AlphaSense, Inc. ("AlphaSense") delivers access to the Services (as defined below) to Customer ("Customer") and use of the Services are subject to these Terms of Use ("Terms of Use"). These Terms of Use are in addition to any other legally binding agreement that Customer may have entered into with AlphaSense, which may include an Order Form or such similar agreement for services between AlphaSense and Customer that is intended by AlphaSense to govern Customer’s use of the Services (each, a "Services Agreement"). To the extent any such Services Agreement is in writing and any terms thereof conflict with these Terms of Use, the terms of the applicable Services Agreement will govern. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed thereto in the applicable Services Agreement. As used herein, "Agreement" shall mean a Services Agreement, if any, including any exhibits, appendices or schedules attached thereto, and these Terms of Use. For purposes of this Agreement, Customer may also refer to a "Customer Affiliate", which refers to any entity that, directly or indirectly through one or more intermediaries, is controlled by Customer, controls Customer, or is under common control with Customer. A Customer Affiliate may enter into a Services Agreement with AlphaSense and will be responsible for all obligations hereunder as if it were Customer.
Customer should consult these Terms of Use periodically as AlphaSense may, at any time, at its discretion and without notice, revise these Terms of Use. The "Last updated" date at the top of this page will reflect the latest date any edits were made. By continuing to access or use the Services after these Terms of Use have been revised, Customer is agreeing to and shall automatically be bound by such revised Terms of Use. If Customer chooses not to accept the revised Terms of Use, Customer should immediately discontinue access to or use of the Services and notify AlphaSense within thirty (30) days of such change.
1. SERVICES
Subject to the terms and conditions of this Agreement, AlphaSense agrees to provide to Customer with online access to www.alpha-sense.com, research.alpha-sense.com, and/or certain other subsidiary or affiliate websites as may be identified in the Services Agreement (each individually and collectively the "Website"), any Content (defined below), expert call services, Application Programming Interface (API) products, other software product offering(s), and/or any emails, reports, or other materials provided by AlphaSense as part of such offerings identified in a Services Agreement (collectively, the "Services"). Customer's use of the Services is subject to the restrictions indicated in this Agreement, which may include, without limitation, restrictions on the number and kind of authorized Customer users ("Authorized Users"), the Service Periods, and to any other restrictions set forth in this Agreement, in the AlphaSense platform (including limitations on printing and downloading Content), and any service-specific terms indicated in the AlphaSense Product and Services Addendum located at https://www.alpha-sense.com/alphasense-products-and-services-addendum/ (or other link as may be updated time to time). If a Services Agreement (including any appendixes thereto) identifies any "additional services," AlphaSense shall also provide such services pursuant to this Agreement and such services (and any emails, reports or other deliverables provided as part of such services) shall be included as "Services" hereunder.
2. LIMITED LICENSE GRANT AND RESTRICTIONS ON USE
2.1. Limited License. Subject to the terms and conditions of this Agreement, AlphaSense hereby grants to Customer a limited term, non-exclusive, non-transferable, non-sublicensable license for the Authorized Users to access the Services via a web browser, mobile app, or API solely for internal business purposes. Sharing of any login credentials or other methods of access to the Services is not permitted. Usernames and passwords distributed to Authorized Users to access the Services may only be used by the Authorized User to whom such credentials are assigned. If anyone who is not an Authorized User accesses the Services using the credentials of an Authorized User, Customer shall be responsible for and obligated to purchase equivalent access to the applicable Services for such individual.
