1. SaaS and Services.
1.1 SaaS. During the Term (as defined in Section 13.1 (Term)), Alchemer will provide Customer access to and use of Alchemer’s hosted survey platform made available as software as a service and other related support services described in this Agreement (collectively, the “SaaS”) pursuant to (a) quotes issued by Alchemer and executed by Customer (each, a “Quote”), or (b) Customer’s direct purchase online. Affiliates of Customer may also purchase rights to access and use the SaaS under this Agreement pursuant to Quotes. For avoidance of doubt, separate Quotes are not required for each Affiliate. Each Quote shall be consecutively numbered (Quote 1, 2, 3, etc.) and incorporated herein by reference. The initial Quote between Customer and Alchemer, covering licenses for Customer and its Affiliates per the Quote terms, is Quote 1. “Affiliate” means, with respect to a party, any person or entity that controls, is directly or indirectly controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (for so long as such person or entity meets these requirements during the term of this Agreement). Access to and use of the SaaS by Customer, any Affiliates of Customer and their respective Users is subject to the terms and conditions of this Agreement. “User” means a single employee or agent of Customer or its Affiliates for whom all Fees have been paid and who is authorized to access and use the SaaS to create and manage surveys on behalf of Customer or its Affiliates. Individual licenses may not be used by more than a single User, but may be transferred from one User who is no longer authorized to access or use the SaaS to another. Customer is responsible and liable for the acts and omissions of any Affiliates, Users and/or any other entity or individual who accesses and uses the SaaS under Customer’s account. Any act or omission by any Affiliate, User, entity or individual that would constitute a breach of this Agreement if such Affiliate, User, entity or individual were a party to this Agreement shall be deemed a breach of this Agreement by Customer. Except with respect to this Section 1.1, all uses of the term “Customer” herein shall be deemed to refer to Customer and any of its Affiliates.
1.2 Services. The parties may enter into one or more statements of work (each a “SOW”) or order forms (each an “Order Form”) setting forth the specific terms and conditions under which Alchemer will perform certain training, consulting, programming, panel or other professional services as described therein (collectively, “Services”). “Ordering Document” means a Quote, a SOW or an Order Form. Each Ordering Document shall describe any deliverables to be provided by Alchemer (the “Project Deliverables”) and related acceptance criteria, Services fees and payment terms, and any other terms applicable to the Services. Customer shall pay to Alchemer the fees for the Services as set forth in the Ordering Document. Unless otherwise expressly set forth in an Ordering Document, all Project Deliverables and work product resulting from the Services, whether individually or jointly conceived or created, shall upon creation: (a) become a part of the SaaS; and (b) be the exclusive property of Alchemer. Upon full execution of an Ordering Document, such Ordering Document will become a part of this Agreement, subject to all of its terms and conditions. If the applicable Ordering Document does not specify which Alchemer Affiliate is entering into that Ordering Document, “Alchemer” shall mean Alchemer LLC, with its offices at 168 Centennial Parkway, Suite 250, Louisville, Colorado 80027.
1.3 Alchemer Digital. If the Customer has purchased or is otherwise using products or services associated with the Alchemer’s mobile iOS, Android or Web products (“Alchemer Digital”), then this section applies. For Alchemer Digital, “Monthly Active User” (“MAU”) means the aggregate number of unique devices that have launched an applicable app identified (and captured by) the Alchemer API that is integrated into Customer’s mobile applications over a rolling 30 days subject to reasonable approval and audit from Customer. The term “Seat License” as used in a Quote or Order Form means a single authorized user of Customers that may access and use the applicable product or service. Customer may change its authorized per-seat users from time to time by providing written notice to Alchemer. Per Seat Licenses are offered on a tiered pricing basis. If Customer adds additional Seat Licenses mid-way through a given subscription term, the prorated fee for the remainder of the term will be applied based on the pricing tier applicable to the new number of Seats. In the event that Customer exceeds the limits on the number of MAU or Seat Licenses specified in an applicable Quote or Order Form, unless otherwise set forth in the applicable Quote or Order Form, Alchemer will invoice Customer, and Customer shall pay for such excess use at a rate of (i) $50 per month per Seat License, and (ii) $0.005 per month for each MAU. Alchemer will provide a unique API-Key for Alchemer Digital. Such key will uniquely identify Customer when it uses Alchemer Digital. Customer shall be responsible for maintaining the confidentiality of such API-Key and will be responsible for any activity using such key.
