This Content Contribution Agreement, together with any applicable schedules (including any Content Schedule, as defined below), exhibits, and attachments hereto and/or entered into between the parties (collectively, the “Agreement”), govern the use and distribution of Contributor Content (as such term is defined hereunder) made available by a contributor (“Contributor”) or a Contributor Affiliate (as such term is defined hereunder) to AlphaSense, Inc. (“Distributor”) or a Distributor Affiliate. Contributor and Distributor each referred to herein individually as a “Party” and collectively as the “Parties”.
1. Content and Services
a. Content Schedules. Subject to the terms of this Content Contribution Agreement and an applicable content schedule (“Content Schedule”), Contributor or any Affiliate of Contributor (as such term is defined here), as applicable, agrees to provide Distributor with certain information, data, materials, reports, models, metadata, and other content as indicated in an applicable Content Schedule including but not limited to Earnings Estimates, Events Data, and Models (as such terms are used in the Content Schedule and further described below) (collectively, “Contributor Content”), and permits Distributor to receive, process and distribute the Contributor Content through any Distributor Products offered by Distributor or any Affiliate of Distributor to any End Customers and Authorized Users as such terms are defined below. The Contributor named in any Order Schedule shall be the Contributor referred to in this Content Contribution Agreement and all references to Contributor in this Agreement shall refer to such Contributor.
i. For purposes of this Agreement, an “Affiliate” means an entity either directly or indirectly controlled by, controlling or under common control with a Party hereto.
ii. For purposes of the Agreement, the term “Authorized User” means any individual who is employed by, contracted by, or otherwise provides services to an End Customer and “End Customer” means any legal entity or person that is a client or prospective client of Distributor that has access or is seeking access to the Distributor Services including, but not limited to, the Contributor Content.
iii. For purposes of the Agreement, “Earnings Estimates” means analysts’ forecasts of company earnings and related metrics, which may be provided by the Contributor in separate estimates files or extracted by Distributor from research reports.
iv. For purposes of the Agreement, “Events Data” means data and information relating to broker events such as conferences, non-deal roadshows, field trips, industry experts, analyst marketing and other corporate and investor events.
v. For purposes of the Agreement, “Models” means working spreadsheet models used by Contributor’s research analysts to forecast company earnings and related metrics. Models contain the original numbers and formulae entered by the analyst and are not simplified versions with pre-calculated values in each cell.
b. Services. During the Term of the Agreement, Contributor shall, either directly on its own or through a third party acceptable to Distributor, provide or make available to Distributor, on a timely basis but no later than when Contributor provides or makes such Contributor Content generally available to its customers or other third-party providers, distributors, vendors, or partners, all Contributor Content for use and distribution by Distributor in accordance with the terms of the Agreement (the “Services”).
2. License and Redistribution
a. License. During the Term, Contributor provides to Distributor and Distributor’s Affiliates a worldwide, non-exclusive, non-transferable (except as otherwise provided hereunder) license to receive, store, copy, access, disseminate, distribute, display, use, and/or create derivative works of or Derived Content (as such term is defined hereunder) from all Contributor Content and any other Contributor products, services, and/or software identified in an applicable Content Schedule through or in connection with the Distributor Products (as defined below). In addition, Distributor may extract certain portions of Contributor Content (“Extracted Content”) and distribute such Extracted Content, provided that such Extracted Content will remain the property of Contributor to the extent it does not constitute Derived Content.
b.Distribution. Subject to the terms of this Agreement, Distributor and Distributor’s Affiliates may distribute or otherwise provide Authorized Users and End Customers access to Contributor Content, or any part of such Contributor Content, through or in connection with the Distributor Products which include but is not limited to (i) web-based services including, without limitation, web access, mobile access, Microsoft Office integration, Google application integration, or other similar functionality, (ii) application programming interface products and services, and (iii) feed products and services (the “Distributor Products”).
i. Real-Time Distribution. Distributor may distribute all Contributor Content to all End Customers on a real-time basis without any embargo period or delay except (a) with respect to those End Customers listed in Section 2(b)(ii) below, Distributor will distribute research reports on a delayed basis (Distributor may distribute research reports to all other End Customers on a real-time basis), and (b) Distributor will not distribute Contributor Content to trading and sell-side research departments. Distributor will provide periodic reports to Contributor of usage statistics for Contributor Content distributed on a real-time basis.
ii. Aftermarket Distribution. In the event Contributor Content includes research reports, Distributor may only distribute such research reports to End Customers that are corporations, investment banks, private equity firms, venture capital firms, professional services firms (i.e. consulting, accounting, and law firms), government agencies, and academic institutions on a delayed basis after publication of such research report pursuant to the aftermarket embargo period indicated on the applicable Content Schedule. Research reports distributed and consumed by Users on an Aftermarket basis pursuant to this Section 2(b)(ii) hereinafter referred to as “Aftermarket Research”. For the avoidance of doubt, Distributor may distribute research reports to all other End Customers on a real-time basis pursuant to Section 2(b)(i).
