Client Terms & Conditions

  1. About the Services. Alethiex, Inc., a Delaware corporation, and its affiliates and subsidiaries, and their respective directors, officers, and employees, (collectively, the “Company”) operate the website located at alethiex.com and other related websites, subpages, subdomains, APIs, mobile applications, content, offerings, information, tools, software and services, and including any Client Site (as defined below) that is hosted or provided by the Company as part of the Services (collectively, the “Site”). Through the Site, the Company provides certain services (the “Services”), including subscription-based access to the use of Libraries (as defined below) and other Content (as defined below), to Client (as defined below), and including any cloud-based or website or Site functionality, website hosting, website templates, subdomains, subpages, applications, tools, APIs or software made available in connection with the delivery of Libraries, Library Content or such other Content. Client may use the Services and the Site (under the terms, conditions and limitations of Client’s subscription) to view, access, download and use Libraries or parts thereof and other Content made available by the Company under Client’s subscription for the limited purpose, subject to the terms and conditions herein, of delivering such Content to Client’s Authorized Users (as defined below). “Client” refers to you in your capacity as a registered user of the Site with a Client account and corresponding Access Credentials, and with an active subscription for Services that allows you to use, view or download one or more Libraries or any Library Content for the limited purposes set forth herein. Client and the Company are herein referred to as “Parties” and each a “Party.”

  2. Applicability of this Agreement.  

    1. General. In accordance with Client’s subscription to Services, Client may access Libraries through the Site by using functionality provided on the Site. As a subscriber for Services and access to Libraries through the Site, Client hereby agrees to be bound by these Client Terms and Conditions including any updates or modifications hereto that may be made by the Company from time to time, the Terms of Service (if any) available on the Site that are applicable to any user of the Site (“Terms of Service”), and any other terms and conditions (including payment and subscription fee terms) made available on the Site that are applicable to Client or expressly incorporated herein (collectively, this “Client Agreement”). This Client Agreement constitutes a legal and binding contract between Client and the Company for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and each Party agrees to all of the terms and conditions contained in this Client Agreement. This Client Agreement is effective as of the first date and time Client subscribes to Services or gains access to Libraries by using Site functionality indicating Client’s agreement to subscribe thereto (the “Effective Date”), and this Client Agreement shall remain in full force and effect until its expiration or termination as provided herein. The Parties acknowledge and agree that this Client Agreement complies in all respects with the U.S. federal ESIGN Act of 2000 and shall be deemed to have been duly and validly executed and effective for all purposes.

    2. Modifications and Updates. The Company reserves the right to update, change, modify or replace any part of this Client Agreement by posting updates and/or changes to our Site. It is Client’s responsibility to check this page periodically for updates or changes. Client’s continued use of or access to the Site or use of the Services following the posting of any updates or changes constitutes acceptance of all such updates or changes.

    3. Entire Agreement. This Client Agreement comprises the entire agreement between the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, promises, covenants, representations, warranties and communications, both written and oral. In the event of any conflict between these Client Terms and Conditions and any other part of this Client Agreement (including the Terms of Service), these Client Terms and Conditions shall govern, unless otherwise provided in an amendment to this Client Agreement signed by both Parties.

    4. No Other Terms. This Client Agreement and the Client Terms and Conditions herein shall prevail over any of Client’s terms and conditions proposed in any other writing or instrument. The provision of Services to Client shall not constitute acceptance by the Company of any of Client’s terms and conditions and shall not serve to modify or amend this Client Agreement.

  3. Certain Defined Terms. Capitalized terms used in this Client Agreement have the meanings assigned to such terms in the text of this Client Agreement or as set forth below:

Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Site, the Services, any Client Site or any Library Content delivered or made available by Client to its Authorized Users.

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party.

Authorized User” means any person duly and properly authorized by Client (including employees, consultants or customers of Client) and authenticated on Client’s Client Site with appropriate Access Credentials, to view, access, download and/or use any Library Content through any Client Site in accordance with the applicable EULA provided by or on behalf of Client to such person.

Client Content” means any Content submitted, uploaded, transmitted, posted or otherwise made available on or through any Client Site or the Site by Client or any of its Authorized Users, but not including in any form or derivation: (a) the Client Site itself or any components thereof (unless the Client Site is not hosted or provided by the Company as part of the Services), or (b) any components of the Site or the Services, or any Company Materials (as defined below).

