BY MAKING A PURCHASE FROM OR PLACING AN ORDER WITH ALCHEMY, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS, UNLESS CUSTOMER AND ALCHEMY HAVE AGREED TO A SEPARATE WRITTEN FULLY EXECUTED AGREEMENT FOR THE APPLICABLE TRANSACTION, IN WHICH CASE SUCH AGREEMENT WILL GOVERN.
THIS AGREEMENT IS A BINDING CONTRACT AND APPLIES TO CUSTOMER’S PURCHASE OF THIRD PARTY SOLUTIONS (DEFINED BELOW). NO SUPPLEMENTAL OR DIFFERENT TERMS OR CONDITIONS IN ANY CUSTOMER PURCHASE ORDER OR OTHER FORM DELIVERED BY CUSTOMER TO ALCHEMY APPLY; SUCH SUPPLEMENTAL OR DIFFERENT TERMS ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN BY ALCHEMY.
Orders placed by Customer are not binding until accepted by Alchemy; orders are deemed accepted on delivery of the Third Party Solutions to the Customer.
These Terms and Conditions are subject to change without prior notice; however, the version of these Terms and Conditions posted on the Website at the time that Customer placed an Order will govern such Order unless otherwise agreed in writing by Alchemy and Customer.
1. Definitions.
a. Additional Terms means any additional terms or conditions applicable to the specific Order and/or Third Party Solutions, including but not limited to flow-down terms that Alchemy is required by the Third Party Provider to pass through to the Customer, as set out or referenced in Alchemy’s quote and order form.
b. Agreement means these terms and conditions, together with the associated Order and any Additional Terms.
c. Alchemy means Alchemy Technology Group, LLC.
d. Consumption-Based Subscriptions means subscription(s) to Third Party Solutions that are priced, billed or charged based on actual usage or metered consumption.
e. Customer means the entity ordering and/or purchasing Third Party Solutions from Alchemy as specified in the Order.
f. End User Agreement means the terms and conditions between the Third Party Provider and the Customer applicable to Customer’s use, subscription and/or receipt of the Third Party Solutions (as applicable) which may be in the form of, without limitation, an end user license agreement, manufacturer’s warranty agreement, terms of service, terms of use, statement of work, and/or any supplemental terms relating thereto, or a separate negotiated agreement between the Customer and the Third Party Provider for the Third Party Solutions.
g. Month-to-Month Subscriptions means subscription(s) to Third Party Solutions on a month-to-month basis, without a fixed minimum term commitment beyond the then-current monthly billing period.
h. Order means Alchemy’s quote and order document specifying the Third Party Solutions to be purchased by the Customer, which is either signed or otherwise agreed to by Customer or confirmed by Customer’s issuance of a purchase order form which incorporates and accurately references Alchemy’s quote. By placing an Order, Customer agrees to be bound by these Terms and Conditions. Customer’s issuance of a purchase order is for administrative purposes only.
i. Third Party Solutions means third party products and services, including without limitation, hardware, equipment, software, support or maintenance subscriptions, SaaS, DaaS, PaaS, managed services and/or systems and third party professional services (such as, without limitation, consulting, installation, configuration, and similar services) which Alchemy is authorized to resell from time to time. Third Party Solutions excludes (and these Terms and Conditions do not apply to) products, services and/or vendors for which separate resale terms and conditions are published at www.alchemytechgroup.com/legal, which may include without limitation, Microsoft, AWS and Google Cloud.
j. Third Party Provider: means the manufacturer, distributor, licensor or provider of the Third Party Solutions which is/are resold by Alchemy, as the case may be.
k. Website means www.alchemytechgroup.com.
2. Order of Precedence.
In the event of a conflict or inconsistency between these Terms and Conditions, the End User Agreement and any Additional Terms the following order of precedence shall apply: (i) the End User Agreement; (ii) the Additional Terms; (iii) these Terms and Conditions.
3. Reseller Only.
Customer acknowledges and agrees that: (i) the Third Party Solutions purchased by Customer are resold by Alchemy for Customer’s internal use only in accordance with the End User Agreement (unless otherwise stated in the End User Agreement); and (ii) Alchemy is not the creator, provider, manufacturer or licensor (as applicable) of the Third Party Solutions. In purchasing the Third Party Solutions, Customer is relying on the Third Party Provider’s specifications only and is not relying on any statements or documents that may be provided by Alchemy. All orders are subject to confirmation of availability and Alchemy cannot guarantee that it will be able to fulfill Customer’s orders.