2.2. Restrictions On Use. Unless expressly permitted herein, Customer and its Authorized Users shall not, directly or indirectly, (and shall not permit any third party to): (a) rent, lease, resell, copy, create derivative works of, provide access to, sublicense, assign, or otherwise transfer Customer's rights to the Services or any Content to a third party; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to the Services or any Content; (c) "scrape" or otherwise use any data mining, robots, or similar data gathering or extraction methods on the Services or any Content; (d) remove or obscure any product identification, proprietary, copyright or other notices contained in the Services or any Content; (e) upload, reproduce, disseminate, distribute, publish (including on the internet or via any other digital medium), print, transmit, or disclose the Services, any Content, or its user interface to any third party or to any individual or person who is not an Authorized User; (f) programmatically access the Services or any Content; (g) use the Services or any Content for timesharing or service bureau purposes or otherwise for the benefit of a third party; (h) use the Services or any Content to create or for the purposes of creating, a competitive service, offering, product, or database (whether for internal purposes or external purposes); (i) use the Services or any Content in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data; (j) violate or attempt to violate the security of the Services or any Content; (k) violate or attempt to violate applicable law through use of the Services or any Content; (l) use the Services to carry out benchmarking; (m) use the Services or any Content with any other platform, software, software solution, or other manual or automatic tools (including, but not limited to, any third party artificial intelligence or machine learning tool ("AI Tool") or large language model ("LLM") or API); or (n) use any Content for litigation purposes or in government or regulatory filings.
3. PASSWORDS/SECURITY
AlphaSense shall issue, or shall authorize a Customer administrator to issue, a password to Customer for each Authorized User of the Services. Such password will be unique to a specific Authorized User. Customer and its Authorized Users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the Authorized User. Customer is entirely responsible for any and all activities that occur under any Authorized User account within its reasonable control and all charges incurred from use of the Services accessed with Customer's passwords. Customer agrees to promptly notify AlphaSense of any known unauthorized use of Customer's account (including, without limitation, each password of each Authorized User accessing the Services by means of Customer's account) or any other breach of security involving or relating to the Services and known to Customer. AlphaSense shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements. Customer shall have the right to replace Authorized Users, provided that Customer notifies AlphaSense promptly of any such replacement. AlphaSense or an authorized Customer representative will deactivate any password associated with a replaced Authorized User and issue a new password to the new Authorized User in accordance with the terms hereof.
4. CONTENT
4.1. General. Customer’s use of the Services is at its own risk with regard to any and all content, documents, materials, data, information or communications submitted, published, disseminated or transmitted to or through, saved in, displayed on or otherwise contained in or communicated through the Services (including, but not limited to all transcripts and related information, dashboards, reports, company overviews and insights, profile information, general text, and design, and the selection and arrangement of such content) (collectively "Content"), including Content that AlphaSense makes available through or in or in connection with the Services (“AlphaSense Content”). AlphaSense Content is the proprietary information of AlphaSense or its licensors, with all rights reserved by AlphaSense. Customer's use of the Services and any Content is at its own risk. Customer waives any claim that it may have against AlphaSense, its affiliates, and their respective officers, directors, members, employees and agents, licensees and customers (collectively, the "AlphaSense Parties," and each, individually, an "AlphaSense Party") with regard to any content transmitted through the Services by Customer or any other person using a customer's account (including, but not limited to, feedback offered on a voluntary basis, or other content transmitted by Customer, whether transmitted via email, ftp or other offline means, the File Sync desktop application, bulk upload, Web Clipper or other browsers plugins, or through annotations or other notes created in the Services or through any other means) ("Customer Content"). In the event Customer subscribes to certain Services that allows Customer to integrate, upload, or synchronize Customer Content into or with the AlphaSense Services, the amount of Customer Content that may be integrated, uploaded, or synchronized shall be limited to 100MB per Authorized User and 5GB per Customer, unless otherwise set forth in a Services Agreement.
4.2. Customer Content.
4.2.1. Customer acknowledges and agrees that: (i) AlphaSense shall not be responsible for Customer Content or any other Content that is not AlphaSense Content and (ii) AlphaSense does not and could not effectively, control, verify, or endorse Customer Content or any other Content that is not AlphaSense Content.
