ALLOY TECHNOLOGIES, INC.

TERMS AND CONDITIONS

 

By signing the Order Form and, if applicable, any SOW(s), Alloy.ai and Customer agree to be bound by the terms and conditions of the Order Form, the SOW(s) (if any) and these Terms and Conditions. Capitalized terms not defined herein shall have the meaning set forth in the Order Form or SOW(s). These Terms and Conditions, the Order Form and SOW(s) (if any) shall collectively be referred to as the “Agreement.” The person(s) signing the Order Form and SOW(s) for Customer represent they: (i) have complete power and authority to enter into this Agreement and to bind the Customer entity to the terms of this Agreement; and (ii) are agreeing to these Agreement terms on behalf of the Customer entity. If such person(s) do not have such power and authority and/or do not agree with the terms and conditions of the Agreement, neither such person(s) nor the Customer entity or its Authorized Users may use the Service or Professional Services.

  1. Access and Use of the Service

Subject to Customer’s and Authorized User’s compliance with the terms and conditions of this Agreement, Alloy.ai grants to Customer a limited, temporary, non-exclusive, non-transferable (except in accordance with the provisions of Section 22 (Miscellaneous) of these Terms and Conditions) license, without right to sublicense, to permit Authorized Users:

For Production Use Purposes: to access and use the Service and Documentation solely for production use for the internal business purposes of Customer during the License Term (as defined in the Order Form).

For Evaluation Purposes: (in the event Customer is accessing the Service for evaluation purposes) to access and use the Service and related Documentation (if any), solely for non-production, evaluation purposes during the evaluation period set forth in the applicable Order Form to evaluate the suitability of the Service for Customer’s potential future production use.

For Beta Services Purposes: (in the event Customer is selected to access pre-release functionality for review and provision of feedback to Alloy.ai (“Beta Services”)) to access and use the Beta Services and related Documentation (if any), solely for non-production, evaluation and feedback purposes during the Beta Services period specified in the Order Form.

When using the Service for evaluation purposes or when using Beta Services, the following terms and conditions shall apply and control over any other conflicting provisions in this Agreement: (i) Customer shall not upload production data or personally identifiable data to the Service or Beta Services; (ii) Customer shall not have access to any data it has uploaded to the Service or Beta Services after the Evaluation period or Beta Services period ends and Alloy.ai accepts no responsibility or liability for such data; (iii) Alloy.ai may modify or terminate any evaluation license or Beta Services license at any time without liability for such action; (iv) the evaluation Service and Beta Services are provided “AS IS” without representation, warranty or indemnification of any kind and without technical support or service availability commitment; (v) Alloy.ai makes no commitment that evaluation Service or Beta Services are intended to meet Customer’s needs or requirements or that such features or functionality will be made generally available; and (vi) Alloy.ai’s and its licensors’ suppliers’ and service providers’ aggregate liability for any and all damages for all claims arising from Customer’s use of the Service for evaluation purposes or use of Beta Services shall not exceed ten thousand dollars ($10,000).

Alloy.ai reserves all rights not expressly granted in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer, Authorized Users or any third party any intellectual property rights or other right, title, or interest in or to the Alloy.ai IP.

  1. Changes to the Service

If Alloy.ai provides Customer with any upgrades, patches, enhancements, or fixes for the Service (“Updates”), then such Updates will become part of the Service and subject to this Agreement. Notwithstanding the foregoing, Alloy.ai shall have no obligation under this Agreement or otherwise to provide any such Updates or any other enhancements, modifications, upgrades, new releases or additional functionality for the Service. Customer understands that Alloy.ai may cease supporting old versions or releases of the Service at any time in its sole discretion.

  1. Use Restrictions; Customer Responsibilities

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any Alloy.ai IP (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on any Alloy.ai IP; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any Alloy.ai IP; (iv) use any Alloy.ai IP for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from any Alloy.ai IP or any portion thereof; or (vi) use any Alloy.ai IP to build an application or product that is competitive with any Alloy.ai IP or any other Alloy.ai product or service.