4. End User Agreement.
All Third Party Solutions provided to Customer are subject to the applicable End User Agreement only. Alchemy is not a party to any End User Agreement and Customer agrees to look solely to the Third Party Provider for satisfaction of any and all license and support claims or obligations related to that Third Party Solution(s). Customer acknowledges receipt of, and agrees to abide by, the End User Agreement. Customer is responsible for complying with the End User Agreement and any consequences of its non-compliance. Customer is solely responsible for managing access rights and monitoring usage and consumption (as applicable).
5. Term, Renewal, Cancellation.
a. Some Third Party Solutions are offered on a subscription basis for an initial term that may be subject to auto-renewal in accordance with the End User Agreement. Customer is solely responsible for any notice requirements related to such automatic renewals.
b. Month-to-Month Subscriptions and Consumption-Based Subscriptions shall continue on a month-to-month basis (or other periodic billing cycle specified in the Order or Additional Terms) until terminated by Customer by providing notice in accordance with the applicable End User Agreement. Alchemy may terminate Month-to-Month/Consumption-Based Subscriptions for convenience by providing at least thirty (30) days’ prior written notice to Customer and Alchemy will reasonably assist Customer in transferring its subscription directly to the Third Party Provider, the Distributor or another reseller. In the event that Alchemy’s authorization to resell the subject Third Party Solutions is terminated, Alchemy will notify Customer and reasonably assist Customer in transferring its subscription directly to the Third Party Provider, the Distributor or another reseller. Customer shall remain responsible for all fees and charges incurred through the effective termination date recognized by the Third Party Provider, including fees and charges for in-process tasks completed after the date of termination and any storage or data retention fees. Third Party Provider’s determination of the termination date is binding for invoicing purposes.
c. Except as provided herein or as otherwise agreed in writing by Alchemy, Orders are non-refundable, non-cancellable and non-returnable.
6. Warranties.
All warranties for Third Party Solutions are per the manufacturer’s warranty set out in the End User Agreement or otherwise provided with the hardware (as applicable). For all warranty issues and/or claims, please follow the instructions included in the manufacturer's warranty. AS A RESELLER, ALCHEMY DOES NOT PROVIDE ANY WARRANTIES WITH RESPECT TO THE THIRD PARTY SOLUTIONS AND ALCHEMY MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS IN CONNECTION WITH THE THIRD PARTY SOLUTIONS WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF SUITABILITY, FITNESS FOR PURPOSE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, NON-INFRINGEMENT, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF THE THIRD PARTY SOLUTIONS ARE RECOMMENDED BY ALCHEMY. Customer acknowledges that no employee of Alchemy is authorized to make any representation or warranty on behalf of Alchemy that is not in these Terms and Conditions or on behalf of the Third Party Provider. Customer’s sole and exclusive remedy relating to the Third Party Solutions will be the remedies afforded by the applicable End User Agreement.
7. Indemnification.
As a reseller, Alchemy disclaims any indemnification responsibility regarding Third Party Solutions provided under the Order. Any and all indemnities related to the Third Party Solutions are provided directly to Customer by Third Party Provider in the End User Agreement and Customer agrees to look solely to the Third Party Provider for satisfaction of any and all indemnification claims related to the Third Party Solutions.
8. LIMITATION OF LIABILITY.
a. ALCHEMY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO: (I) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE THIRD PARTY SOLUTIONS UNDER THE APPLICABLE ORDER; OR (II) FOR THIRD PARTY SOLUTIONS PROVIDED ON A SUBSCRIPTION OR CONSUMPTION BASIS, THE DOLLAR AMOUNT PAID BY THE CUSTOMER GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO SUCH CLAIM.
b. ALCHEMY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES. ALCHEMY SHALL HAVE NO LIABILITY FOR LOSSES OF REVENUE, INCOME, PROFIT OR SAVINGS, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORKS OR COSTS OF RECOVERY, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION OR DOWNTIME, LOSS OF GOODWILL OR REPUTATION OR FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT ALCHEMY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. The foregoing limitations, exclusions and disclaimers shall apply to any and all claims, regardless of whether the alleged or actual damages were foreseeable or a claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation on liability herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation compliant with applicable law.
