addresses. We may also collect information about the fact that you use certain features and functionality and your responses to our surveys and research initiatives. This information is used by us for the operation of our Site, to maintain quality of our Site, and to provide general statistics regarding use of the Site. For these purposes, we do link this automatically- collected data to Personal Information such as name, email address, address, and phone number.
4.1.2 Cookies. Like most websites, we use "cookies" and web log files to collect information to track site usage and trends, to improve our service, and to deliver a customized experience when you visit our Site. A cookie is a small data file that is placed on your computer, mobile phone or other device by a web server and enables us to recognize you when you return to our site or log into our service. Cookies are uniquely assigned to you, and can only be read by a web server in the domain that issued the cookie to you. One of the primary purposes of cookies is to provide a convenience feature to save you time – for example, when you return to the same website, the information you previously provided can be retrieved, so you can easily use the features that you customized. We may use "persistent cookies" to save your registration ID and login password for future logins to the Site. We may also use "session ID cookies", which expire after a short period of time or when you close your browser. Session ID cookies are used to identify a particular visit and are used to enable certain features of the Site, to better understand how you interact with the Site, and to monitor aggregate usage and web traffic routing on the Site. We set a cookie and use local storage in your browser that contains information that we use to identify you for the functional site features described below with respect to our current third party vendors. You have the ability to accept or decline cookies. Most Web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to fully experience the interactive features of the Websites. We keep track of the pages you visit on the Site, in order to determine what parts of our Site are the most popular. This data is used to deliver customized content on the Site to visitors whose behavior indicates that they are interested in a particular subject area.
4.1.4. Service Providers. We monitor the activity on our Site using common software tools and third party service providers. We collect and track information on use of the Site including referral sources, search terms, network information, IP addresses, computer and browser types, and content viewed. Unless combined with Personal Information, this other data does not personally identify any visitors of the Site. We may also use third party service providers to collect and track statistical information regarding Site activity, and to prevent our servers from being abused.
5. How We Use Personal Information
5.1 Collected from the Site.
We may use the information you provide to (i) provide our Site to you and administer your use of our Site, (ii) to communicate with you and fulfill requests you may make, (iii) to provide you with information and announcements with respect to our Company, and (iv) to provide you with further information and offers from us that we believe you may find useful or interesting, including newsletters, marketing or promotional materials and other information on services and products offered by us.
We may also use the information provided by you or obtained through your use of our Site or third-party services to improve our Site, customize your user experience, and to better understand your needs and interests. We use information we obtain by technical means for the above purposes as well as to monitor, measure and analyze use of the Site, to generate and derive useful data and information concerning the interests, characteristics and Site behavior of users and to verify that visitors to the Site meet the criteria required to process their requests.
We may use your contact information to tell you about our products we think might interest you. If you decide at any time that you no longer wish to receive any such communications, please send an email to firstname.lastname@example.org to unsubscribe.
However, your contact preferences only apply to marketing contacts. If you are also a User of Alchemy Cloud Services, we will still use your contact information as described below.
5.2 Collected from Alchemy Cloud Services.
We may use your Personal Information to communicate with you through email, phone and/or text messages, notifications posted in the Alchemy Cloud Services, or on your account to provide you with customer support, notify you of product enhancements, and provide incremental training.
We may also use the information provided by you or obtained through your use of Alchemy Cloud Services to improve Alchemy Cloud Services, its features and content, to customize your user experience, and to better understand your needs and interests. We use information we obtain by technical means for the above purposes as well as to monitor, measure and analyze use of Alchemy Cloud Services, to generate and derive useful data and information concerning the interests, characteristics and Alchemy Cloud Services use behavior of our Users.
6. How We Share Personal Information
We do not sell or rent your personal information to anyone. We do not share your personal information with anyone outside of Alchemy for their promotional, including marketing, use.
Third Party Service Providers. We have limited relationships with third parties to assist us in servicing you, for example, by hosting our services, or providing customer services. The contracts with these service providers outline the appropriate use and handling of your information and prohibit third parties from using any of your personal information for purposes unrelated to the product or service for which they’ve been contracted. These service providers are contractually required to maintain the confidentiality of the information we provide them.
Business Transfers. Should we sell, merge or transfer any part of our business, part of the sale may include your Personal Information and you agree that any such third party will have the right to continue to use your Personal Information and other information that you provide to us or which we obtain through your use of our Site and/or services.
Aggregated or Anonymized Data. We may also share aggregated or anonymized information that does not directly identify you with the third parties described above.
7. Your Right to Access and Control Your Personal Information
On the Site. You may access, review, revise, correct, or delete the personal information provided in your registration or account profile by emailing email@example.com. If you update any of your information, we may keep a copy of the information that you originally provided to us in our archives for uses documented in this policy.
8. Security of Personal Information
We protect the confidentiality and security of your Personal Information by using industry-recognized security safeguards such as firewalls, coupled with carefully developed security procedures designed to protect your Personal Information from loss, misuse or unauthorized alteration. Our employees are trained and required to safeguard your Personal Information and, using physical, electronic and procedural safeguards, we restrict access to Personal Information to those employees and agents for business purposes only. Additionally, we use internal and external resources to review the adequacy of our security procedures.
Although Alchemy uses industry standard security measures, the Internet is not a 100% secure environment and Alchemy cannot, and does not, ensure or warrant the security of any information you transmit or store using the Alchemy service. There is no guarantee that your information may not be accessed, disclosed, altered or destroyed by breach of any of Alchemy physical, technical or managerial safeguards and we are not responsible for third party circumvention of your privacy settings or Alchemy’s security measures.