Customer shall use the Service in compliance with all applicable laws, regulations and third party service terms and conditions. Customer shall not (and shall not permit any third party to), directly or indirectly, take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Service, that: (1) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (2) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (3) constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”); (4) contains software viruses, works, time bombs, Trojan horses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Alloy.ai or any third party; (5) contains any personal health data, credit card data or personal financial data; or (6) impersonates any person or entity, including any employee or representative of Alloy.ai. Additionally, Customer shall not interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service or bypass any measures Alloy.ai may use to prevent or restrict access to the Service or other accounts, computer systems or networks connected to the Service.

  1. Service Availability

Alloy.ai shall use commercially reasonable efforts to provide 99% Service Availability for Customer’s production use of the Service. “Service Availability” is defined as the percentage of a particular month (based on 24 hour days for the number of days in the subject month) that the Service was available for access at Alloy.ai’s point of demarcation. Service Availability shall not be reduced by, and Customer shall have no remedies for a failure to meet the Service Availability requirement due to any of the following: (i) any misuse or unauthorized use of the Service outside the scope described in this Agreement or the Documentation; (ii) failure of Customer or third party hardware, software, networking infrastructure or other equipment; (iii) failure of internet connectivity or other network traffic problems other than problems arising in or from networks actually or required to be provided or controlled by Alloy.ai; (iv) failure of Customer to meet the configuration requirements for Customer equipment set forth in the Documentation; (v) downtime scheduled by Alloy.ai at least seven (7) days in advance; or (vi) events outside the reasonable control of Alloy.ai as further described in Section 22 (Miscellaneous) of these Terms and Conditions.

  1. Support; Service Levels

Alloy.ai will provide Customer with technical support for the Service. If the Service becomes substantially unavailable to Customer due to Service defects, Alloy.ai will respond to Customer: (i) within twenty-four (24) hours from Customer’s notification to Alloy.ai of such unavailability, if such notice is provided during normal business hours (Monday-Friday, 9:00 a.m. – 6:00 p.m. Pacific Time); or (ii) within twenty-four (24) hours of the start of the next business day, if outside of normal business hours. At Customer’s request and subject to Customer’s approval, Alloy.ai may elect to offer “for fee” extended support options and Professional Services consultation. Such services may include, among other things: extended training services (e.g. ongoing in-person training), change-management consulting, engineering support to the extraction and transmission of Customer’s internal data (e.g. ERP integration), advanced system configuration (e.g. Customer internal templates). Unless otherwise specified, extended support and Professional Services will be billed at the rate of $300 per hour.

  1. Professional Services

Alloy.ai agrees to perform the Professional Services and provide the Deliverables, if any, as set forth on each SOW. All SOWs shall be deemed part of and subject to these Terms and Conditions. If the Professional Services require the installation and use of hardware and/or software, Customer will facilitate the installation thereof and shall provide physical space, electrical power, Internet connectivity and physical access as reasonably determined and communicated by Alloy.ai. Any SOW changes must be mutually agreed upon in writing. If Customer desires to modify a SOW, Alloy.ai will prepare an SOW addendum or a new SOW which shall be signed by the parties and shall be deemed part of and subject to these Terms and Conditions.

Unless otherwise specified in the SOW, Alloy.ai shall invoice Customer for Professional Services on either: (i) a time and materials basis based on Alloy.ai’s actual hours worked; or (ii) a fixed price as set forth in an applicable SOW. One day of Professional Services is equal to eight (8) man hours. Each invoice shall indicate the nature of the work performed and any reasonable expenses incurred by Alloy.ai with appropriate receipts and/or documentation, as well as the total amount due. Customer will reimburse Alloy.ai for its reasonable, out-of-pocket travel and related expenses incurred in performing the Professional Services. Alloy.ai shall notify Customer prior to incurring any such expense. Alloy.ai shall comply with Customer’s travel and expense policy if made available to Alloy.ai prior to the required travel.