c. Derived Content. During the Term and subject to the terms of this Agreement, Contributor provides to Distributor a worldwide, non-exclusive, non-transferable (except as otherwise provided hereunder) license to create derivative works or derived content based on Contributor Content (“Derived Content”). Derived Content may include adjusted, modified, extended or otherwise manipulated Contributor Content. Derived Content includes, but is not limited to, semantic scores (e.g. sentiment), multi-factor scores (e.g. sentiment combined with price, market cap or other quantitative data), topics, trends, themes, and any other content created from the Contributor Content through manipulation, modification, supplementation, enhancement, or combination, provided such new content is altered from the Contributor Content such that it cannot be reverse-engineered, disassembled, or decompiled to recreate the Contributor Content.
d. Permitted Uses. Notwithstanding anything in the Agreement to the contrary, Contributor acknowledges and agrees that Distributor may (a) index, organize, format, tag, analyze, list, commingle with other content and data, rank, create thumbnails and tables of content, and make adjustments related to presentation of the Contributor Content in the user interface of the Distributor Products in order to provide its services to End Customers and Authorized Users, and (b) create alerts, suggestions, reports, scores and/or analytics derived based on broad content sets including in part Contributor Content (all of the foregoing hereinafter referred to as “Distributor Content”). In addition, Authorized Users may bookmark, highlight, annotate or create other user generated content related to or using the Contributor Content or Distributor Content (“User Content”). For the avoidance of doubt, intellectual property rights in or to any User Content or the ideas or conclusions generated by Authorized Users referencing any Contributor Content shall remain the property of such Authorized Users or the End Customer, as applicable.
3. Aftermarket Research Fees
a. Distribution Fees. Distributor shall charge its End Customers fees (“End Customer Fees”) for their consumption of Aftermarket Research via the Distributor Products and Distributor shall pay Contributor for each calendar quarter (each, a “Measurement Period”) fees equal to the Aftermarket Revenue Share Percentage as set forth in an Content Schedule of such End Customer Fees multiplied by the Consumption Share (as such term is defined below) for such Measurement Period (the “Distribution Fees”), net of any (i) tax withholdings, (ii) bad debt deductions, and (iii) other deductions, fee thresholds, adjustments or offsets that may apply as set forth in a Content Schedule (the “Deductions”). Distributor shall calculate fees due to Contributor for each Measurement Period and submit payment to Contributor within thirty (30) days after the end of the applicable Measurement Period. For purposes of this Agreement, “Consumption Share“ shall mean, with respect to any Measurement Period, the percentage share of consumption of Aftermarket Research attributable to Contributor Content as a portion of all aftermarket research consumption as provided by other providers similar to Contributor via the applicable Distributor Products. For clarity, the Consumption Share calculation applies only to Aftermarket Research provided directly by Contributor to Distributor and similar content provided directly by other contributors.
b. Minimum Payment Threshold. During the Term, payments of Distribution Fees shall only be made to Contributor provided Contributor has accumulated at least Two Hundred Dollars ($200.00) (“Minimum Payment Threshold”) in accrued Distribution Fees (net of applicable Deductions) during an applicable Measurement Period. In the event Contributor has not accumulated the Minimum Payment Threshold, the amount due to Contributor will roll over to the next Measurement Period. Such accrued Distribution Fees will continue to roll over and will not be paid to Contributor until (i) an amount equal to or greater than the Minimum Payment Threshold has been accrued during a Measurement Period or (ii) the conclusion of the final Measurement Period of the Term.
a. Contributor. Contributor will retain sole and exclusive ownership of all right, title, and interest in the Contributor Content and any Extracted Content.
b. Distributor. Distributor, or Distributor’s Affiliates, as applicable, will retain sole and exclusive ownership of all right, title and interest in the Distributor Products, Distributor Content, and any Derived Content created by Distributor.
c. End Customer. End Customers, or Authorized Users, as applicable, will retain sole and exclusive ownership of all right, title, and interest in any User Content or work product created by such Authorized Users or End Customer.
5. Warranties and Disclaimers
a. Representations and Warranties. Each Party represents and warrants that it (i) shall comply with all applicable local, state and federal laws, rules, and regulations in the performance of its obligations hereunder and (ii) has the requisite authority and power to enter into this Agreement and perform its obligations hereunder. Contributor further represents and warrants that (a) it has all rights, title and interest to the Contributor Content and/or to grant the licenses to Distributor as set forth in this Agreement; (b) the Contributor Content will not contain any material non-public information (MNPI) within the meaning of applicable securities laws and that Contributor will not otherwise provide Distributor with any MNPI; and (c) the Contributor Content, and Distributor’s use thereof, does not infringe the intellectual or proprietary rights of any third party.
b. Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONTRIBUTOR CONTENT OR DISTRIBUTOR PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY OR COMPLETENESS OF DATA.
