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PitchBook Content and API License Agreement
This PitchBook Content and API License Agreement ("Agreement") is entered into by and between PitchBook Data, Inc. ("PitchBook") and "Licensee" (as defined in the signature block of the Order Form Agreement) in order for PBDI to provide Licensee with access to PitchBook's Direct Data Services identified on the Order Form Agreement ("Services"). This Agreement is effective as of the later of the two signature dates set forth in the Order Form Agreement ("Effective Date").
Each party agrees that it has read and understands this Agreement, and each party agrees to be bound by all of its terms. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement replaces and supersedes any and all prior verbal understandings, written communications or representations relating to the subject matter hereof. This Agreement may be amended only in a writing signed by an authorized representative of both parties. The Parties acknowledge that no representative of a Party has authority to include promises or undertakings under this Agreement that are not reflected expressly in writing in this Agreement.
DEFINITIONS. Whenever used in this Agreement with initial words capitalized, the following terms will have the following specified meanings:
SECTION 1. GENERAL.
1.1 ACTIVATION DATE. The date on or after the Effective Date when PitchBook has provided Licensee with access to the API and PitchBook notifies Licensee that the API is available. If and to the extent Licensee was permitted access to the API prior to the Effective Date (under previous agreed terms including confidentiality and evaluation terms), the Activation Date will be the Effective Date of this Agreement.
1.2 ADMINISTRATOR. The employee of Licensee described in Section 2.3 who is identified as Administrator on the cover sheet of this Agreement.
1.3 API. The application program interface, including all accompanying documentation, software, samples, specifications, and other related materials, as provided by PitchBook for use in automated requests, receipt, and processing of Content from PitchBook.
1.4 CONTENT. The data and any other content of PitchBook provided to Licensee through the API.
1.5 LICENSED MATERIALS. The API, Content, and any other content, software or other materials furnished by PitchBook to Licensee in connection with this Agreement, including, without limitation, any modification, enhancement or other derivative work of any of the foregoing furnished by PitchBook.
1.6 LICENSEE API LOCATION. The street address of the location of Licensee's data center or storage servers where the Content will be received through the API and stored by Licensee.
1.7 LICENSEE INTERNAL BUSINESS PURPOSE. Internal use by Named Users for Licensee's investment research and similar purposes that does not make unauthorized use or disclose Content or portions thereof to third parties, and does not otherwise involves use that competes with PitchBook's operations as provider of the Content and other Licensed Materials.
1.8 LICENSEE USER LOCATION. The street address of the location of Licensee's offices or facilities where Licensee's Named Users are based for employment purposes. For the avoidance of doubt, Named Users may be permitted access from remote locations while traveling or working from home provided that appropriate security and confidentiality is maintained during access to the Content, and such use complies with all other terms and conditions of the Agreement.
1.9 NAMED USER. A natural person who is an employee or agent of Licensee employed at Licensee User Location and designated by Licensee as an authorized user of the Licensed Materials, whose access and use of the Licensed Materials is subject to the terms and conditions of this Agreement.
1.10 TERM. The period described in Section 4.1.
SECTION 2. LICENSE.
2.1 CONTENT DELIVERY AND LICENSE GRANT. Subject to the terms and conditions of this Agreement, PitchBook hereby: (a) agrees to deliver Content through the API to Licensee at Licensee API Location subject to this personal, nonexclusive, nontransferable, fee-bearing limited license during the Term to store and permit only Named Users to access and use Content solely for Licensee Internal Business Purposes; and (b) grants to Licensee a personal, nonexclusive, nontransferable, fee-bearing limited license during the Term to use, reproduce, store, modify and make derivative works of the API solely for the purpose of receiving Content and exercising the rights granted under subsection (a) of this Section 2.1.
2.2 LIMITATIONS. PitchBook reserves all rights in and to the Licensed Materials not specifically granted to Licensee under Section 2.1. Without limiting the generality of the foregoing, unless explicitly provided otherwise in this Agreement, the foregoing license does not include the right to, and Licensee will not, directly or indirectly: (a) distribute or make available or otherwise permit third parties to access the Content or API or any portions thereof; (b) use the Licensed Materials for any purpose other than Licensee Internal Business Purposes; (c) remove, obscure, or alter any notice of copyright, trademark, trade secret, confidentiality or other proprietary right of PitchBook related to the Licensed Materials; or (e) engage in or permit any unauthorized copying or use of any Licensed Materials.