Client Site” means any website, mobile application, subpages, subdomains, software or other delivery methods or platforms operated by Client (whether or not provided or hosted by the Company as part of the Services) and used for the purpose of delivering Library Content to Client’s Authorized Users pursuant to the terms hereof and any applicable EULA.

Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third party services.

Company Systems” means the information technology infrastructure used by or on behalf of the Company in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by the Company or through the use of third party services.

Confidential Information” means (a) each Party’s business or technical information, including but not limited to training materials, any information relating to software, plans, designs, costs, prices, names, finances, marketing plans, business opportunities, personnel, strategies, data, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or that the receiving party knows or should reasonably know is confidential or proprietary; and (b) the Company Materials.

Content” means any software, technology, designs, materials, information, communications, opinions, records, messages, comments, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, videos, photos, images, reviews, ideas, applications, website functionality, widgets, buttons, labels, suggestions, proposals, blog posts, offers, plans, advertisements, promotions, articles and other data or copyrightable or non-copyrightable materials or content, including the selection, arrangements, functionality, processes and user experiences in respect thereof.

EULA” means that certain End User License Agreement made available to Client’s Authorized Users by or on behalf of Client and available at www.alethiex.com/eula, or an end-user license agreement with substantially similar terms to such agreement, provided that the Company has authorized the use of such substantially similar end-user license agreement in writing to Client.

Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, Trademarks, trade secrets, know-how, patents, patent disclosures and inventions (whether patentable or not), and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

Library” or “Libraries” means collections of information, materials and other Content created, developed, and/or owned by the Company or its licensors and delivered or made available by the Company through the Services on a subscription basis, including information, materials and Content relating to physical fitness and training, nutrition, health and wellbeing and related topics, and including in audio-visual or written format or other media.

Library Content” means any Content contained in any Library.

Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.

Resultant Data” means information, data and other content that is derived by or through the Services from Processing Client Content and usage by Client and its Authorized Users and is sufficiently different from such Client Content and data that such Client Content and data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or Content.

Trademarks” means all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered.

  1. Access to Services.

    1. General. Client may enable and provide access to the Services and any Library Content made available for Client’s use hereunder and under the terms and limitations of Client’s subscription to the Services, only to Authorized Users with appropriate Access Credentials solely for the internal business purposes of Client in accordance with this Client Agreement and not for the benefit of any third parties. Client is responsible for all Authorized User use of the Services and any Library Content it delivers or provides to its Authorized Users and compliance with this Client Agreement with each of Client’s Authorized Users. Client shall prevent unauthorized access to, or use of, the Services and any Library Content by any person who is not an Authorized User or who lacks proper Access Credentials, and shall notify the Company promptly of any such unauthorized access or use.

    2. Right To Change Offerings. THE PARTIES AGREE, ACKNOWLEDGE AND UNDERSTAND THAT THE COMPANY RESERVES ALL RIGHTS TO CHANGE OR MODIFY ITS OFFERINGS OR THE MATERIALS AND LIBRARY CONTENT OFFERED UNDER ANY SUBSCRIPTION AT ANY TIME AND FROM TIME TO TIME WITHOUT PRIOR NOTICE TO CLIENT. Client understands and acknowledges that the Libraries and Library Content are owned by the Company’s licensors (or, in certain cases, the Company) and are subject to third party license agreements by and between such licensors and the Company, and any material in any Library or any Library Content, whether made available to Client under a subscription or otherwise, may become unavailable through the Site and the Services at any time if the terms and conditions under the applicable license agreement are not met or are breached, modified or terminated by the parties thereto for any reason. Therefore, Client understands and agrees that the Company may at any time and from time to time in its sole discretion modify, change, alter, cancel, edit, eliminate or replace any materials from any Library or any Library Content available to Client under Client’s subscription. In the event that any materials from any Library or any Library Content available to Client under Client’s subscription is made unavailable or is removed, changed or cancelled in any respect by the Company for any reason, the Company will use commercially reasonable efforts to promptly notify Client of such event and to replace the Library Content removed, cancelled, changed or made unavailable with Content that is materially similar; provided, however, that the Company’s failure to provide such materially similar replacement Content shall not be deemed to be a breach of this Client Agreement and the Company shall have no obligation to reduce or modify any fees due under any applicable subscription to its Services.