1.4 SDK License for Alchemer Digital. The Alchemer Digital SDK is an open-source segment of software code (the “Alchemer Digital SDK”). If the Customer has purchased access to Alchemer Digital, Alchemer grants to Customer a limited, non-exclusive, non-transferable, royalty-free license to use, incorporate, modify and distribute the Alchemer Digital SDK within the Customer application(s) described in the applicable Quote or Order Form, subject to the limitations set forth in this Agreement and the provisions of the BSD 3-Clause License. For more information about BSD 3-Clause, see: http://opensource.org/licenses/BSD-3-Clause. Customer shall bear all costs of integrating the Alchemer Digital SDK into the Customer application(s) described in the applicable Quote or Order Form, including but not limited to, software design, software development, application debugging, application testing, and network connectivity. Customer shall ensure the Alchemer copyright notice and BSD 3-Clause License agreement is not removed from the Alchemer Digital SDK and that both are included in each module that the Alchemer Digital SDK resides. Upon the expiration or termination of this Agreement for any reason, Customer must remove any API-Keys provided by Alchemer from the Alchemer Digital SDK within thirty (30) days. Customer may retain a copy of the Alchemer Digital SDK under the license described above, however, for the avoidance of doubt, the Alchemer Digital SDK will not function with Alchemer Digital without a valid API-Key.
1.5 Resellers. This Agreement specifies the terms and conditions under which the SaaS and related services will be provided by Alchemer to Customer, whether purchased directly by Customer through Alchemer or indirectly through an authorized reseller of Alchemer (“Reseller”). Purchases through a Reseller will be placed through a separate agreement or ordering document between Customer and the Reseller (the “Reseller Order”) which shall address, as between Customer and Reseller, any terms and conditions relating to the quantity of entitlements purchased, fees, payment (including any applicable refunds), taxes, and renewals. Customer warrants that it will timely pay to Reseller all amounts under a Reseller Order related to this Agreement. The Reseller Order is between Customer and the Reseller and is not binding on Alchemer, and any disputes related to the Reseller Order shall be handled directly between Customer and the Reseller. In the event of any conflict between this Agreement and a Reseller Order, this Agreement shall govern as between Alchemer and Customer.
2. Access Rights. Subject to Customer’s compliance with the terms and conditions of this Agreement, Alchemer grants to Customer, during the Term, a non-exclusive, non-transferable, worldwide right to access and use the SaaS as set forth in this Agreement, for the purpose of permitting Customer to collect, process and analyze online data surveys.
3. Customer Use of SaaS. Customer agrees that it will not, and will not permit its personnel or any third party to grant access to the SaaS or any component thereof to any person in excess of the number of User licenses designated in the Quote. Customer shall not, except as expressly permitted by this Agreement: (i) permit its personnel or any third party to grant access to the SaaS or any component thereof to any person in excess of the number of user licenses designated in the Order Form; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, operate as a service bureau or managed service, or otherwise commercially exploit or make the SaaS available to any third party except as expressly contemplated by this Agreement; (iii) modify, adapt, alter, translate or create derivative works of the SaaS; (iv) reverse engineer, decompile or disassemble the SaaS; (v) take any action that would cause the SaaS to be placed in the public domain; (vi) remove, alter, or obscure any proprietary notices included in the SaaS; (vii) send or store malicious code or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or spam; (viii) interfere with or disrupt the integrity or performance of the SaaS or the data contained therein, including conducting any load or penetration testing on the SaaS; (ix) attempt to gain unauthorized access to the SaaS or its related systems or networks; (x) circumvent, disable, or interfere with security-related features of the SaaS; (xi) access the SaaS for the purpose of building a competitive product or service or copying its features or user interface; (xii) except as otherwise set forth in an Order Form or other fully executed written agreement between the Parties, send or store any personal health information, credit card data, personal financial data or other sensitive data (as defined under applicable data privacy laws) that may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards. Customer will access and use the SaaS only in compliance with Alchemer’s most current Acceptable Use Policy, available on Alchemer’s web site (the “Acceptable Use Policy”). Any use of the SaaS in violation of the Acceptable Use Policy may result in Alchemer’s immediate suspension of access to the SaaS and termination of this Agreement, provided, however that Alchemer will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to cure the violation (if it is curable) prior to any such suspension or termination.
