Asynchronous Inc. Services Agreement (Botany.io)

Last updated January 26, 2021

Asynchronous Inc, (DBA Botany.io) (“Botany”) provides a solution that provides software development productivity workflow solutions and analytics (the “Solution”). These Services Terms of Service (this “Agreement”) govern Customer’s access and use of the Solution and any proprietary technology of Botany incorporated therein. This Agreement will come into effect on the earlier of (a) accepting this Agreement or (b) accepting Botany's price quote or paying its invoice (the “Effective Date”). Use of Solution and provision of any of the Botany services is subject to the prior consent of Botany, and Botany can terminate the provision of the Solution and/or services at any time. In this Agreement, “Customer” means the entity ordering and receiving Services from Botany. Any individual accepting this Agreement on behalf of Customer represents and warrants that s/he is authorized to accept this Agreement on behalf of Customer and legally bind Customer to the terms and conditions set forth herein. Please read this Agreement carefully. This Agreement as well as all applicable exhibits govern your use of the Solution. You must accept this Agreement prior to receipt of the Services. By using the Services, you signify your consent to this Agreement. Changes may be made to this Agreement from time to time. We will provide you with notice of any such changes, and your continued use of the Service following such notice shall be deemed acceptance to any such amended or updated terms. Notwithstanding the foregoing after being notified of such changes in writing, your continued use of the Solution will be deemed acceptance to the amended or updated Agreement. As such, you should check frequently to see if we have updated this Agreement. If you do not agree to any of these Terms, please do not use the Solution.

1. Solution.

Subject to the terms and conditions of this Agreement, Botany shall provide Customer with access to the Solution on a non-exclusive basis. Customer may use the Solution solely for its internal purposes. Customer shall not be entitled to any other software (including any other executable or source code) from Botany. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Solution will not conflict with any legal, regulatory or contractual obligations of Customer.

2. Restrictions.

Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Solution; (b) modify the Solution, (c) sublicense, sell, distribute or provide the Solution to any third party, or (d) bypass any security measure or access control measure of the Solution or (e) use the Solution to provide services to any third party, including as part of a service bureau or timeshare arrangement. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Botany in writing in each instance prior to engaging in the activities set forth above.

3. Data; Privacy.

In order to provide the Solution and associated analytics, Botany collects certain data regarding Customer’s systems, code and users, including regarding how the systems and code are used, accessed and developed by employees and service providers of Customer (the “Customer Data”). All Customer Data is the confidential information of Customer and, except as set forth in this Agreement, Botany shall not disclose such Customer Data to third parties or use such Customer Data except to provide services to Customer. During the Term, certain certified Botany analysts may have access to Customer Data in order to understand Customer’s needs, make recommendations and provide support. Customer represents and warrants that it has the right to provide Botany with access to all Customer Data, including without limitation the use of Customer’s systems and code by its employees and service providers, and including all account and login information that Customer may provide to Botany. Customer shall provide its employees and service providers with all notices required under law regarding the use of the Solution. Botany analyzes all Customer Data in order to provide Customer with the Solution, including for the purposes of generating analysis and reports for the Customer. In addition, Botany may use Customer Data for the purpose of generating aggregate and/or anonymous data that may be provided to third parties and other customers of Botany, such as for the purpose of providing benchmarks. Botany may also use aggregate and/or anonymous data for the purpose of improving the Solution, including the algorithms and models used by the Solution. Botany will implement reasonable security measures appropriate to the nature of the Customer Data including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Customer Data. Botany may disclose Data to the extent required by applicable law or to cooperate with a law enforcement investigation or to enforce its rights under this Agreement. Botany may transfer all Customer Data to jurisdictions other than the jurisdiction of the Customer. Botany's processing of Customer Data is subject to its privacy policy, available here https://botany.io/privacy-policy and as amended from time to time. Botany's processing of Customer Data when the Customer is located in the EU is subject to the Data Processing Agreement available here https://botany.io/data-processing-agreement and as amended from time to time.

4. Intellectual Property.

Botany has all right, title and interest in the Solution, including all enhancements, improvements and modifications thereof (“Botany Property”). Botany does not request Customer’s feedback regarding the Botany Property. Notwithstanding the foregoing, if Customer provides Botany with any feedback regarding the Botany Property, Botany may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.