    3. Client Representative. If Client is or represents an entity, organization or business, Client must designate an individual who is a duly authorized representative of such entity, organization or business to be the individual point of contact who will represent such entity, organization or business in all matters relating to this Client Agreement and any and all arrangements by and between the Company and such entity, organization or business, and such individual shall provide his or her personal information in connection with such entity’s Client account on the Site.

    4. Service and System Control. Except as otherwise expressly provided in this Client Agreement, as between the Parties:

      1. The Company has and will retain sole control over the operation, provision, maintenance and management of the Site, the Services, the Libraries (except to the extent provided below) and the Company Materials, including the: (i) Company Systems; (ii) location(s) where any of the Services are performed, including in the United States, in countries outside the United States, or outside the borders of the country in which Client or the Client Systems are located; (iii) selection, deployment, modification and replacement of any Company Software (as defined below); and (iv) performance of any support services and maintenance, upgrades, corrections and repairs.

      2. Client has and will retain sole control over the operation, delivery, security, availability, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Services, Library Content and Company Materials by any person by or through the Client Site and the Client Systems or any other means controlled by Client or any Authorized User, including, for the avoidance of doubt, any Library Content delivered to or made available for Client’s Authorized Users or any other person by Client through the Client Site.

      3. Notwithstanding the foregoing, with respect to any Client Site hosted and/or provided by the Company, Client shall manage and maintain the Client Site in accordance with this Client Agreement during the Term, provided, that the Company may, in its sole discretion, monitor the Client Site, and may edit, limit access to, or remove Content from the Client Site in the event that the Company determines in its sole discretion that any Content on the Client Site is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or in violation of or allegedly in violation of any person’s Intellectual Property Rights, the Terms of Service, or this Client Agreement.

  2. Client Covenants and Obligations.

    1. Proper Use of the Services. Client shall not, directly or indirectly, and Client shall not permit any of its Authorized Users to: (i) modify, copy or create any derivative works based on, the Services or any Library Content; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services or Library Content available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any Library Content or the Services or any software, documentation or data related to the Services (“Company Software”); (iv) access the Services or any Library Content in order to build any commercially available product or service other than as contemplated and permitted hereunder; or (v) copy any features, functions, integrations, interfaces, graphics or audio-visual or written Content contained in or part of the Services or the Library Content. Client further agrees that is shall not, directly or indirectly, and Client shall not permit any of its Authorized Users to, use the Site or the Services for any unlawful purpose, to infringe upon or violate the Intellectual Property Rights of any person, to upload or transmit viruses, worms, or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services, the Site, or of any related website, other websites, or the Internet, or to deface, tarnish, mutilate, hack, interfere with, or otherwise use and exploit the Site, the Services, any Library Content or any other Company Materials. Client shall be responsible for any breach or violation of this Client Agreement by any of its Authorized Users and shall do all things necessary to ensure compliance with the terms and conditions of this Client Agreement by its Authorized Users. Any breach or violation of any terms or conditions of this Client Agreement by Client’s Authorized Users shall be deemed to be a breach or violation of this Client Agreement by Client as if Client had directly committed or caused such breach or violation.

    2. Client Site Management. Client shall actively monitor, operate, manage, curate and maintain the Client Site with at least the same degree of care, quality, workmanship and level of service that the Company provides with respect to the Site and the Services or that is otherwise customary in the industry with respect to the management and maintenance of a commercial website or web-based platform designed and intended to deliver content and materials similar to the Library Content for a profit, and in any event, Client shall not operate the Client Site in any manner, or take or omit any action, that would otherwise tend to reflect negatively on the Company, the Site, the Services or the Company’s commercial prospects or any of its licensors.

