Last Revised: June 1, 2021
This Master Subscription Agreement (“Agreement”) is a legal agreement between Alpha Cognition LLC (d/b/a AlphaMap) (“AlphaMap”) and Customer, governing Customer’s access to and use of the AlphaMap Services. If Customer is using the AlphaMap Services or creating an account on behalf of an entity, then “Customer” includes Customer and that entity, and Customer represents and warrants that the individual accepting this Agreement is an authorized representative of the entity with the authority to bind the entity to this Agreement.
By accepting this Agreement by (1) using any of the AlphaMap Services 2) indicating Customer’s acceptance of this Agreement by logging into any AlphaMap Services or (3) by executing an Order Form, Customer acknowledges that: (a) Customer has read and understood this Agreement; and (b) Customer is legally competent to enter into and agree to this Agreement. If Customer does not indicate acceptance of the terms of this Agreement or execute an Order Form, Customer may not access or use the AlphaMap Services.
Capitalized terms shall have the meanings set forth in this Section 1 or as otherwise defined in this Agreement.
“Account Data” means any information provided by or on behalf of Customer or any Authorized User relating to an identified or identifiable natural person.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.
“Authorized User” means an individual employee, director, officer, executive or other member of Customer’s organization based in the U.S. or other location designated by AlphaMap that Customer has expressly authorized to use and access the applicable AlphaMap Services.
“Change in Control” means (a) the sale or disposition by an entity of all or substantially all the entity’s assets in one or a series of related transactions; (b) the merger, consolidation or acquisition of a party with, by or into another corporation, entity or person; or (c) any change in the ownership of more than fifty percent (50%) of the voting securities or other ownership interests of a party.
“Control” means direct or indirect ownership or control of more than fifty percent (50%) of the equity or ownership interests of the subject entity.
“Customer” means the individual accepting the terms of this Agreement on their own behalf or on behalf of an entity by checking the box indicating acceptance of this Agreement or by executing an Order Form.
“Customer Data” means electronic data and information, including Account Data, submitted to the AlphaMap Services by or on behalf of Customer or any Authorized User, excluding the AlphaMap Services.
“Developments” means any and all ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing the AlphaMap Services hereunder, including without limitation any derivative works, improvements, enhancements or extensions made to the AlphaMap Services and all Intellectual Property Rights therein and thereto throughout the world.
“Documentation” means any of AlphaMap’s proprietary documentation made available to Customer and its Authorized Users, if any, by or on behalf of AlphaMap for use with the AlphaMap Services, including any such documentation made available online, electronically, in print or otherwise.
“Effective Date” means the date Customer accepts the terms of this Agreement by checking the box indicating acceptance of this Agreement or by executing an Order Form.
“Export Data” means any data that is made available to Customer or any of its Authorized Users for download through the AlphaMap Platform for use pursuant to the terms of this Agreement.
“Intellectual Property Rights” means all rights in any patents, copyrights, mask work, rights of publicity, trademarks (whether registered or unregistered), trade dress and service marks, goodwill, trade secrets, software, databases, rights in Confidential Information and all other intellectual property and property rights that may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Order Form” means any mutually agreed order form between AlphaMap, on one hand, and Customer and its Affiliates, on the other hand or a written confirmation of purchase provided by email to the Customer with respect to the purchase of the AlphaMap Services.
“AlphaMap API” means the provision of the AlphaMap Data through AlphaMap’s application programming interface.
“AlphaMap Data” means any data, content or other information provided or made available by or on behalf of AlphaMap in connection with the provision or use of, or access to, the AlphaMap Services, including without limitation Export Data.
“AlphaMap Platform” means AlphaMap’s hosted application providing the AlphaMap Data and all related software (in object or source code form), applications, script, code, structural hierarchies, interfaces, networks, equipment, processes, HTML code, graphics, multimedia files or text contained therein, together with any fixes, updates, enhancements and upgrades thereto.
“AlphaMap Report” means any AlphaMap Data provided to Customer via flat file or other method of transfer outside of the AlphaMap Platform or AlphaMap API.