4.2.2. IF ANY CUSTOMER CONTENT CONTAINS OR DEPICTS ANY COPYRIGHT, TRADEMARK, RIGHT OF PUBLICITY OR PRIVACY, OR ANY OTHER INTELLECTUAL PROPERTY OR SIMILAR RIGHTS, AS WELL AS RIGHTS ASSOCIATED WITH ANY RECOGNIZABLE NAME, VOICE, PERSON, OR IMAGE (COLLECTIVELY "THIRD PARTY IP"), THE HOLDER OF THE RIGHTS TO SUCH THIRD PARTY IP MAY HAVE THE RIGHT TO CLAIM THAT USE OF SUCH CONTENT (INCLUDING BUT NOT LIMITED TO IN CONNECTION WITH CUSTOMER'S USE OF THE SERVICES) INFRINGES ON THE OWNER'S INTELLECTUAL PROPERTY RIGHTS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR, AND CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS THE ALPHASENSE PARTIES FOR, ANY AND ALL RISK ASSOCIATED WITH CUSTOMER CONTENT, INCLUDING BUT NOT LIMITED TO ANY CLAIM ASSERTING THAT CUSTOMER CONTENT (OR ANY PORTION THEREOF), AND/OR THE STORING IN OR SUBMISSION OR TRANSMISSION TO, THROUGH OR IN CONNECTION WITH THE SERVICES, INFRINGES UPON ANY THIRD PARTY IP RIGHTS.
4.2.4. Customer represents and warrants that:
4.2.4.1. Customer Content (including the creation, submission, storage or transmission thereof) complies with this Agreement and any and all applicable laws.
4.2.4.2. Customer Content will not infringe any third party's proprietary rights or rights of publicity or privacy.
4.2.4.3. Customer will promptly handle and resolve any notices and claims relating to Customer Content, including any notices sent to Customer by any person claiming that any content violates any Third Party IP rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices.
4.2.4.4. Customer Content will be free of any virus, worm, lock, or other mechanism or device that may be used to modify, delete, damage or disable the Services or prevent its use in the manner contemplated in the Agreements, any other hardware or computer system or software, or which would otherwise render inaccessible or impair the use of any of the same in any way.
4.2.4.5. Customer will maintain appropriate security, protection and backup copies of Customer Content, which may include, Customer's use of additional encryption technology to protect Customer Content from unauthorized access.
4.2.4.6. No Customer Content is subject to any terms or conditions that might be breached by such Customer Content being used in connection with the Services.
4.2.4.7. No Customer Content could reasonably be deemed to be harmful, threatening, unlawful, defamatory, libelous, slanderous, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, obscene, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable.
4.2.5. If, after submission of Customer Content to AlphaSense, Customer receives any notice or otherwise learns in any way that any of the representations herein were not accurate, not complete or were misleading in any material respect or no longer are accurate, complete and not misleading in all material respects or of any claim by a third party to the effect of the foregoing, Customer will promptly provide AlphaSense with written notice all relevant facts regarding the same and, if appropriate, remove the Customer Content from the Services.
4.2.6. Customer acknowledges and agrees that AlphaSense does not and cannot review all Content uploaded to the Services and is not responsible for the content, quality, or consequences of Customer uploading any Customer Content to the Services, and AlphaSense reserves the right to delete, move, refuse to accept or edit any Content (including but not limited to Customer Content) that AlphaSense may determine, in its sole discretion, violates or may violate the terms of the Agreement or any Third Party IP right(s) in AlphaSense's reasonable discretion.
4.2.7. AlphaSense may in its reasonable discretion, disable or terminate the accounts of any Authorized User who infringes or attempts to infringe the copyrights or other intellectual property rights of AlphaSense or any third party.
4.2.8. AlphaSense provides functions that allow Customer to control who may access Customer Content. Customer acknowledges that, if it enables the features that allow Customer to share Customer Content with others, anyone Customer has shared Customer Content with may have access to Customer Content. Furthermore, Customer agrees that any such Customer Content can be read by the operators and/or other agents of AlphaSense, whether or not they are the intended recipients. If AlphaSense asks Customer to cease and desist from sharing any Customer Content with any third party, Customer agrees to comply with such request immediately.
4.2.9. Customer hereby grants AlphaSense the right to transmit and use Customer Content solely to the extent necessary to provide Customer with access to and use of the Services, as otherwise permitted by this Agreement, or as may be necessary or appropriate to comply with any request of a governmental or regulatory body (including subpoenas or court orders), or as otherwise required or permitted by law.
