PLATFORM TERMS

Last Updated: [07/15/2025]

THESE PLATFORM TERMS (THESE “TERMS”) ARE BETWEEN ALKEMI INC., A DELAWARE CORPORATION (“ALKEMI”) AND THE ENTITY IDENTIFIED AS “CUSTOMER” IN THE ORDER FORM, CHECKOUT PAGE, OR ORDER CONFIRMATION EMAIL REFERENCING THESE TERMS (THE “ORDER”). THESE TERMS, THE ORDER, AND ANY OTHER TERMS INCORPORATED BY REFERENCE INTO THESE TERMS OR INTO THE ORDER,INCLUDING THE PRIVACY POLICY (COLLECTIVELY, THE “AGREEMENT”) APPLY TO THE PROVISION OF ACCESS TO AND USE OF THE PLATFORM (AS DEFINED BELOW) AND RELATED PLATFORM. ALKEMI AND CUSTOMER ARE EACH A “PARTY” AND, COLLECTIVELY, THE “PARTIES.”

  1. OVERVIEW. Subject to the terms and conditions of this Agreement, Alkemi will make available its proprietary dataset analysis platform, made available athttps://www.alkemi.ai/ (the “Platform”).

  2. ACCESS TO PLATFORM; PERMITTED USE; RESTRICTIONS

  1. Access. Only Customer and employees or contractors of Customer that Customer allows to use the Platform on Customer’s behalf (“Users”) using the mechanisms designated by Alkemi (“Log-in Credentials”), may access and use the Platform. To access the Platform, Customer (and its Users) must register for an account and may be required to provide Alkemi with information (such as name, email address, or other contact information). Customer agrees that the information it provides to Alkemi is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Alkemi’s breach of this Agreement). Alkemi may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (“Process”) Log-in Credentials in connection with Alkemi’s provision of the Platform or for Alkemi’s internal business purposes. Customer will promptly notify Alkemi if it becomes aware of any compromise of any Log-in Credentials. Customer represents and warrants to Alkemi that: (a) it has not previously been suspended or removed from the Platform; and (b) its registration and use of the Platform is in compliance with all applicable laws.

  2. Permitted Use. During the Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Platform solely for Customer’s internal business purposes in accordance with the Documentation (defined below), this Agreement, and any limitations set forth in the Order.

  3. Documentation. During the Term, subject to Customer’s compliance with the terms of this Agreement, Alkemi hereby grants to Customer a limited, non-exclusive, non-transferable (except as set forth in Section 14.1), and non-sublicensable right and license to internally use the then-current version of Alkemi’s usage guidelines and standard technical documentation for the Platform (“Documentation”), solely in connection with Customer’s exercise of the rights granted in Section 2.2 (Permitted Use).

  4. Restrictions. Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following: (a) provide access to, distribute, sell, or sublicense the Platform, Documentation, or related processes, configurations, technology, templates, formats, or dashboards provided by or on behalf of Alkemi (collectively, “Alkemi Technology”) to a third party (other than Users); (b) use the Alkemi Technology to develop a similar or competing product or service; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Alkemi Technology, except to the extent such a restriction is not permitted under applicable law (and then only with prior notice to Alkemi); (d) modify or create derivative works of the Alkemi Technology or copy any element of the Alkemi Technology; (e) remove or obscure any proprietary notices in the Alkemi Technology; (f) publish benchmarks or performance information about the Alkemi Technology; (g) interfere with the operation of the Alkemi Technology, circumvent any access restrictions, or conduct any security or vulnerability test of the Alkemi Technology; (h) transmit any viruses or other harmful materials to the Alkemi Technology; (i) take any action that risks harm to others or to the security, availability, or integrity of the Alkemi Technology; or (j) access or use the Alkemi Technology in a manner that violates any applicable relevant local, state, federal or international laws, regulations and conventions, including those related to data privacy or data transfer, international communications, or export of data. Additionally, Customer must not use the Alkemi Technology (including by submitting or querying Customer Data) with any: (i) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented from time to time) (“HIPAA”); (iii) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards; (iv) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers, or other government ID numbers; or (vi) any data similar to the above protected laws (collectively, the data described in the foregoing (i)–(vi), “Prohibited Data”) or for activities where use or failure of the Alkemi Technology could lead to death, personal injury, or environmental damage, including life support systems, emergency Platform, nuclear facilities, autonomous vehicles, or air traffic control (“High Risk Activities”). Customer acknowledges that the Alkemi Technology is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Alkemi is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Alkemi has no liability with respect to Prohibited Data or use of the Alkemi Technology for High Risk Activities.