“AlphaMap Services” means (a) the AlphaMap Platform, (b) AlphaMap API, (c) AlphaMap Report, (d) any other services provided by AlphaMap and (e) any support and professional services to which Customer subscribes and any applicable usage limitations, in each case as set forth in the applicable Order Form and the Documentation.
“Usage Data” means technical logs, account and login data, data and learnings about Customer’s use of the Services (e.g., frequency of logins, API calls, errors, use of certain features, volume of Customer Data collected). For clarity, Usage Data does not include Customer Data.
2.1 Order Form. This Agreement applies to the Subscription Services. The parties will enter into one or more Order Forms that contain certain additional terms and conditions applicable to the provision of the AlphaMap Services. Upon execution by the parties, each Order Form will be incorporated into this Agreement.
3.1 Access and Use Rights. Subject to the terms and conditions of this Agreement, AlphaMap grants Customer and its Authorized Users a limited, revocable non-exclusive, non-transferable license to access and use the AlphaMap Services set forth in the Order Form during the Term solely for Customer’s internal business purposes and in a professional manner in accordance with any applicable Documentation.
3.2 API Obligations. Customer shall not use the AlphaMap API except as expressly stated in this Agreement. In addition, Customer shall not provide the AlphaMap API or any API keys to any third party without AlphaMap’s prior written consent. Customer may provide the AlphaMap API and API keys to its employees that have a need to know such information for the purpose of enabling Customer to exercise its rights under this Agreement, provided that each such employee is subject to binding obligations of confidentiality at least as protective as this Agreement. Customer’s access to the AlphaMap API will be limited to a number of calls set forth in the Order Form or as otherwise indicated by AlphaMap from time to time.
3.3 No Third Party Access. For the avoidance of doubt, neither Customer nor its Authorized Users (if any) may permit any of its or their third party vendors, service providers, contractors or other agents to access or use the AlphaMap Services, even if such access or use is for Customer’s internal business purposes.
3.4 Third Party Products. Customer may choose to use products and services not provided by AlphaMap (“Third Party Products”) with the AlphaMap Services and in doing so grants AlphaMap permission to interoperate with the Third Party Products as directed by Customer or the Third Party Products. Unless specified in an Order Form: (a) AlphaMap does not warrant or support Third Party Products, (b) as between AlphaMap and Customer, Customer assumes all responsibility for the Third Party Products and any disclosure, modification or deletion of Customer Data by the Third Party Products and (c) AlphaMap shall have no liability for, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Third Party Products or any change in the ability of AlphaMap to interoperate with the Third Party Products.
3.5 Restrictions. Customer and its Authorized Users shall not, and shall not permit any third party, including any third party providing services or technology to or for the benefit of Customer, to:
(a) copy, distribute, attempt to get unauthorized access to, or disclose any part of the AlphaMap Services in any medium, including any automated or non-automated “scraping” of AlphaMap Data;
(b) use any automated system (including “robots,” “spiders,” and “offline readers”) to access the AlphaMap Services in a manner that sends more request messages to the AlphaMap servers than a human can reasonably produce in the same period of time by using a conventional online web browser;
(c) reverse engineer, decompile, disassemble or otherwise attempt to access the source code or underlying ideas or algorithms of the AlphaMap Services;
(d) modify, adapt, reproduce or create derivative works based on the AlphaMap Services (including any AlphaMap Services or Documentation);
(e) rent, lease, distribute, sell, resell, assign, license, sublicense or otherwise transfer its rights to access or use the AlphaMap Services;
(f) use the AlphaMap Services for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(g) remove any proprietary notices from the AlphaMap Services or any other AlphaMap materials furnished or made available hereunder;
(h) use the AlphaMap Services to develop any similar or competitive service, or other information resource of any kind (print, electronic or otherwise) for sale to, distribution to, display to or use by others;
(i) use the AlphaMap Services, transmit through or store on the AlphaMap Platform, in violation of (i) any ethical standards, (ii) any third-party right known, or that should have been known, to Customer, or (iii) any federal, state, or local law, rule, or regulation;
(j) take any action that imposes, or may impose (as determined by AlphaMap in its sole discretion) an unreasonable or disproportionately large load on the AlphaMap infrastructure;
(k) upload invalid data, viruses, worms, or other harmful software code, files, scripts or agents through the AlphaMap Services;
(l) monitor data or traffic without permission, interfere or disrupt networks connected to any AlphaMap Service, or interfere with the ability of others to access or use the AlphaMap Services;
(m) bypass the measures AlphaMap may use to prevent or restrict access to the AlphaMap Services, including features that prevent or restrict use or copying of any AlphaMap Services or enforce limitations on access to or use of the AlphaMap Services;
(n) share login information for the AlphaMap Services, allow more than one individual to use the AlphaMap Services under a single account pursuant to this Agreement or use the AlphaMap API in a manner that exceeds the limits or constitutes excessive or abusive usage; or
(o) use the AlphaMap Services to obtain unauthorized access to AlphaMap Data that would otherwise have required the Customer to pay additional Fees.