4.3. Third Party Content. Customer acknowledges and agrees that certain AlphaSense Content accessed through the Services may belong to third party providers of AlphaSense ("Third Party Content") and agrees that such Third Party Content is subject to the additional terms available at www.alpha-sense.com/3p-terms. Third Party Content is the property of third party content providers or others and may be subject to copyright protections. Such Third Party Content has been independently obtained by AlphaSense from various financial markets information services and data vendors, news and information providers, digital media providers, various securities markets, public websites, intermediaries engaged in the aggregation and transmittal of such data, and others. Customer acknowledges and agrees that Third Party Content is provided at the discretion of the applicable third party provider and AlphaSense cannot guarantee the inclusion of any particular Third Party Content in its Services. In the event of a discontinuance or termination of AlphaSense's access to any Third Party Content or for any other reason, AlphaSense may, but is not obligated to, replace such Third Party Content with a commercially reasonable alternative. Where applicable, Customer agrees to clearly identify and attribute the third-party content provider as the source of any Third Party Content. Customer will not use the Third Party Content for any unlawful purpose and agree not to reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate or commercially exploit the Third Party Content in any manner beyond the licenses granted herein and/or by any applicable Third Party Terms, without the express written consent of AlphaSense and the relevant third-party content providers. Customer agrees to comply with reasonable written requests by AlphaSense to protect the third-party content providers' and AlphaSense's respective rights in the Third Party Content. The obligations under this Section shall remain in effect after termination of this Agreement.
4.4. Intellectual Property.
4.4.1. AlphaSense and/or its licensors or providers, as applicable, own all intellectual property rights in and to any documentation, the Services, AlphaSense Content, any and all updates related to the foregoing, and any and all AlphaSense materials furnished or made available as part of the Services. Aside from the limited license(s) granted to Customer under Section 2 above, no such intellectual property rights are transferred to Customer hereunder. AlphaSense reserves all rights not expressly granted under this Agreement.
4.4.2. AlphaSense and the AlphaSense logo are registered marks of AlphaSense. All other AlphaSense trademarks, service marks, domain names, logos and company names or other proprietary designations of AlphaSense used herein or referred to in the Services or the Website are either trademarks, service marks, domain names, logos or company names or are otherwise the property of AlphaSense. In countries where any of the AlphaSense trademarks, service marks, domain names, logos or company names are not registered, AlphaSense claims other rights associated with unregistered trademarks, service marks, domain names, logos, trade name and company names. Other product or company names referred to on the Services or Website may be trademarks of their respective owners. Customer may not use any trademark, service mark, domain name, logo, company name or trade name of AlphaSense or any third party without permission from the owner of the applicable trademark, service mark, domain name, logo, company name or trade name (except, with respect to a company name or trade name, as necessary for purposes of attribution where permitted).
4.5. Artificial Intelligence. Customer acknowledges that the Services may contain content or information that was generated using artificial intelligence ("AI") technology. Customer recognizes that such AI technology may still occasionally generate incorrect, incomplete, misleading, irrelevant, or nonsensical information and, accordingly, such information should be treated with the appropriate caution and skepticism. Customer's Authorized Users should refer to and verify any AI generated information through original source documents and/or other reliable and authoritative sources. AI generated content is for informational purposes only and should not be used as a substitute for original research or expert opinions, nor be interpreted as legal, investment, financial, medical, or any other professional advice.
4.6. DISCLAIMERS. THE CONTENT AND SERVICES ARE PROVIDED "AS IS". ALPHASENSE AND ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT AND/OR NON-INTERFERENCE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALPHASENSE DOES NOT MAKE ANY WARRANTY THAT (I) THE SERVICES OR CONTENT WILL MEET CUSTOMER'S REQUIREMENTS; (II) THE SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, UPDATED OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; AND (IV) ANY ERRORS IN THE SERVICES OR CONTENT, OR ANY DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED. CUSTOMER'S USE OF THE SERVICES AND THE CONTENT IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE OUTCOME OF ANY RELIANCE UPON OR USE OF THE SERVICES OR CONTENT. WITHOUT LIMITING THE FOREGOING, ALPHASENSE DOES NOT ASSUME ANY LIABILITY FOR ANY INFORMATION PRESENTED IN THE CONTENT. ALPHASENSE WILL HAVE NO LIABILITY OF ANY KIND WITH RESPECT TO THE CUSTOMER CONTENT AND THIRD PARTY CONTENT AND WILL NOT BE RESPONSIBLE FOR UNINTENTIONAL DAMAGES OR LOSS, EITHER INCIDENTAL OR DIRECT, ARISING OUT OF ANY LOSS OF CUSTOMER CONTENT. THE SERVICES AND ALL CONTENT THEREIN IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED AS A SUBSTITUTE FOR ORIGINAL RESEARCH OR EXPERT OPINIONS, NOR BE INTERPRETED AS LEGAL, INVESTMENT, FINANCIAL, MEDICAL, OR ANY OTHER PROFESSIONAL ADVICE.
