PrivCo Services Terms of Use
Last Updated December 17, 2024
1. PREAMBLE, ACCEPTANCE, AND AUTHORITY#
THIS SUBSCRIPTION AGREEMENT AND TERMS OF SERVICE (the “Agreement”) GOVERNS YOUR ACQUISITION AND USE OF THE SERVICES PROVIDED BY PRIVCO INC. (“PrivCo” or the “Company”). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THE TERMS “YOU” OR “YOUR” OR “LICENSEE” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES.
This Agreement is effective between you and PrivCo as of the date you accept this Agreement or execute an ordering document or online order with PrivCo specifying the Services to be provided by PrivCo, including any addenda and supplements thereto referencing this Agreement (an “Order Form”) and shall remain in effect for the term set forth in the Order Form or as otherwise terminated in accordance with the terms of this Agreement (the “Term”). If there is a conflict between this Agreement and the terms of any Order Form, the terms of the Order Form will govern with respect to such conflict. If you have entered into an Order Form for the use of the PrivCo API (the “API”), then the applicable Order Form and Enterprise API Data License Agreement will govern your use of the API.
Any Riders provided along with this Agreement, including but not limited to the International Licensee Rider, are hereby incorporated into this Agreement.
IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT PERIODICALLY. WE MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE TO YOU. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THIS WEBSITE OR THE SERVICES. PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT AGREEMENT.
2. DEFINITIONS#
All capitalized terms appearing in this Agreement have the meaning assigned below, or else are defined according to the meaning assigned upon their first appearance in this Agreement:
a. “Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
b. “Confidential Information" has the meaning set forth in Section 8 and includes the Data.
c. “Data” means any and all data, content, and information regarding privately-owned companies made available by PrivCo to you through the Services, subject to the limitations set forth in an Order Form and more fully described in the Documentation.
d. “Documentation” means any additional documentation regarding the Services (including any usage guides and policies, as updated from time to time), accessible via PrivCo’s “help” functionalities, by logging in to the applicable Services or as otherwise provided to you by PrivCo.
e. “Force Majeure Event” has the meaning set forth in Section 14(g).
f. “Licensee” refers to the entity that, through execution of an order form or otherwise, contracts for use of PrivCo Services and access to PrivCo Data under this Agreement, and any affiliates, representatives, agents, and assigns thereof.
g. “Licensor” refers to PrivCo.
h. “Order Form” or “License Agreement” means any order document issued by you and accepted by PrivCo that specifies the Software, Data, or services to be provided by PrivCo under the terms of this Agreement, including any details such as product descriptions, quantities, fees, payment terms, and delivery schedules.
i. “PrivCo IP” means any and all rights, titles, and interests in and to any and all intellectual property, including, without limitation, patents, patent applications, trademarks, service marks, trade names, trade dress, logos, domain names, copyrights, trade secrets, inventions, know-how, proprietary processes, algorithms, data, and any other intellectual property rights, whether registered or unregistered and whether existing under statute, common law, or equity, and all applications, registrations, renewals, extensions, and restorations thereof.
j. “Services” are the online products and services made available by PrivCo, including any products and services that you order under an Order Form (excluding the API, as set forth above).
k. “Total Net Fee” refers to the amount identified as the Total Net Fee in the applicable Order Form
l. “User” means an individual or entity who is authorized by you to use the Services, for whom you have purchased a subscription, and is provided with a user identification and password. Users may include, for example, your employees, consultants, contractors and agents.
m. “User Content” means any Data that a User submits, transfers, uploads, posts, or otherwise provides to or through the Services other than account registration information.
n. “Website” means https://www.privco.com/
3. PRIVCO’S RESPONSIBILITIES#
PrivCo will (a) make the Services and Data available to you pursuant to the terms of this Agreement and any applicable Order Forms, (b) provide applicable standard support for the Services to you at no additional charge (unless otherwise specified in an Order Form), (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which PrivCo will use commercially reasonable efforts to give advance electronic notice), and (ii) any unavailability caused by circumstances beyond PrivCo’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider, hosting provider, failure or delay, third-party application, or denial of service attack.
4. DATASET ONGOING SUPPORT & MAINTENANCE#
PrivCo does not guarantee that all errors or malfunctions will have workarounds or that such workarounds will fully resolve the issues. Support does not include assistance with issues caused by modifications to the dataset by you or third parties; support for any errors caused by your use of the dataset in a manner inconsistent with the Documentation or this Agreement; or assistance with third-party products or services that interact with the dataset. PrivCo reserves the right to charge additional fees for support services that fall outside the scope of the standard support outlined above, and any such additional fees must be communicated to you in advance.
5. USE OF THE SERVICES AND DATA#
a. SUBSCRIPTIONS#
Services and access to Data may be purchased by you by completion and submittal of an Order Form. PrivCo grants you a right to access and use the Services and Data as set forth in this Agreement and the Order Form. Services and Data are subject to usage limits, including, for example, the quantities and limits specified in Order Forms and Documentation. Unless otherwise specified, (i) the Services or Data may not be accessed by more than that number of Users specified in an Order Form, (ii) a User’s password may not be shared with any other individual or entity, and (iii) a User identification may only be reassigned to a new individual replacing one who will no longer use the Services or Data. If you exceed a contractual usage (e.g., by exceeding the number of exports allowed per month) limit, PrivCo may suspend or terminate your access to the Services, in its sole discretion.
b. RESERVATION OF RIGHTS#
Subject to the limited rights expressly granted hereunder, PrivCo and its licensors reserve all their right, title and interest in and to the Services and Data, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
c. YOUR RESPONSIBILITIES#
You will (i) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Data, and notify PrivCo promptly of any such unauthorized access or use, and (iii) use Services and Data only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations.
d. USAGE RESTRICTIONS#
Except as expressly permitted under this Agreement, an Order Form, or the Documentation, you will not, directly or indirectly: (i) make any Services or Data available to, or use any Services or Data for the benefit of, anyone other than you or Users; (ii) publish, share, display, disclose, transfer, sell, resell, license, sublicense, distribute, make available, rent, or lease any Services or Data, including any derivative works or adaptations of the Data; (iii) use, sell, resell, license, sublicense, distribute, make available, rent, or lease any Services or Data as part of a service bureau, outsourcing offering, or other commercial offering; (iv) introduce, upload, or transmit any code, files, scripts, agents, or programs intended to harm, disrupt, or impair the Services, including viruses, worms, time bombs, or Trojan horses; (v) interfere with, disrupt, or compromise the integrity, security, or performance of the Services or any third-party data contained therein; (vi) attempt to gain unauthorized access to any Services, Data, or related systems or networks; (vii) allow access to or use of any Services or Data in a manner that circumvents contractual usage limits, or use any Services or Data to access, obtain, or exploit PrivCo’s intellectual property in an unauthorized manner; (viii) copy, reproduce, or create adaptations or derivative works of any Services, Data, or any part, feature, function, or user interface thereof, except as expressly authorized under this Agreement; (ix) frame, mirror, or display any part of any Services or Data, except for internal business purposes on your own secure intranets as expressly authorized; (x) access or use any Services or Data to develop or provide a competing product, service, or functionality, or for the purposes of benchmarking with a third-party product or service; (xi) modify, alter, or transform any part of the Data, except as expressly permitted under this Agreement, or otherwise create derivative works of the Data; (xii) remove, obscure, or alter any legal, copyright, trademark, or proprietary notices or legends present on or in the Data or Services; (xiii) develop, support, or use software, devices, macros, scripts, robots, crawlers, browser plugins, add-ons, or other automated means or processes to: (A) scrape or extract the Data, (B) copy or replicate the Data from the Services, or (C) store or save the Data outside of the Services; (xiv) store, transmit, or process the Data outside of the Services or use the Data in a manner that violates this Agreement; (xv) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code, underlying ideas, algorithms, structure, or organization of the Services; (xvi) use the Data, Services, or any part thereof to train, develop, enhance, or refine any artificial intelligence models, machine learning algorithms, or similar technologies that compete with, replicates, substitutes, or provides similar or equivalent functionality to PrivCo’s products or Services, or for any purpose that diminishes the value or competitive position of PrivCo’s offerings; or (xvii) use the Data or Services to create, develop, or distribute any products, services, or technologies that diminish the value, competitive position, or intellectual property of PrivCo’s offerings; or (xviii) engage in any activity that circumvents the purpose or intended use of the Services or Data as defined by PrivCo. Any violation of the above restrictions shall constitute a material breach of this Agreement and will entitle PrivCo, at its sole discretion, to immediately suspend or terminate this Agreement and your access to the Services and Data, in addition to any other remedies available under applicable law.
e. SUSPENSION#
Any use of the Services in breach of this Agreement (including the limits in (d) above), Documentation or Order Forms, by you or Users that in PrivCo’s sole judgment threatens the security, integrity or availability of the Services or violates Sections (d)(xii) or (xiii) above, may allow PrivCo, in its sole discretion, to immediately suspend or terminate the Agreement and the User’s access to the Services and Data. However, PrivCo has the option, but not the obligation, to use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to such suspension.
f. REMOVAL OF DATA#
If PrivCo is required by a third-party to remove any Data, or if it receives information that Data provided to you may violate applicable law or third-party rights, then PrivCo may notify you and in such event, you will promptly remove such Data from your systems. If you do not take required action in accordance with the above, PrivCo has the option, but not the obligation, to disable the applicable Data and Services until the potential violation is resolved.
g. CITATIONS#
You must also obtain PrivCo’s written approval prior to any public dissemination of PrivCo Data.
You must provide PrivCo with appropriate attribution in connection with your use of the Data. Should you the Data, whether substantial portions or discrete pieces of Data, to compile any publicly distributed materials those materials must include the phrase “data provided by PrivCo” or such other attribution phrase as PrivCo deems appropriate. The attribution phrase shall immediately follow any appearance of PrivCo Data in the published materials. Where PrivCo Data does not appear, but was still utilized to prepare publicly distributed material the attribution phrase shall be included where appropriate to ensure readers understand that PrivCo data was utilized.
h. SERVICES PROVIDED#
Contingent upon and subject to Licensee’s compliance with its obligations arising hereunder and under any applicable Order Form, PrivCo hereby grants Licensee a limited, non-exclusive, non-sub licensable the non-transferable license to access and use the dataset described in the Agreement for three (3) years commencing on the date the parties execute this Agreement and terminating on the three-year anniversary of such date. PrivCo will provide you a custom data export of a defined set of US-based private companies. Custom data export will include the largest 500,000 private companies in the Database, based on most recent 2-year revenue average, with data to include Company Name, and all revenue figures from 2015 – current, if and as available from the data in the PrivCo database. Individual selected company list will remain constant throughout full 3-year term. All PrivCo ID#s, Industry Codes and Keyword Codes will also be provided, in addition to PrivCo's Industry and Keyword mapping key. Data will be refreshed annually and delivered in a password-protected FTP file. PrivCo reserves the right to update, modify, or discontinue any of the data fields provided as part of the custom data export, provided that PrivCo gives Licensee advanced notice of any such changes. PrivCo does not guarantee the accuracy or completeness of the data and is not responsible for any errors or omissions. Any use of the data by you beyond the scope of this Agreement, or any sharing of the data with third parties, is strictly prohibited and will result in immediate termination of the license.
i. COMPLIANCE WITH DATA PROTECTION AND PRIVACY LAWS#
You agree to comply with all applicable data protection and privacy laws, including but not limited to, the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR), in connection with its use of the Data. You shall process any personal data included in the Data solely for the purposes specified in this Agreement and in accordance with applicable data protection laws, implementing appropriate technical and organizational measures to protect such data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration, or disclosure. You shall promptly notify PrivCo of any data subject requests related to their personal data and cooperate with PrivCo to enable compliance with applicable data protection laws. In the event of a data breach affecting the Data, you shall immediately notify PrivCo and provide all necessary assistance for investigation and remediation, including notifications to data subjects and regulatory authorities as required by law. You shall not transfer any personal data included in the Data outside the jurisdiction of collection without PrivCo's prior written consent and in compliance with applicable data protection laws. You shall maintain records of your data processing activities involving the Data and make such records available to PrivCo upon request to demonstrate compliance with this section. You agree to indemnify, defend, and hold harmless PrivCo from any claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with your breach of this section.
6. FEES AND PAYMENT#
You will pay all fees as specified in the applicable Order Form. Except as otherwise specified herein or in the Order Form, (i) fees are based on Services and Data subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
7. INITIAL TERM AND AUTOMATIC RENEWAL#
a. INITIAL TERM#
This Agreement is effective beginning on the earlier of the Start Date specified above or the date the Agreement is executed by both Parties, and continues for an initial term of three (3) years (the “Initial Term”).
b. TERMS APPLICABLE TO SERVICES NOT PROVIDED PURSUANT TO AN ORDER FORM#
The following terms apply to Services that are not provided pursuant to an Order Form:
i. Price. PrivCo reserves the right to determine pricing for the Services.
ii. Authorization. You authorize PrivCo to charge all sums for the orders that you make and any level of Services you select as described in this Agreement or published by PrivCo, to the payment method specified in your account. If you pay any fees with a credit card, PrivCo may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
iii. Subscription Service. If you incur monthly automatic payments for the Services you have purchased (“Subscription Service”), then you authorize PrivCo to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or PrivCo terminates it. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fee to your account. PrivCo will bill the periodic subscription fee to the payment method you provide to PrivCo during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by emailing PrivCo at support@privco.com with your contact number and start date in the subject line.
c. INVOICING AND PAYMENT#
You will provide PrivCo with valid and updated payment information. You authorize PrivCo to charge such payment method for all Services listed on the Website or Order Form for the initial subscription term and any renewal subscription term(s). Such charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Website or Order Form. If the Order Form specifies that payment will be by a method other than a credit card, PrivCo will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for notifying PrivCo of any changes to your billing information.
d. OVERDUE CHARGES#
Late payments may accrue interest at the lesser of 1.5% per month or the maximum amount permissible under applicable law. You will also reimburse PrivCo for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which PrivCo does not waive by the exercise of any rights under this Agreement), PrivCo will be entitled to suspend your access to the Services if you fail to pay any amounts when due hereunder and the failure continues for 7 days following written notice of the failure.
e. TAXES#
The fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If PrivCo has the legal obligation to pay or collect Taxes for which you are responsible under this Section, PrivCo will invoice you and you will pay that amount unless you provide PrivCo with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, PrivCo is solely responsible for taxes assessable against PrivCo based on its income, property and employees.
f. FUTURE FUNCTIONALITY#
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by PrivCo regarding future functionality or features.
8. USER CONTENT#
a. USER CONTENT DEFINED#
Certain parts of the Service may allow you to submit comments and engage in discussions with PrivCo and other users. Any content you submit to the Service, other than account registration information, is “User Content.”
b. NON-ENDORSEMENT OF USER CONTENT#
You understand and agree that User Content includes information, views, opinions, and recommendations of many individuals and organizations and is designed to help you gather the information you need to help you make your own decisions. You are responsible for your own investment decisions and for properly analyzing and verifying any information you intend to rely upon. PrivCo does not endorse any recommendation or opinion made by any user. PrivCo does not routinely screen, edit, or review User Content.
c. SUBMISSION OF USER CONTENT#
If you upload, post or submit any User Content on the Service, then you represent to PrivCo that you have all the necessary legal rights to upload, post or submit such User Content and it will not violate any law or the rights of any person. You agree that upon uploading, posting or submitting information on the Services, you grant PrivCo, and its respective affiliates and successors a non- exclusive, transferable, worldwide, fully paid-up, royalty-free, perpetual, irrevocable right and license to use, distribute, publicly perform, display, reproduce, and create derivative works from your User Content in any and all media, in any manner, in whole or part, without any duty to compensate you. You also grant PrivCo the right to authorize the use of User Content, or any portion thereof, by users and other users in accordance with the terms and conditions of this Agreement, including the rights to feature your User Content specifically on the Services and to allow other users or users to request access to your User Content, such as through an RSS Feed.
d. REMOVAL OF USER CONTENT#
PrivCo reserves the right to monitor or remove any User Content from the Services at any time without notice.
e. COPYRIGHT/IP POLICY#
You acknowledge and agree that: (a) The dataset and any related materials, including but not limited to, Company Names, revenue figures, PrivCo IDs, Industry Codes, Keyword Codes, and mapping keys (collectively, the "Data"), are licensed, not sold, to you by PrivCo and you do not have under or in connection with this Agreement any ownership interest in the Data or any related Intellectual Property; (b) PrivCo is the sole and exclusive owner of all right, title, and interest in and to the Data, including all Intellectual Property relating thereto, subject only to the limited license granted to you under this Agreement; and (c) you hereby unconditionally and irrevocably assign to PrivCo your entire right, title, and interest in and to any Intellectual Property that you may now or hereafter have in or relating to the Data (including any rights in derivative works or patent improvements relating to any of them), whether held or acquired by operation of law, contract, assignment, or otherwise. You shall, during the Term: (a) Take all reasonable measures to safeguard the Data (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (b) At PrivCo's expense, take all such steps as PrivCo may reasonably require to assist PrivCo in maintaining the validity, enforceability, and PrivCo's ownership of the Intellectual Property in the Data; (c) Promptly notify PrivCo in writing if you becomes aware of: (i) any actual or suspected infringement, misappropriation, or other violation of PrivCo's Intellectual Property in or relating to the Data; or (ii) any claim that the Data, including any production, use, marketing, sale, or other disposition of the Data, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property or other rights of any person; and (d) At PrivCo's sole expense, fully cooperate with and assist PrivCo in all reasonable ways in the conduct of any action by PrivCo to prevent or abate any actual or threatened infringement, misappropriation, or violation of PrivCo's rights in, and to attempt to resolve any actions relating to, the Data, including having your employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens, and the like. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any Intellectual Property or other right, title, or interest in or to any of the Data. Any unauthorized use or sharing of the Data will result in immediate termination of the license and will subject you to legal action, in addition to any other rights or remedies to which PrivCo is entitled at law or in equity. This includes, but is not limited to, claims for infringement of Intellectual Property, misappropriation, and breach of confidentiality. You shall promptly notify PrivCo of any unauthorized access or use of the Data and cooperate with PrivCo in any investigation or action taken by PrivCo to enforce its rights.
It is PrivCo’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. In addition, PrivCo will promptly terminate without notice the accounts of users that are determined by PrivCo to be “repeat infringers.” A repeat infringer is a user who has been notified by PrivCo of infringing activity violations more than twice and/or who has content removed from the Services more than twice. If you believe that your work has been copied and is accessible on the Services in a way that constitutes intellectual infringement, you may notify PrivCo by providing the following information to our designated agent set forth below:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
ii. a description of the copyrighted work or other intellectual property that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Services; iv. your address, telephone number, and email address;
iv. a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
v. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Designated Agent:
Copyright Agent 149 East 23rd Street, #1904, New York, NY 10010 Phone: (212) 645-1686 Email: legal@privco.com
Note: Only notices of alleged intellectual property infringement should be sent to PrivCo’s Designated Agent. No other communications will be accepted or responded to.
9. FEEDBACK#
You grant to PrivCo a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or Users relating to the Services.
10. CONFIDENTIALITY#
a. CONFIDENTIAL INFORMATION DEFINED.#
“Confidential Information” means any non-public information, data, or other materials provided or disclosed by one party to the other in connection with performing each party’s obligations under this Agreement. Without limiting the previous sentence, the Services, Documentation and Data will be deemed PrivCo’s Confidential Information, and may only be used in accordance with this Agreement.
b. USE OF CONFIDENTIAL INFORMATION#
Each party acknowledges, understands, and agrees that this Agreement and the relationship established hereby create a relationship of confidence and trust between the parties with respect to Confidential Information. Each party, as recipient of Confidential Information will not, during or subsequent to the Term, use the other party’s Confidential Information for any purpose whatsoever other than the performance of its obligations under this Agreement or disclose the other party’s Confidential Information to any third party. It is understood that the discloser’s Confidential Information will remain the sole property of the discloser. The recipient further agrees to take all reasonable precautions to prevent any unauthorized disclosure of discloser’s Confidential Information.
c. DISCLOSURE REQUIRED UNDER LAW#
The recipient shall not disclose any of discloser’s Confidential Information without prior written authorization from discloser, except where necessary to comply with applicable laws or the lawful orders of a court. Where such disclosure is necessary under law, then the recipient will provide the discloser prompt written notice of such disclosure and will assist the discloser in seeking a protective order or another appropriate remedy at the discloser’s sole cost and expense. If the discloser waives the recipient’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, then the recipient will furnish only that portion of the discloser’s Confidential Information that is legally required to be disclosed, provided that any discloser Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than such legally compelled disclosure. In addition, recipient will be permitted to disclose the discloser’s Confidential Information in confidence to its attorneys in connection with the enforcement of its rights hereunder.
d. DISCLOSURES TO PERSONNEL#
The confidentiality obligations of each of the parties apply to its affiliated and related entities, officers, managers, employees, contractors and agents, each of whom must comply with and be subject to the terms and conditions of these confidentiality obligations. Furthermore, each party may disclose Confidential Information to any business and legal representatives of such party who have a legitimate need to know such confidential information and who agree to be subject to the terms and conditions of the applicable confidentiality obligations hereunder or who otherwise have a duty of confidentiality to such party.
e. RETURN OF MATERIALS#
Upon the termination or expiration of this Agreement or upon the discloser’s earlier request, the recipient will (i) deliver to the discloser all of the discloser’s property or Confidential Information that the recipient may have in its possession or control, or (ii) destroy all of the discloser’s Confidential Information that the recipient may have in its possession or control and provide the discloser with a certificate of destruction.
11. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS#
a. MUTUAL REPRESENTATIONS AND WARRANTIES#
Each Party represents, warrants, and covenants to the other Party that:
(i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;
(iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
(iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(v) it has validly entered into this Agreement and has the legal power to do so.
b. REPRESENTATIONS AND WARRANTIES BY PRIVCO#
PrivCo warrants that during an applicable subscription term, (i) the Services will perform materially in accordance with the applicable Documentation, and (ii) PrivCo will not materially decrease the overall functionality of the Services.
For any breach of a warranty above, your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
i. Exceptions
The warranty provided by PrivCo in Section 11.b. above shall apply only where:
(i) Licensee promptly notifies PrivCo of any lapse in Services performance requiring correct;
(ii) Licensee has promptly installed all Maintenance Releases or other software updates that PrivCo makes available; and
(iii) Licensee is in compliance with all terms and conditions of this Agreement (including the payment of all license fees then due and owing).
Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 11.b. above does not apply to problems arising out of or relating to:
(i) Software, or the media on which it is provided, that is modified or damaged by Licensee or its representatives;
(ii) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for Licensee's use in the Documentation, unless otherwise expressly permitted by Licensor in writing;
(iii) Licensee's or any third party's negligence, abuse, misapplication, or misuse of the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing;
(iv) Licensee's failure to promptly install all Maintenance Releases or other software updates that Licensor has previously made available to Licensee;
(v) the operation of, or access to, Licensee's or a third party's system or network;
(vi) any open source components, beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a license fee;
(vii) Licensee's material breach of any material provision of this Agreement; or
(viii) any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
c. REPRESENTATIONS AND WARRANTIES BY LICENSEE#
The Licensee represents, warrants, and covenants to PrivCo the following:
(i) The Licensee is in compliance with all applicable laws, regulations, and ordinances relating to its business, the use of the Services, and the handling of any Data provided under this Agreement. The Licensee will use the Services and Data in full compliance with all applicable data protection, privacy, and security laws, including but not limited to the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and any other similar legislation.
(ii) The execution, delivery, and performance of this Agreement by the Licensee do not and will not (i) conflict with or violate the organizational documents of the Licensee, (ii) conflict with or violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award applicable to the Licensee, or (iii) conflict with, violate, or constitute a default under any material agreement or instrument to which the Licensee is a party or by which it or any of its properties or assets are bound.
(iii) There are no claims, actions, suits, investigations, or proceedings pending or, to the best of the Licensee's knowledge, threatened against the Licensee that could reasonably be expected to adversely affect the Licensee’s ability to perform its obligations under this Agreement.
(iv) Any data or information provided by the Licensee to PrivCo is accurate, complete, and not misleading. The Licensee will promptly notify PrivCo of any changes to such data or information that could affect the accuracy or integrity of the Services.
(v) The Licensee has implemented and maintains appropriate technical and organizational measures to protect the Data from unauthorized access, use, disclosure, alteration, or destruction. The Licensee will promptly notify PrivCo of any actual or suspected security breaches affecting the Data and will cooperate fully with PrivCo in investigating and mitigating any such breaches.
(vi) The Licensee has obtained all necessary consents, permissions, and authorizations to provide any data to PrivCo and to permit PrivCo to use such data as contemplated by this Agreement. The Licensee’s provision of data to PrivCo and PrivCo’s use thereof as contemplated by this Agreement do not and will not infringe, misappropriate, or violate any intellectual property or other rights of any third party.
(vii) The Licensee’s use of the Services and Data will not infringe, misappropriate, or violate any intellectual property or other rights of any third party. The Licensee will promptly notify PrivCo in writing if it becomes aware of any actual or potential infringement, misappropriation, or violation of PrivCo’s intellectual property rights by any third party.
(viii) The Licensee will not introduce, and has not introduced, any viruses, worms, Trojan horses, or other harmful or malicious code into the Services or Data.
(ix) The Licensee is financially solvent and able to meet all of its obligations under this Agreement. The Licensee has not filed, or had filed against it, any bankruptcy, insolvency, or similar proceedings.
(x) The Licensee will continuously comply with all representations, warranties, and covenants set forth in this Agreement throughout the term of this Agreement. The Licensee will promptly notify PrivCo of any event, circumstance, or condition that would cause any of the representations, warranties, or covenants set forth in this Agreement to be inaccurate or breached.
(xi) The Licensee shall use the Data solely for the purposes specified in this Agreement and in accordance with applicable data protection laws. The Licensee shall not transfer any personal data included in the Data outside the jurisdiction of collection without PrivCo's prior written consent and in compliance with applicable data protection laws.
(xii) The Licensee has read, understands, and agrees to comply with all Documentation provided by PrivCo regarding the use of the Services and Data. The Licensee will ensure that all Users comply with the terms of this Agreement and the Documentation.
d. LIQUIDATED DAMAGES#
In the event of any breach by the Licensee of the representations and warranties set forth in Section 11(c), the Licensee shall pay to PrivCo, as liquidated damages and not as a penalty, an amount equal to twelve (12) months of the Total Net Fee specified in the applicable Order Form. The parties agree that this sum represents a fair, reasonable, and genuine pre-estimate of the losses and damages that PrivCo would suffer as a result of such a breach, considering all circumstances and the difficulty of accurately estimating actual damages. This liquidated damages amount is intended to cover, among other things, losses related to business disruption, reputational harm, and administrative costs associated with the breach. The Licensee acknowledges that the payment of liquidated damages does not preclude PrivCo from seeking injunctive relief or any other remedy available at law or in equity for such breach. Furthermore, the Licensee agrees that the liquidated damages amount shall be payable within thirty (30) days of PrivCo’s written demand and that failure to timely pay such amount shall result in the accrual of interest at the maximum rate permissible under applicable law until paid in full.
e. DISCLAIMERS#
EXCEPT AS EXPRESSLY PROVIDED HEREIN, PRIVCO MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. DATA IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. PRIVCO DOES NOT WARRANT THAT THE DATA IS ACCURATE OR COMPLETE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. PRIVCO DOES NOT GIVE TAX OR INVESTMENT ADVICE OR ADVOCATE THE PURCHASE OR SALE OF ANY SECURITY OR INVESTMENT. YOU SHOULD ALWAYS SEEK THE ASSISTANCE OF A PROFESSIONAL FOR TAX AND INVESTMENT ADVICE.
12. INDEMNIFICATION#
You will, at your own expense, indemnify, defend and hold PrivCo harmless against all costs, damages, losses, liabilities, fines, penalties, and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Liabilities”) arising as a result of or in connection with any third-party claim or allegation relating to your use of the Services not in accordance with this Agreement or the Documentation. PrivCo will provide you with prompt written notice of any claim for which PrivCo claims a right of indemnification hereunder and will provide reasonable information and assistance, at your sole expense, to defend or settle such claim. You will not enter into any settlement or agree to any disposition that imposes any conditions or obligations on PrivCo without PrivCo’s written consent, such consent to be granted or withheld in PrivCo’s sole discretion. PrivCo may at any time participate in any matter or litigation, including, but not limited to, participation in any indemnifiable claim through counsel of its own selection, provided that the hiring of such counsel will be at PrivCo’s sole expense. Notwithstanding the foregoing, if PrivCo in good faith believes that you are either financially incapable of or unwilling to adequately defend PrivCo against any indemnifiable claim, then PrivCo may assume the defense of any action against PrivCo for which you are obligated to indemnify PrivCo at your expense.
13. LIMITATION OF LIABILITY#
IN NO EVENT WILL THE AGGREGATE LIABILITY OF PRIVCO, TOGETHER WITH ALL OF ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ OBLIGATIONS TO PAY FEES TO PRIVCO. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE, OPEN SOURCE COMPONENTS, OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. TERMINATION#
a. TERMINATION#
(i) Termination for Convenience. PrivCo may terminate this Agreement for convenience upon 30 days’ prior notice to you.
(ii) Termination For Cause. PrivCo may terminate this Agreement for cause upon material breach of this Agreement by you which remains without cure for (10) days following PrivCo’s providing notice of the breach to you. If your breach is such that cure is not possible, PrivCo may terminate this Agreement for cause immediately. In no case, shall PrivCo’s termination for cause entitle you to any compensation, refund, or other allowance or benefit related to your inability to access Services.
(iii) Licensee Termination For Cause.
You may terminate this Agreement for cause (i) upon 30 days’ written notice to PrivCo of a material breach of a this Agreement if such breach remains uncured at the expiration of such thirty (30) day period, or (ii) if PrivCo becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
b. REFUND OR PAYMENT UPON TERMINATION#
If this Agreement is terminated by you in accordance with Section 14(a)(iii) or if PrivCo terminates this Agreement for convenience in accordance with Section 14(a)(i), then PrivCo will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by PrivCo in accordance with Section 12(a)(ii), then you will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to PrivCo for the period prior to the effective date of termination. No Refund will be made for PrivCo Select Subscriptions or Custom Solutions (e.g Data Reports).
c. ORDER FORM#
Notwithstanding the terms set forth in 14(a) and (b) hereof, the Term and Termination provisions set forth in the Order Form, including payment obligations, renewal term(s), and notices shall supersede and survive termination of this Agreement.
d. SURVIVING PROVISIONS#
Sections 5(b), 5(d), 5(g), 6, 7, 8(c), 8(e), 9, 10, 11(d), 12, 13, 14(b), 14(c), 15, and 16 will survive any termination or expiration of this Agreement.
15. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION#
a. GOVERNING LAW#
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. Each Party agrees to the exclusive jurisdiction of the state and federal courts located in New York, New York, for the resolution of any disputes arising out of this Agreement.
a. Arbitration.#
All claims, disputes and other matters in question between the Parties arising out of, or relating to this Agreement shall be decided by binding arbitration in New York, New York in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association subject to the limitations of this Section. This Section and any other agreement or consent to arbitrate entered into will be specifically enforceable under the prevailing law of any court having jurisdiction. Unless agreed otherwise, the Parties, the Parties’ attorneys and the arbitrators shall treat the arbitration, any disclosures made during the arbitration and the decision of the arbitrators as confidential, except to the extent necessary in connection with a judicial challenge to, or enforcement of an award, or as otherwise required by law. In the event the foregoing arbitration provisions become inapplicable each Party hereto hereby irrevocably (i) waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement, and (ii) submits and consents to the exclusive jurisdiction of the State of New York and the selection of venue in the courts of New York County, New York or the federal courts of the United States for the Southern District of New York, and no other courts. Nothing in this clause shall prevent a Party from seeking injunctive relief to protect the interests of a Party or to enforce the above arbitration provision or any arbitration award.
b. JURY TRIAL WAIVER.#
To the fullest extent allowed under applicable law, both Parties hereby unconditionally waive their right to a jury trial of all claims or causes of action arising from or relating to their relationship, this agreement, any related statements of work, and any or all issues arising thereunder. The Parties acknowledge that a right to a jury is a constitutional right, that they have had an opportunity to consult with independent counsel, and that this jury waiver has been entered into knowingly and voluntarily by all Parties to this agreement. In the event of litigation, this agreement may be filed as a written consent to a trial by the court.
16. GENERAL PROVISIONS#
a. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE#
This Agreement is the entire agreement between you and PrivCo regarding your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
b. INJUNCTION#
You acknowledge and agree that the Data is extremely valuable and its unauthorized use or disclosure would cause irreparable harm to PrivCo. Accordingly, in the event that PrivCo reasonably believes that You have used or disclosed any Data in violation of the terms of any agreement with PrivCo, PrivCo shall be entitled to injunctive relief, including a temporary restraining order, preliminary injunction, and permanent injunction, without posting of a bond or other security. Without limiting any other remedies hereunder, and in addition to any monetary damages available under applicable law, PrivCo shall be entitled to recover from You any attorneys’ fees or costs incurred in obtaining any type of injunctive relief, in whole or in part, as permitted under this Agreement.
c. ASSIGNMENT#
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets (each, a “Change of Control”). Notwithstanding the foregoing, you may not assign this Agreement, by way of Change of Control or otherwise, to a competitor of PrivCo. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
d. GENERAL#
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
e. FEDERAL GOVERNMENT END USE PROVISIONS#
PrivCo provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: The government hereby agrees that the software qualifies as “commercial” computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with PrivCo to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
f. NOTICES#
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii) the day of sending by email.
g. FORCE MAJEURE#
Neither party will be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any act of God, war, government intervention, riot, earthquake, fire, food, power outage, failure of the Internet or any similar cause beyond such party’s control.
h. NO THIRD-PARTY BENEFICIARIES#
Except as expressly set forth in this Agreement, this Agreement is entered into for the sole benefit of the parties hereof, and except as specifically provided herein, no other person or entity will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, this Agreement.