4.1 Customer Proprietary Rights.
(a) Ownership. Except for the rights granted herein, as between Customer and AlphaMap, Customer owns all legal right, title and interest in and to the Customer Data and all Intellectual Property Rights therein.
(b) License and Usage. Notwithstanding anything in this Agreement to the contrary, during the Term Customer hereby grants AlphaMap a non-exclusive, worldwide right and license to Customer Data to copy, use, modify, distribute, display and disclose to operate and provide the AlphaMap Services. AlphaMap may aggregate and de-identify Customer Data in connection with providing the AlphaMap Services (provided that Customer is not identifiable as the source) (“Aggregated Data”) and collect and use Usage Data in order to provide the AlphaMap Services to Customer and to monitor, analyze, develop upon, maintain, and improve the AlphaMap Services. AlphaMap agrees not to use, collect, disclose, sell or process any Customer Data, except to (i) exercise the rights and obligations permitted under this Agreement, and (ii) comply with applicable laws.
4.2 AlphaMap Proprietary Rights.
(a) Ownership. Except for the rights granted herein, as between Customer and AlphaMap, AlphaMap owns all legal right, title and interest in and to (i) the AlphaMap Services (including the AlphaMap website(s)), (ii) Aggregated Data, (iii) Usage Data, (iv) the Developments (including Developments resulting from any work performed to customize any AlphaMap Service for Customer), and all Intellectual Property Rights in each of the foregoing (“AlphaMap Intellectual Property”). Nothing in this Agreement transfers or conveys to Customer any ownership interest in or to the AlphaMap Intellectual Property.
(b) Assignment. If Customer or any Authorized User is ever held to have any right, title or interest in or to any AlphaMap Service or any Developments, Customer hereby assigns, and shall procure that each of its Authorized Users assigns, to AlphaMap all such right, title, and interest, including all Intellectual Property Rights therein, and shall assist AlphaMap in perfecting such rights and obtaining assignments of such rights from.
(c) Feedback. Customer hereby assigns to AlphaMap all right, title and interest in and to all Customer’s and its Authorized Users’ suggestions, ideas, feedback, reports, error identifications or other information related to the operation of the AlphaMap Services or Customer’s and any Authorized User’s use and evaluation thereof, provided that none of the foregoing contain any Customer Data (collectively, “Feedback”), including all Intellectual Property Rights therein, and shall assist AlphaMap in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.
5.1 Personnel. Customer will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement.
6.1 Hardware. Customer is solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the AlphaMap Services, and for paying all third-party fees and access charges (e.g., ISP, telecommunications) incurred by or on behalf of Customer while using any AlphaMap Service.