3.1 Suspension of SaaS. Alchemer reserves the right to suspend the SaaS if: (i) Customer is delinquent on any undisputed (in good faith) late payment obligations to Alchemer or a Reseller for more than thirty (30) days following written notice of such late payment; (ii) Alchemer reasonably believes that suspension of the SaaS is necessary to comply with the law or requests of governmental entities; or (iii) Alchemer reasonably determines that Customer’s use of the SaaS is in violation of this Agreement, including but not limited to the Acceptable Use Policy. Alchemer will give advance notice of any suspension made pursuant to Section 3.1(i) above, and shall give Customer advance notice of any suspension made pursuant to Section 3.1(ii) and (iii) to the extent it is able given the circumstances surrounding the nature of the reason for such suspension. Alchemer will promptly restore access to the SaaS after the underlying cause is mitigated.
4. Fees, Invoicing, and Payment.
4.1 Fees. In consideration for providing the SaaS and Services during the Term, and subject to the provisions of this Section 4, Customer shall pay to Alchemer the fees set out in the Ordering Document (“Fees”), without any set-off or deductions of any kind. Except as otherwise specified herein or in a Ordering Document, (a) all payment obligations are non-cancelable and Fees and any other amounts paid are non-refundable, and (b) quantities purchased cannot be decreased during the Initial Term or relevant Renewal Term (as defined in Section 13.1 (Term)). Alchemer shall have the right to increase the Fees for any Renewal Term provided that Alchemer gives Customer notice of its intent to increase the Fees by updating the pricing on Alchemer’s website for such Renewal Terms prior to renewal. If the Fees include a minimum commitment by Customer, upon any termination of this Agreement prior to the expiration of the then-current Term, all remaining amounts in the minimum commitment shall become immediately due and payable by Customer. All amounts due under this Agreement shall be paid in the currency specified in the Ordering Document. Except as otherwise expressly provided in an Ordering Document, all amounts due under this Agreement shall be due and payable within thirty (30) days of the date of Alchemer’s invoice, with the exception of direct purchases made by Customer online which are due at the time of purchase. If Customer is purchasing through a Reseller, the applicable Fees will be set forth in Customer’s ordering documentation with the Reseller and such Fees will be remitted to Reseller.
4.2 Invoicing and Payment. Customer will provide Alchemer with valid and updated credit card information, ACH information, or with a valid purchase order or alternative document reasonably acceptable to Alchemer. For avoidance of doubt, all online direct purchases made by Customer require payment via a valid credit card or ACH. If Customer provides credit card or ACH information to Alchemer, Customer authorizes Alchemer to charge such credit card or process ACH for all Fees and other amounts specified in the Ordering Documents until the earlier to occur of (a) Customer’s provision of an alternative, acceptable means of payment or (b) the termination of this Agreement in accordance with its terms. Such charges shall be made in advance, either annually or in accordance with the billing frequency stated in the applicable Ordering Document. Customer acknowledges that Alchemer will provide Customer’s credit card information to Alchemer’s third party payment processor and that such processor will store, use and process the credit card information as necessary to process payments. If the Ordering Document specifies that payment will be by a method other than a credit card, Alchemer will invoice Customer in advance, and in accordance with the relevant Ordering Document. Customer is responsible for providing complete and accurate billing and contact information to Alchemer and notifying Alchemer of any changes to such information. This Section does not apply if Customer is purchasing through a Reseller.
5. Taxes. All Fees and other amounts payable by Customer to Alchemer under this Agreement are exclusive of any tax, levy or similar governmental charge including value-added, sales, use, or withholding taxes, that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, sale or use of the SaaS, the Services, or otherwise arising out of this Agreement, including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the transactions contemplated hereunder, except that Customer shall have no liability for any income taxes assessed on Alchemer on amounts paid by Customer under this Agreement. If Alchemer has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Alchemer will invoice Customer and Customer will pay that amount unless Customer provides Alchemer with a valid tax exemption certificate, including a valid value-added tax number, authorized by the appropriate taxing authority. This Section does not apply if Customer is purchasing through a Reseller.
