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 PRODUCTS AND OR SERVICES (DEFINED BELOW). NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY CUSTOMER PURCHASE ORDER OR OTHER FORM DELIVERED BY CUSTOMER TO ALCHEMY APPLY; SUCH ADDITIONAL 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 Products and/or Services to the Customer. All orders are non-refundable, non-cancellable and non-returnable.
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 Products and/or Services as expressly set out in the Order. In the event of a conflict or inconsistency between these terms and conditions and any Additional Terms, the Additional Terms shall prevail.
b. Agreement means these terms and conditions, together with the associated Order and any Additional Terms set out therein. In the event of a conflict or inconsistency between these terms and conditions, the Order and any Additional Terms, the following order of precedence shall apply: (1) Additional Terms, (2) these terms and conditions; and (3) the Order.
c. Alchemy means Alchemy Technology Group, LLC.
d. Customer means the entity ordering and/or purchasing Products and/or Services from Alchemy as specified in the Order.
e. End User Agreement means the terms and conditions or other agreement between the Third Party Provider and the Customer applicable to Customer’s use, subscription and/or receipt of the Product(s) or Services (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 Product(s) or Services.
f. Order means Alchemy’s quote and order document specifying the Products and/or Services to be purchased by the Customer signed by Customer or Customer’s signed 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.
g. Products: means third party products and services, including without limitation, hardware, equipment, software, support or maintenance subscriptions, SaaS, DaaS, PaaS, managed services and/or systems which Alchemy is authorized to resell from time to time.
h. Services: means third party professional services (such as, without limitation, consulting, installation, configuration, and similar services) which Alchemy is authorized to resell from time to time.
i. Third-Party Provider: means the manufacturer, distributor, licensor or provider of the Product(s) and/or Services which is/are resold by Alchemy, as the case may be.
j. Website means www.alchemytechgroup.com.
2. Reseller Only.
Customer acknowledges and agrees that: (i) the Products and Services 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 Products or Services. In purchasing the Products or Services, 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 Product and Services availability and Alchemy cannot guarantee that it will be able to fulfill Customer’s orders.
3. End User Agreement.
a. All Products and Services provided to Customer are subject to the applicable End User Agreement. 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 Product or Services. Customer acknowledges receipt of, and agrees to abide by, the End User Agreement.
b. Some software Products 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.
4. Warranties.
All warranties are covered by a manufacturer’s warranty as set out in the End User Agreement or otherwise provided with a hardware Product. 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 PRODUCTS OR SERVICES AND ALCHEMY MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS IN CONNECTION WITH THE PRODUCTS OR SERVICES 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 PRODUCTS AND/OR SERVICES 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 Products and Services will be the remedies afforded by the applicable End User Agreement.
5. Indemnification.
As a reseller, Alchemy disclaims any indemnification responsibility regarding Products and Services provided under the Order. Any and all indemnities related to the Products and Services 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 Products and Services.
6. 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 PRODUCTS OR SERVICES UNDER THE APPLICABLE ORDER; OR (II) FOR PRODUCTS 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.
7. Payment Terms.
a. Customer purchases 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 Products and/or Services as stated in the Order plus all applicable Taxes and Fees.
b. 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 7. 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.
c. Customer must pay all fees for use of the Products, including amounts for add-on features and fees incurred based on usage or consumption. 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.
d. Customer shall pay all invoiced amounts within thirty (30) days from receipt 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 check or wire transfer.
e. 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) 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.
8. 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 Products or Services. Delivery times are estimates only and Alchemy shall not be liable for delays.
b. Unless otherwise agreed, all hardware Products shall be shipped directly by the Third-Party Provider, who will arrange for shipping with its chosen carrier. Alchemy will not be liable for handling, duties or customs charges for shipments. Alchemy is not responsible for any damage or loss that may occur to the Products during shipping or transportation.
c. Risk of loss or damage to hardware Products shall pass to Customer, and acceptance of the hardware Products shall occur, upon delivery of the hardware Products to the common carrier agent FCA (Incoterms 2020) Third Party Provider’s shipping location. Customer must notify Alchemy in writing of any shipping and/or freight charge discrepancies within ten (10) days of the date of shipment, specifying the shipment, the order number, and the exact nature of the discrepancy between the order and the shipment in number. Otherwise, all shipment and freight charges will be deemed correct. Title to hardware Products shall pass the Customer upon full payment.
d. For the purpose of clarity, title to software Products will remain with the applicable Third-Party Provider (or its licensor), and Customer’s rights therein are contained in the End User Agreement.
9. Export Sales.
Customer agrees and acknowledges that the Products and Services are controlled for export by the U.S. Department of Commerce and Customer shall not divert, use, export or re-export any Product or applicable Services deliverable without the prior authorization of the Third-Party Provider. Customer expressly acknowledges and agrees that it will not export, re-export, or provide any Product or Services to any entity or person within any country that is subject to United States economic sanctions.
10. 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 attorn to the exclusive jurisdiction of the 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).
11. 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 hereunder to a third party without the prior written consent of Alchemy. 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. 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].