2.3 NAMED USER PASSWORDS. PitchBook will provide a unique key to Licensee for its Administrator to use in accessing the Content as provided through the API. Licensee's designated Administrator must be a Named User who is also Licensee's designated contact for maintaining Licensee's Named User accounts and who as Administrator will have direct access to the API on Licensee's behalf through PitchBook's designated transfer method. Licensee agrees to require each Named User to maintain the security of their respective access to Content and any portions thereof, and not to permit use of their Named User account by any individual other than the person identified by Licensee for that Named User account. Licensee will promptly notify PitchBook of any unauthorized access or use of passwords or any other breach of security known to Licensee with respect to the Content and API so the parties can work to address, mitigate, and remediate any such breach of security.
SECTION 3. FEES.
3.1 AMOUNT. Licensee will pay to PitchBook the license fees and any other agreed amounts as set forth in Exhibit A in connection with this Agreement, as well as any applicable taxes other than those based on PitchBook's net income (such fees and amounts, including applicable taxes, are collectively referred to as "Fees"). PitchBook may prospectively change Fees charged from time-to-time on at least thirty (30) days' prior written notice to Licensee's email address listed on the cover sheet for contract notices or through a notice made through Licensee's online account with PitchBook. LICENSEE'S CONTINUED USE OF THE API AND CONTENT AFTER THE EFFECTIVE DATE OF SUCH INCREASE IN FEES MADE BY PITCHBOOK WITH THE REQUIRED NOTICE CONSTITUTES LICENSEE'S BINDING ACCEPTANCE OF AND LIABILITY FOR SUCH FEES. In the event Licensee does not accept the change in Fees, it must discontinue all use of the Licensed Materials prior to the effective date of the change in Fees, and terminate this Agreement in accordance with Section 4.1(c) of this Agreement.
3.2 PAYMENT. Payment is due for Fees under this Agreement in ADVANCE of usage. Licensee agrees to pay, and hereby authorizes PitchBook to charge and deduct, Fees when due from Licensee's payment account established with PitchBook for this purpose, including but not limited to charges to any payment card information Licensee provides for such purposes which may be used and disclosed by PitchBook to third parties as necessary to process payments due under this Agreement. Without limiting the foregoing, and in addition to any other remedies available for breach of payment terms of this Agreement, any amount not timely paid will be subject to finance charges at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, determined and compounded on a daily basis from the date due until the date paid. Notwithstanding any other provision of this Agreement, PitchBook may suspend its performance (including without limitation making Content available through the API) immediately at any time Fees are due and unpaid until such time as reasonably satisfactory arrangements are made with PitchBook in its sole and good faith discretion to assure payments of Fees will be current and timely made. Following any expiration or termination of this Agreement, PitchBook agrees to refund to Licensee within thirty (30) days any unused balance of Licensee's payment account without interest, and subject to any good faith set-off or claims PitchBook may have in relation to Licensee under this or other agreements with PitchBook.
3.3 AUDITS. Licensee agrees to permit periodic audits (no more frequently than once per calendar year) upon reasonable notice and at mutually agreed times to permit PitchBook at its expense to conduct a reasonable review of records and procedures with appropriate personnel to ensure compliance with the terms and conditions of this Agreement, including without limitation restrictions as to permitted locations and users for Licensed Materials.
SECTION 4. TERM AND TERMINATION.
4.1 TERM. The Initial Term of this Agreement will be for one (1) year commencing on the Activation Date and, unless earlier terminated as provided elsewhere in this Section 4, will automatically renew for additional one (1) year terms (each a "Renewal Term") unless either Party provides sixty (60) days written notice of its intent not to renew prior to the expiration of the then current Initial or Renewal Term. The Initial Term and any Renewal Terms are collectively referred to as the "Term".
