By accessing www.xpous.com
1.1. Site & Applications
PitchBook provides data (the “Services”) via its websites located at www.xpous.com
and (each a "Site" and collectively the “Sites”). Additionally, an Authorized User under a subscription agreement may be given access to one or more PitchBook software applications (each, an “Application”) for the purpose of accessing the content of the Sites (the “Content”) through that Application. For the purposes of this Agreement, “Content” also includes any written reports sold or otherwise delivered to Subscriber as well as any information Subscriber receives from PitchBook analysts, regardless of how that information is communicated to Subscriber. PitchBook may suspend, disable or terminate your access to the Services, Sites, Application, or Content.
1.2. Trial Access
If PitchBook agrees to provide trial access, such access may be limited to certain subsections of Content.
PitchBook may modify the Services, Sites, Applications, or Content at any time.
1.4. Effective Date
This Agreement is effective upon your use of the Sites or Applications.
2.1. Requirements for Use
2.2. Responsibility for Use
Your account username and password are solely for your individual use to access the Site or Sites and you may not permit anyone else to use them or your account. You are responsible for all use of the Applications, Sites, Services, and Content accessed through your account (including any illicit use of your user ID or password) and for preventing such unauthorized use.
2.3. Reporting Unauthorized Use or Access
If you believe there has been unauthorized access or use of the Applications, the Sites or any Content through your account credentials, you must notify PitchBook immediately by emailing email@example.com
2.4. Requirements for Use
3. Allowed Usage
3.1. Use for Internal Business Operations
The Services and Content may only be used for the purposes of Subscriber’s internal business operations. An Authorized User may view, download, and manipulate the Content for Subscriber’s internal business operations.
3.2. Use of Content in Presentations and Reports
Authorized Users may incorporate data from the Content into presentations and reports (Subscriber’s “Work Product”) so long as (A) the quantity of data incorporated from the Content into the Work Product has no independent commercial value and is not separately marketable by PitchBook or Morningstar; (B) the Work Product is not issued on behalf of a third party; (C) the Work Product is not published to more than 500 individuals without the prior written consent of PitchBook, which consent will not be unreasonably withheld; and (D) the incorporated Content contains the following source attribution: Source: PitchBook Data, Inc.
PitchBook retains sole ownership over any Content incorporated into the Work Product. If PitchBook assists Subscriber in the creation of Work Product, Subscriber may be charged additional fees as agreed to in writing by PitchBook and Subscriber in a separate Order.
3.3. Printing & Downloading
An Authorized User may print or download and store the amount of Content authorized in the Order only. However, Subscriber may not use such printing and downloading to compile more than an insubstantial portion of the PitchBook database.
4. Prohibited Usage
4.1. No Uses Competitive with PitchBook
Subscriber agrees not to use the Content in furtherance of a Competitive Product. A “Competitive Product” is a product or service that provides customers with data that is substantially similar to data marketed and licensed by PitchBook at of the Effective Date. The Content may not be used for any competitive analysis of how PitchBook’s products and services compare to a Competitive Product being offered or developed by Subscriber.
4.2. Limitation on Distribution
Except as explicitly allowed under Section 3 or the terms of an Order, Subscriber may not transfer, sell, rent, distribute, display, or otherwise disclose any portion of the Services, Site, Content, or Applications to anyone.
4.3. No Technological Attacks or Scraping
Subscriber may not use or attempt to use any deep-link, scraper, robot, bot, spider, data mining, computer code or any other device, program, tool, algorithm, process or methodology to systematically access, acquire, copy, or monitor any portion of the Content or Site. Additionally, Subscriber may not modify, decompile, decrypt, disassemble or reverse engineer any portion of the Services, Site, or Applications. Further, Subscriber will not use the Content in conjunction with any machine learning, neural network, deep learning, predictive analytics or other artificial intelligence computer or software program. If Subscriber collects data from the Site in violation of this Section 4.3, Subscriber agrees to promptly, upon receipt of invoice, delete such data and pay 150% of the then-current direct data pricing for such data.