    3. EULA. Client shall ensure that each of its Authorized Users is provided access to, and reasonable opportunity to review, the EULA applicable to such Authorized Users, and that each Authorized User affirmatively confirms, using Client Site functionality (such as a checkbox or website button), that such Authorized User has received and read such EULA and understands such EULA and agrees to be bound by its terms in connection with such Authorized User’s use of the Client Site and Library Content provided thereon. Client shall be responsible for ensuring that each Authorized User executes a EULA in a manner sufficient for compliance with and effectiveness under the U.S. federal ESIGN Act of 2000. Client shall be responsible and liable, and the Company shall have no liability, for any breach or violation of a EULA by any of Client’s Authorized Users. Client shall immediately inform the Company upon any breach or violation of a EULA by any of Client’s Authorized Users, or of any unauthorized use of or access to the Client Site or any Library Content. Client shall be a party to each EULA that is entered into by any of its Authorized Users and Client hereby agrees to be bound by the terms of each EULA to which it is a party.

    4. Offensive Content. Client shall not, directly or indirectly, and Client shall not permit any of its Authorized Users to, post, submit or transmit any Content (and Client shall immediately notify the Company upon the posting, transmission or submission of any such Content) to the Client Site that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or that violates or allegedly violates any person’s Intellectual Property Rights, this Client Agreement or any EULA, or that is reasonably intended to be confidential information, or that could reasonably harm or damage the reputation or commercial prospects of the Company or any of its licensors in any way.

    5. Authorizations. Client shall, during the Term, obtain and maintain all necessary permits, licenses, authorizations and consents and comply with all applicable laws in relation to the Services, any Library Content, the Client Site and any business or commercial activities conducted by Client related to the foregoing.

    6. Personal Information. Client shall not at any time (including any time following the expiration or termination of this Client Agreement) post or make publicly available in way any Personal Information provided, submitted or transmitted to Client by any Authorized User or the Company, and any such Personal Information obtained by Client in any manner shall be deemed to be Confidential Information of the Company under this Client Agreement. Client shall ensure that no Content posted or made publicly available or viewable on the Client Site contains any Personal Information of any person. Client shall be solely responsible, and the Company shall have no liability, for any losses or damages caused by the posting, public display or disclosure of any Personal Information on or to the Client Site by Client, any Authorized User or any other person.

    7. Healthcare Laws. Each Party acknowledges and affirms that it is in compliance with, and each Party agrees that it shall comply during the Term, in all respects, with the Health Insurance Portability and Accountability Act of 1996 contained in 42 U.S.C. §1320d et seq., as the same has been and may be amended from time to time, and any other applicable healthcare-related laws pertaining to fraud and abuse in the health and wellness sector broadly construed.

  3. Fees.

    1. Fees and Payment. Client shall pay the Company when due the applicable fees described on the Site at the payment page or point of sale in respect of Client’s subscription for the Services. The fees and payment terms set forth on the payment page or point of sale that are applicable to the particular type and level of subscription that Client elects or has elected to subscribe for using Site functionality (e.g., a “Submit Payment” or other applicable button or functionality indicating Client’s agreement to elect to subscribe for Services) shall be referred to herein as the “Fee Schedule.” The Fee Schedule is incorporated into and made part of this Client Agreement. The Company reserves the right to change its standard fees for subscriptions to Services at any time, with notice to Client, provided that any such change to the Company’s standard fees for Services shall not affect or amend any Fee Schedule then in effect for Client’s subscription to Services during the term of such subscription, unless otherwise agreed by the Parties.

    2. Payment. Subscription fees for Services in amounts set forth on the Fee Schedule shall be payable monthly or annually in advance prior to the commencement of any Subscription Period (as defined below) or Renewal Period (as defined below), with applicable payment due and payable as of the first day of any Subscription Period or Renewal Period, or as otherwise specified in the Fee Schedule (each, a “Due Date”). Client shall remit payment on or prior to each Due Date. The initial period of Client’s subscription shall be referred to as the “Subscription Period,” and any renewal of Client’s subscription (automatic or otherwise) for the same period as the immediately prior period shall be referred to as the “Renewal Period.” The Company reserves the right to charge Client’s credit card, debit card, PayPal account or other payment account on file with the Company at each Due Date for the amount then due and payable. Client is responsible for ensuring that such payment and account information is up to date and active. If Client’s account is more than thirty (30) days past due, in addition to any other rights or remedies it may have under this Client Agreement or by law, the Company reserves the right to suspend the Services and all access to the Libraries until such amounts are paid in full, or to cancel and terminate Client’s account. Unpaid amounts of any fees due are subject to a finance charge of 1.5% per month on any outstanding balance, plus all expenses of collection. Client shall be responsible for all taxes associated with the Services other than U.S. taxes based on the Company’s net income.