  1. SUPPORT. During the Term, Alkemi will use commercially reasonable efforts to provide the applicable Alkemi Technology in a manner that minimizes errors and interruptions in accessing the Alkemi Technology in accordance with its then-current service level agreement attached hereto as Exhibit A (“SLA”). During the Term, Alkemi will provide technical support to Users for issues and questions arising from the operation of the Alkemi Technology in accordance with Alkemi’s then-current support policy attached hereto asExhibit A (“Support”).

  2. DATA; OUTPUT

  1. Use of Customer Data. Customer hereby grants Alkemi a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to contractors and service providers), non-transferable (except as set forth in Section 14.1) right to use, copy, store, disclose, transmit, transfer, publicly display, modify, create derivative works from, and Process any queries, prompts, datasets, and any other materials that Customer (including its Users) inputs or makes available to Alkemi, including through the Platform (“Customer Data”) solely as necessary: (a) to perform its obligations set forth in this Agreement; (b) to derive or generate Usage Data; (c) to monitor the performance and stability of the Platform; (d) to train or improve the artificial intelligence or machine learning models, including the Platform or other Alkemi products, including by using data about the taxonomy or the queries; or (e) to comply with applicable laws. “Usage Data” means information generated from use of the Platform, such as technical logs, data, metrics, and learnings related to Customer’s and Users’ use of the Platform, which information does not identifyUsers, Customer, or any natural human persons as the source thereof. Customer will not interfere with the collection of Usage Data, and Alkemi may use and exploit Usage Data without restriction.

  2. Marketplace Data. The Platform may provide access to a marketplace (“Marketplace”) that allows Customer (including its Users) to access certain datasets that may be licensed from third-party sellers (“Providers”) directly on the Platform (“Marketplace Data”), subject to the terms and conditions governing the Marketplace, made available atMarketplace Terms(“Marketplace Terms”). Alkemi does not control, and has no liability for, any Marketplace Data, including security, functionality, accuracy, availability, or Platform interoperability thereof. Customer may use Marketplace Data on the Platform, subject to this Agreement, the Marketplace Terms, and Customer’s agreement with the relevant Provider (“Asset Terms”).

  3. Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with applicable laws when using the Platform. Customer represents and warrants that (a) it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Alkemi to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process the Customer Data set forth in this Agreement without violating or infringing applicable laws, third-party rights, or terms or policies that apply to the Customer Data; and (b) Customer Data will contain any content which violate the restrictions set forth in Section 2.4 (Restrictions).

  4. Output. Alkemi collects and receives certain data when responding to queries or other prompts made by Customer (including its Users) through the Platform. This data generation and collection process may be conducted, in whole or in part, through the use of technologies that use or rely upon artificial intelligence, machine learning techniques, and other similar technology and features. In response to Customer’s (including its Users’) queries and prompts made through the Platform, Alkemi may make available to Customer certain of these data, as well as reports, information, content, and other materials (collectively, “Output”). Output will be provided in a form and format reasonably determined by Alkemi, in accordance with any parameters set forth in the applicable Order and the Asset Terms, and such delivery will occur through means reasonably determined by Alkemi or as otherwise set forth on the Order or Asset Terms. Customer acknowledges and agrees that Output is comprised of proprietary and third-party data, information, and content. Customer may use the Output made available to Customer solely for its internal business purposes, in accordance with the terms and conditions of this Agreement and applicable laws.

  1. FEES; TAXES; AUTHORIZATION

  1. Fees. Customer will pay the fees for the Alkemi Technology set forth in each Order (“Fees”). All Fees will be paid in U.S. dollars unless otherwise provided in the Order. Fees are invoiced as described on the schedule in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Fees for Renewal Terms are at Alkemi’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by applicable law, whichever is less. All Fees are non-refundable except as may be set out in 9.1 (Limited Warranty), Section 12.4 (Mitigation; Exceptions), and the SLA.

  2. Taxes. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Alkemi’s income tax (“Taxes”). Fees are exclusive of all Taxes.

