These NPM Data License Terms and Conditions (these “Data Terms”) supplement the NPM Terms of Use (which apply to your use of the NPM Platform and are available at https://www.nasdaqprivatemarket.com/terms-of-use/, as updated from time-to-time, the “TOU”), and together govern your use of NPM Data (defined below) including where provided as part of NPM products and services as described in your relevant sign-up form, Order Form, or comparable ordering document referencing these Data Terms (the “Order Form”, and collectively with the TOU and these Data Terms, the “Agreement”).
1. Introduction and Application.
1.1 – “NPM” or “us”/ “we” means Nasdaq Private Market, LLC and/ or its affiliate(s) that are party to the Order Form. “Customer” or “you” means the customer or subscriber party who signed up for NPM data services. Each of NPM and Customer are a “Party” and together, the “Parties”.
1.2 – The Order Form includes the specific and exclusive usage case for which Customer is permitted to use the dataset provided by NPM under the Order Form (the “Data” and “Approved Usage Case”, respectively) and may refer to and/or incorporate additional documents or terms that apply to the products or services you ordered. Any terms or conditions you incorporate into a purchase order or otherwise are void and do not form part of the Agreement. Any additions or other changes to the Agreement are valid only with express written consent of all applicable parties.
1.3 – Order of Precedence. In the event of any conflict among the documents comprising the Agreement, the following order of precedence will apply, but solely to the extent of such conflict: (a) the Order Form; (b) these Data Terms; and (c) the TOU. No Order Form or other document will be deemed to authorize any use prohibited under these Data Terms unless it expressly identifies the applicable Data and the specific prohibited use being authorized.
2. Data Services and License.
2.1 – Limited License. Unless otherwise specified in your Order Form, NPM grants you a limited, non-exclusive, non-transferable, non-sublicensable license to receive, use, process, and store the Data, in each case within the Territory (if no Territory is specified in your Order Form, your license is not geographically limited), solely for your internal business purposes and subject to any other specifications designated in the Order Form (collectively, the “Approved Usage Case”).
2.2 – Derived Data. Customer may use Data to create derived data (“Derived Data”) solely within the Approved Usage Case and provided that: (a) the Derived Data cannot act as a substitute or competitor for a service provided by NPM; and (b) the Derived Data does not disclose, expose, or permit any person to recreate the Data or any material portion of the Data; (c) the creation or use of Derived Data does not violate any applicable Third-Party Terms (defined below); and (d) the Derived Data is not distributed outside of Customer except to the extent expressly authorized in the applicable Order Form. Customer will own all rights and title in its Derived Data, subject to NPM’s and any applicable third-party providers’ ownership of the Data and all rights and restrictions in the Agreement. Notwithstanding Customer’s ownership of Derived Data, Customer may not use or permit the use of Derived Data for any purpose prohibited under Section 2.4, including to create, operate, support, price, settle, resolve, benchmark, market, distribute, license, commercialize, or otherwise make available any financial product, derived product, index, benchmark, market, trading venue, exchange, platform, data product, analytics product, valuation product, pricing feed, or other commercial product or service, except to the extent expressly authorized in the applicable Order Form or other written agreement with NPM. All rights not granted hereunder are expressly reserved by NPM and/or its third-party providers.
2.3 – Third-Party Data. In addition to these Data Terms, Customer will comply with applicable third-party provider terms specified in the applicable Order Form (if any) (“Third-Party Terms”). Third-party providers are intended beneficiaries of the Third-Party Terms and may directly enforce such terms against Customer (if applicable).
2.4 – Restrictions. Customer will not, and will not allow any third party to:
(a) copy, modify, reverse engineer, decode, decompile, attempt to tamper with, evade, or discover the method of operations of the Data or services used to provide the Data;
(b) sell, lease, rent, furnish, retransmit, redistribute, disseminate, divert, release, license, sublicense, or otherwise permit or provide access to, the Data or Derived Data in any manner not expressly described in Section 2.1 or 2.2 above, including incorporation of the Data or Derived Data in any database, marketing list, report, service, or product not expressly described in the Approved Usage Case;
(c) use the Data or Derived Data in violation of these Data Terms, or applicable law or regulation;
(d) introduce any harmful data, computer code, or viruses to NPM systems, or damage, disrupt, disable, or harm NPM systems;
(e) use the Data or Derived Data in any time-sharing, service bureau, software-as-a-service, cloud, managed service, outsourced service, or other technology service for the benefit of any third party, except to the extent expressly authorized in the applicable Order Form (if any);
(f) distribute or otherwise use the Data, Derived Data, or any portion of the foregoing in any manner that is competitive with any business, product, or service of NPM or any NPM affiliate, including any NPM data service;
(g) remove or alter any copyright, ownership, attribution, or identification notices found within or provided with the Data; or
(h) use the Data, Derived Data, Services, or any portion of the foregoing for any purpose prohibited under Section 2.5.
