Last Updated: March 18, 2022 Terms of Service , together with the 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 with Alchemy Cloud Services, Technical Account Management Services, Support Services and/or Professional Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Form.1. DEFINITIONS. As used in this Agreement: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.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 and subject to any limitations based on User type as described in Section 4.1 below, and (b) Users to access and use Beta Versions for the purpose of evaluating the features and functionality of the Beta Versions. If Users are Customer’s third-party independent contractors, consultants, agents or third parties with whom Customer does business, Customer agrees that such Users may not be competitors of Alchemy and Customer shall (i) require 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) shall be responsible for any breach of this Agreement by any such third party. “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.4. CUSTOMER RESPONSIBILITIES 4.1 Access Credentials. Users 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 based on type of User. The technical capabilities and access rights available to each type of User within the Alchemy Cloud Services shall be as set forth in the Documentation. Customer will safeguard, and require that all Users safeguard the devices, computers, and networks used to access the Alchemy Cloud Services and safeguard all Access Credentials. Customer will be responsible for all acts and omissions of Users. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Users to provide their Access Credentials to anyone else; and (2) not permit others to use Customer’s Access Credentials. Customer will notify Alchemy immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security. Alchemy reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action Alchemy deems necessary or reasonable to ensure the security of the Alchemy Cloud Services and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account. 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. 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.6. CONFIDENTIALITY 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.7. WARRANTIES 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.8. INDEMNIFICATION 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.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.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.11. GENERAL 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.“Professional Services” 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” 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” “Change Order” 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. Any delays in the performance of Professional Services or delivery of Work Product caused by Customer may result in additional applicable charges for resource time. 2. PERSONNEL Alchemy will assign employees and consultants with qualifications suitable for the work described in the relevant Order Form and/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. Customer acknowledges and agrees that any delays in performing its responsibilities or providing Alchemy with the required Customer Inputs and other information required to perform the Professional Services may delay the performance of the Professional Services or result in additional hours of Professional Services being required and Customer agrees to pay for any additional hours incurred. 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.4. TERMINATION 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 or earlier terminated as provided pursuant to their terms or these Terms. 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 and/or Statement of Work for Professional Services.5. PROPRIETARY RIGHTS 5.1 Work Product. The term “Work Product” means any software, software code, technology, developments, algorithms, processes, methodologies, know-how, integrations, documentation, work flows, reports, templates, designs, configurations, specifications, and works of authorship and intellectual property that are created by Alchemy personnel in the course of Alchemy’s performance of the Professional Services, including any of the foregoing created under and to be delivered pursuant to an Order Form and/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.
