This Customer Contract is referenced in, and is an integral part of, an Order Form (the “Order Form”) between AlphaSense and Customer. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed thereto in the Order Form and vice versa. 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 an Order Form with AlphaSense and will be responsible for all obligations hereunder as if it were Customer.
1. SERVICES. Subject to the terms and conditions of this Agreement, AlphaSense agrees to provide to Customer with online access to the AlphaSense software product offering identified in the Order Form together with all updates, bug fixes, error corrections or other minor enhancements or improvements thereto made available under this Agreement and any emails, reports or other materials provided by AlphaSense as part of such product offering identified in the Order Form (collectively, the “Services”). Customer’s use of the Services are subject to any restrictions indicated in this Agreement, which may include, without limitation, restrictions on the number and kind of authorized Customer users (“Authorized Users”), the Subscription Periods, and to any other restrictions set forth in this Agreement. Customer’s use of Wall Street Insights (WSI) shall be subject to the terms of Exhibit 1 attached hereto. If the Order Form (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. LICENSE GRANT. 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 via a web browser or mobile app the Services solely for internal business purposes or personal, non-commercial use (each such license for an Authorized User, a “Seat”). Sharing of Seats is not permitted. Usernames and passwords for each Seat distributed to Authorized Users may only be used by the Authorized User to whom the Seat is assigned. If anyone who is not an Authorized User accesses the Services using the username or password of an Authorized User, Customer shall purchase an additional Seat equivalent to the Seat of such Authorized User.
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 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 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 this Section.
4. CUSTOMER SUPPORT AND TRAINING. AlphaSense will provide to Authorized Users telephone and e-mail support during the standard business hours (Monday through Friday, 9am to 5pm US eastern time, 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 Order Form and may be updated by Customer from time to time.
5. CUSTOMER OBLIGATIONS.
5.1.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. FEES AND TAXES.
6.1.Fees. Customer agrees to pay AlphaSense the fees set forth on the Order Form 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 Order Form, Fees for each Seat shall be paid in advance.
6.2.Payments. Unless otherwise stated on the Order Form, 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.
6.3.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.
6.4.Taxes. 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.
6.5.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 of Section 16.4. This Agreement will govern any additional Authorized Users or Services unless otherwise agreed upon by the parties.
7. TERM. The Agreement will take effect on the Effective Date and continue until the expiration or earlier termination of all Seats under the Agreement. Each Seat will activate and expire in accordance with the Subscription Period (the “Initial Term”). Upon expiration of the Initial Term, the Subscription Period for the Seats will automatically renew for additional terms of one (1) year (each an “Extended Term”); provided, however, that either party may choose not to renew a Seat at the end of either the Initial Term or any Extended Term upon written notice, for which email may suffice, to the other party delivered at least 90 days before the end of the Initial Term or the then-current Extended Term (whichever is applicable).
8.1.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.
8.2.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.
8.3.Mutual Termination. The parties may mutually agree to terminate this Agreement in writing.
8.4.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 6.2, 8.4, 9, 10, 11, 12, 13, 14, 15 and 16 of this Agreement shall survive termination for any reason.
9.1.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 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, use, 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, Customer will continue to treat Confidential Information received from AlphaSense (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 use or disseminate any data or information arising from the Services solely as necessary to provide the Services, including as necessary for AlphaSense to make payments to any third party provider.
9.2.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.
10. INDEMNIFICATION. Each party to this Agreement (the “Indemnifying Party”) shall indemnify, defend, hold harmless the other party to this Agreement, its affiliates, suppliers, directors, officers, employees or agents (collectively, the “Indemnified Parties”) against any liability or obligation arising out of or related to any breach (or any claim of breach or alleged breach) of this Agreement by the Indemnifying Party, its affiliates, directors, officers, employees or agents, and 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 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), and the Indemnified Parties will use commercially reasonable efforts to provide such available information and non-monetary assistance reasonably requested by the Indemnifying Party.
11. LIMITATION OF LIABILITY.
11.1.Limitation on Direct Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S OR, AS TO ALPHASENSE, 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 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.
11.2.Waiver of Consequential Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S OR, 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.
12. 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 that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
13. 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 agreed to otherwise by the parties, the arbitrator may not consolidate more than one person’s claims.
14. 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.
15. MARKETING. AlphaSense shall have the right to use Customer’s name 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.
16.1.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.
16.2.Notices. All notices to a party shall be in writing and sent to the addresses specified in the Order Form 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.
16.3.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.
16.4.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.
16.5.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.
16.6.Severability. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement.
16.7.Waiver. AlphaSense’s failure to insist upon or enforce strict performance of any provision of this Agreement will not 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.
Wall Street Insights – Aftermarket Research (AMR)
The parties agree and acknowledge that, in accordance with the Services provided under an applicable Order Form, AlphaSense may provide Aftermarket Research (“AMR”) on a per user consumption basis as a part of its Wall Street Insights (“WSI”) offering. Customer’s Authorized Users may access a certain volume of AMR utilizing credits (“Credits”) purchased in connection the WSI offering as provided under such applicable Order Form. Each page of AMR accessed on screen, downloaded, or printed by the Authorized Users is assigned a Credit value of twelve (12) Credits per page and such Credits will be debited from the Customer’s allowance upon consumption of such page. Credits balances are calculated and maintained on a per Authorized User basis and are not pooled together with any other Authorized User of the Customer. Credit balances on an Order Form are presented on an annual basis. Unless otherwise expressly provided under an applicable Order Form, each Authorized User with access to WSI will have an initial annual Credit balance of 30,000, which will be adjusted for any partial periods together with any corresponding adjustment to the applicable Fees.
Example: 3 months into a 1-year initial Subscription Period, Customer adds a 30k Credit WSI Authorized User at the initial annual rate of $10,000 to co-term after 9 months with the Customer’s existing Seats. The applicable Fee for such additional Authorized User for the 9-month initial Subscription Period will be $7,500 ($10,000 Fee pro-rated for the 9 month term) and such Authorized User’s initial AMR Credit balance for such period will be 22,500 (30,000 Credits pro-rated for the 9 month term).
AlphaSense has the right to deactivate an Authorized User’s access to AMR once such user’s Credit allowance is fully depleted. In order to ensure that an Authorized User’s access to AMR is not interrupted, Customer may elect to purchase additional blocks of Credits (with a minimum of 15,000 Credits per block) for an Authorized User at a rate agreed upon between the parties. Additional blocks of Credits will provide such Authorized User with continued access to AMR for the remainder of the applicable Subscription Period. Credits are tied to a specific Subscription Period and any unused Credits expire at the end of such Subscription Period. In the event of any inconsistency or conflicts between the terms of this Exhibit and the terms of any other WSI maximum use restrictions between the parties, if any, the terms of this Exhibit will control.
Example: An Authorized User consumes the entirety of its Credit allowance and Customer elects to purchase an additional block of 30,000 Credits for such Authorized User with three (3) months remaining in the Subscription Period. The Authorized User uses 25,000 Credits of such additional block as of the end of the Subscription Period. The remaining balance of 5,000 Credits expire at the end of the Subscription Period.