4.4. Unauthorized Access
Subscriber may not—through hacking, password mining, or any other means—violate the security of the Site or any Application or attempt to gain unauthorized access to the site, Content, or PitchBook’s computer systems. Authorized Users may not share their password or other login credentials to the Services.
4.5. No Violations of Third-Party Intellectual Property
Subscriber may not use the Site, Services, or any Content in a manner that infringes or violates the intellectual property or proprietary rights of PitchBook or any third party, including, without limitation, the rights of privacy and publicity.
4.6. No Use in Third-Party Databases
Subscriber may not input any Content into a customer relationship management application or any other third-party database.
4.7. No Use in Violation of Laws
Subscriber may not use the Site or Content in any manner that is unlawful or that harms PitchBook. Additionally, Subscriber may not use the Site or Content in any way that is fraudulent, false, or deceptive.
4.8. No Offering of Securities
Subscriber may not use the Services, Site, or Applications in such a way as to be deemed to be engaging in the offering or solicitation of investments in securities or to be using the Services, Site, or Applications for any other improper investment purposes.
4.9. No Use for Credit or Employment Eligibility
Subscriber may not use the Content as a factor in establishing an individual’s eligibility for employment, or for credit or insurance to be used primarily for personal, family, or household purposes.
4.10. Fund Prior Performance Data
Subscriber represents to PitchBook that Subscriber is an accredited investor within the meaning of SEC Rule 501(a)(1), (2), (3), (7), or (8) of Regulation D. Subscriber will promptly notify PitchBook if Subscriber ceases to qualify as an accredited investor under Rule 501(a)(1), (2), (3), (7), or (8). If Subscriber uses the Services to access any fund’s prior performance data, Subscriber will not, within 30 days of the Effective Date, purchase securities from an investment fund that has prior performance data on PitchBook unless: (a) Subscriber has previously invested in or been solicited by that fund; (b) Subscriber had a substantive pre-existing relationship (as defined in ) with that fund prior to purchasing that fund’s securities; or (c) Subscriber is actively considering an investment in that fund prior to the Effective Date.
4.11. PitchBook Intellectual Property Marks
Subscriber must not remove or obscure the copyright, trademark, service mark, or other notices contained in the Site, Services, Applications, or Content, regardless of whether such notices relate to rights possessed by PitchBook or its parent company Morningstar, Inc. (“Morningstar”) or any affiliate of Morningstar. Subscriber may not use the trademarks, service marks, logos, or other proprietary identifiers of PitchBook, Morningstar, affiliates of PitchBook or Morningstar, or PitchBook or Morningstar suppliers without prior written consent.
4.12. Professional Conduct
Subscriber must treat PitchBook employees with a reasonable level of cordiality and professionalism.
5. Payment Terms
Subscriber will pay all fees listed in the relevant Order (“Fees”). The Fees only apply with respect to the term provided in the Order. PitchBook may change the Fees for any Renewal Term (as defined below) upon notice to Subscriber no later than 45 days prior to the then-current anniversary of the Effective Date. Unless provided otherwise, all amounts paid under this Agreement are non-refundable.
5.2. Timing of Payment
Subscriber will pay all Fees contained on an Order within 15 days following the Effective Date. If the Agreement is automatically renewed, Subscriber will pay all Fees for renewal terms on each anniversary of the Effective Date during the Term. If such payment is not timely made, PitchBook may suspend Subscriber’s access to the Site, Applications and Services. Unpaid Fee balances will accrue interest at the rate of 1.5% per month.
Subscriber is solely responsible for all applicable sales, use, and other taxes or similar charges or duties incurred in connection with this Agreement (collectively, “Taxes”). Subscriber will promptly reimburse PitchBook if PitchBook is required to pay any Taxes for which Subscriber is legally responsible. Despite the previous two sentences, PitchBook remains solely liable for any taxes assessed on its net income.
6. Reservation of Rights
Except as detailed below in this Section 6, all rights—including all copyrights and other intellectual property rights—in the Services, Site, Content, and Applications, belong to PitchBook or PitchBook’s suppliers. Unless expressly provided otherwise, nothing in this Agreement is to be construed to grant Subscriber any license or right to the Site, Services, Applications, or Content.
6.1. Derivations of Content
PitchBook does not claim an ownership interest in derivations of Content that an Authorized User creates through authorized use of the Services if such derived work is sufficiently transformed so that any Content on which it is based or that forms one or more inputs into it cannot be readily understood, reverse engineered, disassembled or decompiled by someone reasonably knowledgeable of financial services or reasonably skilled in financial services software applications.
6.2. Subscriber Data
PitchBook does not claim an ownership interest in any data or content not originally sourced from PitchBook, its affiliates, or any of their suppliers, that is separately uploaded by Subscriber or its Authorized Users onto the Site (“Subscriber Data”). Subscriber grants PitchBook a license to display Subscriber Data to Subscriber’s Authorized Users as needed to provide the Services.
7. Notes and Files Functionality
If activated, the Site’s Notes and Files functionality provides individual Authorized Users with the ability to upload Subscriber Data for use by Subscriber’s Authorized Users. PitchBook has no control over the content of any Subscriber Data and accepts no responsibility for its accuracy, completeness, or timeliness. Subscriber grants PitchBook a limited license to display the information to Subscriber’s Authorized Users. Additionally, Subscriber remains solely responsible for any use it makes of the Subscriber Data, and for ensuring that the Subscriber Data complies with all applicable laws and regulations and does not violate the rights of any third party.
This Agreement will commence on the Effective Date and will terminate at the end of a trial or if no Order is in effect. If a new Order is agreed to after the termination of this Agreement, this Agreement will be reinstated unless otherwise agreed.
9.1. Termination for Breach
PitchBook may terminate this Agreement if you breach this Agreement.
9.2. Effect of Termination
Upon termination of this Agreement, you must promptly expunge any Content you have in your possession and immediately discontinue use of the Services, Site, Applications, and Content. Sections 2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15, 18, 19, 20, 26, and 27 will survive the termination of this Agreement.
10. Representations and Warranties
10.1. Subscriber’s Representations and Warranties
Subscriber represents and warrants to PitchBook that Subscriber has the necessary authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly authorized and executed by Subscriber.
10.2. General Disclaimer of Warranties
The Site, Services, Applications, and Content are provided to Subscriber on an “As-Is” and “As Available” basis. Except as expressly stated in this Agreement, there are no representations or warranties about the nature or quality of the Site, Services, Applications, or Content. PitchBook has not and cannot make any guarantee that the Content is an accurate reflection of real-world facts.
10.3. Subscriber’s Assumption of Risk
Any decisions Subscriber makes on the basis of the Site, Services, Applications, or any Content are made solely at its own risk. PitchBook has no responsibility or liability arising from such decisions.
10.4. Disclaimer of Specific Warranties
PitchBook makes no warranty, express or implied, as to the accuracy of the Content, the results that may be obtained as a result of using the Site, Services, Application, or Content, and PitchBook expressly disclaims any condition of quality and implied warranties of title, non-infringement, accuracy, merchantability, or fitness for a particular purpose. PitchBook also disclaims any warranties arising through course of dealing or usage of trade. Subscriber represents that it has not relied upon any warranty or representation made by PitchBook except as specifically stated in this Agreement. No part of this Section 13.4 is intended to limit the general nature of Section 13.2.
11.1. Subscriber’s Promise to Indemnify
Subscriber will defend and indemnify PitchBook from any third-party claims, costs, reasonable attorneys’ fees, damages, or other liabilities that arise out of Subscriber’s unauthorized use or disclosure of the Site, Services, Applications, or Content. For the purposes of this Section 14.1, “PitchBook” includes any directors, officers, employees, or agents of PitchBook.
PitchBook will (A) promptly notify Subscriber of any claim that would trigger the indemnification obligation in Section 14.1, (B) assist Subscriber, at Subscriber’s expense, in the defense and settlement of the claim, and (C) refrain from settling the claim without Subscriber’s prior written consent so long as Subscriber doesn’t unreasonably withhold or delay such consent. PitchBook can select its legal representation for defense of the claim.
12. Limitation of Liability
12.1. No Liability for Fault with Content
Except as expressly agreed otherwise in this Agreement, (A) the Content is provided “as-is” and “as available,” and (B) PitchBook will not be liable for any damages incurred by Subscriber that result from Subscriber’s use of the Content.
12.2. Categorical Limitation on Damages
Except for (A) Subscriber’s indemnification obligations under this Agreement, (B) Subscriber’s obligations to pay Fees under this Agreement, (C) Subscriber’s liability if it breaches the promises contained in Section 11, and (D) Subscriber’s willful misconduct or gross negligence, under no circumstances will either party be liable for any indirect, incidental, special punitive, exemplary, or consequential damages with respect to this Agreement. This categorical limitation on damages applies even if such damages could have been foreseen or prevented.
12.3. Limitation on Liability
Except for (A) Subscriber’s indemnification obligations under this Agreement, (B) Subscriber’s obligations to pay Fees under this Agreement, (C) Subscriber’s liability if it breaches the promises contained in Section 11, and (D) Subscriber’s willful misconduct or gross negligence, under no circumstances will either party be liable to the other party in excess of the amount of Fees actually paid by Subscriber to PitchBook under this Agreement within the 12 months preceding the liability-causing events.
13. Securities Matters
13.1. No Offer of Securities
The Site, Services, Application, and Content are for informational purposes only. Nothing in the Content constitutes, and nothing in the Content should be construed as: (A) a solicitation or offering of any investment or securities or a recommendation to acquire or dispose of any investment or security; or (B) the provision of any financial, tax, legal, or other advice.
13.2. No Investment Advice
Nothing in the Site, Services, Application, or Content will be deemed to constitute: (1) information that specifically addresses any specific individual’s investment objectives, financial situation, or the particular needs of any specific person who may receive the Services or Content; (2) establishing an advisory relationship; or (3) a transaction in securities for the account of others.
None of PitchBook’s directors, officers, employees, or agents (A) acts on behalf of any other entity in providing information in the Content, (B) is paid to market securities to investors, (C) participates in negotiations between an entity providing information in the Content and any investor, (D) handles any money or securities in transactions between investors and any entity providing information in the Content, or (E) assists any entity providing information in the Content with the completion of any securities transactions between such entity and an investor.
14. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any prior agreement between the parties with respect to the subject matter of this Agreement.
For a party to waive its rights under this Agreement, such waiver must be in writing. Any waiver will be construed as narrowly as reasonably possible.
16. Choice of Law
This Agreement will be construed and enforced in accordance with the laws of the State of Washington, without reference to its choice of law principles.
17. Jurisdiction & Venue
The parties will resolve any disputes related to this Agreement in the state or federal courts located in King County, Washington. Each party consents to the jurisdiction of these courts and irrevocably waives any objection to resolving a dispute related to this Agreement in these courts.
18. Waiver of Class Action
Except as otherwise specifically prohibited by applicable law, all disputes arising from or related to this Agreement will be adjudicated on an individual basis and not in a class or representative action or as a member of a class, mass, consolidated or representative action, irrespective of the forum in which such disputes are heard. Subscriber will not join any of its claims related to this Agreement with the claim or claims of any other person or entity.
19. Excuses for Failure to Perform
Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is directly caused by unforeseen events beyond the party’s control.
20. Links to Third-Party Sites
The Site may contain links to other web sites (“Linked Sites”). The Linked Sites are not under the control of PitchBook and PitchBook is not responsible for the contents or operation of any Linked Site. PitchBook provides these links only as a convenience, and the inclusion of any link does not imply endorsement by PitchBook of the Linked Sites or any association with its operators.
21. Relationship of the Parties
Nothing in this Agreement will be construed to create a partnership or joint venture between the parties.
22. Export Control Compliance
Subscriber will comply with all relevant export and trade control laws, regulations, or requirements of the United States and other relevant jurisdictions, including, without limitation, the U.S. Export Administration Regulations (15 C.F.R Part 730 et seq.) and U.S. economic sanctions and embargoes (codified in 31 C.F.R Chapter V). Without limiting the general nature of the previous sentence, Subscriber will comply with all relevant laws governing Subscriber’s purchase, receipt, use, disclosure, or re-export of any goods (including any hardware, software or technology) provided to it under this Agreement.