6.2 Conduct. Customer represents and warrants that Customer and its Authorized Users (if any):
(a) will abide by all applicable law and governmental regulations applicable to Customer’s (and its Authorized Users’) use of the AlphaMap Services;
(b) have all necessary rights to provide and use any Customer Data provided or made available to AlphaMap in connection with Customer’s use of any AlphaMap Services and that AlphaMap’s use thereof as contemplated by this Agreement will not violate any right of any third party or any law, rule, or regulation; and
(c) will not provide any Customer Data in violation of any fiduciary duty, duty of confidentiality, or contractual obligation;
6.3 Customer Data. Customer is solely responsible for any Customer Data and other information that Customer (or any of its Authorized Users) makes available to AlphaMap and to the AlphaMap Platform and that the AlphaMap Platform is a passive conduit. Customer shall notify AlphaMap if Customer becomes aware that any AlphaMap Service is being used for any illegal or unauthorized purpose.
7.1 Fees. In consideration for the provision of the AlphaMap Services to Customer, Customer shall pay AlphaMap the subscription fees applicable to such access and use set forth in the applicable Order Form(s) (“Fees”). Customer is not entitled to any refund of fees paid or relief from fees due if the volume of AlphaMap Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any of the unused volume to Customer’s next Term.
7.2 Payment. Unless specified otherwise in the applicable Order Form, Customer will make all payments of Fees within fifteen (15) days of receipt of AlphaMap’s invoice, and all Fees are stated and payable in US dollars. Payment obligations for use of the AlphaMap Services are non-cancelable and Fees paid are non-refundable (unless stated otherwise in the Order Form).
7.3 Payment Card Authorization. If Customer provides its payment by way of credit card or debit card, Customer hereby grants permission to AlphaMap to charge all Fees due and owing to such credit card or debit card, including Fees with respect to renewals of subscriptions for a AlphaMap Service in accordance with this Agreement on the date on which such Fees are due. Customer represents that it is the card holder of any credit card or debit card that it provides to AlphaMap for payment(s), or that Customer is duly authorized to provide the consent to use such credit card or debit card as set forth in this Section 7.
7.4 Taxes. All Fees are exclusive of all taxes, levies or duties, and Customer will be responsible for payment of such taxes, levies or duties resulting from its use of the AlphaMap Services, excluding only federal and state taxes based solely upon AlphaMap’s net income. If AlphaMap has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 7.4, AlphaMap will invoice the amount of such taxes to Customer and Customer shall pay such amount, unless Customer provides AlphaMap with a valid tax exemption certificate authorized by the appropriate taxing authority.
8.1 Term of Agreement. This Agreement shall commence as of the Effective Date and continues until terminated under the terms of the Order Form.
8.2 Term of Order Forms. The term of each subscription of the AlphaMap Services shall be as specified in the applicable Order Form (“Subscription Term”).
8.3 Termination Rights. In the event that AlphaMap elects to terminate this Agreement or any Order Form for cause in accordance with this Section 8.3, Customer will not be entitled to any refund, regardless of the remaining duration of the Term.
(a) Termination by Either Party. Either party may terminate this Agreement (i) on thirty (30) days’ prior notice to the other, if at the time of notice there are no Order Forms in effect or (ii) for a material breach by the other party that remains uncured for thirty (30) days after its receipt of written notice of such breach from the non-breaching party.
9.1 Definition. Each of the parties shall maintain in confidence any non-public, confidential or proprietary information disclosed by or on behalf of the other party, whether disclosed before or during the Term, whether disclosed orally or disclosed or accessed in written, electronic or any other form or media, whether tangible or intangible, and whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”). AlphaMap’s “Confidential Information” includes, without limitation, the AlphaMap Services (including without limitation the Documentation and AlphaMap Data), the terms of this Agreement and any negotiations between Customer and AlphaMap regarding use of the AlphaMap Services (including, without limitation, any Fees payable thereunder). For the avoidance of doubt, Usage Data shall constitute AlphaMap’s Confidential Information.
9.2 Nondisclosure. The receiving party (and Customer’s Authorized Users if Customer is the receiving party) shall not disclose, use, transmit, inform or make available to any third party any Confidential Information of the disclosing party, and shall not use any Confidential Information of the other party except as necessary in order to perform its obligations or exercise its rights under this Agreement. Each party shall take all actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information of the other party and such other party’s respective rights therein, at all times exercising at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care.