4.2 TERMINATION. This Agreement may be terminated prior to the expiration of the Term as follows:
(a) In the event that either party materially breaches any of its duties or obligations under this Agreement, and does not substantially cure such breach within thirty (30) days (or, in the case of a payment default by Licensee, within five (5) days) after being given written notice specifying the breach, then the non-breaching party may terminate the Term by giving written notice of termination to the breaching party;
(b) Either party may terminate upon written notice in the event that the other party files for bankruptcy, makes an assignment for the benefit of creditors, has a receiver appointed, or becomes insolvent and unable to pay its debts when due;
(c) By Licensee upon the effective date of any permitted increase in Fees by PitchBook as provided in Section 3.1, in the event Licensee elects to terminate this Agreement rather than accept the increase in Fees, but only if Licensee gives written notice at least fifteen (15) days' prior to such effective date.
4.3 EFFECT OF TERMINATION. Upon any expiration or termination of this Agreement, the license set forth in Section 2 will automatically terminate and Licensee agrees to immediately cease to access, use and storage of the API and Content and otherwise immediately cease all use of and take all commercially reasonable efforts to expunge the Licensed Materials. Sections 1, 3.2, 3.3, 5, 6.3, 7, 8 and 9 will survive the expiration or termination of this Agreement.
SECTION 5. PITCHBOOK'S PROPRIETARY RIGHTS.
5.1 OWNERSHIP. Licensee acknowledges that, as between the parties, the Licensed Materials and all right, title and interest therein belong exclusively to PitchBook (and PitchBook's licensors and suppliers, if any). Licensee agrees to treat the Content and API as "CONFIDENTIAL INFORMATION" belonging to PitchBook under this Agreement and agrees as a condition of access to the Licensed Materials to only use them as licensed under this Agreement, and to keep the Content and API confidential using the same degree of care Licensee uses to protect its own confidential information, but in no case less than reasonable care. Without limiting the foregoing, Licensee agrees to take all commercially reasonable steps necessary to protect the Licensed Materials from any unauthorized access, copying, distribution, publication, transmission, display or use.
SECTION 6. WARRANTIES.
6.1 PITCHBOOK. PitchBook warrants to Licensee that: (a) PitchBook has the necessary power and authority to enter into and perform its obligations under this Agreement; and (b) this Agreement has been duly authorized and executed by PitchBook and constitutes a valid, binding and enforceable agreement of PitchBook.
6.2 LICENSEE. Licensee warrants to PitchBook that: (a) Licensee has the necessary power and authority to enter into and perform its obligations under this Agreement; and (b) this Agreement has been duly authorized and executed by Licensee and constitutes a valid, binding and enforceable agreement of Licensee.
6.3 DISCLAIMER. ALL LICENSED MATERIALS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING. WITHOUT LIMITING THE FOREGOING, PITCHBOOK MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF THE CONTENT, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED MATERIALS OR SERVICES PROVIDED HEREUNDER, AND PITCHBOOK EXPRESSLY DISCLAIMS ANY CONDITION OF QUALITY AND ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY PITCHBOOK, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
SECTION 7. INDEMNIFICATION.
7.1 BY LICENSEE. Licensee will defend, indemnify and hold harmless PitchBook, its officers, directors, employees and agents, from and against any and all liabilities, damages, awards, settlements, losses, claims and expenses, including reasonable attorney fees and expenses and costs of investigation (collectively, "Damages") resulting from third-party claims that arise out of any unauthorized use or disclosure of the Licensed Materials by Licensee including by any of Licensee's Named Users, employees, or agents.
7.2 BY PITCHBOOK. PitchBook will defend, indemnify and hold harmless Licensee, its officers, directors, employees and agents from and against any and all Damages resulting from third-party claims alleging that the Licensed Materials in the form provided by PitchBook to Licensee, if used by Licensee in the manner permitted in this Agreement during the Term, infringes any third-party intellectual property right, provided that the relevant claim: (a) does not arise from any modification to the Licensed Materials made by Licensee or any third party, or (b) does not arise from the combination of the Licensed Materials with other content, products, services or technology not supplied by PitchBook.