Customer will be and remain, at all times, the sole and exclusive owner of the Customer-Owned Property (including, without limitation, any modification, compilation, derivative work of, and all intellectual property and proprietary rights contained therein. Customer hereby grants Alloy.ai a non-exclusive, nontransferable, right and license under Customer’s intellectual property rights in the Customer-Owned Property during the applicable SOW term or License Term as necessary for Alloy.ai to access, use, store, make, copy, modify, and create derivative works of the Customer-Owned Property for the limited purpose of developing, testing, storing and providing the Deliverables for use by Customer during the applicable SOW term or License Term. Alloy.ai will promptly return to Customer all Customer-Owned Property upon the termination or expiration of this Agreement, or sooner at Customer’s request.

Customer acknowledges that Customer’s timely provision of (and Alloy.ai’s access to) Customer’s facilities, equipment, assistance, cooperation, data, information and materials (“Cooperation”) is essential to the performance of the Professional Services, and that Alloy.ai shall not be liable for any deficiency in performing the Professional Services if such deficiency results from Customer’s failure to provide Cooperation as required hereunder. Cooperation includes, but is not limited to: (i) designating a project manager or technical lead to interface with Alloy.ai during the course of the Professional Services; (ii) allocating and engaging additional resources as may be required to assist Alloy.ai in performing the Professional Services; and (iii) making available to Alloy.ai any data, information and any other materials required by Alloy.ai to perform the Professional Services, including, but not limited to, any data, information or materials specifically identified in the SOW (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete.

  1. Fees and Payment

Customer shall pay Alloy.ai fees for the Service, Professional Services (if any) and other services acquired as set forth in the Order Form and/or SOW(s) (“Fees”). Unless otherwise specified in the Order Form or SOW(s), all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars upon receipt of invoice. Except as otherwise specifically set forth in these Terms and Conditions, all Fees due hereunder are non-cancelable and non-refundable and are not subject to setoff or deduction. Past due invoices are subject to interest on any outstanding balance of the lesser of 3.0% per month or the maximum amount permitted by law, plus expenses of collection including reasonable attorney’s fees. In addition to all other available rights and remedies, Alloy.ai reserves the right to suspend the Service and/or the provision of Professional Services upon ten (10) days prior written notice to Customer if overdue amounts have not been paid in full. Customer shall be responsible for all taxes associated with the Service and any Professional Services other than taxes based on Alloy.ai’s net income.

  1. Security

Alloy.ai will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by or to Customer or Authorized Users). Alloy.ai shall not materially diminish the protections it provides for Customer Data during the License Term. Within thirty (30) days after the termination or expiration of a License Term and upon Customer’s timely written request, Alloy.ai will make the applicable Customer Data available for Customer export or download. After such thirty (30) day period, Alloy.ai will have no obligation to retain, store, maintain or provide any such Customer Data, and may thereafter delete or destroy all copies of such Customer Data in its systems or otherwise in its possession or control pursuant to Alloy.ai data retention and destruction policies, unless Alloy.ai is legally required to retain such Customer Data. Any security concerns or vulnerabilities discovered which relate to the Service should be reported to security@alloy.ai.

  1. Confidentiality

For purposes of this Agreement, “Confidential Information” means information of either party, in any format, not known generally to the public, that is marked or identified as “confidential, “proprietary” or the like or that should be reasonably understood to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information includes all non-public information about the disclosing party’s or its licensors’ suppliers’ and service providers’ business, marketing plans, financial data, technology, software, product plans, specifications, designs, research, know-how, processes, algorithms and other technical information of the disclosing party whether or not it is marked or designated as “confidential or “proprietary” or the like at the time of disclosure. Customer Confidential Information includes Customer Data. Alloy.ai Confidential Information includes the terms and conditions of this Agreement (including pricing), the terms of any product, service or Professional Services quote or offering (including pricing), product and service components, plans, designs, specifications, algorithms, Documentation, configuration, implementation, benchmarking, training and technical support information for the Service, Professional Services and any other product or service offerings made to Customer by Alloy.ai. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement or any other agreement between the parties; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party rightfully knew without restriction prior to receiving such information from the disclosing party; or (iv) the receiving party develops independent of any access to or use of the Confidential Information of the disclosing party (as shown by documents and other competent evidence in the receiving party’s possession). Each party agrees that: (a) it will not disclose to any third party any Confidential Information of the other party except as expressly permitted in this Agreement, and only if such authorized third parties are subject to nondisclosure obligations no less restrictive than those set forth in this Section 9; (b) it will disclose the other party’s Confidential Information only to those of its licensors, suppliers and service providers and its and their employees, contractors, agents and representatives (and in the case of Customer, Authorized Users) who have a need to know the Confidential Information and who are subject to nondisclosure obligations no less restrictive than those set forth in this Section 9; (c) it will not use any of the disclosing party’s Confidential Information except as permitted under this Agreement; and (d) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each party may disclose Confidential Information of the other party to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law. In the event the information sought is Confidential Information of the other party, the party from whom the information is sought shall promptly inform the other party of such requested disclosure in writing (unless prohibited from such notification by lawful order of the court) and shall provide reasonable assistance (at the other party’s cost) in efforts by the other party to contest or limit the disclosure.