6. Response Data and Content.
6.1 Definitions. “Response Data” means data obtained from persons responding to and/or having received surveys from Customer. “Content” means any and all content or data (including but not limited to pictures, logos, survey questions, survey information, survey content, code embeds, CSS, Javascript, and all other content not listed here) that Customer and its Users submit to the SaaS and/or Alchemer directly.
6.2 Alchemer Security and Use.
(A) Security. Alchemer shall maintain reasonable operational, physical, and technical safeguards for protection of the confidentiality, integrity, and availability of the Response Data and the Content. Alchemer utilizes a third party application penetration testing company to perform an annual audit of the SaaS. Alchemer is hosted by Amazon Web Services and a third party Service Organization Control (SOC) report is available at https://aws.amazon.com/compliance/soc-faqs/. Alchemer also utilizes a third party company for PCI DSS Attestation. Alchemer shall promptly notify Customer if Alchemer becomes aware of a security breach in Alchemer’s network that resulted in a third party’s unauthorized access to the Response Data or Content.
(B) Use. Alchemer shall only use the Response Data and the Content to provide the SaaS and Services to Customer, to prevent or address service or technical problems, as compelled by law in accordance with Section 9.2 (Exceptions), or as otherwise expressly permitted by this Section. Customer acknowledges and agrees that Alchemer may capture Response Data and/or Content metadata and aggregate such metadata with other data (“Aggregated Data”) solely for purposes of assessing and improving the performance of the SaaS. Under no circumstances will Aggregated Data or Alchemer’s use of Aggregated Data identify Customer or Customer respondents.
6.3 Customer Obligations. Customer represents and warrants that (a) Customer has the necessary rights, consents, and licenses required to collect and provide its Response Data and Content to Alchemer in connection with this Agreement, and that it has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Response Data submitted by it and its survey respondents to the SaaS, and (b) its collection and use of Response Data and Content does not violate any intellectual property rights or privacy rights of third parties, confidential relationships, applicable privacy policies or other contractual obligations, or federal, state or local laws or regulations. Customer is responsible for all actions with respect to personally identifiable information of persons that respond to Customer’s surveys or to whom Customer sends surveys.
7. Ownership. Alchemer acknowledges and agrees that Customer shall retain and own all right, title and interest and all intellectual property rights in and to the Response Data and Content. Customer acknowledges and agrees that Alchemer shall retain and own all right, title and interest and all intellectual property rights in and to the SaaS, the Project Deliverables, and all materials used by Alchemer to provide the SaaS and Project Deliverables, and all copies thereof and customizations and modifications thereto (collectively, the “Alchemer Materials”). Except for the limited access rights set forth in Section 2 (Access Rights) above, nothing herein transfers or conveys to Customer any right, title or interest in or to the Alchemer Materials. Alchemer reserves all rights in and to the Alchemer Materials not expressly granted herein.
8. Right to Modify the SaaS; Use of Customer Feedback. Alchemer may from time to time, in its sole discretion, change some or all of the functionality or any component of the SaaS. If Customer suggests or recommends any new features, functionality or any other changes to the SaaS, Alchemer is free to use such suggestions and recommendations, without any attribution or compensation to any party.
9. Confidential Information
9.1 Obligations. Each party (“Recipient”) acknowledges that confidential information (including trade secrets and confidential technical, financial and business information) of the other party (“Discloser”) may be disclosed pursuant to this Agreement (collectively, “Confidential Information”). Recipient shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient agrees that it will not disclose or use the Confidential Information of Discloser except for the purpose of fulfilling its obligations or exercising its rights under this Agreement and as otherwise authorized herein. Recipient will promptly report to Discloser any unauthorized use or disclosure of Discloser’s Confidential Information that Recipient becomes aware of and provide reasonable assistance to Discloser (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.
9.2 Exceptions. Confidential Information shall not be subject to the restrictions set forth in this Section 9 to the extent that such information is: (a) already known by Recipient without an obligation of confidentiality, (b) publicly known or becomes publicly known through no unauthorized act of Recipient, (c) rightfully received from a third party without any obligation of confidentiality, (d) independently developed by Recipient without use of the Confidential Information of the Discloser, (e) approved by Discloser for disclosure, or (f) required to be disclosed pursuant to a requirement of a governmental agency or law (provided that Recipient provides Discloser with notice of such requirement prior to any such disclosure and takes steps reasonably necessary to maintain the information in confidence).