9. Pricing & Payment Terms.
a. Customer purchases (excluding Consumption-Based Subscriptions and Month-to-Month Subscriptions) are for the full value and term of the Order regardless of frequency of invoicing. Quoted prices do not include Taxes (defined below) or any handling, shipping, packaging, insurance, freight or transportation charges (“Fees”). Customer shall be responsible for and pay the total purchase price for the Third Party Solutions as stated in the Order plus all applicable Taxes and Fees.
b. Pricing for Month-to-Month Subscriptions and Consumption-Based Subscriptions is initially as set out in the Order but Alchemy may adjust pricing (and other commercial terms) to reflect changes by the Third Party Provider; such changes are effective for Customer as of the effective date set by the applicable Third Party Provider and Alchemy shall use commercially reasonable efforts to pass along notice.
c. The placement of Customer’s initial Order for Consumption-Based Subscription(s) will serve as its firm and binding commitment to pay Alchemy for its full usage of the applicable Consumption-Based Subscriptions, regardless of any usage, quantities or total estimated charges stated in the Order. Invoiced amounts for Consumption-Based Subscriptions shall be calculated based on the Third Party Provider usage report provided to Alchemy; if Customer reasonably believes that usage report is incorrect, Customer must notify Alchemy no later than five (5) business days after receipt of invoice so that Alchemy can file an appeal with the applicable Third Party Provider. If the Third Party Provider confirms the reported usage is correct, Customer will be bound by Third Party Provider’s determination. If Customer has agreed to any minimum usage commitment for a Consumption-Based Subscription, Customer will be invoiced for the greater of (i) the minimum commitment; and (ii) Customer’s actual usage. Termination of the Consumption-Based Subscription by Customer shall not relieve Customer of its payment obligations for any minimum commitment and all such fees shall become immediately payable upon termination.
d. Customer shall be responsible for all federal, state and local sales, use, withholding, value-added, excise, duties and similar taxes imposed on any amounts payable by Customer for the Order (“Taxes”). Alchemy’s delay or failure to include any applicable tax in an invoice will not waive or dismiss its right to invoice for such tax(es) or Customer’s obligations under this Section 9. In no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Alchemy’s net income, personnel, or assets.
e. Customer must pay all fees for use of the Third Party Solutions, including amounts for add-on features and fees incurred based on usage or consumption including for Month-to-Month Subscriptions and Consumption-Based Subscriptions. Alchemy shall invoice Customer for metered or overage fees monthly in arrears or such other frequency as used by the Third Party Provider, plus applicable Taxes, based on charges notified to Alchemy by the applicable Third Party Provider.
f. Customer shall pay all invoiced amounts within the payment period set out in the Order or, if unspecified, within thirty (30) days from date of invoice, without set off or deduction. Any invoice or portion thereof that is subject to a good faith dispute may be withheld pending resolution provided that Customer: (a) provides written notice setting forth in detail the reason for the dispute, on or before the payment due date, (b) promptly meets and confers in good faith with Alchemy to resolve the dispute; (c) pays the undisputed portion of the portion before its due date and (d) pays the disputed fees, if legitimate, within ten (10) days after resolution of the dispute. All payments shall be in US dollars and made by the payment method set out in the Order or if unspecified, by wire transfer or Automated Clearing House (ACH).
g. In the event that invoices are not paid in full by the applicable due date Alchemy may (without prejudice to any other rights which Alchemy may have under this Agreement, at law or in equity):
i. charge interest on such overdue amount at a rate of 1.5% per month calculated monthly from the date payment was due until the date payment is made, and Customer shall reimburse Alchemy for all costs incurred by Alchemy in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees;
ii. disable or suspend (or request the Third Party Provider to disable or suspend) Customer’s access to and use of such Third Party Solutions, and in such event Customer shall remain liable for all charges during any period of suspension or disablement and such disablement or suspension does not modify amounts due under the Order. If such non-payment and/or suspension continues for more than thirty (30) days, Alchemy may terminate (or direct the Third Party Provider) to terminate Customer’s access to and use of the Third Party Solutions whereupon the Order shall immediately terminate and all payments under the applicable Order shall immediately accelerate and become due and payable in full.