  1. Ownership; Feedback; Usage Data

Customer acknowledges that, as between Customer and Alloy.ai, Alloy.ai owns all right, title, and interest, including all intellectual property rights, in and to the Alloy.ai IP and, with respect to Third-Party Products, the applicable third party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. If Customer purchases Professional Services, Alloy.ai grants to Customer a worldwide, non-exclusive, non-transferable (except in accordance with the provisions of Section 22 (Miscellaneous) of these Terms and Conditions), non-sublicensable right to use the Deliverables during the applicable SOW term or License Term solely for internal business purposes for Customer’s use with the Service.

As between the Customer and Alloy.ai, Customer shall retain all right, title and interest in and to all Customer Data. Customer grants to Alloy.ai and its licensors, suppliers, service providers and its and their employees and contractors a non-exclusive, sublicensable, transferable, fully-paid, worldwide right and license: (i) during the License Term to access, extract and receive Customer Data from Customer, Authorized Users and Third-Party Platforms (or as otherwise provided to Alloy.ai) and to host, copy, store, transmit and display Customer Data, as reasonably necessary for Alloy.ai to provide the Service and the Professional Services and perform its other obligations in accordance with this Agreement; and (ii) during the License Term and thereafter (subject to Alloy.ai data retention and destruction policies and applicable law) to copy, store, retain and destroy Customer Data for data storage, retention and destruction purposes. In addition, Customer grants Alloy.ai a non-exclusive, sublicensable, transferable, fully-paid, perpetual, worldwide right and license to use Customer Data, de-identified and in aggregate form, in various analyses and to incorporate such data and analyses in its product offerings without attribution to Customer.

Customer may from time to time provide suggestions, ideas, comments, recommendations or other feedback to Alloy.ai with respect to the Service, the Professional Services, evaluation services, Beta Services, Documentation or other services, materials, data and information provided by Alloy.ai (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Alloy.ai. Customer hereby grants to Alloy.ai a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use, incorporate into the Service and otherwise exploit the Feedback and all intellectual property rights therein; provided that such license grant shall not be construed to relieve Alloy.ai of any confidentiality or security obligations it may have hereunder with respect to Customer Data. Customer is under no obligation to provide, and Alloy.ai is under no obligation to use, any Feedback.

Notwithstanding anything to the contrary in this Agreement, Alloy.ai may monitor Customer’s use of the Service and collect and compile Usage Data. As between Alloy.ai and Customer, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by Alloy.ai. Alloy.ai may: (i) use Usage Data to the extent and in the manner permitted under applicable law; and (ii) make Usage Data publicly available in compliance with applicable law, provided that such Usage Data is anonymized and presented in the aggregate so that it does not identify Customer or Customer’s Confidential Information.

  1. Customer Data; Third-Party Platforms

Customer is responsible for all Customer activity in connection with the Service, including but not limited to: (i) activity conducted by any person or entity Customer has given access to the Service; (ii) all activities conducted using Customer credentials; (iii) the provision of Customer Data for the Service; and (iv) obtaining and providing any notices, consents and authorizations necessary to or from third parties regarding Customer Data, including Customer credentials necessary for Alloy.ai to use in order to obtain Customer Data from third parties and third party hardware, software, systems, networks, services and devices, including, but not limited to, Third-Party Platforms. Customer is responsible for: (i) the transmission of Customer Data to Alloy.ai (including the Customer Data obtained from any Third-Party Platform whether or not that data is obtained through the use of Customer’s identification credentials provided to Alloy.ai by Customer); (ii) the accuracy, quality, integrity, legality and reliability of all Customer Data; and (iii) ensuring that the uses of Customer Data contemplated in this Agreement do not violate any contractual, proprietary or intellectual property right of any third party.