ALPHASENSE TAKES CERTAIN MEASURES TO PREVENT, DETECT, AND CORRECT VIOLATIONS OF THE UNITED STATES SECURITIES LAWS AND OTHER RELEVANT LAWS AND REGULATIONS AND THE DISSEMINATION OF MATERIAL NON-PUBLIC INFORMATION IN CONNECTION WITH THE PROVISION OF THE SERVICES. NOTWITHSTANDING THE FOREGOING, ALPHASENSE DOES NOT GUARANTEE THAT CUSTOMER WILL NOT BE EXPOSED TO ANY MATERIAL NON-PUBLIC INFORMATION OR OTHER CONFIDENTIAL INFORMATION AND CUSTOMER REMAINS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS (INCLUDING, BY WAY OF EXAMPLE AND WITHOUT LIMITATION, THE UNITED STATES SECURITIES LAWS) WHEN USING ANY INFORMATION CUSTOMER MAY OBTAIN IN CONNECTION WITH THE SERVICES. FOR PURPOSES OF THIS AGREEMENT, "MATERIAL NON-PUBLIC INFORMATION" SHALL MEAN INFORMATION THAT IS CONSIDERED MATERIAL NON-PUBLIC INFORMATION UNDER THE UNITED STATES SECURITIES LAWS, INCLUDING, BUT NOT LIMITED TO, THE SECURITIES EXCHANGE ACT OF 1934.
5. CUSTOMER SUPPORT AND TRAINING
AlphaSense will provide to Authorized Users e-mail and in-platform support during the standard business hours (Monday through Friday, 24 hours per day, excluding holidays) observed by AlphaSense. Authorized Users will receive training and support for the Services to the extent and in the manner AlphaSense generally provides such training and/or support to its customers. Customer agrees to assign a point of contact through which to contact AlphaSense, which information may be provided in the Services Agreement and may be updated by Customer from time to time.
6. CUSTOMER OBLIGATIONS
6.1. Hardware. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all third-party fees and access charges (e.g., ISP, telecommunications, etc.) incurred while using the Services.
6.2. Conduct. Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Services and for compliance with the terms of this Agreement. In connection with the Services being provided thereto, Customer agrees to, and shall ensure its Authorized Users will comply with these Terms of Use.
6.3. Privacy. Customer and its Authorized Users shall comply with all applicable data privacy laws. To the extent that personal data is processedpursuanttothisAgreement,theDataProcessingAgreement("DPA") available at https://www.alpha-sense.com/data-processing-addendum/ (or such other link as may be updated from time to time) shall apply to such processing from the Effective Date. For the avoidance of doubt, the parties under this Agreement shall be parties to the DPA, which shall be incorporated by reference herein. AlphaSense's Privacy Policy, located at http://www.alpha-sense.com/privacy-policy, is incorporated into, subject to, and made part of these Terms of Use.
7. FEES AND TAXES
7.1. Fees. Customer agrees to pay AlphaSense the fees set forth on the Services Agreement for the Services, in accordance with the fees, charges, and billing terms set forth in this Agreement (collectively, "Fees"). Except as otherwise provided, all Fees are quoted in United States currency and are non-refundable. Unless otherwise stated on the Services Agreement, Fees for Services shall be paid annually in advance.