6. Confidential Information
a. Confidential Information. “Confidential Information” shall mean, in the case of any Party, all non-public information related to the business of such Party, its Affiliates, and its respective users, clients or suppliers, including all information relating to a Party’s pricing, methods, processes, financial data, statistics, programs, research, development, products, services or business plans. Each Party (a “Receiving Party”) acknowledges that in connection with the Agreement and the Services, it may receive or obtain access to the Confidential Information of the other Party (a “Disclosing Party”). The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized disclosure, access, and use by utilizing the same measures it uses to protect its own Confidential Information, but in any event no less than commercially reasonable measures. The Receiving Party shall use the Disclosing Party’s Confidential Information only in connection with the performance of its obligations under the Agreement. A Receiving Party may only disclose the Disclosing Party’s Confidential Information to its employees, agents, End Customers, and contractors who have a need to know such Confidential Information in connection with the performance of its obligations under the Agreement and who agree in writing to be bound to confidentiality provisions substantially similar as those provided in the Agreement. Each Party will be responsible for any breach of this Agreement by any of its representatives.
b. Exclusions. Confidential Information shall not include information that: (i) is already known to the Receiving Party at the time of disclosure without restriction or breach of any agreement; (ii) is obtained by the Receiving Party from a third party without restriction or breach of the Agreement; (iii) is public information or becomes public through no fault of the Receiving Party; (iv) is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information; or (v) is Contributor Content.
Contributor shall indemnify and hold harmless the Distributor (including its affiliates, partners, officers, directors, employees, agents and representatives) against any third party claims and/or liabilities of any nature, including reasonable attorneys’ fees (“Losses”), arising out of or relating to (i) any breach by Contributor of the representations, warranties and covenants contained in the Agreement ; (ii) Contributor’s gross negligence, fraud, or willful misconduct or violation of applicable law or regulation; or (iii) any third party claim that Distributor’s use of the Contributor Content infringes the intellectual property rights of any third party or results in a claim of libel or defamation. Distributor (as the “Indemnified Party”) shall give Contributor (as the “Indemnifying Party”) prompt written notice of any third party claim for which the Indemnified Party seeks indemnification; provided, however, any failure by the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations under this Section 7 except to the extent such Party is materially prejudiced by such failure. The Indemnifying Party shall conduct the defense of the claim, using counsel acceptable to the Indemnified Party (such acceptance not to be unreasonably withheld); provided that the Indemnifying Party shall not enter into any settlement involving rights other than payment of damages or make any admission of liability on the part of the Indemnified Party without the Indemnified Party’s prior written consent. An Indemnified Party may participate in the defense of the claim with its own counsel, at Indemnified Party’s own expense, and such participation shall not relieve the Indemnifying Party of its obligations under this Section 7.
8. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARE RELATED TO OR ARISE FROM FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. EXCEPT FOR ANY LIABILITY ARISING OUT OF A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, EACH PARTY’S MAXIMUM TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF DISTRIBUTION FEES PAID BY DISTRIBUTOR FOR SERVICES PROVIDED BY CONTRIBUTOR HEREUNDER OVER THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
9. Term and Termination
a. Term. The Agreement will begin on the Commence Date and continue in effect for an initial period as indicated on the applicable Content Schedule (the “Initial Term”) and thereafter automatically renew for additional one year terms (each a “Renewal Term” and, collectively with the Initial Term, the “Term”) unless written notice of a Party’s intent not to renew is given by either Party prior to the end of the then-applicable term.
b. Termination. Either Party may terminate the Agreement in the event that the other Party is in material breach of any material provision of the Agreement and such breach is not remedied within thirty (30) days after written notice thereof, provided that if such breach is not capable of being cured, the non-breaching party may terminate this Agreement immediately.
In the event of any inconsistency or conflict between a Content Schedule and this Content Contribution Agreement, the terms of the Content Schedule will prevail. No modifications or amendments to an Order Schedule will have any effect unless such terms and conditions are described in a subsequent Order Schedule signed by authorized representatives of both Parties. This Content Contribution Agreement may be modified, updated, or replaced by Distributor from time to time. This Content Contribution Agreement, the applicable Content Schedule, and all exhibits and other attachments, constitute the entire agreement between the Parties regarding the subject matter hereof and supersedes all previous agreements, promises, understandings, and negotiations, whether written or oral, between the Parties. In the event any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of the Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a provision, which being valid, legal and enforceable, comes closest to the intended effect of the Parties. The Agreement and the performance thereof shall be governed by the laws of the State of New York, without regard to conflicts of law rules. The Parties hereto agree that the state and federal courts of the County of New York, N.Y. shall be the proper forums for any disputes arising out of this Agreement, and the Parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of such courts for such purposes. Contributor may not assign (by operation of law or otherwise) the Agreement without the prior written consent of Distributor and any such attempted assignment shall be null and void. Distributor may include Contributor’s name and logo as part of its contributor list that may be displayed on the Distributor’s website or distributed through marketing materials.