  3. Authorization. Customer authorizes Alkemi to charge all Fees owed to Alkemi under any active Orders as described in these Terms, to the payment method specified on the Order or Customer’s account. If Customer pays any Fees with a credit card, then Alkemi may seek pre-authorization of Customer’s credit card account prior to a purchase to verify that the credit card is valid and has the necessary funds or credit available. Customer agrees that Alkemi may seek pre-authorization of the credit card account that Customer provides to Alkemi for payment prior to any purchase. If Customer’s payment method is no longer valid at the time a renewal Fee is due, then Alkemi reserves the right to delete Customer’s account, including any information, Customer Data, or Marketplace Data associated with Customer’s account without any liability to Customer.

  1. TERM AND TERMINATION

  1. Term. Unless earlier terminated in accordance with the terms of this Agreement, the “Initial Term” of this Agreement will be as set forth on the Order. Thereafter, unless this Agreement terminates earlier in accordance with the terms of this Agreement, this Agreement will automatically renew for additional successive “Renewal Terms” having the length set forth on the Order (the Initial Term and any Renewal Terms, collectively, the “Term”), unless either Party gives the other Party notice of non-renewal at least 30 days before the end of the Initial Term or applicable Renewal Term. Unless otherwise set forth in the Order, Fees for any Renewal Term are at Alkemi’s then-current Fees at the time of such renewal regardless of any discounted pricing in a prior Order or promotional offers previously extended to Customer. ANY CANCELLATION BY CUSTOMER MUST BE RECEIVED AT LEAST 30 DAYS BEFORE THE EXPIRATION OF THE THEN-CURRENT TERM IN ORDER TO AVOID BEING CHARGED FOR THE NEXT RENEWAL TERM. Alkemi may, from time to time, amend these Terms, and will post such amended Terms on Alkemi’s website athttps://datahub.alkemi.ai/platform-terms, noting the date of the last such amendment. Upon the commencement of any Renewal Term, this Agreement will renew on the then-current version of these Terms.

  2. Termination. Either Party may terminate this Agreement (including the Order) if the other Party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within 60 days.

  3. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s rights to access, and Alkemi’s obligations to provide, the Alkemi Technology and Support will cease. Following the date of expiration or earlier termination of this Agreement, Alkemi will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information may be retained in a Party’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.

  4. Suspension. Alkemi may immediately suspend Customer’s and its Users’ access to the Platform if: (a) Customer breaches Section 2.4 (Restrictions) or Section 4.3 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to applicable laws or new laws require that Alkemi suspend the Platform or otherwise may impose additional liability on Alkemi; or (d) Customer or its Users actions risk harm to any of Alkemi’s other customers or the security, availability, or integrity of the Platform. Where practicable, Alkemi will use reasonable efforts to provide Customer with prior notice of the suspension. If the issue that led to the suspension is resolved, Alkemi will use reasonable efforts to restore Customer’s access to the Platform.

  5. Survival. These Sections survive expiration or termination of this Agreement: 2.4 (Restrictions), 4.3 (Customer Obligations), 4.4 (Output), 5 (Fees; Taxes; Authorization), 6.3 (Effect of Termination), 6.5 (Survival), 10 (Ownership), 11 (Limitations of Liability), 12 (Indemnification), 12.1 (Confidentiality), and 14 (General Terms).

  1. CONFIDENTIALITY

  1. Definition. “Confidential Information” means information disclosed to the receiving Party (“Recipient”) under this Agreement that is designated by the disclosing Party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Alkemi’s Confidential Information includes the terms and conditions of this Agreement, Output, Marketplace Data, and the Alkemi Technology (including any technical or performance information about the Alkemi Technology). Customer’s Confidential Information includes Customer Data.

  2. Obligations. As Recipient, each Party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Alkemi is the Recipient, Alkemi may retain the Customer’s Confidential Information to the extent required to continue to provide the Alkemi Technology as contemplated by this Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 7 and they are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 7.

  3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving Party or its representatives; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or referencing Confidential Information.

  4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 7.

  5. Required Disclosures. Nothing in this Agreement prohibits either Party from making disclosures, including of Customer Data and other Confidential Information, if required by law, subpoena, or court order, provided (if permitted by applicable law) it notifies the other Party in advance and cooperates in any effort to obtain confidential treatment.