7.2. Renewal Price Increase. In the event the Services under a Services Agreement is renewed in full, and unless AlphaSense notifies Customer of any other price increase prior to the date the Services automatically renew, fees for the Services during each Extended Term (as defined below) will increase from the then-current term without additional notice by the greater of (i) 5% or (ii) CPI. For purposes of this Agreement, CPI shall mean the percentage increase in consumer prices for all urban consumers (CPI-U) over the then-previous 12 months as published by the U.S. Department of Labor. For the avoidance of doubt, in the event any portion of the Services that is available to be extended or renewed is not extended or renewed, the fee increase shall be higher than the foregoing amounts. Any changes in pricing arising out of the expiration of any discounts or other pricing incentives shall not be deemed a price increase for purposes of this paragraph.
7.3. Payments. Unless otherwise stated on the Services Agreement, all Fees are due and payable by Customer within thirty (30) days following the invoice date. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of one percent (1.0%) of the outstanding balance per month (being 12% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including, without limitation, reasonable legal fees) in collecting overdue payments.
7.4. Suspension of Services. If Customer fails to pay the Fees or any portion thereof by the due date, AlphaSense may, upon five (5) business days written notice, suspend the Services, provided that the Customer has not made payment within such period of time.
7.5. Taxes. Unless expressly provided on an applicable Services Agreement or similar document, all fees set forth in this Agreement are exclusive of all taxes and similar fees. Customer shall be responsible for and shall pay in full all sales, use, excise or similar governmental taxes imposed by any federal, state, or local governmental entity upon the fees charged the Customer under this Agreement, exclusive, however, of taxes based on AlphaSense's income, which taxes shall be paid by AlphaSense. If any taxes for which Customer is responsible hereunder are paid by AlphaSense, Customer will promptly reimburse AlphaSense upon Customer's receipt of proof of payment.
7.6. Additional Authorized Users or Databases. During the term of this Agreement, Customer may place an order with AlphaSense to add additional Authorized Users or Services subject to payment of additional fees. The additional Authorized User or Services fees shall be assessed at AlphaSense's then-current rates. Orders for the addition of Authorized Users or access to additional Services may be effected upon written agreement by the parties, for which email may suffice, or upon the issuance by Customer of a purchase order, subject to the terms hereof, including but not limited to the Entire Agreement section. This Agreement will govern any additional Authorized Users or Services unless otherwise agreed upon by the parties.
8. TERM
The Agreement will take effect on the Effective Date and continue until the expiration or earlier termination of all Services under the Agreement. Services will begin and continue in accordance with the Service Period (the "Initial Term") provided under an applicable Services Agreement. Upon expiration of the Initial Term or any subsequent renewal term (each, an “Extended Term”), Services will automatically renew for additional periods as specified under an applicable Services Agreement, or for additional periods of one (1) year if no other period is specified; provided, however, that either party may choose not to renew the Services by providing written notice, for which email may suffice, to the other party at least 90 days before the end of the Initial Term or then-current Extended Term, as applicable.
9. TERMINATION
9.1. Breach. Either party shall have the right to terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
9.2. Insolvency. Either party shall have the right to terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor's relief law; or (iv) the other party is liquidated or dissolved.
9.3. Effect of Termination. Neither AlphaSense nor its suppliers shall be liable to Customer or any third party for an authorized termination of Customer's access to, or right to use, the Services under this Agreement. Customer will be obligated to pay the balance due for the Services up to the date of termination. Upon the effective date of termination of this Agreement for any reason, Customer and its Authorized Users' access to the Services will terminate and Customer shall cease accessing and using the Services immediately. Sections 4.4, 4.6, 7, 8, 9.3, 10, 11, 12, 13, 14, 15, 16 and 17 of this Agreement shall survive termination for any reason.