  1. Limited Warranty; Disclaimer

During the Term, Alloy.ai warrants that the Service will conform in all material respects to the then-current Documentation. For a period of thirty (30) days from completion of the Professional Services, Alloy.ai warrants that the Professional Services will be provided in a good and workmanlike manner, consistent with applicable industry standards. Customer shall promptly notify Alloy.ai in writing, prior to the end of the applicable warranty period, of any breach of the foregoing warranties, in which event Alloy.ai shall use commercially reasonable efforts to reperform, modify or replace the non-conforming Service or Professional Services at no charge to Customer so that it conforms to the foregoing warranties. In the event Alloy.ai cannot reperform, modify or replace the non-conforming Service or Professional Services so that it conforms to the foregoing warranties within a commercially reasonable time from its receipt from Customer of a timely written notice of breach, Customer may terminate its rights to access and use the non-conforming Service or Professional Services, effective immediately on written notice to Alloy.ai, and, promptly after such termination, Alloy.ai will provide Customer a refund of: (i) Fees prepaid for such non-conforming Service prorated for the remainder of the then-current Term or, (ii) in the case of non-conforming Professional Services, Fees paid in advance by Customer for the non-conforming Professional Services. The remedies set forth in this Section 12 are Customer’s sole and exclusive remedies and Alloy.ai’s entire liability for breach of warranties. Any remedy provided by Alloy.ai will not extend the original warranty period. Alloy.ai will have no obligation under this Agreement to correct, and Alloy.ai makes no warranty with respect to: (i) non-conformities caused by or relating to Customer’s or Authorized Users’ negligent use or misuse of the Service or Professional Services; (ii) use of the Service or Professional Services in a manner inconsistent with the Documentation, this Agreement or applicable law; (iii) non-conformities caused by or relating to alteration or modification of the Service or Professional Services by anyone other than Alloy.ai; (iv) non-conformities caused by or relating to Customer’s or Authorized Users’ use of the Service or Professional Services in combination with data, software, hardware, equipment, or technology not provided by Alloy.ai; or (v) components of the Service, Professional Services or Third-Party Products governed by Open Source Licenses.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE, PROFESSIONAL SERVICES AND ALL OTHER SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ALLOY.AI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING.

  1. Indemnification

Customer shall defend, indemnify, and hold harmless Alloy.ai, its affiliates and each of its and its affiliates’ directors, officers, employees, contractors, licensors, suppliers, service providers and representatives from all liabilities, claims, actions, judgments, costs and expenses (including court costs, expert witness fees and reasonable attorneys’ fees), from any third party claim arising from or relating to: (i) Customer’s negligent use or misuse of Alloy.ai IP; (ii) any breach or alleged breach of any of Customer’s obligations or representations and warranties in this Agreement; (iii) infringement by Customer, or any third party using Customer’s credentials or Customer’s account, of any intellectual property or other right of any person or entity; (iv) any access to, possession or use of Customer Data allegedly violating any applicable law or infringing the rights of, or causing harm to, a third party; or (v) Alloy.ai’s exercise of its rights pursuant to this Agreement to Customer Data in order for Alloy.ai to perform the Service or provide the Professional Services and Deliverables ((i) through (v) collectively, “Customer Indemnified Claims”).