  1. THIRD-PARTY PLATFORMS. The Platform may support integration with third-party offerings, add-ons, or products not provided by Alkemi (“Third-Party Platforms”). Use of Third-party Platforms are subject to Customer’s agreements with the relevant provider and not this Agreement. Alkemi does not control and have no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Platform or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Platform, Customer authorizes Alkemi to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

  2. LIMITED WARRANTY; DISCLAIMER

  1. Limited Warranty. Alkemi warrants to Customer that the Platform will perform materially as described in the Documentation and Alkemi will not materially decrease the overall functionality of the Platform (“Limited Warranty”) during the Term (“Warranty Period”). If Alkemi breaches the Limited Warranty during the Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by Alkemi within 30 days of discovering a breach of the Limited Warranty, then Alkemi will use reasonable efforts to correct the non-conformity. If Alkemi cannot do so within 30 days of receipt of Customer’s warranty claim, either Party may terminate the Agreement as it relates to the non-conforming portion of the Platform. Alkemi will then refund to Customer any pre-paid, unused Fees for the terminated portion of the Term. This Section sets forth Customer’s exclusive remedy and Alkemi’s entire liability for breach of the Limited Warranty. The Limited Warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Platform; (b) issues in or caused by Marketplace Data, Third-party Platforms or other third-party systems; (c) use of the applicable Alkemi Technology other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use of the Alkemi Technology.

  2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 (LIMITED WARRANTY), THE ALKEMI TECHNOLOGY, SUPPORT, OUTPUT, AND ANY AND ALL OTHER ALKEMI OFFERINGS ARE PROVIDED “AS IS”. ALKEMI, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. ALKEMI DOES NOT WARRANT THAT CUSTOMER’S USE OF THE ALKEMI TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALKEMI WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. ALKEMI IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ALKEMI’S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. Without limiting the foregoing, Customer acknowledges and agrees that: (a) the Platform may produce inaccurate or erroneous Output; (b) Customer is responsible for independently evaluating the Output and any other information Customer receives from the Platform; and (c) due to the nature of the Platform and artificial intelligence technologies generally, Output may not be unique and other users of the Platform may receive output from the Platform that is similar or identical to the Output (and, notwithstanding anything to the contrary, such similar or identical output will not be understood to be Output hereunder).

  1. OWNERSHIP. Neither Party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the Parties, Customer retains all intellectual property rights and other rights in the Customer Data and the Outputs, subject to the licenses granted in this Agreement. Subject to this Agreement, (a) Alkemi hereby assigns Customer all right, title, and interest in and to Output; provided however, that Alkemi will retain all intellectual property rights that Alkemi owns or has an interest in, prior to, or separate from the generation of Output, which includes the Alkemi Technology (“Pre-Existing Alkemi IP”); and (b) to the extent any Output provided to Customer includes any embedded Pre-Existing Alkemi IP, then Alkemi hereby grants Customer a license solely to the extent necessary for Customer to use Output in accordance with this Agreement. Except as expressly authorized under this Agreement, Alkemi may not make use of Output. Except for the rights and licenses granted in this Agreement, Alkemi and its licensors retain all intellectual property rights in and to the Alkemi Technology and Usage Data, including any modifications or improvements to these items made by Alkemi. To the extent Customer provides Alkemi with feedback (including suggestions and comments for enhancements or functionality) regarding the Alkemi Technology, Output (including underlying datasets), or Alkemi’s products, services, or other technology (“Feedback”), Alkemi has (a) sole discretion to determine whether and how to proceed with Feedback and (b) the full and unrestricted right to use or incorporate Feedback into any of its products, services, technology, or other materials.

  2. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTIONS 2.4 (RESTRICTIONS) OR 4 (DATA; OUTPUT); (B) EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY) (BUT EXCLUDING CLAIMS RELATING TO CUSTOMER DATA); (C) AMOUNTS PAYABLE TO THIRD PARTIES UNDER THE INDEMNIFYING PARTY’S OBLIGATIONS IN SECTION 12 (INDEMNIFICATION); OR (D) A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (I) NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE; AND (II) EACH PARTY’S (AND ITS SUPPLIERS’ AND LICENSOR’S) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ALKEMI PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THIS AGREEMENT.

  3. INDEMNIFICATION

  1. By Customer. Customer will defend Alkemi from and against any actual or threatened third-party claim (“Claim”) to the extent resulting from: (a) Customer Data; (b) Customer’s breach or alleged breach of Section 4.3 (Customer Obligations); and (c) or Customer’s use of Output, and will indemnify and hold Alkemi harmless against any damages and costs awarded against Alkemi (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.