10. CONFIDENTIALITY
10.1. Obligations. Each of the parties agrees to maintain in confidence any proprietary or non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party ("Confidential Information"). The disclosing party represents and warrants that it has any and all rights and permissions required to disclose Confidential Information to the receiving party. The parties hereby agree that the term "Confidential Information" shall include (i) the terms and conditions of this Agreement, (ii) any information about Customer's or its Authorized Users' utilization of the Services, and (iii) any third party data labeled as confidential by its provider. The receiving party shall not disclose, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties' respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform its obligations hereunder and who agree to be bound by these obligations of confidentiality and non-disclosure. Upon termination of this Agreement for any reason, the receiving party shall promptly return or destroy (at the disclosing party's option), all copies of the other party's Confidential Information. Even after termination or expiration of this Agreement, the receiving party will continue to treat Confidential Information received from the disclosing party (or its suppliers and providers) in accordance with this Agreement, for so long as the information fits the definition of "Confidential Information," or until use and disclosure of the information would no longer be restricted even if this Agreement remained in full force. Notwithstanding anything in this Agreement to the contrary, AlphaSense shall have the right to disseminate any usage or consumption data arising from Customer’s use of the Services as necessary for AlphaSense to make payments to any third party provider.
10.2. Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto; or (v) independently developed by or for the receiving party without use of any Confidential Information of the disclosing party. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
11. INDEMNIFICATION
11.1. Customer shall indemnify, defend, and hold harmless AlphaSense, its affiliates, suppliers, directors, officers, employees or agents against any claims, losses, damages, liabilities, including legal fees and expenses, and obligations arising out of or related to any misuse of the Services or any breach (including alleged breach) of Sections 2, 4, 6, or 10 of these Terms of Use by Customer, its Authorized Users, its affiliates, directors, officers, employees or agents. Notwithstanding the foregoing, Customer has no obligation to indemnify AlphaSense or the AlphaSense indemnitees to the extent any such claim arises out of or relates to AlphaSense's unlawful acts, gross negligence, willful misconduct, or a breach of this Agreement.
11.2. AlphaSense will indemnify, defend, and hold harmless Customer and its affiliates, directors, officers, employees, or agents against any third-party claim, liability, or obligation arising out of or related to a claim that Customer's use of the Services in accordance with the terms of this Agreement infringes any third party intellectual property right. In the event that the Services, or any portion thereof, are held to infringe upon any third party intellectual property right and Customer's use of such Services is enjoined, AlphaSense shall, at its sole option and expense: (i) procure for Customer the right to continue using the Services in accordance with the terms of the Agreement; (ii) modify the infringing Services without impairing in any material respect the functionality or performance so that such Services are non-infringing; or (iii) substitute the infringing portion of the Services with a materially suitable replacement. If none of the foregoing alternatives is reasonably available to AlphaSense in AlphaSense's judgment, Customer may elect to terminate the infringing portion of the Services and receive a refund of the prepaid and unearned Fees related to such infringing Services pro-rated as of the date Customer's use of such Services was enjoined. This section states Customer's sole and exclusive remedy for any claim of infringement hereunder. Notwithstanding the foregoing, AlphaSense has no obligation to indemnify Customer or the Customer indemnitees to the extent any such claim arises out of or relates to: (a) the modification of the Services by any party other than AlphaSense; (b) Customer's or any of its Authorized Users' unlawful acts, gross negligence, willful misconduct, or breach of this Agreement; or (c) any Customer Content or Third Party Content.
11.3. Indemnification Procedures. The indemnifying party will not settle any claim without the indemnified party's prior written permission if such settlement is: (i) not confidential; (ii) requires any admission of liability; (iii) requires admission or other stipulation of any previously contested material fact; or (iv) triggers other monetary obligation from the indemnified party or other material reputational impact to the indemnified party. Such permission is not to be unreasonably withheld, delayed or conditioned by the indemnified party. The indemnifying party shall pay any final judgment entered against any of the indemnified parties in any such proceeding or agreed to in settlement, subject to the limitations and other terms of this Agreement. The indemnified party is entitled to participate in the defense and may engage additional counsel at its own expense. Both parties agree to reasonably cooperate with the defense of such claims. The indemnified parties will promptly notify the indemnifying party in writing of any such claim or suit (provided that any delay by the indemnified parties in providing such written notice shall not affect the indemnified parties' rights under this section unless and only to the extent the indemnifying party is materially prejudiced by such delay).