Alloy.ai shall defend Customer and its directors, officers, employees and contractors from any third-party claim, suit, action, or proceeding (“Alloy.ai Indemnified Claim”) alleging that the Service and/or Professional Services infringe such third-party’s U.S. intellectual property rights and shall pay damages finally awarded by a court of competent jurisdiction (including court costs, expert witness fees and reasonable attorneys’ fees) or amounts agreed to by Alloy.ai in settlement of such Alloy.ai Indemnified Claims; provided that the foregoing obligation shall not apply with respect to any Alloy.ai Indemnified Claim based in whole or in part upon: (i) Alloy.ai’s compliance with Customer’s specifications; (ii) modifications to the Service or Professional Services made by anyone other than Alloy.ai; (iii) Customer’s use of the Service or Professional Services in combination with data, software, hardware, equipment, or technology not provided by Alloy.ai (where the infringement would have been avoided but for such combination, operation or use); (iv) Customer’s use of the Service or Professional Services other than in accordance with the Documentation and this Agreement; (v) components of the Service, Professional Services or Third-Party Products governed by Open Source Licenses; or (vi) Third-Party Platforms or other third party products or services. If the Service or the Professional Services or any component thereof becomes, or in the opinion of Alloy.ai is likely to become, the subject of an Alloy.ai Indemnified Claim (each an “Allegedly Infringing Item”), then Alloy.ai will use reasonable efforts, at its cost and expense, to: (a) procure for Customer the right to continue using the Allegedly Infringing Item(s) at no additional cost to Customer; (b) replace or modify, in whole or in part, the Allegedly Infringing Item(s) to make the Service or Professional Services no longer infringing; or (c) if neither (a) nor (b) are reasonably commercially available to Alloy.ai within a commercially reasonable time frame, Alloy.ai may terminate the Agreement, effective immediately on written notice to Customer, and promptly thereafter refund to Customer the Fees prepaid for the Allegedly Infringing Item(s) prorated for the remainder of the then-current annual License Term.

The party seeking indemnification (the “Indemnified Party”) will provide the party from whom indemnification is sought (the “Indemnifying Party”): (i) prompt written notice of any indemnifiable claim(s) (provided that the Indemnified Party’s failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (ii) sole control over the defense and settlement of the indemnifiable claim(s) (provided that the Indemnifying Party may not settle any indemnifiable claim(s) in a manner that imposes any obligation of admission of guilt or payment of damages any kind on the Indemnified Party without the Indemnified Party’s prior written consent); and (iii) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the indemnifiable claim(s). In no event may the Indemnified Party incur any indemnifiable costs or expenses without the prior written authorization of the Indemnifying Party.

THIS SECTION 13 SETS FORTH ALLOY.AI’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OF INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ALLOY.AI, ITS LICENSORS, SUPPLIERS, SERVICE PROVIDERS OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT FOR ANY ERROR, LOSS OF USE OR INTERRUPTION OF USE OF THE SERVICE OR PROFESSIONAL SERVICES, ANY LOST PROFITS OR REVENUE, DATA LOSS, INACCURACY OR CORRUPTION, INABILITY TO OR DELAY IN RECOVERING CUSTOMER DATA OR ANY BREACH OF CUSTOMER DATA OR SECURITY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES RIGHTS OR TECHNOLOGY, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, HOWEVER ARISING, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  THE FOREGOING EXCLUSION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

IN NO EVENT SHALL ALLOY.AI, ITS LICENSORS, SUPPLIERS, SERVICE PROVIDERS OR ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO ALLOY.AI HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM OR CLAIMS HEREUNDER.

Alloy.ai licensors, suppliers and service providers have no liability of any kind under this Agreement. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties and, without such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including the economic terms, would be substantially different.

  1. Service Suspension

Notwithstanding anything to the contrary in this Agreement, Alloy.ai may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Service if: (i) Alloy.ai reasonably determines that (a) there is a threat or attack on any of the Alloy.ai IP; (b) Customer’s or any Authorized User’s use of the Alloy.ai IP disrupts or poses a security risk to the Alloy.ai IP or to any licensor, supplier, service provider or customer of Alloy.ai; (c) Customer, or any Authorized User, is using the Alloy.ai IP for fraudulent, abusive or illegal activities; (d) Alloy.ai’s provision of the Service to Customer or any Authorized User is prohibited by applicable law; or (ii) Customer has not timely paid Fees due in accordance with the Fees and Payment provisions of this Agreement or is otherwise in material breach of any terms and conditions of the Agreement and has not cured such breach within ten (10) days after receipt of written notice of the breach (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Alloy.ai shall: (a) provide written notice of any Service Suspension to Customer (unless such notice is prohibited by law) and updates regarding resumption of access to the Service following any Service Suspension; and (b) resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. If Customer is at fault for the Service Suspension, Alloy.ai shall end the Service Suspension provided Customer cures such breach within ten (10) days of receipt of written notice from Alloy.ai identifying the fault resulting in the Service Suspension. If Customer fails to cure the fault within the ten (10) day cure period or, if the Service Suspension is a result of the occurrence of events set forth in subpart (i) (b) or (i) (c) above, Alloy.ai may terminate this Agreement. Alloy.ai will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension or termination pursuant to the terms of this Section 15.