9.3 Third Parties. Recipient shall (and shall cause all of its Affiliates and their respective employees, contractors and consultants who have access to Confidential Information of Discloser to) safeguard and maintain the Confidential Information of Discloser in strict confidence. Recipient shall not (and shall cause its Affiliates and their respective employees, contractors and consultants not to) disclose, provide, or make such Confidential Information or any part thereof available in any form or medium to any third party person except to Recipient’s Affiliates and their respective employees, contractors and consultants who have a need to access such Confidential Information in order to enable Recipient to fulfill its obligations or exercise its rights under this Agreement. Customer agrees not to: (a) disclose to third parties (whether in writing or orally) any benchmark test data related to the SaaS, or (b) use Alchemer’s Confidential Information to create any computer software or documentation that is substantially similar to the SaaS.
10. Warranties
10.1 Mutual Warranties. Each party represents that it has the legal power to enter into this Agreement and that this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.
10.2 By Alchemer. Alchemer warrants to Customer that: (a) the SaaS will perform in accordance with the documentation made available by Alchemer to Customer (the “Documentation”); (b) it uses a commercially-available screening program to regularly screen the SaaS for viruses, malware and computer code intentionally designed to damage or destroy any Content or Response Data residing in the SaaS; and (c) the Services, if any, will be performed in a workmanlike manner in accordance with the SOW and generally accepted industry standards. If Customer reports to Alchemer any noncompliance with the foregoing warranties, and, if applicable, provides to Alchemer such detailed information as Alchemer may reasonably require to permit Alchemer to confirm or reproduce such non-conformity, then Alchemer, at its expense and in its sole discretion, shall use commercially reasonable efforts to correct such non-conformity. In the event that Alchemer cannot correct the non-conformity within a reasonable period of time after Customer’s report thereof, then Alchemer may terminate this Agreement upon written notice to Customer and provide Customer a pro-rata refund of any prepaid, unused Fees. The foregoing states Alchemer’s sole obligations, and Customer’s exclusive remedies, in the event of the breach of any of the warranties set forth in this Section 10.
10.3 Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10 ARE THE EXCLUSIVE WARRANTIES MADE BY ALCHEMER WITH RESPECT TO THE SAAS, THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT. ALCHEMER AND ITS SUPPLIERS EXPRESSLY DISCLAIM (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SAAS OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ALCHEMER DOES NOT WARRANT THAT (A) THE SAAS WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS, (B) THE OPERATION OF THE SAAS WILL BE COMPLETELY SECURE, ERROR-FREE OR UNINTERRUPTED, OR (C) ALL ERRORS WILL BE CORRECTED. ALCHEMER SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SAAS RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS CONNECTIONS OR EQUIPMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SUPPLIERS OF ALCHEMER MAKE NO DIRECT WARRANTY OF ANY KIND TO CUSTOMER UNDER THIS AGREEMENT.
11. Indemnification.
11.1 Claims Against Alchemer. Customer agrees to defend, at its own expense, Alchemer, its affiliates, employees, officers, directors and shareholders from and against any claim, suit, action or proceedings that arise from: (a) use of the SaaS by Customer, its Affiliates or any User, (b) any Content or Response Data; or (c) any failure by Customer, its Affiliates or any User to comply with all applicable laws and regulations (each a “Alchemer Claim”). Customer agrees to indemnify and hold Alchemer harmless against damages, losses, costs (including reasonable attorneys’ fees) or judgments awarded against Alchemer in connection with any Alchemer Claim.
11.2 Claims Against Customer. Alchemer will defend, at its own expense, any claim, suit, action or proceeding against Customer brought by a third party to the extent based upon an allegation that the SaaS infringes any intellectual property rights of such third party (“Customer Claim”). Alchemer agrees to indemnify and hold Customer harmless against damages, losses, costs (including reasonable attorneys’ fees) or judgments awarded against Customer in connection with any Customer Claim. Notwithstanding the foregoing, Alchemer will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (a) any use of the SaaS not in accordance with this Agreement; (b) any use of the SaaS in combination with products, equipment, software, or data not supplied or approved by Alchemer if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the SaaS by any person other than Alchemer or its authorized agents or subcontractors. This Section 11.2 states Alchemer’s entire liability and Customer’s sole and exclusive remedy for Customer Claims.