9.3 Exclusions. Except with respect to AlphaMap Data and Account Data, Confidential Information shall not include any information that is (a) already rightfully known to the receiving party at the time of the disclosure; (b) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (c) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party that rightfully acquired such information; or (d) communicated to a third party with the express written consent of the disclosing party.
9.4 Legally Required Disclosure. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to applicable law, 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 disclosing party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
10.1 Modifications to the AlphaMap Services. AlphaMap shall have no liability to Customer for any modification to any AlphaMap Service, provided that the product or service provided materially conforms to the description in the Order Form and Documentation.
10.2 AlphaMap Data Updates. AlphaMap Data provided to Customer may be updated on an ongoing basis and provided according to the criteria used to define the scope of the AlphaMap Services. Customer understands and acknowledges that the contents of AlphaMap Data will change over time as the data is updated, and that at any given time, Customer has a right to access and use the AlphaMap Data to which it is subscribed as it exists at that time. Certain portions of the AlphaMap Services may be provided by AlphaMap’s third-party licensors, and AlphaMap’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with AlphaMap.
CUSTOMER ACKNOWLEDGES THAT THE ALPHAMAP SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALPHAMAP, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES OF ANY KIND (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE AlphaMap SERVICES, INCLUDING, WITHOUT LIMITATION, THE CONDITIONS OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR LOSS OF DATA. AlphaMap FURTHER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF OR RELATING TO ANY THIRD-PARTY SITES LINKED TO FROM THE AlphaMap SERVICES. AlphaMap DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE AlphaMap SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE AlphaMap SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. AlphaMap NEITHER ENDORSES THE CONTENTS OF ANY CUSTOMER DATA NOR ASSUMES ANY RESPONSIBILITY FOR ANY INFRINGEMENT OF THIRD PARTY RIGHTS ARISING THEREFROM OR ANY CRIME FACILITATED THEREBY. EXCEPT AS OTHERWISE AGREED TO BY AlphaMap, AlphaMap IS NOT OBLIGATED TO PROVIDE CUSTOMER WITH ANY UPDATES TO THE AlphaMap SERVICES BUT MAY ELECT TO DO SO IN ITS SOLE DISCRETION.
Customer shall indemnify, hold harmless, and defend AlphaMap and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by an Indemnified Party arising out of any third-party claim (a) alleging breach or non-fulfillment of any representation, warranty or covenant under this Agreement by Customer or its Authorized Users (including use of a AlphaMap Service in violation of this Agreement), (b) alleging any grossly negligent or more culpable act or omission of Customer or its Authorized Users, including any reckless or willful misconduct, in connection with the performance of its obligations under this Agreement, or (c) relating to, or arising out of, the use or provision of any Customer Data.
13.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ALPHAMAP, TOGETHER WITH ALL OF ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE OR (B) ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
13.2 Limitation on Consequential Damages. UNDER NO CIRCUMSTANCES SHALL ALPHAMAP, OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE AlphaMap SERVICES, EVEN IF AlphaMap HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3 Exceptions. The limitations set forth in Section 13.1 and 13.2 do not apply to AlphaMap’s (i) willful misconduct or gross negligence, or (ii) liability or loss which may not be limited by applicable law.
13.4 General. Each party agrees that these exclusions and limitations shall apply even if this Agreement or any limited remedy specified herein is found to have failed of its essential purpose. These limitations are integral to the calculation of fees in connection with the license of the AlphaMap Services, and were AlphaMap to assume any further liability, such consideration would out of necessity have been substantially increased.
Customer agrees that AlphaMap may contact Customer via email, telephone or text messages using the contact information provided by you or on your behalf in connection with your use of the AlphaMap Services, including for marketing purposes. Customer also understand that you may opt out of receiving such marketing communications from AlphaMap at any time by contacting support@AlphaMap.com. If Customer do not choose to opt out, AlphaMap may contact you as described herein.