  1. Term; Termination; Effect of Termination

Unless earlier terminated in accordance with this Section 16, the term of this Agreement (the “Term”) shall be the License Term, Evaluation period or Beta Services period set forth on the Order Form. If specified in the Order Form, either party may elect not to renew this Agreement provided written notice is given within the timeframe specified in the Order Form. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by written notice to the breaching party, unless the breaching party cures such breach within thirty (30) days of receipt of such written notice. Alloy.ai may terminate this Agreement immediately in the event that Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

Upon termination of this Agreement, all rights, licenses and subscriptions granted to Customer shall immediately terminate, and Customer shall: (i) cease use of the Professional Services, Deliverables and the Service (other than for retrieval of Customer Data from the Service within thirty (30) days of termination); (ii) cease using Alloy.ai Confidential Information; and (iii) pay all outstanding Fees due. In the event Customer terminates this Agreement for uncured material breach caused by Alloy.ai, Alloy.ai will refund to Customer the Fees prepaid for the Service prorated for the remainder of the then-current annual License Term and a prorated portion of any prepaid but unused Professional Services fees. Termination for any reason other than termination by Customer for Alloy.ai’s uncured material breach shall not relieve Customer of the obligation to pay future amounts due under the Order Form(s) and SOW(s). All provisions of this Agreement which by their nature should survive termination or non-renewal shall survive termination or non-renewal, including, without limitation, payment obligations, confidentiality obligations, ownership, feedback and Usage Data provisions, effect of termination provisions, warranty disclaimers, limitations of liability, injunctive relief provisions, applicable Miscellaneous provisions and definitions.

  1. Promotion

Customer agrees to allow Alloy.ai to: (i) use Customer’s name and logo as an Alloy.ai customer in Alloy.ai’s marketing materials including its website without implying Customer’s endorsement of Alloy.ai or the Service; (ii) issue a press release within two (2) weeks of the Effective Date indicating that Customer has agreed to take a license to the Service, the contents of which will be pre-approved by Customer and which shall not be unreasonably withheld; and (iii) publish a case study that describes how the Service was used to solve Customer’s business needs, subject to Customer’s prior review and approval.

  1. Injunctive Relief

Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 (Confidentiality) or Section 10 (Ownership; Feedback; Usage Data), or, in the case of Customer, the two aforementioned sections and Section 3 (Use Restrictions; Customer Responsibilities), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

  1. Export

The Service, Professional Services and Documentation utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Service, Professional Services, Documentation or the underlying software or technology or make the Service, Professional Services, Documentation or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service, Professional Services, Documentation or the underlying software or technology available outside the US.

 

  1. Legal Compliance

Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA“) and the U.K. Bribery Act of 2010 (“UKBA”) and agrees to comply with its terms as well as any provisions of local law related thereto. Customer further understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party’s influence with that government, to obtain or retain business. Customer agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or antibribery law

  1. Government End Users

Each of the Documentation and the software components that constitute the Service and Professional Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Service, Professional Services and Documentation as are granted to all other end users, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