  2. Indemnity by Alkemi. Alkemi will defend Customer from any Claim alleging that the Alkemi Technology, when used by Customer in accordance with this Agreement, infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Alkemi resulting from the Claim.

  3. Procedures. The indemnifying Party’s (the “Indemnitor”) obligations in this Section 12 are subject to the Indemnitor receiving (a) prompt notice of a Claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the Claim; and (c) all reasonably necessary cooperation of the indemnified Party (the “Indemnitee”), at the Indemnitor’s expense for reasonable out-of-pocket costs. The Indemnitor may not settle any Claim without the Indemnitee’s prior consent if settlement would require the Indemnitee to admit fault or take or refrain from taking any action (other than relating to the use of the Alkemi Technology, when Alkemi is the Indemnitor). The Indemnitee may participate in a Claim with its own counsel at its own expense.

  4. Mitigation; Exceptions. In response to an actual or potential infringement Claim, Alkemi may at its option: (a) procure rights for Customer to continue reselling the Alkemi Technology; (b) replace or modify the allegedly infringing portion of the Alkemi Technology to avoid infringement without reducing the Alkemi Technology’s overall functionality; or (c) terminate this Agreement and refund to Customer any pre-paid, unused Fees for the terminated portion of the Term. Alkemi’s obligations in this Section 12 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Alkemi Technology or use of Alkemi Technology in combination with items not provided by Alkemi; (b) to infringement resulting from the Alkemi Technology other than the most recent release; (c) to unauthorized use of Alkemi Technology; (d) if Customer settles or makes any admissions about a Claim without Alkemi’s prior written consent; or (e) to Trials and Betas (defined below) or other free or evaluation uses. This Section 12 sets out Customer’s exclusive remedy and Alkemi’s entire liability regarding infringement of third-party intellectual property rights.

  1. TRIALS AND BETAS. If Customer or its Users receive access to or use of the Platform or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), such access to or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Alkemi (not to exceed thirty 30 days unless otherwise agreed upon by the Parties in writing). These Trials and Betas will be considered part of the Platform and, subject to the remainder of this Section 13, all provisions of this Agreement relating to the Platform will apply to these Trials and Betas. Trials and Betas are optional and either Party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Alkemi may never release, and their features and performance information are deemed to be Alkemi’s Confidential Information. Alkemi may suspend Customer’s and its Users’ access to the Trials and Betas at any time. Customer’s and its Users’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALKEMI PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND ALKEMI’S LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US $50.00.

  2. GENERAL TERMS

  1. Assignment. Neither Party may assign this Agreement without the prior consent of the other Party, except that either Party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which this Agreement relates to the other Party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.

  2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of Washington and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in King County, Washington and both Parties submit to the personal jurisdiction of those courts.

  3. Publicity. Neither Party may publicly announce that the parties have entered into this Agreement, except with the other Party’s prior consent. However, Alkemi may include Customer and its trademarks in Alkemi’s customer lists and promotional materials upon request but will cease further use at Customer’s written request.

  4. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the Order and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either Party may update its address with notice to the other Party pursuant to this Section. Alkemi may also send operational notices to Customer by email or through the Platform, and Customer agrees that any notices, agreements, disclosures, or other communications that Alkemi sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.

  5. Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Alkemi. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Alkemi; any of these Customer documents are for administrative purposes only and have no legal effect.

  6. Waivers and Severability. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of this Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.

  7. Force Majeure. Neither Party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.

  8. Subcontractors. Alkemi may use subcontractors and permit them to exercise Alkemi’s rights, but Alkemi remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

  9. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers.

  10. Export. Customer will comply with all relevant U.S. and foreign export and import laws in using any Alkemi Technology. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Alkemi Technology in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Platform any information controlled under the U.S. International Traffic in Arms Regulations.

  11. Open Source. The Platform may incorporate third-party open source software (“OSS”), including as listed in the Documentation or otherwise disclosed by Alkemi in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

  12. Government End-Users. Elements of the Alkemi Technology may include commercial computer software. If the user or licensee of the Alkemi Technology is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Alkemi Technology or any related Documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Alkemi Technology was developed fully at private expense. All other use is prohibited.

  13. Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of any Order and these Terms the terms of the Order will control to the extent of the conflict.