    3. Automatic Renewal. Subscriptions for Services, whether on a monthly, annual or other term or basis, will automatically renew at the end of each applicable Subscription Period or Renewal Period for an additional Renewal Period at the then-current rate for such subscription as specified in the applicable Fee Schedule, unless Client delivers prior written notice to the Company indicating its election to terminate or change its subscription. By placing any order on the Site for a subscription to Services, Client authorizes the Company to charge its credit card, debit card, PayPal account or other payment account on file for automatic renewals of Client’s subscription as of the expiration thereof or otherwise on the applicable Due Date at the then-current rate as specified in the applicable Fee Schedule, unless Client otherwise terminates or changes its subscription in writing prior to such automatic renewal. If a subscription is terminated prior to the end of the applicable subscription period, the Company does not provide refunds for any unused portion of any Subscription Period or Renewal Period.

  4. Term and Termination.

    1. Term. This Client Agreement shall commence as of the Effective Date and shall continue thereafter in full force and effect for each applicable Subscription Period or Renewal Period, unless earlier terminated pursuant to this Client Agreement (such period during which this Client Agreement remains in full force and effect, the “Term”).

    2. Termination by Client. Client may terminate this Client Agreement at any time for any reason upon delivery of advance written notice to the Company at least thirty (30) days prior to expiration or any Subscription Period or Renewal Period (and prior to the automatic renewal of such Subscription Period or Renewal Period), and termination of such Subscription Period or Renewal Period shall occur at the expiration of the then-current Subscription Period or Renewal Period, unless an earlier termination date is specified in such notice to the Company.

    3. Termination by the Company. The Company may terminate this Client Agreement: (a) for any reason and at any time by giving thirty (30) days’ advance written notice to Client; (b) if Client fails to pay any amounts owing to the Company within thirty (30) days after the applicable Due Date; (c) if Client breaches any representation, warranty, covenant or obligation in this Client Agreement and such breach is not cured within thirty (30) days after receiving written notice of such breach from the Company; or (d) immediately in the event Client becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

    4. Effect of Termination. Upon termination of this Client Agreement for any reason:

      1. Client will pay the Company, within thirty (30) days following the date of termination, all outstanding fees for subscribed Services due and payable;

      2. The license granted to Client under Section 8.2 of this Client Agreement shall immediately terminate and be of no further force or effect;

      3. Each EULA with each Authorized User permitting such Authorized User to view, use and download Library Content from the Client Site shall immediately terminate and be of no further force or effect;

      4. Client shall, and shall cause each of its Authorized Users to, immediately cease all use of the Services, the Site, the Libraries, any Library Content, the Company Software, the Company Systems, the Client Site (only to the extent hosted and/or provided by the Company for or on behalf of Client as part of the Services) and all other Company Materials;

      5. Client shall promptly (but in any even no later than thirty (30) days from the date of termination) return to the Company or destroy (with written certification of such destruction provided to the Company by the applicable Client representative) all Company Materials and Company Confidential Information then in its possession or control; and

      6. all other sections of this Client Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment of fees, confidentiality obligations, warranty disclaimers, and limitations of liability.

    5. No Refunds for Early Termination. In any case in which this Client Agreement and Client’s access to the Site and the Services are terminated prior to the expiration of the then-current Subscription Period or Renewal Period, no refund for the remaining unused balance of such Subscription Period or Renewal Period shall be provided or available to Client. Client agrees and acknowledges that the Company’s retention of any subscription fees already paid in respect of a Subscription Period or Renewal Period and not refunded upon the early termination of any Subscription Period or Renewal Period for any reason is not a penalty, but rather constitutes liquidated damages in a reasonable amount that will compensate the Company for its efforts and resources expended in making the Site and the Services available to Client and in reliance on this Client Agreement and on the expectation of receiving subscription fees for Services contracted for, and that without the terms, conditions and agreements contained in this Section, the Company would not be able to offer the Site or the Services or to enter into this Client Agreement