10. Shipping, Delivery, Title & Risk of Loss
a. Customer acknowledges that because Alchemy is a reseller only, Alchemy cannot and does not guarantee that it can fulfill Customer’s requests for Third Party Solutions. Delivery times are estimates only, partial shipments and backorders may occur, and Alchemy shall not be liable for delays. Delay in delivery of any installment will not relieve Customer of its obligation to accept remaining shipments.
b. Unless otherwise agreed, hardware Third Party Solutions may be shipped by the applicable Third Party Provider, by Alchemy, or through a third-party logistics or freight-forwarding provider selected by Alchemy or the applicable Third Party Provider, including for international shipments. Customer is responsible for all handling, shipping, packaging, insurance, freight, transportation, brokerage, duties, customs, import/export, taxes, compliance, and other similar charges relating to such shipments, all of which constitute Fees under Section 9 and are not included in quoted prices unless expressly stated otherwise in the applicable Order.
c. Alchemy is not responsible for any damage, loss, delay, or other issue that may occur during shipping, transportation, customs clearance, import/export processing, or related logistics.
d. Customer shall inspect hardware promptly upon receipt. Any visible damage, shortage, or delivery discrepancy must be noted with the carrier at the time of delivery and reported to Alchemy in writing within five (5) days after receipt. Customer shall retain all packaging and shipping documentation. Failure to timely provide such notice will constitute acceptance of the hardware for purposes of any transit-related claim.
e. Risk of loss of or damage to hardware Third Party Solutions shall pass to Customer, and Customer shall be deemed to have accepted such hardware, when the hardware is delivered to the carrier at the applicable shipping location of the Third Party Provider, Alchemy, or other shipper of record, FCA (Incoterms 2020).
f. All claims for loss, damage, shortage, or delay in transit shall be pursued through the applicable carrier or logistics provider claims process. Customer shall promptly notify Alchemy of any such claim and provide all reasonably requested supporting information and documentation. If Alchemy is the shipper of record, Alchemy shall reasonably cooperate with Customer in submitting or supporting the claim. If a Third Party Provider or third-party logistics provider is the shipper of record, Alchemy shall use reasonable efforts to cause that shipper of record to reasonably cooperate in submitting or supporting the claim. Alchemy shall have no liability for the outcome of any such claim. To the extent Alchemy, the applicable Third Party Provider, or any third-party logistics provider replaces, reships, credits, or refunds any hardware that is lost or damaged in transit, that party shall be entitled to retain any related carrier, insurance, or other shipping recovery. To the extent Customer has borne the loss and has not received a replacement, reshipment, credit, or refund covering such loss, Customer shall be entitled to the benefit of any such recovery.
g. For the purpose of clarity, title to software Third Party Solutions will remain with the applicable Third Party Provider (or its licensor), and Customer's rights therein are contained in the End User Agreement.
11. Personal Data.
Any personal data processed by the Third Party Solutions is handled under the End User Agreement and the applicable Third Party Provider’s privacy/security terms. Alchemy is not acting as data processor of any Customer data under this Agreement except to the extent explicitly agreed in a separate data processing agreement.
12. Export Sales.
Customer agrees and acknowledges that the Third Party Solutions are controlled for export by the U.S. Department of Commerce and Customer shall not divert, use, export or re-export any Third Party Solutions without the prior authorization of the Third Party Provider. Customer expressly acknowledges and agrees that it will not export, re-export, or provide any Third Party Solutions to any entity or person within any country that is subject to United States economic sanctions.
13. Choice of Law.
This Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of laws rules. The parties hereby irrevocably submit to the exclusive jurisdiction of the state or federal courts in Harris County, Texas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby or subject matter hereof (whether based on contract, tort, fraud or any other theory).
14. General.
Headings are used for convenience only and shall not affect the interpretation of this Agreement. No provision of this Agreement may be waived, by any act or omission of either Alchemy or the Customer, and this Agreement may not be amended except by the express written consent of both parties. For greater certainty, forbearance or indulgence by either Alchemy or the Customer in any regard shall not constitute a waiver of any provision of this Agreement. Customer may not assign this Agreement, or any rights or obligations thereunder to a third party without the prior written consent of Alchemy. Alchemy aay assign or subcontract all or any portion of its rights or obligations with respect to the sale of Third Party Solutions or assign the right to receive payments, without Customer's consent. In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby. Each applicable Third Party Provider shall be a third party beneficiary hereof. All notices, requests, demands, and other communications must be in writing and may be given by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; or (iii) nationally recognized courier services to the party at its official corporate address. Notices to Alchemy must be sent to: Alchemy Technology Group, 11 Greenway Plaza, Suite 2600, Houston TX, 77046, Attention: Legal Department, with an email copy to [email protected]. This Agreement contains the complete agreement between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous discussions, negotiations, representations and understandings with respect to the subject matter hereof.