  1. Miscellaneous

This Agreement represents the entire agreement between Customer and Alloy.ai with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Alloy.ai with respect hereto. The terms and conditions of this Agreement supersede any conflicting or additional terms and conditions of any purchase order or other ordering document submitted by Customer. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover court costs and reasonable attorneys’ fees. The U.N. Convention on Contracts for the International Sale of Goods does not apply. Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form or to the corporate headquarters of the receiving party to the attention of the CEO with a copy to the Legal department. Either party may update its address for notices by giving written notice to the other party. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Alloy.ai shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Alloy.ai’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; failure of other hardware, software, networks, systems and equipment outside the control of Alloy.ai; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is not assignable, transferable or sublicensable by Customer except with Alloy.ai’s prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Alloy.ai may freely assign, transfer or delegate any of its rights and obligations hereunder. Alloy.ai’s relationship with Customer is that of an independent contractor. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Other than as expressly provided in this Agreement, the Agreement does not create any rights for any person not a party to this Agreement. Only persons who are parties to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in this Agreement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit the non-breaching party’s rights with respect to such breach or any subsequent breaches. Except as specifically set forth herein, all remedies in this Agreement are cumulative and in addition to any other remedies available to a party at law or in equity.

  1. Definitions

“Alloy.ai IP” means the Service, the Professional Services and Deliverables, all Documentation, all hardware, software equipment and networking provided by Alloy.ai, Alloy.ai’s processes, methods, templates and forms and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing, including Usage Data and any information, data, or other content derived from Alloy.ai’s monitoring of Customer’s access to or use of the Service, but excluding Customer Data.

“Authorized User” means Customer’s employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to and use of the Service has been acquired hereunder.

 

“Customer Data“ means information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User to the Service. Customer Data includes: (i) any applications, data, identification credentials, information or material provided, uploaded, or submitted by Customer, or at Customer’s request or with Customer’s permission, to the Service in the course of using the Service; (ii) any data within Customer’s private storage area on the Service, if any; (iii) any applications, data, information or material obtained, downloaded, extracted or received by Alloy.ai from any Third-Party Platform or outside source on behalf of Customer, including but not limited to the third parties identified in the Initial Coverage section of the Order Form, or using identification credentials provided or authorized by Customer.

 

“Customer Owned Property” means any technology, software, algorithms, formulas, techniques or know-how and other tangible and intangible items that were owned by Customer, or developed by or for Customer by third parties that are provided by Customer to Alloy.ai for incorporation into or used in connection with the Deliverables or performance of Professional Services.

 

“Deliverables“ means the materials that are created specifically for Customer as a result of the Professional Services provided hereunder, and that are identified as deliverables in a SOW.

 

“Documentation“ means Alloy.ai’s user manuals, handbooks, and guides relating to the Service provided by Alloy.ai to Customer either electronically or in hard copy form.

 

“Open Source Licenses” means software components that are licensed under a license approved by the Open Source Initiative or similar open source or freeware license and are embedded in or delivered with the Service or Professional Services.

 

“Order Form” means all written or online order forms or other ordering documentation generated by Alloy.ai and entered into by the parties containing the pricing, subscription term and other specific commercial terms applicable to the Service. Upon execution, each Order Form will be incorporated into and become a part of this Agreement.

 

“Professional Services” means any professional consulting, installation, configuration, implementation or integration services provided by Alloy.ai identified in the Order Form or a SOW.

 

“Service“ means the software as a service offering described in an Order Form as updated from time-to-time by Alloy.ai in its sole discretion.

 

“SOW” means a document entered into by the parties describing specific Professional Services to be provided by Alloy.ai to Customer. Upon execution, each SOW will be incorporated into and become a part of this Agreement.

 

“Third-Party Platforms“ means any third-party equipment, hardware, software, products or services from which Customer Data is extracted for uploading and/or use with the Service, including, but not limited to: (a) the receipt and transmission of Electronic Data Interchange (EDI) files on behalf of Customer; (b) access to web-based vendor-facing portals; and (c) APIs hosted by Customer’s own customers/partners identified in the Initial Coverage section on the Order Form.

 

“Third-Party Products“ means any third-party products or services provided with or incorporated into the Service.

 

“Usage Data“ means data and information derived from the operation of the Service, including statistical and performance information related to the provision and operation of the Service, such as applications used, data volumes, number of login credentials, number of login sessions and session duration, web applications used in connection with the Service, the Service environment, configurations, log data, Service performance results and Service monitoring data.

Last Updated: May 30, 2023