7.3 PROCEDURES. Each party's obligation to defend and indemnify the other party under this Section 7 will be contingent upon the indemnified party (a) notifying the other party of the claim promptly after being made aware of the claim, (b) allowing the indemnifying party to control the defense and settlement of the claim, (c) assisting the indemnifying party, at its request and expense, in the defense and settlement of the claim, and (d) not settling the claim without the prior written consent of the indemnifying party, such consent not to be unreasonably withheld or delayed.
SECTION 8. LIMITATIONS OF LIABILITY.
8.1 GENERAL. ALTHOUGH PITCHBOOK ENDEAVORS TO MAKE REASONABLE EFFORTS TO ASSESS THE ACCURACY AND RELIABILITY OF THE LICENSED MATERIALS, PITCHBOOK DOES NOT GUARANTEE SUCH ACCURACY OR RELIABILITY, AND LICENSEE ACKNOWLEDGES THAT PITCHBOOK, ITS EMPLOYEES, AGENTS AND LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY LICENSEE, ANY CUSTOMER OF LICENSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF ANY FAULT, INTERRUPTION OR DELAY IN ANY SERVICE OR OUT OF ANY INACCURACY, ERROR OR OMISSION IN ANY LICENSED MATERIALS SUPPLIED TO LICENSEE, HOWEVER SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, UNLESS DUE TO PITCHBOOK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8.2 LIMITATION ON DAMAGES. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND WITHOUT LIMITING EITHER PARTY'S LIABILITY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL OR PROPRIETARY PROPERTY RIGHTS OF THE OTHER PARTY (INCLUDING, WITHOUT LIMITATION, LICENSEE'S UNAUTHORIZED USE, COPYING OR DISTRIBUTION OF ANY LICENSED MATERIALS), UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COST OF COVER, REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED.
8.3 LIMITATION OF LIABILITY. Except with respect to PitchBook's indemnification obligations under Section 7.2 of this Agreement, in no event shall PitchBook, or its officers, directors, agents, and employees, be liable Licensee or its officers, directors, agents and employees, for any damages of any sort for claims arising under or related to this Agreement, in excess of the amount of Fees actually paid by Licensee to PitchBook under this Agreement.
SECTION 9. MISCELLANEOUS.
9.1 FORCE MAJEURE. Neither party will be liable for or be in breach of this Agreement (other than a breach of a payment obligation) on account of any delay or failure to perform as required under this Agreement as a result of any cause, condition or circumstance beyond such party's reasonable control.
9.2 ASSIGNMENT. Licensee may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of PitchBook in its sole discretion. Any attempted assignment in violation of this section shall be null and void. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
9.3 RELATIONSHIP OF THE PARTIES. Nothing in this Agreement will be construed to make the parties partners, joint ventures, representatives or agents of each other. The parties hereunder are acting in performance of this Agreement as independent contractors engaged in the operation of their own respective businesses. Nothing in this Agreement is intended to, or will, create any third party beneficiaries, whether intended or incidental and neither party will make any representations to the contrary.
9.4 NOTICES. Any notice or other communication under this Agreement given by either party to the other party will be in writing and delivered in person or mailed, properly addressed and stamped with required postage, or by electronic mail, to the intended recipient at its address specified on the cover sheet of this Agreement and to the attention of the person who executed this Agreement on behalf of that party. Either party may from time to time change its address or designated individual by giving the other party notice of the change.
9.5 WAIVER. No term, provision or clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent will be in writing and executed by a duly authorized representative of each party. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, will not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
9.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements, between Licensee and PitchBook related to the Licensed Materials. No amendment of any of the provisions of this Agreement will be valid unless set forth in a written instrument signed by both parties.
9.7 APPLICABLE LAW. This Agreement will be interpreted, construed and enforced in accordance with the laws of the State of Washington, without reference to its choice of law principles. Any and all disputes between the parties that cannot be settled by mutual agreement will be resolved solely and exclusively in the local and federal courts located within King County, Washington, and each party hereby consents to the jurisdiction of such courts and irrevocably waives any objection thereto.