12. LIMITATION OF LIABILITY
12.1. Limitation on Direct Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT IN NO EVENT SHALL EITHER PARTY AND AS TO ALPHASENSE'S, AND ITS SUPPLIERS OR LICENSORS OR PROVIDERS', AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES FOR THE PERIOD OF TWELVE (12) MONTHS PRIOR TO THE EVENT THAT DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
12.2. Waiver of Other Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY AND AS TO ALPHASENSE, ITS SUPPLIERS OR LICENSORS OR PROVIDERS, BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. GOVERNING LAW; VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. The parties hereby agree to resolve any dispute that may arise between them exclusively in a state or federal court located in New York, New York, and to submit to the personal jurisdiction of the courts located in New York, New York for the purpose of litigating all such disputes. The parties agree to be governed by the terms of this Agreement and that the Uniform Commercial Code and the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
14. AGREEMENT TO ARBITRATE
Any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to the Services or this Agreement shall be resolved by binding arbitration by the American Arbitration Association ("AAA") under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing herein shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to AlphaSense's products and services. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS ALPHASENSE AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND ALPHASENSE ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
15. WAIVER OF JURY TRIAL
Each party hereby irrevocably waives its rights to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.
16. MARKETING
AlphaSense shall have the right to use Customer's name and/or logo as part of a general list of customers and may refer to Customer as a user of the Services in its advertising and marketing materials.
17. GENERAL
17.1. Relationship. The parties to this Agreement are independent entities, and no agency, partnership franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
17.2. Notices. All notices to a party shall be in writing. If a notice is sent via hand-delivery, courier service, or U.S. or international mail, it shall be sent to the addresses specified in the Services Agreement or such other address as a party notifies the other party in writing, and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notwithstanding the foregoing, Customer consents to receive communications from AlphaSense electronically and Customer agrees that all agreements, notices, disclosures and other communications that AlphaSense provides to Customer electronically shall satisfy any legal requirement that such communications be in writing.
17.3. Assignment. This Agreement may not be assigned or transferred by either party without the other party's prior written consent. Notwithstanding the foregoing, either party may assign or transfer this Agreement in connection with a merger or sale of all or substantially all of such assigning party's assets without the other party's prior written consent. This Agreement shall inure to the benefit of each party's successors and permitted assigns. Any unauthorized assignment in derogation of the foregoing is null and void.
17.4. Entire Agreement. This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. With the sole exception of adding Authorized Users or Services in accordance with this Agreement, any terms and conditions in a purchase order or similar document in addition to or different from the terms and conditions herein shall be of no effect.
17.5. Force Majeure. Neither party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that party's reasonable control including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or "hacker" attacks, acts of terrorism or governmental demands or requirements.
17.6. Severability. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement.
17.7. Waiver. Neither party's failure to insist upon or enforce strict performance of any provision of this Agreement will be construed as a waiver of any provision or right. No waiver of any provision or term of this Agreement will be deemed a further or continuing waiver of such term or condition or any other term or condition.
17.8. Cumulative Rights and Remedies. Customer's obligations and AlphaSense's rights and remedies set out in the Agreement are cumulative and are in addition to Customer's obligations and AlphaSense's rights and remedies at law or in equity.
17.9. Notice to California Residents. Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Website is: AlphaSense, Inc., 24 Union Square East, 6th Floor, New York, NY 10003, (212) 203-2799. To file a complaint or to receive further information regarding use of the Website, send a letter to the above address, contact AlphaSense via e-mail or telephone.
17.10. Construction. Unless the context requires otherwise, in any part of these Terms of Use: (a) "including" (and any of its derivative forms, e.g. "includes"), "e.g." and "for example" means "including but not limited to"; (b) "must not", "should not", "shall not" and "may not" are expressions of prohibition, and "will", "must", "should" and "shall" are expressions of command, and not merely expressions of future intent or expectation; (c) use of the singular imports the plural and vice versa; (d) references to one or no gender include the other or no gender; (e) references to the terms "herein" or "hereto" refer to these Terms of Use (including any terms incorporated by reference herein); (f) the headings in these Terms of Use are for ease of reference only and shall not affect its interpretation; and (g) when calculating the time period before which, within which or following which any act is to be done or step taken pursuant to these Terms of Use, the date that is the reference date in calculating such period shall be excluded and the time period shall be deemed to end at 11:59 PM Pacific Time (US) on the applicable date.