2.5 – Financial Products and Commercial Data Products. Except to the extent (if any) expressly authorized in the applicable Order Form or a separate written license agreement with NPM, Customer shall not use, and shall not permit any third party to use, the Data, Derived Data, or any portion of the foregoing to create, construct, calculate, operate, support, price, settle, resolve, benchmark, market, distribute, license, commercialize, or otherwise make available any financial product, derived product, index, benchmark, market, trading venue, exchange, platform, data product, analytics product, valuation product, pricing feed, or other commercial product or service. Without limiting the foregoing, prohibited uses include the use of the Data, Derived Data, or any portion of the foregoing as an input, reference source, settlement source, resolution source, benchmark, valuation source, pricing mechanism, or other component of or for any perpetual future, prediction market, event contract, swap, option, contract for difference, index, exchange-traded fund, structured product, synthetic exposure product, benchmark, valuation product, pricing feed, analytics product, or any product, instrument, service, or arrangement substantially similar to any of the foregoing. For clarity, this Section does not prohibit Customer’s use of the Data or Derived Data for Customer’s internal business analysis within the Approved Usage Case, provided that such use does not involve making available, commercializing, or otherwise using the Data or Derived Data for any product, instrument, market, benchmark, pricing mechanism, data service, analytics service, or other external or revenue-generating offering.
2.6 – Artificial Intelligence and Automated Processing. Customer may not input, upload, transmit, or otherwise disclose any Data or Derived Data to any artificial intelligence system, large language model, machine learning model, or similar automated processing tool except solely to the extent strictly necessary for Customer’s internal business use within the Approved Usage Case or for a service provider to provide services to Customer, and, to that extent, solely under terms that expressly prohibit retention, training, fine-tuning, model improvement, validation, benchmarking, or any other use of the Data or Derived Data beyond such limited purpose. Customer will ensure that no Data or Derived Data is used, directly or indirectly, for training, fine-tuning, validation, benchmarking, or improvement of any artificial intelligence or machine learning models. Upon NPM’s reasonable request, Customer will provide reasonable information sufficient to verify Customer’s compliance with this Section, including the identity of any relevant service provider and the applicable contractual restrictions governing such use.
2.7 – Anonymized and Aggregated Data. For Data that is anonymized or aggregated for the purpose of identity protection, Customer will not attempt to disaggregate or de-anonymize such Data, or otherwise determine the identity of any entity that is anonymized or part of an aggregated data set.
3. Customer Obligations, Acknowledgements, and Representations.
3.1 – Specifications and Hardware. It is solely Customer’s responsibility to: (a) comply with any technical specifications or requirements from NPM in accessing the Data; and (b) establish and pay for all costs of cabling, communications, electrical, and common carrier equipment installation charges incurred in connection with its access to and receipt of the Data.
3.2 – Security. Customer will implement reasonable security measures and safeguards in accordance with industry standards to prevent unauthorized individuals or entities from gaining access to the Data. Customer will promptly notify NPM upon any known or suspected breach in security related to the Data.
3.3 – Third-Party Disclosures. Customer acknowledges and agrees that NPM may be required by third-party providers to disclose certain information concerning NPM clients’ use of Data as detailed in applicable third-party data license(s) (if any).
3.4 – Lawful Usage. Customer represents and warrants that its use of any Data will in all cases comply with applicable federal, state, and local laws and regulations.
3.5 – Reference. NPM may identify Customer by name as a customer of NPM and the Data services. NPM may use Customer’s logo only with Customer’s prior written consent, which may be provided by email, and in accordance with any reasonable brand guidelines provided by Customer.
3.6 – Records. Customer will maintain accurate records reasonably sufficient to demonstrate compliance with the Approved Usage Case and Sections 2.2 through 2.7, including records regarding any external disclosure, service provider use, artificial intelligence or automated processing use, or Derived Data use that is permitted under the Agreement.
3.7 – Monitoring; Audit. NPM reserves the right to monitor Customer’s use of Data to ensure compliance with these Data Terms and to maintain and improve its or its affiliates’ services. NPM or its designee, upon thirty (30) days’ advance written notice, will have the right to audit Customer’s use of the Data and Derived Data to verify compliance with the Agreement. Any such audit will be conducted during normal business hours, in a manner designed to minimize disruption to Customer’s business, and limited to records, systems, personnel, and materials reasonably related to Customer’s use of the Data and/ or Derived Data. Customer will provide reasonable cooperation and access for such audit, including remote access to relevant records where appropriate. Such an audit may not occur more than once per year unless NPM has reasonable grounds to suspect material breach of the Agreement by Customer. NPM (or its designee) will comply with all reasonable Customer policies and procedures notified to them. All information collected as part of the audit will be deemed Customer’s Confidential Information. This Section will survive for a period of one (1) year following termination or expiration of the Agreement.
4. Fees
4.1 – Customer will pay NPM the Fees as specified in the Order Form as invoiced by NPM and not subject to good faith dispute no later than thirty (30) days from date of invoice. NPM may charge Customer a late fee equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the maximum amount permitted by applicable law, on any amounts overdue to NPM. All payments will be made in immediately available funds. Customer further agrees to pay all reasonable and actual fees incurred by NPM in connection with collection of any past due amount owed to NPM hereunder.
4.2 – After any designated set term in the Order Form, no more than once annually and subject to prior notice of at least sixty (60) days, NPM may update the Fees. In the event that any price increase exceeds the greater of four percent (4%) or the change in CPI, Customer will have a period of thirty (30) days following the date of the increase notice to terminate upon written notice to NPM, such termination effective as of the date the increased Fees would take effect.
4.3 – Customer will pay any taxes, including any VAT, charges, or assessments charged in connection with NPM’s provision of services to Customer hereunder (other than taxes imposed on NPM’s income), and any related penalties or interest. If Customer is required by applicable law to deduct or withhold any such tax, charge, or assessment from the amounts due to NPM, then such amounts will be increased so that the net amount actually received by NPM after deduction or withholding of any such tax, charge, or assessment will equal one hundred percent (100%) of the amount owed.
5. Ownership.
5.1 – Data. All Data, including any and all intellectual property rights thereto, will, as between the Parties, be and remain the sole and exclusive property of NPM. Customer will not, by act or omission, diminish, impair, or interfere with in any manner the acquisition, maintenance, or full enjoyment by NPM or its licensees, transferees, and assignees of NPM’s proprietary rights in the Data. Customer acknowledges and agrees that third-party providers have exclusive proprietary rights in their respective information, data, and services (as applicable).
5.2 – Marks. Customer acknowledges and agrees that NPM has proprietary rights, registered or unregistered, in certain trademarks, service marks, copyrights, and/ or patents, including the name and trademarks of NPM. Customer will not: (a) use any names, trademarks, or service marks of NPM or its affiliates in any advertising or marketing materials, except with NPM’s specific and express prior written consent; or (b) use any trademarks, service marks, copyrights, or patents of NPM or its affiliates in any way that would infringe, misappropriate, or violate such marks, copyrights, or patents.
6. Confidentiality.
6.1 – The TOU terms regarding Confidentiality apply to the Agreement. For clarity, the Data, non-public Derived Data, technical specifications, access credentials, and any non-public information regarding NPM’s data sources, methodologies, services, systems, or business are NPM’s Confidential Information.
7. Term; Termination.
7.1 – Term. These Data Terms apply as long as any Order Form is in effect under them. Each Order Form will specify its applicable initial and renewal terms. You may submit a cancellation at any time by notice to NPM, and such cancellation will be effective at the end of the then-current term. If not specified in the applicable Order Form, the initial term will be one (1) year from the effective date and it will automatically renew for additional one (1)-year renewal terms unless either Party provides the other with written notice of non-renewal prior to the end of the then-current term.
7.2 – Effect of Expiration or Termination. Upon expiration or termination of the applicable Order Form or Agreement, Customer will immediately cease accessing and using the Data and, at NPM’s election, return or permanently delete the Data and all copies, extracts, and portions thereof in Customer’s possession or control. Upon NPM’s request, Customer will certify such return or deletion in writing. Customer may retain copies solely to the extent required by applicable law or bona fide internal archival, audit, or compliance policies, provided such retained copies remain subject to the Agreement and are not used for any other purpose. Sections 2.2 through 2.7, 3.2, 3.6, 3.7, 4, 5, 6, 7.2, 8, 9, 10, and 11 will survive expiration or termination of the Agreement.
7.3 – Termination for Restricted Uses. NPM may suspend access to the Data or terminate the applicable Order Form immediately upon written notice if Customer breaches Sections 2.2 through 2.7 or if NPM reasonably believes that continued access may result in unauthorized distribution, commercialization, productization, artificial intelligence training, or other misuse of the Data or Derived Data.
8 -Disclaimer.
8.1 – NPM WILL ENDEAVOR TO OFFER THE DATA AS PROMPTLY AND AS ACCURATELY AS IS REASONABLY PRACTICABLE. NOTWITHSTANDING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DATA AND ANY AND ALL MATERIAL RELATED TO THE DATA ARE BEING PROVIDED “AS IS” WITH NO WARRANTIES WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, OR STATUTORY WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, INCLUDING REGARDING TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION, OR ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
9. Indemnification.
9.1 – By Customer. Customer will defend, indemnify, and hold NPM, its affiliates, and its and their officers, directors, employees, agents, and third-party providers (“NPM Indemnified Parties”) harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, suits, costs, judgments, settlements, and expenses of whatever nature (including reasonable attorneys’ fees) (collectively, “Claims”) imposed on or asserted against any of the NPM Indemnified Parties by third parties to the extent that the Claims result from or relate to: (a) failure of Customer, its employees, independent consultants/subcontractors, directors, and other agents to comply with the terms and conditions of the Agreement; or (b) the receipt, use, disclosure, distribution, or commercialization of the Data or Derived Data by Customer, its employees, independent consultants/subcontractors, directors, and other agents contrary to the provisions of the Agreement.
9.2 – By NPM. NPM will defend, indemnify, and hold Customer and its officers, directors, employees, and agents (“Customer Indemnified Parties”) harmless from and against any and all Claims imposed on or asserted against Customer Indemnified Parties by a third party to the extent that the Claims result from or relate to any claim or allegation that the Data provided by NPM hereunder infringe, violate, or misappropriate the intellectual property rights of a third party. NPM will have no obligation under this Section to the extent a Claim arises from or relates to: (a) Customer’s modification of the Data or use of Derived Data; (b) combination of the Data with data, materials, products, services, or technology not provided by NPM; (c) use of the Data other than in accordance with the Agreement; (d) Customer’s breach of the Agreement or any Third-Party Terms; (e) use of the Data after NPM has provided a replacement, modification, or termination right intended to avoid the alleged infringement or misappropriation; or (f) any product, service, instrument, market, benchmark, analytics product, valuation product, pricing feed, or other offering created, operated, supported, priced, settled, resolved, benchmarked, marketed, distributed, licensed, commercialized, or otherwise made available by or on behalf of Customer. In the event of such a Claim or if, in NPM’s opinion, such a claim, action, or allegation is likely to occur or if the use of the Data or any specifications is enjoined because of infringement or misappropriation, NPM may, at its sole option and expense: (x) procure for Customer the right to continue using the Data or any specifications; (y) replace or modify the Data or any specifications to be non-infringing, and require the return of the potentially infringing or misappropriating items, if applicable, without liability to Customer or any other person; or (z) terminate the Agreement immediately without liability to Customer or any other person, other than a prorated refund of any prepaid fees. The indemnification obligations and remedies detailed in this Section will be Customer’s sole and exclusive remedy, and NPM’s sole liability, in the event of an infringement claim.
9.3 – Process. Each Party’s obligation to indemnify the applicable indemnitee(s) will be conditioned on the indemnitee(s): (a) promptly but in any event, in a time frame that does not prejudice the rights of the indemnifying Party, providing the indemnifying Party with written notice of the Claim; (b) giving the indemnifying Party sole control of the defense and settlement of the Claim (except that the indemnifying Party may not settle any Claim without the consent of the indemnitee(s) unless it unconditionally releases the indemnitee(s) of all liability and does not include any admission of wrongdoing by the indemnitee(s)); and (c) giving the indemnifying Party all reasonable assistance, at the indemnifying Party’s expense, in the defense of the Claim.
10. Limitations of Liability.
10.1 – NO PARTY HERETO, NOR ANY NPM THIRD-PARTY PROVIDERS WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR TRADING LOSSES, LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR FOR INCREASED EXPENSES OF OPERATION, OR FOR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGE OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF THE PARTY AND/OR ITS THIRD-PARTY PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 – EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF NPM, NPM WILL NOT BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON FOR THE UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF THE DATA, INCLUDING TO THE EXTENT ANY UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF DATA IS FROM, OR ATTRIBUTABLE TO THE ACTS OR OMISSIONS OF, ANY OF NPM’S THIRD-PARTY DATA PROVIDERS.
10.3 – IF NPM OR ANY NPM AFFILIATE IS FOR ANY REASON HELD LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR CLAIMS ARISING FROM THE DATA OR AGREEMENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, THE AGGREGATE LIABILITY OF NPM IS LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID TO NPM BY CUSTOMER DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.
10.4 – CUSTOMER AND NPM UNDERSTAND AND AGREE THAT THE PRICING FOR THE DATA REASONABLY REFLECTS THE ALLOCATION OF RISK AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION.
10.5 – THIS SECTION WILL (a) APPLY EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AND (b) SURVIVE ANY EXPIRATION OR TERMINATION OF THESE TERMS OR THE AGREEMENT.
11. General.
11.1 – Force Majeure. Aside from the any applicable Fee that is due and payable, each Party will be excused from performance of its obligations under this Agreement to the extent and for such time period as prevented or hindered from performing by circumstances beyond its reasonable control, including any act of God, fire, flood, earthquake, war, terrorist attack, government action, order, or law, extreme weather, failure of communications equipment, or interruption or failure of a utility or internet service, denial of service attacks, or any other malicious act of a third party.
11.2 – Limited Relationship; Beneficiaries. Nothing in these Data Terms, express or implied, is intended to or shall (a) constitute the Parties hereto as partners or participants in a joint venture; or (b) appoint either Party the agent of the other. There are no third-party beneficiaries of this Agreement except for NPM’s third-party providers to the extent expressly and specifically stated hereunder.
11.3 – Assignment; Mergers, Acquisitions, Divestment. (a) These Data Terms shall inure to the benefit of and shall be binding upon the Parties hereto and their respective permitted successors or assigns. Neither Party shall assign the Agreement (including by operation of law) without the prior written consent of the other Party, such consent not to be unreasonably withheld. NPM may, however, assign the Agreement to any affiliate without the consent of Customer. (b) If any business not currently covered by this Agreement becomes, as a result of a merger, acquisition, or reorganization with Customer, an affiliate, division, group, or business of Customer, such new business may not use any Data unless and until the Parties execute a new Order Form (or Order Form amendment) to cover its use of the Data. (c) If Customer divests itself of a company or business unit, in whole or in part, and that business unit used and/or distributed the Data pursuant to the terms of the Agreement, Customer may not provide the Data for any transition period to the divested business unit or use any of the Data for the benefit of the divested business unit unless a new Order Form (or amendment) with NPM for such extended usage case is executed. Customer will provide NPM with written notice of any such divestiture not less than ten (10) business days prior to its effectuation and, except as noted above, as of the completion date of such divestiture, the divested business unit shall no longer be entitled to access or use any Data.
11.4 – Amendment; Waiver. NPM reserves the right to alter any term or condition of these Data Terms on at least ninety (90) days’ prior written notice to Customer (email being sufficient), and any use of the Data after the effective change date will be deemed to be acceptance of the new term(s) or condition(s). If Customer objects to any such change to the Data Terms, it will have the right to terminate upon written notice to NPM (email being sufficient) within sixty (60) days of the change notice from NPM, such termination effective on the date the change would take effect. No (a) failure on the part of either Party to exercise, (b) delay in exercising, or (c) course of dealing with respect to any right, power, or privilege under the Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under the Agreement.
11.5 – Governing Law; Venue. For the avoidance of doubt, the TOU clauses regarding Governing Law and Venue for Disputes apply to these Data Terms without regard to conflict of laws rules or provisions of any jurisdiction. Any dispute, claim, or controversy concerning or arising out of the Data Terms will be resolved pursuant to the TOU Arbitration clause.
11.6 – Severability; Entire Agreement. If any of the provisions of these Data Terms or the Agreement, or application thereof to any individual, entity, or circumstance, will to any extent be held invalid or unenforceable, the remainder of the Agreement, or the application of such terms or provisions to individuals, entities, or circumstances other than those as to which they are held invalid or unenforceable, will not be affected thereby and each such term and provision of the Agreement will be valid and enforceable to the fullest extent permitted by law. The Agreement, including these Data Terms, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, communications, writings, and understandings.
11.7 – Equitable Relief. Customer acknowledges that any actual or threatened breach of Sections 2.2 through 2.7 may cause irreparable harm for which monetary damages would be an inadequate remedy. NPM will be entitled to seek injunctive or other equitable relief for any such breach or threatened breach without the requirement to post bond or prove actual damages, in addition to any other rights or remedies available at law, in equity, or under the Agreement.