15.1 Remedies. Customer acknowledges and agrees that the AlphaMap Services have been developed at significant cost and have significant commercial value to AlphaMap, and that AlphaMap may suffer irreparable harm as a result of any breach of this Agreement for which monetary damages would not be an adequate remedy. Therefore, in addition to all other remedies available at law or otherwise (which AlphaMap does not waive by the exercise of any rights hereunder), AlphaMap will be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and Customer hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
15.2 Publicity. AlphaMap may refer to Customer as one of its customers and use Customer’s logo as part of such reference. With Customer’s prior written approval, including if specified in the applicable Order Form, (i) AlphaMap may either (a) issue a press release announcing the relationship between AlphaMap and Customer, or (b) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed; and (ii) Customer will be a reference account for AlphaMap; provided, however, that AlphaMap will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.
15.3 Modifications to this Agreement. AlphaMap may modify the terms and conditions of this Agreement (which may include changes to AlphaMap Services pricing and plans) from time to time with notice to Customer in accordance with Section 8.2 (Term of Order Forms), this Section 15.3, and Section 15.4 (Notices).
15.4 Notices. All notices permitted or required under this Agreement shall be in writing. If to AlphaMap, notices must be provided to the address set forth below in this Section 15.4, and shall be deemed to have been received (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. If to Customer, AlphaMap may provide notice to Customer’s email address on file or through the AlphaMap Services and such notices shall be deemed to have been received upon delivery. Either party may update its address with notice to the other party.
Notice to AlphaMap: Alpha Cognition LLC
1509 Gautami Dr.
Austin, TX 78753
15.5 Assignment. Neither party may assign this Agreement, or any of its rights of obligations hereunder, without the other party’s prior written consent, provided, however, that AlphaMap may assign this Agreement, in whole or in part, without Customer’s prior written consent (a) to one of its affiliates, or (b) to any entity that acquires (whether by merger, reorganization, acquisition, sale or otherwise) all or substantially all of the business or assets of AlphaMap to which this Agreement relates. Any assignment made in violation with this Section 15.5 shall be void, and this Agreement shall benefit and bind the permitted successors and assigns of the parties.
15.6 Relationship of Parties. AlphaMap and Customer’s relationship is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between AlphaMap and Customer. Neither AlphaMap nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
15.7 Governing Law; Dispute Resolution; Arbitration.
(a) Governing Law. This Agreement shall be governed by the laws of the State of Texas, excluding its conflict of laws rules. The United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
(b) Dispute Resolution. Customer agrees that in the event of any dispute, controversy or claim (each, a “Claim”) between Customer and AlphaMap, Customer will first contact AlphaMap and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
(c) Arbitration Agreement.
(i) After the informal dispute resolution process, any remaining Claims relating in any way to Customer’s use of the AlphaMap Services, or relating in any way to the communications between Customer and AlphaMap or any other user of the AlphaMap Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to Customer and AlphaMap. However, this arbitration agreement does not (a) govern any Claim by AlphaMap for infringement of its Intellectual Property Rights or use of or access to a AlphaMap Service that is unauthorized or exceeds authorization granted in this Agreement or (b) bar Customer from making use of applicable small claims court procedures in appropriate cases.
(d) Class Action Waiver.
(i) Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
15.8 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
15.9 Severability. If any provision of this Agreement is held invalid, unenforceable, or void by a court of competent jurisdiction, such provision will be enforced to the maximum extent permissible, and such holding will not affect the remaining terms. The invalid, unenforceable, or void provision will be deemed amended or replaced by a valid, legal, and enforceable provision that matches the intent of the original language as closely as possible.
15.10 Force Majeure. Except for payment obligations, neither party shall be in default if its failure to perform any obligation under this Agreement is caused by supervening conditions beyond that party’s reasonable control, including 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.
15.11 Entire Agreement; Conflicting Terms. This Agreement, together with any Order Form, 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. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement. The parties agree that any term or condition stated in any Customer purchase order or in any other of Customer’s order documentation (excluding Order Forms) is null and void.