5. Confidentiality.

Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Solution. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information herein and all non-public information in respect of the Solution shall be deemed the Confidential Information of Botany.

6. Versions and Payment.

Botany offers several packages: (a) a free trial to specified companies for a limited period of 21 days (respectively, “Trial” and “Trial Period”), (b) a base package for an unlimited period (“Base Service”) and (c) a premium package provided on a monthly basis (“Premium Service”). The Base Service is provided to the Customer as long as the Customer uses the Service only for up to 8 developers and one dev team. Any use beyond that scope will require payment for the Premium Service. Payments for the Premium Service are currently automatically charged on a monthly auto renewed basis. Botany may change the terms of each package, including with respect to pricing and payment, with 10 days prior written notice. Botany currently accepts some major credit cards, but may add or change payment methods in its sole discretion. Customer must respect the terms and conditions of any payment methods it uses. Customer is solely responsible for any taxes on amounts it may pay for the Solution. Botany will deduct applicable charges and taxes from any payable amounts, as required by law. Cancellation may be subject to cancellation fees. Botany reserves the right to cancel any transaction that it has reason to believe to have been fraudulently made, including by unauthorized use of a credit card, debit card, or other payment method.

7. Support.

Support for the Premium Service will be provided in accordance with the terms of Exhibit A.

8. Warranties; Disclaimer.

Each party warrants that it has full corporate power and authority to execute this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, execution, delivery and performance of this Agreement by it have been taken. Botany represents and warrants that to its best knowledge the Solution does not infringe the intellectual property rights of any third party. Subject to the foregoing, the Solution is provided “as is”. To the maximum extent permitted by applicable law, Botany disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Customer understands that the Solution is provided without warranties and accepts the use of the solution on that basis.

9. Indemnification

9.1 Botany Indemnification Obligations. Botany shall defend, indemnify and hold Customer harmless from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Customer may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party against Customer arising from any claims that the Solution infringes the intellectual property rights of a third party. Botany shall not have any liability to the extent any claim is the result of (a) Botany's compliance with specifications provided by Customer, (b) the combination of the Solution with other hardware, software or services not provided by Botany, (c) the collection, use or transfer of Customer Data in compliance with this Agreement, or (d) Customer’s actions, omissions or breach of this Agreement. If the Solution shall be the subject of an indemnifiable claim, or Botany reasonably believes that the Solution shall be the subject of an indemnifiable claim, Botany may terminate this Agreement with written notice.

9.2 Customer Indemnification Obligations. Customer shall defend and indemnify Botany (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Botany may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the provision by Customer of any data not in compliance with applicable law.

9.3 Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense

10. Limitation of Liability.

In no event shall Botany (or its directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to the Botany Software or Solution. The entire liability of Botany (or its directors, officers, affiliates, agents or employees) hereunder shall not exceed the total amount Customer has actually paid to Botany in respect of the Solution.

11. Term.

The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue in effect until (a) the end of the Trial Period, if applicable, or (b) terminated by one of the parties. Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 15 days of receipt of written notice thereof from the non-breaching Party. Termination at will can be effected upon 30 days of written notice. Upon any termination of this Agreement, Customer shall cease all use of the Solution. Sections 2 – 12 of this Agreement shall survive any termination or expiration thereof. Neither party shall have liability for the termination of this Agreement in accordance with its terms. Termination notices should be sent to info@botany.io.

12. Miscellaneous.

This Agreement together with its Exhibits constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any exhibit (including any SOW) the terms of this Agreement shall govern unless expressly set forth otherwise in the applicable exhibit executed by the authorized signatories of both parties that the terms of such agreement shall govern notwithstanding contrary terms in this Agreement. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. Botany may assign its rights or obligations under this Agreement to an affiliated company or to a purchaser of all or substantially all of Botany's assets or share capital, or to any company succeeding to Botany's business. Customer shall not assign any of its rights or obligations hereunder without Botany's prior written consent. Assignments in violation of the foregoing shall be void. This Agreement shall be governed by the laws of the State of Washington, and the competent state or federal courts in King County, Washington shall have exclusive jurisdiction to hear any disputes arising hereunder. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.

Exhibit A

SLA and Support for Premium Package

The Services shall be available 99.9%, measured monthly, excluding scheduled maintenance. Any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.