  5. Proprietary Rights.

    1. Ownership the Company’s Intellectual Property. The Company and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to: (a) the Services, the Libraries and all Library Content, the Site, the Company Software, the Company Systems, the Client Site (only to the extent hosted and/or provided by the Company for or on behalf of Client as part of the Services), and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions, documents, data, know-how, methodologies, APIs and other materials, including computer programs, reports and specifications, or other technology developed or used in connection with the Services, the Libraries, Library Content, the Site, the Company Software, the Company Systems and the Client Site; (c) the Resultant Data; (d) any Content posted or provided to the Site or any Client Site by or on behalf of the Company; and (e) all Intellectual Property Rights related to any of the foregoing (collectively, the “Company Materials”). All other rights in and to the Company Materials are expressly reserved by the Company. No rights are granted to Client hereunder other than as expressly set forth herein.

    2. Grant of License to Use Library Content. In consideration for the subscription fees due or owing to the Company and the other obligations of Client hereunder, the Company hereby grants Client a limited, non-exclusive, non-transferable, non-sub-licensable, royalty-free, worldwide license during the Term to use, solely in connection with the Client Site and Client’s related commercial purposes, the Library Content and related Services delivered to or made available to Client by the Company hereunder and pursuant to Client’s subscription, and any other Company Materials provided to Client only to the extent such Company Materials are reasonably necessary to use the Services or any Library Content, in each case subject in all respects to the terms and conditions of this Client Agreement and subject in all respects to the terms and conditions of the EULA. For the avoidance of doubt, the license granted to Client under this Section 8.2 grants Client the right to: (a) post Library Content available to Client under its subscription to the Client Site for delivery and use by Client’s Authorized Users (but no other person); (b) make the Library Content available (by posting to the Client Site or by delivery or transmission through the Client Site) for Client’s Authorized Users to view, use, stream, access and download such Library Content directly from the Client Site for such Authorized User’s personal use only and not for any other use (including commercial uses) and subject to the limitations and restrictions on use by any Authorized User provided in this Client Agreement and the EULA; (c) use any Services under Client’s subscription that are related to or necessary for the use of any Library Content or the delivery or provision thereof; and (d), if and to the extent the Client Site is hosted, generated or delivered by the Company for or on behalf of Client, to use the Client Site for the purpose of providing access to Library Materials to Client’s Authorized Users in the manner permitted and contemplated hereby.

    3. Ownership of Client Content; Grant of Right to Use. As between the Company and Client, Client shall own all right, title and interest in and to the Client Content. Client hereby irrevocably grants to the Company all such rights and permissions in or relating to the Client Content as are necessary or useful to perform the Services, or to enforce this Client Agreement and exercise the Company’s rights and perform its obligations hereunder.

    4. Aggregated Data Use. Notwithstanding anything to the contrary contained herein, the Company shall have the right to aggregate, collect, monitor, analyze, log, manage, use, process and perform operations on (collectively, “Process”) data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, Client Data and data derived therefrom), and the Company will have all necessary rights and permissions (during and after the Term) (i) to use such information and data to derive the Resultant Data and/or to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) to disclose such data solely in aggregate or other de-identified form in connection with its business; provided, however, that the Company’s use of such data and information will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Services or the Client Site. In no event shall any such aggregated data or information include any Personal Information.

  6. Confidentiality.

    1. Confidentiality. No Party shall disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Client Agreement, or except with the other Party’s prior written consent. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

    2. Compelled Disclosure. A disclosure by one Party of Confidential Information of the other Party to the extent required by law shall not be considered a breach of this Client Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure.

    3. Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of confidentiality protections hereunder, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies would be inadequate.

    4. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without the use of any Confidential Information of the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party.

  7. Representations, Warranties and Disclaimers.

    1. Mutual Representations. Each Party represents and warrants to the other Party that it has the authority to enter into this Client Agreement and the power and authority to grant the licenses or other rights granted by it hereunder, and, in connection with its performance of this Client Agreement, shall comply with all laws applicable to it.

    2. Company Representations. The Company represents and warrants to Client that during the Term, it will use commercially reasonable efforts to provide the Services in a good and workmanlike manner in accordance with generally recognized industry standards for similar services.

    3. Client Representations. Client represents and warrants to the Company that it has, or shall obtain and shall maintain throughout the Term, all rights, permits, licenses and consents required in connection with the Services, including any such right or licenses required to lawfully use, and to authorize its Authorized Users to use, the Services and any Library Content expressly delivered for use in connection with the Services.