  14. Entire Agreement. This Agreement is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

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Exhibit A

SLA and Support Policy

  1. SERVICE LEVEL AGREEMENT. Subject to the Agreement, this Service Level Agreement (“SLA”) sets forth the terms that Alkemi will make available the Platform to the Customer referenced in the applicable Order.
  1. Additional Defined Terms. In addition to capitalized terms used in the Agreement, the capitalized terms in this SLA have the following definitions:
  1. “Emergency Maintenance” means critical changes to a Platform that cannot wait for Planned Maintenance including changes that could destabilize the Platform if not addressed expeditiously, security related issues, or technical problems that could impact the availability of a Platform.
  2. “Planned Maintenance” means Alkemi’s scheduled routine maintenance for a Platform including to fix non-critical errors and implement Platform changes including to the software.
  3. “Uptime” means the time the Platform is available during each calendar month, subject to the Uptime Exclusions.
  4. “Uptime Exclusions” means unavailability of the Platform on weekends or holidays or due to any of the following: (a) Customer’s use of a Platform in a manner not authorized in the Agreement or any instructions provided by Alkemi; (b) general Internet problems; (c) force majeure events or other factors outside of Alkemi’s reasonable control; (d) Customer software, equipment, network connections or other infrastructure; or (e) third party platforms or systems.
  1. Target Uptime. Alkemi will use commercially reasonable efforts to meet or exceed an Uptime of 99.0%. The Uptime will be calculated by the below calculation. The calculation of Uptime will not include Uptime Exclusions.

Uptime calculation

  1. Service Credits. If a Platform fails to meet Uptime in a particular calendar month, Alkemi verifies such failure, and Customer makes a request for credit within 30 days after the end of such calendar month, Customer will be entitled to a credit based on the monthly fees due for the affected Platform in such calendar month, which will be calculated as follows (“Service Credit”):

Uptime

Service Credit (% of calendar monthly fees)

<  99.89% —> 99%

5%

< 99% —> 98%

10%

< 98% —> 96%

15%

< 96.00%

20%

  1. Process. Alkemi will apply each Service Credit to Customer’s next invoice if Customer’s account is fully paid up and there are no outstanding payment issues or disputes. Customer will not receive any refund for any unused Service Credits. Service Credits in any calendar month will not exceed 20% of the calendar monthly fees due. Service Credits constitute liquidated damages and are not a penalty. Service Credits are Customer’s exclusive remedy, and Alkemi’s entire liability, for Alkemi’s failure to meet the Uptime.
  1. SUPPORT POLICY. Subject to the Agreement, Alkemi will remotely provide assistance to the Customer referenced in the applicable Order with the resolution of problems with the Platform (“Support”) in accordance with the following terms (“Support Policy”).
  1. Support Hours. Support is provided during Alkemi’s normal business hours 9:00 am–5:00 pm Pacific Time, not including weekends and holidays (“Support Hours”). Alkemi’s holidays include any day where the U.S. banks are officially closed for holidays.
  2. Incident Submission; Customer Cooperation. Customer will identify, investigate and attempt to resolve all problems with the Platform (each an “Incident”) prior to contacting Alkemi, and should only escalate Customer problems to Alkemi after exhausting all reasonable means available to Customer to resolve the Incident. Alkemi will handle Incidents received outside of the normal business hours on the next business day in accordance with this Support Policy. In the event Customer is not able to resolve the Incident, Customer will escalate to Alkemi in accordance with this Support Policy. Customer may report Incidents by contacting Alkemi at [email protected] or using the methods made available by Alkemi on the Platform. When reporting an Incident, Customer will provide information as reasonably required for Alkemi. Customer agrees to provide Alkemi with reasonable access to all necessary personnel to answer questions about any Incident. Alkemi does not guarantee performance of the Platform if Customer does not comply with this Support Policy.
  3. Incident Response. Alkemi will use commercially reasonable efforts to respond to all Incidents submitted during Support Hours within 1 business day.
  4. Support by Customer. Customer will provide all support to its Users and will manage and perform all communication with its Users. Alkemi is not obligated to communicate directly with any Users.
  5. Exclusions. Alkemi will have no obligation to provide Support to the extent an Incident arises from: (a) use of the Platform, including, without limitation, in a manner not consistent with the Agreement or Alkemi’s instructions; (b) use in conjunction with systems, products or components not reasonably anticipated to be used with the Platform or part thereof; (c) modifications to the Platform that were neither made by or authorized by Alkemi; or (d) any third-party platforms or systems.