11.3 Procedures. Each party’s indemnification obligations set forth in this Section 11 are subject to the conditions that the indemnified party must: (a) notify the indemnifying party promptly in writing of such claim, or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim, provided that an indemnified party’s failure to promptly notify shall only relieve the indemnifying party’s indemnification obligations to the extent the indemnifying party was prejudiced by such failure; (b) give the indemnifying party sole control of the defense, compromise or settlement of such claim, including any appeals, and (c) fully cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement such claim.
12. Limitation of Liability
EXCEPT WITH RESPECT TO CUSTOMER’S BREACH OF THE ACCEPTABLE USE POLICY OR SECTION 6.3 (CUSTOMER OBLIGATIONS), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE SAAS, SERVICES OR THIS AGREEMENT (INCLUDING WITHOUT LIMITATION COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS OR LOSS OF DATA). EXCEPT FOR A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S AGGREGATE, MAXIMUM LIABILITY FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO THE SAAS, SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT OF ALL FEES PAID TO ALCHEMER OR A RESELLER (WHEN APPLICABLE) BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS SET FORTH IN THIS AGREEMENT APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT (WHETHER ON THE BASIS OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT. Customer acknowledges that Alchemer’s pricing reflects the allocation of risk set forth in this Agreement and that Alchemer would not enter this Agreement without these protections.
13. Term and Termination.
13.1 Term. This Agreement will commence on the date that you agree to be bound by this Agreement or the date that you begin using the SaaS (whichever occurs first) (“Effective Date”) and continue for the initial period specified on the Ordering Document or if no Ordering Document is used, thirty (30) days (the “Initial Term”), unless terminated earlier in accordance with this Section 13. This Agreement shall automatically renew for successive additional terms unless either party notifies the other party of its intent not to renew at least thirty (30) days before the end of the Initial Term or applicable renewal term (each, a “Renewal Term”). Each Renewal Term shall be: (i) specified on an Ordering Document, or (ii) if the prior Term contained a minimum term commitment, than for one (1) year, or (iii) if no Ordering Document is used, then the Renewal Term shall be for the length prior Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
13.2 Termination. This Agreement may be terminated:
(a) by Alchemer if Customer fails to make any payment when due under this Agreement and fails to cure such failure within ten (10) days of receiving notice thereof in writing from Alchemer;
(b) by immediately if Customer violates the Acceptable Use Policy, or is abusive towards or unprofessional in their dealings with Alchemer personnel; or
(c) by either party in the event the other party materially breaches any of its obligations under this Agreement and fails to cure such breach or provide the other party with an acceptable plan for curing such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach.
13.3 Effect of Termination. Upon any termination of this Agreement: (a) Alchemer may immediately cease providing the SaaS and any Services; (b) Alchemer may immediately terminate Customer’s access to the SaaS (including without limitation any Content or Response Data stored therein); (c) Customer shall immediately cease all use of Alchemer Proprietary Marks; (d) Customer shall forthwith pay to Alchemer all amounts owing under this Agreement as of the date of termination; (e) the rights granted under Sections 2 (Access Rights) and 14.4 (Use of Proprietary Marks) will automatically terminate; and (f) either party may request of the other that its Confidential Information (including Response Data and Content) be returned or destroyed. If no request is received for the return of Confidential Information within thirty (30) days of the termination of this Agreement, the requesting party acknowledges and agrees that the responding party may delete or destroy all such Confidential Information.
13.4 Survival. The parties hereto agree that the provisions hereof requiring performance or fulfillment after the expiration or termination of this Agreement shall survive such expiration or termination. Without limiting the generality of the foregoing sentence, the provisions of this Agreement relating to ownership, Confidential Information, indemnification, warranty disclaimer, and limits of liability shall survive the expiration or termination of this Agreement.
14. General
14.1 Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5 )days after deposit in the mail, or upon confirmation of receipt of facsimile or email. Notices will be sent to a party at its address set forth in the recitals to this Agreement, provided via registration or such other address as that party may specify in writing pursuant to this Section.
14.2 Publicity. Customer consents to Alchemer’s use of Customer’s name and/or logo on Alchemer’s website and/or in its marketing materials, for the sole purpose of identifying Customer as a user of the SaaS.