    4. Client Content. Client represents, warrants and covenants to the Company that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Content so that, as received by the Company and Processed in accordance with this Client Agreement or as posted to or transmitted through the Client Site or the Site or the Services, such Client Content does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party or violate any applicable law.

    5. No Liability for Third Party Applications. Parts of the Site and the Services involve or rely on third party applications to process data, perform analytics, make and process payments and for other functionality made available to Client (collectively, “Third Party Applications”). The Company reserves the right to use Third Party Applications as part of the Services; provided, however, that the Company’s use of any such Third Party Applications does not imply approval or endorsement thereof by the Company, such Third Party Applications are provided or made available to Client on an “as is” basis, and the Company makes no representation, warranty or guarantee whatsoever, express or implied, regarding the quality, workmanship, merchantability, fitness for a particular purpose, suitability, appropriateness, relevance, value, authorship, usability, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, or any other aspect of any Third Party Applications, that such Third Party Applications will be uninterrupted or error free, that the quality of any Third Party Applications will meet your expectations or that any errors therein will be corrected.

    6. No Endorsement of Library Content. The Company makes no representations, warranties or guarantees whatsoever, express or implied, regarding the quality, workmanship, merchantability, fitness for a particular purpose, accessibility, truthfulness, suitability, appropriateness, relevance, value, authorship, usability, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency or any other aspect of any Library Content provided through the Site and the Services, or any credentials, titles, degrees, specialization, education, training, certifications, work history, experience, expertise or any other biographical or other information provided by any person in connection with or related to any Library Content. Any such information displayed on or transmitted through the Site, any Library Content or the Services, whether by us or by any other person including our third party licensors, is based solely on information provided to us by such other person, and we do not independently confirm, evaluate or review any such information. Provision of any Library Content by the Company through the Services does not imply approval or endorsement thereof by the Company, and such Library Content is provided or made available to Client on an “as is” basis, and the Company makes no representation, warranty or guarantee whatsoever, that such Library Content will be uninterrupted or error free, that the quality of any Library Content will meet your expectations or that any errors therein will be corrected.

    7. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 9. THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN EACH CASE WITH RESPECT TO THE SERVICES, THE SITE, THE LIBRARIES, ANY LIBRARY CONTENT, THE COMPANY SOFTWARE, THE COMPANY SYSTEMS, ANY COMPANY MATERIALS, THE CLIENT SITE (IF APPLICABLE) AND ANY THIRD PARTY APPLICATIONS. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CLIENT IN CONNECTION WITH THE PROVISION OF THE SERVICES.

  8. Indemnification.

    1. Company Indemnification. The Company, at its own expense, shall defend, indemnify and hold Client and its Affiliates and their respective directors, employees, agents and permitted successors and assigns (the “Client Indemnitees”) harmless from and against any and all losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively “Damages”) suffered or incurred (including without limitation amounts agreed upon in settlement) or awarded in connection with any actual or alleged claim, suit or proceeding brought by a third party (each a “Claim”) arising out of or resulting from:

      1. the Company’s gross negligence, fraud or intentional act or omission;

      2. the Company’s material breach of this Client Agreement; or

      3. any violation or claimed violation of a third party’s rights resulting in whole or in part from Client’s use of any Library Content provided by the Company under this Client Agreement;

provided, however, that the Company will not be obligated to indemnify Client or any Client Indemnitees for Claims arising out of the gross negligence or intentional misconduct of Client or any Client Indemnitees or the breach by Client or any Authorized User of this Client Agreement or any applicable EULA.

    1. Client Indemnification. Client, at its own expense, will defend, indemnify and hold the Company and its Affiliates and their respective directors, employees, agents and permitted successors and assignees (the “Company Indemnitees”) harmless from and against any and all Damages suffered or incurred (including without limitation amounts agreed upon in settlement) or awarded in connection with any Claim arising out of or resulting from:

      1. Client’s gross negligence, fraud or intentional act or omission; or

      2. Client’s or any Authorized User’s breach of this Client Agreement or any Authorized User’s breach of the applicable EULA; or

      3. any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use pursuant to the grant of license or use rights hereunder of any Intellectual Property Rights of Client, including any Client Content;

provided, however, that Client will not be obligated to indemnify the Company or any Company Indemnitees for Claims arising out of the gross negligence or intentional misconduct of the Company or any Company Indemnitees.

    1. Indemnification Procedure. The Party seeking indemnification (“Indemnitee”) will use reasonable efforts to notify other Party (“Indemnitor”) promptly of any Claim for which the Indemnitee believes it should be indemnified; provided that any failure by the Indemnitee to notify the Indemnitor within a reasonable time will not affect the Indemnitor’s indemnification obligations hereunder except to the extent any delay in providing notice materially prejudices the Indemnitor. The Indemnitor will assume the defense of such Claim with counsel that is mutually acceptable to both Parties. The Indemnitor will control the defense or settlement of the Claim, but will provide regular updates to and cooperate with the Indemnitee on a regular basis; provided, however, in no event will the Indemnitor settle or compromise any Claim or consent to the entry of any judgment without the prior written approval of the Indemnitee. Notwithstanding the foregoing, if the Indemnitee, in its sole judgment so elects, the Indemnitee may also participate in the defense thereof by employing counsel at its expense. If the Indemnitor fails, within a reasonable time after receipt of such notice from the Indemnitee, to assume the defense with counsel mutually acceptable to both Parties or if, in the reasonable judgment of Indemnitee, a direct or indirect conflict of interest exists between the Parties with respect to the claim, suit or proceeding, the Indemnitee will have the right, but not the obligation, to undertake the defense, compromise and settlement of such Claim for the account and at the expense of the Indemnitor.

  1. Limitation of Liability.

    1. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS CLIENT AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS, AFFILIATES, SUBCONTRACTORS AND SERVICE PROVIDERS UNDER OR IN CONNECTION WITH THIS CLIENT AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID TO THE COMPANY BY OR ON BEHALF OF CLIENT FOR SERVICES DURING THE PRIOR TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    2. Exclusion of Damages. EXCEPT WITH RESPECT TO CLIENT’S PAYMENT OBLIGATIONS, OR THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR STATUTORY DAMAGES FOR A PARTY’S MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  2. General Provisions.

    1. Relationship of the Parties. The Parties are independent contractors. This Client Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third party beneficiaries to this Client Agreement.

    2. Notices. All notices under this Client Agreement shall be in writing and shall be deemed to have been given upon delivery to the other party by email or other electronic communication, in each case to the addresses provided by the Parties for notice hereunder. Client hereby consents to receive communications and notices from the Company in an electronic form via the email address submitted by Client upon registration, and the Company hereby consents to receive communications and notices from Client in an electronic form via its email address at admin@alethiex.com. The Parties agree that this Client Agreement, and all other agreements, notices, disclosures and other communications that either Party delivers to the other Party electronically satisfy any legal requirement that such communications would satisfy if they were in writing.

    3. Governing Law. This Client Agreement and any action related hereto will be governed and interpreted by and under the laws of the state of [New York], without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.

    4. Arbitration. All disputes between the Parties arising out of or in connection with this Client Agreement, including any question regarding its breach, existence, validity or termination, shall be referred to and finally resolved by mandatory binding expedited arbitration under the Commercial Arbitration Rules of the American Arbitration Association in effect as of the date the request for arbitration is filed (the “Rules”) before a single, neutral arbitrator, selected in accordance with the Rules. Each of the Company and Client may initiate such an arbitration pursuant to the Rules. The arbitration shall be held in New York City, New York (such site being herein referred to as the “Forum”). Each Party agrees that it will abide by any decision rendered in such arbitration, and that any court having jurisdiction may enforce such a decision. Each Party submits to the non-exclusive personal jurisdiction of the courts of the Forum as an appropriate place for compelling arbitration or giving legal confirmation of any arbitration award, and irrevocably waives any objection which it may now or hereafter have to the venue of any such enforcement proceeding brought in any of said courts and any claim of inconvenient forum. Each Party agrees that service of process for all arbitration proceedings may be made in accordance with the Rules and shall be deemed effective as provided therein.

    5. Miscellaneous. If any provision of this Client Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Client Agreement will otherwise remain in full force and effect and enforceable. Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Company. This Client Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter hereof.