You are responsible for maintaining the secrecy of your unique user name, password and account information and for controlling access to your Alchemy account.
10. Where We Store and Process Personal Information
Alchemy’s Site and Alchemy Cloud Services are hosted in datacenters in the United States and/or the European Union.
11. Our Retention of Personal Information
We retain Personal Information for as long as necessary to provide the services and fulfill the transactions you have requested, or for other essential purposes such as complying with applicable laws, legal process and our legal obligations, resolving disputes, enforcing our agreements and protecting and defending our rights and property.
If you have submitted a valid EU General Data Protection Regulation ("GDPR") data subject access request to exercise your right to be forgotten we will delete your personal data within 30 days of the request.
If you are an individual based in the EU you can request a copy of your personal data and you can update any incorrect information.
If you are an individual based in the EU, you can ask to have your personal data removed, or in some cases limit our processing of personal data. This does not apply when we need to keep your personal data for legal reasons.
12. Third Party Links
When you click on links on our Site or through Alchemy Cloud Services, you may leave our Site or Alchemy Cloud Services. We are not responsible for the privacy practices of other sites and we encourage you to read the privacy statements at such sites.
13. Public Forums
We may offer publicly accessible message boards, blogs, and community forums. Please keep in mind that if you directly disclose any information through our public message boards, blogs, or forums, this information may be made public and may be collected and used by others. We will correct or delete any information you have posted on our servers if you so request, as described in "Opting-Out and Unsubscribing" below.
Children are not eligible to use our Websites and we ask that minors (under the age of 18) do not submit any personal information to us or use our Websites. Our Websites are not directed to children under 18 years of age. We do not knowingly collect personally identifiable information from children under 13. If a parent or guardian becomes aware that his or her child has provided us with Personal Information without their consent, he or she should contact us at firstname.lastname@example.org. If we become aware that a child under 13 has provided us with Personal Information, we will delete such information from our files.
15. Your Rights as an Individual Based in the EU
Alchemy commits to resolve complaints about our collection or use of your personal information. EU individuals with inquiries or complaints regarding our Privacy Shield policy should first contact Alchemy at: email@example.com.
Access to your information: You have the right to request a copy of the personal data we hold about you.
Correcting your information: We want to have accurate data. Please contact us if you think the personal data you provided to us is not up to date or correct.
Deletion of your information: You have the right to ask us to delete personal data about you if it no longer is required for the purpose it was collected, you have withdrawn your consent, you have a valid objection to us using your personal data, or our use of your personal data is contrary to law or our other legal obligations.
Objecting to how we may use your information: You have the right at any time to require us to stop using your personal data for direct marketing purposes. In addition, where we use your personal data to perform tasks carried out in the public interest then, if you ask us to, we will stop using that personal data unless there are overriding legitimate grounds to continue.
Restricting how we may use your information: In some cases, you may ask us to restrict how we use your personal data. This right might apply, for example, where we are checking the accuracy of personal data about you that we hold or assessing the validity of any objection you have made to our use of your personal data. The right might also apply where this is no longer a basis for using your personal data but you don't want us to delete the data. Where this right to validly exercised, we may only use the relevant personal data with your consent, for legal claims or where there are other public interest grounds to do so.
Automated processing: If we use your personal data on an automated basis to make decisions which significantly affect you, you have the right to ask that the decision be reviewed by an individual to whom you may make representations and contest the decision. This right only applies where we use your personal data with your consent or as part of a contractual relationship with you.
Withdrawing consent using your information: Where we use your personal data with your consent you may withdraw that consent at any time and we will stop using your personal data for the purpose(s) for which consent was given.
Please contact us if you wish to exercise any of these rights. You can find our contact data below under "Opting Out and Unsubscribing".
16. Your California Privacy Rights
17. Reviewing, Correcting and Removing Your Personal Information.
If you provide us with your Personal Information, you have the following rights with respect to that information:
To review the user information that you have supplied to us
To request that we correct any errors, outdated information, or omissions in user information that you have supplied to us
To request that your user information not be used to contact you
To request that your user information be removed from any solicitation list that we use
To request that your user information be deleted from our records
To otherwise opt out of receiving solicitations
To exercise any of these rights, please contact us at firstname.lastname@example.org or by sending us postal mail to: 2443 Fillmore Street, Suite #430, San Francisco, CA 94115
We will promptly change, correct, or delete your information. To Unsubscribe From Our Communications. You may unsubscribe from our marketing communications by clicking on the "unsubscribe" link at the bottom of mass emails or by sending us email us at email@example.com or by sending us postal mail to: 2443 Fillmore Street, Suite #430, San Francisco, CA 94115
How You Can Opt Out of Web Tracking. There are several ways to opt out of web tracking: Most browsers allow you to block third-party cookies or prevent cross-domain tracking. This will limit the cookies that can be set by third-party scripts. This will not completely eliminate tracking by some third-party services though as they may use first-party cookies. Most browsers also allow you ask not to be tracked (it sends the "Do Not Track" request header). If you have enabled this feature, we will not track the pages you visit in a way that enables us to connect them to your personal information. Your page views may still be collected anonymously though. Many of the third-party services we use for collecting anonymous data also respect the Do Not Track setting.
Third Party Vendors for our Site. Some of the vendors we use for our Site that may collect Personal Information on our behalf are as follows: