- Terms and Conditions
(a) These terms and conditions ("Terms and Conditions") govern the use of the website http://www.preqin.com (the "Website") and the Service (as defined below) by the company referenced in the Order Form (the "Client"). The Client must ensure that all persons that it permits to access and use the Website and the Service, including the Data (as defined below), each such person being a "User" comply with these Terms and Conditions. The Client is not licensed to access and use the Service, and Preqin has no obligation to provide any access to the Service, until such time as Preqin receives all information from the Client required by Preqin for Preqin to complete the Order Form for signature by both parties. Such information includes details of the Users and details of the teams, divisions and locations from which Users may be drawn. These Terms and Conditions apply to the Agreement to the exclusion of all terms and conditions that the Client may propose at any time.
(b) The Website and the Service are provided by Preqin Ltd, a company registered in England with registered number 04456744, and whose registered office is at 3rd Floor, Vintners Place, 68 Upper Thames Street, London EC4V 3BJ ("Preqin").
(a) Use of the Website (including, for the avoidance of doubt, access to freely accessible Data (as defined below)), receipt of the API (as defined below) or receipt of the Data Feed (as defined below), in each case, constitutes the Client's acceptance of, and agreement to be bound by, these Terms and Conditions. If the Client does not agree to these Terms and Conditions it must immediately cease using the Website, the API and/or the Data Feed.
(b) Preqin reserves the right to amend these Terms and Conditions from time to time by posting changes on the Website or, if the Client accesses the Data solely through the API and/or the Data Feed, by notifying the Client via email at the email address provided in the Order Form or otherwise notified to Preqin. The Client acknowledges that its continued use of the Website, the API and/or the Data Feed signifies acceptance of any such revised Terms and Conditions.
- Registration, usernames and passwords
(a) Where usernames and passwords are provided to a User by Preqin, the Client must ensure that each User complies with the requirements of this clause 3.
(b) Usernames and passwords are personal to each User, and multiple Users within a single Client team, division or location will each require an individual username and password. The Client will ensure that each User does not disclose that User’s username or password to any other person, including to any other person within the same Client team, division or location. The Client acknowledges that any breach of security resulting in the use or attempted use of a User’s username and/or password by any other person constitutes a material breach by the Client of the Agreement. Users can be reassigned from time to time by the Client providing a written request to Preqin where new Users are replacing former Users who are no longer to access and use the Service.
(c) In addition to the other requirements and limitations of these Terms and Conditions, the Client shall ensure that Users do not share Data extracts, profiles, or lists extracted from the Service with persons that are not Users, irrespective of lines of reporting or collaborations between Users and other persons (that are not Users) on work projects. The Client should seek further information from its designated account manager at Preqin in the event of any doubt as to its rights under these Terms and Conditions.
(d) The Client acknowledges that it will be liable for, and Preqin is entitled to compensation from the Client in respect of, any breach of clause 3(b) by reference to the fees that would have been paid had the Client procured a licence for such use. Such compensation is without prejudice to Preqin’s other rights and remedies in respect of such breach.
(e) The Client must notify Preqin immediately in writing, and procure that the relevant User immediately changes his/her username or password, in the event of loss or theft of a username or password, or if the Client suspects that a User’s username or password has been disclosed to any person other than the User.
- The Agreement
(a) These Terms and Conditions and any order form completed by the Client and received and accepted by Preqin (the "Order Form") constitute the "Agreement". If there is any discrepancy between these Terms and Conditions and the Order Form, these Terms and Conditions take precedence.
(b) Preqin hereby agrees to provide, and the Client hereby agrees to use, the service specified in the Order Form (the "Service"), only in accordance with the Agreement. The Service may be provided:
(i) via the Website;
(ii) via an Application Program Interface provided by Preqin (the "API");
(iii) via a data feed (whether via FTP, SFTP or otherwise) (the "Data Feed"); or
(iv) via a Preqin Authorised Redistributor,
each a "Source", and as specified in the Order Form.
(c) The Service includes any data or information contained in the Service, the Website, the selected Source, and otherwise and howsoever provided by Preqin to the Client. Any and all such data or information, including freely accessible data available on the Website, comprises the "Data".
(d) The Client is solely responsible for obtaining, installing, maintaining and utilising at its own expense, compatible computer equipment and communications devices required to use and access the Service through the selected Source.
- No offer or advice
(a) The Website and the Service are provided by Preqin for information purposes only and do not constitute and should not be construed as a solicitation or offer by Preqin, or recommendation by Preqin to acquire or dispose of any investment or to engage in any other transaction whatsoever.
(b) Nothing in the Website or the Service constitutes, and nor should it be construed as, the provision by Preqin of investment, legal, tax or other advice of any nature whatsoever and it should not be relied on in making an investment or other decision. The Client should obtain relevant and specific independent professional advice before making any investment or other decision.
(c) The Client hereby agrees that it will not hold Preqin responsible in law or equity for any decisions of whatsoever nature which the Client makes or refrains from making following its use of the Website or the Service.
- No reliance
(a) Preqin makes no representation, undertaking or warranty that the information or opinions contained in the Website or the Service are accurate, reliable, up-to-date or complete. Neither Preqin nor any third party providing the Data through the Service guarantees the accuracy of the underlying data or any projections based thereon.
(b) The information and opinions contained in the Website and the Service are provided by Preqin for the Client's own internal business use and informational purposes only and are subject to change without notice.
(a) Preqin hereby grants the Client a limited, non-exclusive, non-transferable licence, without the right to sub-license, to access and use the Service through the relevant Source, including the Data, solely for lawful purposes and its information in connection with the Client’s own internal business purposes, in accordance with the terms and conditions of the Agreement.
(b) Prohibitions on use
(1) All rights not specifically granted to the Client are hereby retained by Preqin. For the avoidance of doubt, this clause 7 applies to all Data, including any Data downloaded by a User as part of the delivery of the Service.
(2) The Client shall not, and shall ensure that Users shall not, without Preqin’s prior written consent: (i) use the Service or the Data in any manner or for any purpose other than those expressly specified in the Agreement; (ii) alter, reverse engineer, decompile, disassemble or otherwise seek to duplicate the performance characteristics of the Service or the Data (or attempt to do any of the foregoing), unless permitted to do so by law; (iii) rent, lease, lend, sell, sub-license, trade, assign, give or permit access to, disclose, transmit, use on behalf of, furnish, copy, modify or distribute the Service or the Data or any part of the Service or the Data (or offer to do any of the foregoing), to any third party not expressly permitted in the Agreement, including but not limited to, any affiliate or any other division, team or location of the Client; (iv) remove or obscure Preqin's proprietary right notices.
(3) The Client undertakes not to, and shall ensure that Users do not: (i) copy, modify, duplicate, distribute (in hard copy, electronic media, machine readable or any other form) the Service or any Data in whole or in part, (ii) commercially to exploit or re-sell the same, or (iii) disclose or offer to disclose any Data received by it through its use of the Service to any third party not expressly permitted in the Agreement, including but not limited to, any affiliate or any other division, team or location of the Client.
(c) Limited excerpts
(1) The Client may include limited excerpts of the Data in reports and presentations that are prepared for the Client's own internal information purposes. This does not include any right to publish any Data in speech or in writing or by any electronic media or otherwise, to any third party.
(2) In addition, the Client may use limited excerpts of the Data in presentations or documents to be disclosed to third parties.
(3) Limited excerpts must in each case of use under (1) and (2) above cite Preqin as the source of the Data in the following format: “Source: Preqin Ltd”.
(4) Limited excerpts must in each case of use under (1) and (2), be limited in qualitative and quantitative terms, and there must be no regular disclosure or distribution of such excerpts.
(5) If the volume of Data or the frequency with which the Client wishes to disclose or distribute Data to third parties through limited excerpts is such that this could reasonably be considered to be a practical alternative for such third parties to having to subscribe to any Preqin service themselves, then this will exceed what would constitute a "limited excerpt" and will be in breach of the Agreement. In cases of ambiguity or doubt, the Client should seek Preqin’s advice and approval prior to disclosing the Data through limited excerpts. Preqin agrees to respond promptly to such requests, but the decision as to whether to permit distribution of such limited excerpts shall be in Preqin’s absolute discretion.
(d) Financial Products
Except with Preqin’s prior written agreement, and subject to separate agreement as to the fees payable and the terms and conditions of such use, the Client must not:
(i) use the Service or any Data in the creation, structuring or provision of any financial instrument or investment product (each, a "Financial Product");
(ii) present the Service or any Data to the Client’s customers, potential investors or investors as part of any Financial Product; or
(iii) use the Service or any Data directly in calculations required for the creation, structuring or provision of any Financial Product.
- Data downloads
(a) If the Service includes a facility enabling the Client to download certain Data from the Website (including listings of names and/or email addresses of representatives of private equity firms, investors or other third parties), the Data derived from such downloads is for use exclusively by the Client in accordance with the licence granted under clause 7, and the Client must not disclose, transmit or pass such Data to any third party (or offer to do any of the foregoing) without the prior written approval of Preqin, other than as expressly permitted under the Agreement.
(b) The Client may use contact information provided as part of the Data if the Client specifically identifies the individual subject as being relevant to the services offered by or the interests of the Client. Identification may be based on parameters specific to the entity that employs the individual subject, including the prior knowledge of the entity, type of entity, industry and geography preferences, investment type, investment criteria and other searchable parameters on the Preqin platform. For the purpose of the Agreement, the Client is responsible for compliance, and shall act in accordance, with all applicable laws, including the Data Protection Legislation (as defined in the Schedule). Preqin shall not be held accountable for any breach of applicable laws by the Client. Preqin has not collected consents from individual subjects on behalf of the Client.
(a) The subscription fees and other fees (if any) due to Preqin in consideration of its provision of the Service are as specified in the Order Form (the "Fees").
(b) Preqin shall invoice the Client for the Fees as provided in the Order Form. The Client shall pay each invoice within 30 days of the date of each invoice. Fees are expressed exclusive of any applicable value added tax or other applicable sales taxes (excluding taxes imposed on Preqin's net income) that are imposed as a result of the transactions covered by the Agreement, which the Client shall pay in addition.
(c) If the Client does not pay invoices within the time provided in clause 9(b), Preqin reserves the right to charge interest on such outstanding Fees at a rate equal to the lesser of: (i) 4% per annum above the Bank of England’s Official Bank Rate from time to time, and (ii) the highest rate permitted by applicable law, for the period from and including the due date up to the date of actual payment (after as well as before judgment).
(d) Preqin’s right to charge interest under clause 9(c) is without prejudice to Preqin’s other rights and remedies in respect of the Client’s breach of clause 9(b).
(e) Preqin reserves the right to suspend the Client’s use of the Service while any invoice remains overdue. Preqin shall give the Client five days’ prior notice of its intention to suspend the Service if payment is not received within such period. Suspension of the Service is without prejudice to Preqin’s other rights and remedies in respect of the Client’s breach of clause 9(b).
- Provision of Information
(a) The Client agrees that in order to ensure the proper use of the Service, it must provide certain information to Preqin in respect of the intended use and recipients of the Service and Source(s). In particular, the information that will be provided by the Client as part of the Order Form shall include:
(i) in the case of delivery via the Website, the identified Users who will use the Service or otherwise have access to the Data;
(ii) in the case of delivery via an API, the application that the API will be integrated with (and whether such application is a proprietary system or a third party system for the Client) and the identified Users who will use the Service or otherwise have access to the Data; and
(iii) in the case of delivery via a Data Feed, the application(s) in which the Data will be used and a maximum headcount for the number of Users who will use the Service or otherwise have access to the Data.
(b) To the extent the Client employs a data warehouse system such that Data is stored in a central repository before being disseminated to a wider audience, the Client agrees to inform Preqin of its use of such a data warehouse.
(c) In addition, at any time during the term of the Agreement, the Client shall promptly provide Preqin with any information Preqin reasonably requests relating to the Client’s receipt of the Service.
- Service Audit
(a) Preqin reserves the right to carry out audits to check that the Client’s use of the Service and the Data is within the specified parameters set out in the Order Form and otherwise in compliance with the Agreement (a "Service Audit"). To facilitate a Service Audit, the Client agrees to provide (or procure the provision of) any information requested by Preqin, to submit declarations to Preqin regarding its and the Users’ use of the Service and the Data and to allow Preqin physical access to its premises.
(b) If a Service Audit shows that use of the Service and the Data is not within the parameters specified in the Order Form or otherwise constitutes a breach of the Agreement, in addition to all other remedies available under the Agreement or at law, Preqin reserves the right to adjust the Fees to reflect actual use of the Service and the Data, for the period of non-compliance and on an ongoing basis. The Client shall in addition in such circumstances reimburse Preqin on demand for the costs of such Service Audit.
- Web crawlers
The Client agrees not to, and shall ensure that the Users do not, access, or attempt to access, monitor or copy the Website, the Service or the Data through any automated software or other automated means (including the use of agents, robots, spiders, scripts or web crawlers).
- Disclaimers – US users of Secondary Market Monitor and Preqin Investor Network
Certain of the Data provided by Preqin as part of the Service (including Data provided via the Preqin Investor Network and the Secondary Market Monitor) are not available to the public and relate to investment vehicles including unregulated collective investment schemes. The communication or distribution of such information to persons in the US may be restricted by applicable US laws. Accordingly, and without prejudice to clause 5, in relation to Users in the US, the Service and the Data provided by Preqin are directed at and should only be accessed and relied upon by persons who are “qualified purchasers” as defined in section 2(a)(51)(A) of the US Investment Company Act of 1940 as amended. The Service is not directed at and should not be accessed or relied upon by any other category of person and the reproduction, transfer or other re-communication of Data provided by Preqin to persons in the US other than “qualified purchasers” is not permitted.
- Disclaimers – UK users of Secondary Market Monitor and Preqin Investor Network
Certain of the Data provided by Preqin as part of the Service (including Data provided via the Preqin Investor Network and the Secondary Market Monitor) are not available to the public and relate to investment vehicles, including unregulated collective investment schemes. The distribution of such information in or from the UK may be restricted or prohibited by the UK financial promotion regime prescribed pursuant to sections 21 and 238 of The Financial Services and Markets Act 2000 ("FSMA").
Accordingly, and without prejudice to clause 5, the Service and the Data provided by Preqin are directed at and should only be accessed and relied upon by persons who fall within any of the following categories prescribed in The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”): (i) persons who access the Service from outside the UK, but only if the communication and receipt of the Data is lawful in that jurisdiction (and, in relation to persons in the US, without prejudice to clause 13); (ii) investment professionals within the meaning of Article 19(5) of the Order (which includes persons authorised under FSMA; persons exempted from the requirement to be so authorised; persons whose ordinary activities involve making investments in such investment vehicles for business purposes; and governments, local authorities and certain international organisations); (iii) high net worth organisations as specified by Article 49 of the Order (which includes a company, or the subsidiary of a company, which has net assets or called-up share capital of at least £5 million (or £500,000, if the company or its parent, as applicable, has 20 or more members); unincorporated associations or partnerships having net assets of not less than £5 million; and trustees of trusts with net assets exceeding £10 million in value at any time in the preceding 12 months) (together "relevant persons").
The Service is not directed at and should not be accessed or relied upon by any other category of person and the reproduction, transfer or other re-communication of Data provided by Preqin to persons other than relevant persons is not permitted.
- Linked sites
The Website and the Data may contain links to external websites. Preqin has not reviewed any of the linked external websites and does not endorse or accept any responsibility for the content of such websites, nor the products or services or other items described on or offered by such websites, nor the data protection practices or policies of such websites. Preqin is not liable for any loss or damage which may be suffered or incurred by the Client as a result of or in connection with any access to, or use of, such external websites.
- Intellectual property rights
(a) The Client acknowledges that the Website, the Service and the Data and any related confidential information and documentation, together with all intellectual property rights embodied therein, other than the Client Data (as defined in clause 17): (i) are and shall remain the property of Preqin; (ii) are protected under the patent, trademark, copyright, trade secret, confidential information and other intellectual property laws of the United Kingdom and other jurisdictions; and (iii) were created, compiled, prepared, selected and arranged by Preqin or its suppliers (as applicable) through the expenditure of substantial time, effort and resources and constitute valuable intellectual property of Preqin or its suppliers (as applicable).
(b) In all cases, any printout of any Data by the Client or the Users as permitted in the Agreement must include Preqin's copyright notice. In the event of a suspected breach of this clause or any other restriction on distribution or copying of the Data contained in the Agreement, or if the Client becomes aware of a threat to any intellectual property rights owned by Preqin, the Client must inform Preqin and shall co-operate with Preqin to protect Preqin’s intellectual property rights, including by identifying persons to whom copies of such Data have been supplied.
(c) The names, images and logos identifying Preqin and its products and services (including the Service and the Data) are proprietary marks of Preqin or its suppliers.
(d) Except as expressly provided, nothing in the Agreement shall be construed as conferring expressly, by implication or estoppel, or otherwise, any licence or right under any intellectual property rights of Preqin or its suppliers.
- “MY PORTFOLIO” – additional terms
(a) As part of the Service, but subject to selection in the Order Form and payment of specific annual Fees, Preqin offers “My Portfolio”.
(b) In respect of the Client’s use of “My Portfolio”, Preqin and the Client agree that the data created by the Client and stored on “My Portfolio” belongs to the Client ("Client Data"), and will be made available for collection or deletion by the Client for a period of 14 days from the date of expiry or earlier termination of the Agreement. Collection or deletion of Client Data by the Client is without prejudice to Preqin’s ongoing rights to use and exploit Aggregate Data (as described in clause 17(d)) after expiry or termination of the Agreement. Client Data not collected or deleted by the Client shall be stored by Preqin for up to 12 months (or such longer period as Preqin may reasonably determine). If requested by the Client after the 14 day period referenced above and prior to deletion by Preqin, Preqin shall delete and/or return the Client Data to the Client subject to reimbursement of Preqin’s reasonable charges in complying with such request.
(c) The Client may use “My Portfolio” in its use of the Service only for lawful purposes and in particular must not use it to:
- store or send information that in any way breaches any applicable local, national or international law or regulation.
- store or send information that in any way is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect.
- transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
- transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
- store or send information that infringes any copyright, database right or trade mark of any other person.
(d) The Client shall indemnify Preqin against all liabilities, costs, expenses, damages and losses, including legal costs suffered or incurred by Preqin arising out of or in connection with any breach of clause 17(c).
(e) In consideration of its provision of “My Portfolio” as part of the Service, and other good and valuable consideration, the receipt and sufficiency of which the Client acknowledges, Preqin may anonymise and aggregate Client Data with other data collected by or provided to Preqin ("Aggregate Data") and distribute (and permit third parties to distribute) in all media and throughout the world such Aggregate Data, or analyses of such Aggregate Data, or reports incorporating or based on such Aggregate Data, to third parties (whether on a paid or unpaid basis), provided such Aggregate Data does not identify the Client (unless agreed otherwise with the Client). The Client undertakes and warrants that it owns or otherwise has the rights necessary to permit Preqin to anonymise and aggregate such Client Data in order to create the Aggregate Data and to distribute such Aggregate Data in the manner permitted. The right to distribute the Aggregate Data and to conduct further analysis on, and prepare reports incorporating or based on, such Aggregate Data shall continue in perpetuity and shall survive termination of the Agreement.
(f) The Client acknowledges that: (i) Preqin exerts (or will exert) significant effort and investment in obtaining, verifying, presenting, compiling, analysing, enriching, and/or creating Aggregate Data, (ii) the Aggregate Data and all components thereof constitute proprietary information of value to Preqin that is not within the public domain, (iii) Preqin shall own all right, title and interest in and to all intellectual property rights in the Aggregate Data and legal protections with respect thereto remain exclusively with Preqin, including, without limitation, any suggestions, enhancement requests, feedback, or recommendations provided by the Client relating to the Aggregate Data, and (iv) the Client has and will have no proprietary rights whatsoever in or to the Aggregate Data.
(a) The Data and the Service supplied by Preqin, and the Fees, constitute confidential information of Preqin. In addition, any financial information and proposed plans for development of the Service disclosed to the Client constitute confidential information of Preqin. The Client agrees not to, shall procure that Users do not, disclose any such confidential information to any person, and not to use, and to procure that Users do not use, any such confidential information for any purpose other than the purposes permitted in the Agreement.
(b) Notwithstanding clause 18(a), the Client may disclose Preqin’s confidential information to the extent: (i) such disclosure is required by applicable law or regulation; (ii) the information has come into the public domain through no fault of the Client; or (iii) the information was independently developed by the Client without reference to Preqin’s confidential information, as demonstrated by contemporaneous written evidence.
- Change in the Service
(a) The Fees relate only to the Service ordered pursuant to the Order Form.
(b) Preqin may change, add to, enhance, or discontinue from time to time during the currency of the Agreement, any component of the Service (including the relevant Source) or any means of conversion or communication forming part of, or used in the provision of, the Service.
(c) To the extent Preqin discontinues any component of the Service (including the relevant Source), the Client's access to and rights to use such discontinued element of the Service shall terminate. If any such actual or proposed change to the Service results in a material diminution in the utility to the Client of the Service in the reasonable opinion of the Client, then the Client may notify Preqin of this, and will be entitled to either terminate the Agreement and to receive a pro rata refund of the Fees, or to continue to use the changed Service, but at a reduced Fee to be negotiated.
(d) Preqin may from time to time offer, and the Client may licence and use, new services, including additional databases or additional Data, in consideration for additional Fees to be mutually agreed upon by Preqin and the Client. These Terms and Conditions shall apply to any additional service reflected in an amended Order Form or side letter forming part of the Agreement, which service shall be deemed to constitute part of the Service for the purposes of the Agreement.
- Warranties and Limitations of liability
(a) Preqin warrants that it has the right to license the receipt and use of the Services and the Data as specified in the Agreement.
(b) Except as expressly stated in the Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
(c) Without limiting the effect of clause 20(b), Preqin does not warrant that:
- the supply of the Service or the Data or use of the Website will be free from error, virus or interruption;
- the Data is accurate, complete, reliable, secure, useful, fit for purpose or timely; or
- the Data has been tested for use by the Client or any third party (including any User) or that the Service or Data will be suitable for or be capable of being used by the Client or any third party (including any User).
(d) The Client acknowledges that:
(i) the use and interpretation of the Service and Data requires specialist skill and knowledge of financial markets;
(ii) the Client and the Users have that skill and knowledge and undertakes that they will exercise that skill and knowledge and appropriate judgement when using the Service and the Data;
- the Client shall, except as expressly set out in the Agreement, be solely responsible, as against Preqin, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Client, the Users and any client of the Client or any other third party based (wholly or in part) on the Service or the Data; and
- it is in the best position to ascertain any likely loss it may suffer in connection with the Agreement, that it is therefore responsible for making appropriate insurance arrangements to address the risk of any such loss and that the provisions of this clause 20 are reasonable in these circumstances.
- Preqin does not exclude or limit its liability to the Client for:
- fraud or fraudulent misrepresentation;
- death or personal injury caused by negligence;
- a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- any matter that cannot be excluded or limited under applicable law.
- Subject to clause 20(e), Preqin shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
- (i) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
- (ii) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
- (iii) any loss or liability (whether direct or indirect) under or in relation to any other contract.
- Subject to clause 20(e), Preqin’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement or any collateral contract shall in all circumstances be limited to the Fees paid or payable by the Client in the first 12-month period of the Agreement.
- Any dates quoted for delivery of the Service are approximate only, and the time of delivery is not of the essence.
(i) The Client further agrees that no action, regardless of form, arising from or pertaining to any breach of the Agreement or the Website, the Service or the Data may be brought by the Client more than one year after the event or omission giving rise to such action has occurred.
- Data Protection
The Data Protection Schedule is part of the Agreement and each party shall comply with it.
In circumstances where the Client is based outside the EEA in a country that does not have an adequacy decision in place, the Client shall agree to the Model Clauses without edits. A list of countries with an adequacy decision in place can be found here: https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/adequacy-protection-personal-data-non-eu-countries_en.
The Model Clauses which have to be accepted in their current form can be found here: https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en.
- Use of the Client’s Logo and name
Preqin may use the Client’s logo and name for the purposes of promoting the conclusion of the Agreement and the Client being a client of Preqin in Preqin’s website, presentations and brochures. The Client may opt out of such use at any time by written notice to Preqin. Preqin shall promptly thereafter remove the Client’s logo and name from Preqin’s website and online presentations and brochures, and shall not use such logo and name in any hard copy materials but shall not be required to withdraw or cease distribution of any hard copy materials that have already been printed or distributed.
Preqin shall, and shall procure that any supplier or any other person who performs services pursuant to the Agreement for or on behalf of Preqin shall: (i) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including the Bribery Act 2010; and (ii) not offer, or give, or agree to give, any person any gift or consideration of any kind as an inducement or reward for doing, or forbearing to do, or having done, or forbearing to have done, any act in relation to the obtaining or performance of the Agreement or for showing, or forbearing to show, favour or disfavour to any person in relation to the Agreement.
In the event of any breach of this clause 23 or the commission of any offence by Preqin under the Bribery Act 2010 in relation to the Agreement, the Client may terminate the Agreement immediately by notice in writing to Preqin.
- Term and termination
(a) The Service will be provided for a period of 12 calendar months, unless agreed otherwise in writing by the Client and Preqin. Upon completion of the initial period (as provided in the Order Form or other written document) and each subsequent 12 month period, the Agreement will be renewed for a further period of 12 months for the existing Fees ("autorenewal"), unless: (i) the Agreement is terminated 30 days prior to the renewal date by the Client; (ii) Preqin decides, in its sole discretion, not to offer the Client autorenewal and notifies the Client of such decision in accordance with clause 24(b)(ii); or (iii) Preqin offers to renew the Agreement at revised Fees in accordance with clause 24(b)(i).
(b) Preqin will:
(i) where Preqin offers to renew the subscription at revised Fees, provide to the Client a renewal invoice, or schedule, setting out the revised Fees not less than 60 days prior to the expiry of the then-current 12 month period, in which case the autorenewal will take effect from the date of expiry of the then-current 12 month term, subject to the Client’s rights pursuant to clause 24(a)(i); or
(ii) where Preqin is not prepared to offer the Client autorenewal, provide to the Client written notice of Preqin’s decision not to offer the Client autorenewal not less than 60 days prior to the expiry of the then-current 12 month period, in which case the Agreement shall expire on the expiry of the then-current 12 month period.
(c) For the avoidance of doubt, if Preqin fails to give the Client 60 days’ notice of the proposed revised Fees, the existing Fees will prevail at the autorenewal.
(d) If the Client is merged with or acquired by a third party, or acquires a third party during the term of the Agreement, Preqin reserves the right, in Preqin’s sole discretion, to re-negotiate or terminate the Agreement with immediate effect by notice in writing to the Client. The Client must inform Preqin in writing of any such merger or acquisition.
(e) Preqin may terminate the Agreement on written notice to the Client at any time it reasonably determines that the provision of the Service has become unlawful and provided that Preqin ceases to provide the Service in question to all subscribers of the Service.
(f) Without prejudice to any rights that have accrued under the Agreement or any of its rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any sum due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make that payment;
- the other party commits a material breach of any term of the Agreement (other than failure to pay any sums due under the Agreement) and (if that breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party's assets and that attachment or process is not discharged within 14 days;
- any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 24(f)(iii) to (viii) (inclusive).
(g) Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
(h) Upon expiry or termination of the Agreement for any reason, the Client shall: (i) within a reasonable period of time, but in any event no later than 30 days after expiry or termination, pay Preqin any outstanding Fees; (ii) immediately cease using the Service (whether in whole or in part) and delete or destroy all physical or electronic copies of any Data or other materials downloaded from the Website or otherwise provided to the Client as part of or in connection with the Service (except where, and for so long as, retention of such Data is required for legal or regulatory purposes); and (iii) certify to Preqin in writing that the Client has complied with clauses 24(h)(i) and (ii). The Client agrees that it will not retain the Service or any component thereof after termination of the Agreement for any reason.
(i) The Client accepts that expiry or termination of the Agreement shall not for any reason, unless otherwise specified herein, entitle the Client to any refund (in whole or in part) of any Fees.
- Equitable relief
The Client acknowledges and agrees that, in the event of the Client's breach of the Agreement, Preqin may suffer irreparable harm. The Client acknowledges that monetary damages may be insufficient and inappropriate remedy, and that Preqin shall therefore be entitled to seek injunctive or other appropriate equitable relief in respect of a breach or threatened breach of the Agreement.
The Client may not assign or transfer any rights or obligations under the Agreement to any other party, in whole or in part, including to its affiliates, without Preqin’s prior written consent.
Any notice or communication given under the Agreement shall be in writing, in English and shall be delivered by hand, registered post, or email address as set out in the Order Form, marked for the attention of the person specified in such Order Form. Any notice given under the Agreement shall, in the absence of confirmed earlier receipt, be deemed to have been duly given as follows: (i) if delivered by hand, on delivery; (ii) if sent by first class inland post, two clear business days after the date of posting; (iii) if sent by airmail, six clear business days after the date of posting; and (iv) if sent by email, at the expiration of 48 hours after the time it was sent, provided that if any email produces an automated response reporting a failure to deliver, delayed delivery to the intended recipient or “out of office” reply, such email shall be deemed not to have been received by the addressee.
The Agreement is the entire agreement between Preqin and the Client with respect to the Service and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Except as expressly provided in these Terms and Conditions, the Agreement may not be modified or amended except by an instrument in writing executed by both parties.
In the Agreement: (i) clause headings shall not affect its interpretation; (ii) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders; (iii) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision; (iv) a reference to writing or written includes email and (v) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Force Majeure
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 28 days, the party not affected may terminate the Agreement immediately by giving written notice to the affected party.
If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision or part-provision of the Agreement is deemed deleted under this clause 31 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- No Partnership
Nothing in the Agreement and no action taken by the parties under it shall constitute a partnership, joint venture or agency relationship between the parties.
- Remedies and waivers
(a) The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any of Preqin’s rights or remedies provided by law.
(b) No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Contracts (Rights of Third Parties) Act 1999
The parties do not intend that the Agreement should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to it.
- Governing law
The Agreement shall be governed by and construed under the laws of England and Wales. Each party submits to the non-exclusive jurisdiction of the English courts to settle any dispute, whether contractual or non-contractual, arising out of or in connection with the Agreement.
Data Protection Schedule
Data Protection Legislation: (i) unless and until it is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national laws, regulations and secondary legislation, implementing or supplementing the GDPR, as amended or updated from time to time and (ii) any successor legislation to the GDPR.
The terms “Data Controller”, “Data Processor”, “Data Subject”, and “Personal Data” when used in this Schedule have the meanings given in the Data Protection Legislation. References to “Personal Data” in this Schedule are to “Personal Data” of Preqin (or its clients).
- DATA PROTECTION
1.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This paragraph 1 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
1.2 The parties acknowledge that for the purposes of the Data Protection Legislation, Preqin and the Client are independent Data Controllers.
1.3 Each party agrees:
(a) to act in accordance with the Data Protection Legislation in relation to the Personal Data processed under the Agreement; and
(b) to ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the Personal Data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
1.4 Without prejudice to paragraph 1.2, the Client shall, in relation to any Personal Data it processes in connection with Preqin’s services under the Agreement:
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- in accordance with the Data Protection Legislation, have sufficient protections in place when transferring any Personal Data outside of the European Economic Area.
1.5 The Client agrees to indemnify and keep indemnified and defend at its own expense Preqin against all costs, claims, damages or expenses incurred by Preqin or for which Preqin may become liable due to any failure by the Client to comply with any of its obligations under this Schedule and clauses 8 and 21 in the Terms and Conditions.