14.3 Beta, Trial, and Free Services. If Customer uses a product or functionality that Alchemer makes available to Customer to try at Customer’s option, at no additional charge, and which is designated as “beta,” “trial,” “evaluation,” “proof of concept (POC),” or by a similar designation (“Free Trial Product”), then the applicable provisions of this Agreement will govern that Free Trial Product (unless otherwise agreed), and Alchemer will make such Free Trial Product available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer agreed to use such Free Trial Product, (b) the start date of any subscription purchased by Customer for such product or service, or (c) termination of the Free Trial Product by Alchemer in its sole discretion. A free trial period may be extended upon mutual agreement by Alchemer and Customer. Notwithstanding anything to the contrary in this Agreement, a Free Trial Product is provided “AS IS.” ALCHEMER MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL PRODUCT. ALCHEMER SHALL NOT HAVE ANY LIABILITY FOR CUSTOMER’S USE OF THE FREE TRIAL PRODUCTS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY (NOWITHSTANDING ANY LIMITATION OF LIABILITY CONTAINED ELSEWHERE HEREIN), UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ALCHEMER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL PRODUCT IS $100. ANY DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER’S FREE TRIAL PRODUCT ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL PRODUCT TERM.
14.4 Use of Proprietary Marks. Customer shall not use any trademark, service mark, logo, product name, or company name of Alchemer (collectively “Alchemer Proprietary Marks”) without Alchemer’s express prior written consent in each instance. Provided that Alchemer provides written approval of Customer’s requested use of Alchemer Proprietary Marks, Customer shall, in addition to any other instructions or requirements provided by Alchemer with such consent: (a) refer to Alchemer LLC as the owner of the Alchemer Proprietary Marks; and (b) not use the Alchemer Proprietary Marks in a manner that, in Alchemer’s sole judgement, is likely to harm the goodwill or reputation associated with the Alchemer Proprietary Marks. Notwithstanding any provision to the contrary herein, Alchemer may at any time require Customer to discontinue its use of Alchemer Proprietary Marks. No ownership interest or other rights in or to the Alchemer Proprietary Marks shall transfer to Customer by virtue of its use of the Alchemer Proprietary Marks hereunder, and any such use of the Alchemer Proprietary Marks by Customer, as permitted under this Agreement, shall inure to the benefit of Alchemer. Alchemer reserves all rights in and to the Alchemer Proprietary Marks not expressly granted herein.
14.5 Service Videos. Customer consents to Alchemer recording and screencasting its support sessions with Customer, solely for purposes of enabling Alchemer’s provision of support to Customer and its creation of step-by-step videos specific to Customer’s SaaS-related issues. For the avoidance of doubt, such videos shall be made available solely to Customer, and shall automatically time out after thirty (30) days.
14.6 Force Majeure. If the performance of any obligation under this Agreement is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed. In the event that a third-party vendor of Alchemer, such as a hosting provider, is materially impacted outside of Alchemer’s reasonable control, such material impact shall fall under this Section and Alchemer may suspend its provision of the SaaS to Customer for the duration of such occurrence.
14.7 Independent Contractor. Neither party’s employees shall be deemed at any time to be employees or servants of the other party. Each party shall act as an independent contractor of the other for all purposes. Unless otherwise agreed to in writing, Alchemer does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations.
14.8 Anti-Corruption. Each party agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other party’s employees or agents in connection with this Agreement. Each party further agrees that reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of this Section, such party will use reasonable efforts to promptly notify the other party.
14.9 US Government Customers. If access to the SaaS is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then as a “commercial item” (as such term is defined at 48 CFR § 2.101, the Government’s rights in the SaaS and Documentation will be only as set forth (a) in this Agreement, or (b) as provided in 48 CFR § 12.212 (Computer Software), and, for Department of Defense use or disclosure, 48 CFR § 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), whichever set of rights provided in (a) or (b) is the more restrictive.
14.10 Export Control. The SaaS may be subject to export control laws and regulations. Customer shall not, directly or indirectly, export, re-export, transmit, or make the SaaS accessible from, any jurisdiction or country in which such activity is prohibited by law or regulation. Customer shall comply with all applicable domestic and international laws, rules, and regulations, and complete all required undertakings (including obtaining any necessary export license or other government approval), prior to exporting, re-exporting, transmitting, or otherwise making the SaaS available outside of the U.S. Customer represents and warrants that it (a) is not named on any U.S., or UK government list of persons or entities prohibited from receiving exports, and (b) is not located in, under the control of, a national of, or resident of any U.S., UK, or EU embargoed country.
14.11 Severability. To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
14.12 Assignment. Neither party may assign nor transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, provided that if the Agreement is assigned to a competitor of the non-assigning party, the non-assigning party shall have the option to terminate this Agreement upon written notice to the assigning party. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
14.13 Entire Agreement; Order of Precedence; Waiver. Unless there is a separately negotiated agreement between Customer and Alchemer, in which case such agreement will control, this Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement including, without limitation, any terms in any Customer purchase order or acknowledgment. The following order of precedence shall apply in the event of any conflict of terms between the Agreement, a Quote, or an Ordering Document: (a) a Quote, (b) the pricing, payment and specific Services terms contained in the relevant Ordering Document, (c) this Agreement, and (d) any provision of an Ordering Document other than those in a Quote or those listed in subsection (b). Any Purchase Order terms shall be superseded by this Agreement, and will be deemed to be for administrative purposes only with no legal effect. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
14.14 Changes. Alchemer may from time to time, in its sole discretion, change the terms and conditions of this Agreement. If any such change is material, as determined in Alchemer’s sole discretion, Alchemer will notify Customer by email or by posting a notice of the changes on the account log-in page for the SaaS. By continuing to access and use the SaaS after those changes become effective, Customer agrees to be bound by the revised Agreement.
14.15 Dispute Resolution. If any dispute related to this Agreement cannot be resolved by negotiation, the parties agree, upon either party giving written notice, the parties will submit the dispute to non-binding mediation by a mediator mutually selected by the parties. If the parties are unable to agree upon a mediator, the American Arbitration Association shall appoint the mediator. In any event, the mediation shall take place within thirty (30) days of the date that a party gives the other party written notice of its desire to mediate the dispute. The cost of the mediation shall be borne equally by the parties. CUSTOMER MUST CONTACT ALCHEMER WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS THAT GIVE RISE TO A CLAIM, OR CUSTOMER WAIVES ITS RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT OR FACTS.
14.16 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict or choice of law rules or principles. Customer hereby submits to the exclusive jurisdiction of the courts of the State of Colorado for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder.
14.17 Third Party Services. The SaaS may be used by Customer in connection with services or applications that interoperate with the SaaS that are provided by Customer or a third party and not provided by Alchemer; such use by Customer is subject to Customer’s agreement with their applicable providers. Alchemer does not guarantee that the SaaS will interoperate with any particular third party service, and Alchemer’s support obligations shall not extend to any such third party services
15. Feature-Specific Terms and Conditions. The following feature-specific provisions shall apply to the extent Customer uses APIs, SG Fonts, or HR 360, as set forth in this Section 15.
15.1 API. Alchemer may make available from time to time certain application programming interfaces that enable the SaaS to interface with other platforms and applications (“APIs”). Alchemer may iterate on the version of the API and Customer agrees it shall periodically check for the latest version. Subject to Customer’s compliance with this Agreement, Alchemer grants to Customer a revocable (upon written notice to Customer), non-exclusive, non-transferable right to use the API for the sole purpose of enabling applications to interface with the SaaS. Customer agrees it shall not use the APIs for any other purpose and shall not make the APIs available to any third party other than its Users as permitted herein.
15.2 Fonts. The SaaS provides certain fonts (the “SG Fonts”) for Customer to use in the creation of surveys. The instructions available through the SaaS instruct Users how they may utilize fonts other than the SG Fonts (“Customer Fonts”) in the creation of surveys. By using Customer Fonts,Customer represents and warrants that it owns or has all necessary rights to use Customer Fonts and that its use of Customer Fonts does not and will not infringe on the intellectual property rights of any third party. In no event will Alchemer be responsible or liable for use of any Customer Fonts.
15.3 NewMeasures LLC Human Resources 360 Integration. If Customer uses NewMeasures LLC’s Human Resources 360 Integration (“HR 360”), then Customer agrees it shall not use any proprietary information (e.g., survey items, normative data) provided by NewMeasures LLC outside of the scope of this Agreement. Customer further agrees that NewMeasures LLC shall be authorized to include Customer in its larger database for the purposes of aggregating and benchmarking, but under no circumstances will the aggregate data identify in any way Customer or its survey respondents.
