Management Insights Library Subscription Terms and Conditions

Capitalized terms used but not defined herein have the meanings given in the Order Form.

1. Access and Use.

a. License Grant. Subject to the terms and conditions of this Agreement, during the Subscription Term (as defined below), Blue Heron hereby grants to Client the limited, non-exclusive, non-transferable (except as permitted in Section 9(e) (Assignment)), non-sublicensable right and license for Client’s Authorized Users to access and use the Platform and certain Content within the scope of Client’s Subscription, and to download or print a copy of any portion of such Content, all solely for Client’s internal business purposes. For purposes of this Agreement, “Authorized Users” means employees or authorized contractors of Client, not to exceed the number set forth in the Order Form, who: (i) use the Platform and Content solely for the benefit of Client in accordance with this Agreement; and (ii) are under written confidentiality obligations no less protective than those set forth herein. Sharing of Authorized User accounts is prohibited. Subject to the terms and conditions of this Agreement, Client may onward distribute de minimis portions of the Content on an ad hoc and limited basis to its clients and prospects; provided that: (1) such distribution does not serve as a replacement for the Content or impact Blue Heron’s ability to realize revenue on the Content; (2) such distribution is not made to any company or individual that is the target or subject of the Content; and (3) any such client or prospect shall be deemed a “Representative” (as defined below) and subject to the confidentiality obligations set forth in Section 3 of these Terms and Conditions.

b. Suspension or Termination of Subscription. Blue Heron shall have the right, directly or indirectly, including, without limitation, by use of any lawful technology, device or means, to suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other person’s access to or use of all or any part of the Platform or Content, at any time and without advanced notice, without incurring any resulting obligation or liability, if: (i) Blue Heron receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Blue Heron to do so; (ii) Blue Heron believes, in its discretion, Client or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (iii) this Agreement expires or is terminated. This Section does not limit any of Blue Heron’s other rights or remedies, whether at law, in equity or under this Agreement.

c. Use Restrictions. Except as otherwise provided in this Agreement, Client shall not, and shall not permit any Authorized User or third party to: (i) copy, modify, rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly display, transfer, create derivative works from, market, promote or otherwise make available the Blue Heron Properties (as defined below) to any person, including, without limitation, on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (ii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part, except to the extent that such restriction is expressly prohibited by applicable law; (iii) circumvent or disable any security device or protection used by Blue Heron or access or use the Platform other than by an Authorized User through the use of his or her own then-valid access credentials; (iv) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform or Content or Blue Heron’s provision of services to any third party, in whole or in part; (v) access or use the Blue Heron Properties in any manner or for any purpose that infringes, misappropriates or otherwise violates the intellectual property or proprietary rights of any third party, or that violates any applicable law; or (vi) access or use the Blue Heron Properties for purposes of competitive analysis or the development, provision or use of a competing service or product. Blue Heron may in its sole discretion restrict your ability to download Reports or limit the number of times that any Report may be downloaded.

2. Certain Blue Heron Obligations; Sources.

a. No Material Non-Public Information. Blue Heron acknowledges and agrees that Client and its affiliates may be engaged in the business of trading in public market securities, and that it is essential that Client does not obtain any material non-public information concerning issuers of such securities. Accordingly, Blue Heron will not solicit or obtain on Client’s behalf or knowingly make available or provide to Client any material non-public information relating to any issuer that would require Client or its affiliates to abstain from trading in the securities of such issuer or otherwise restrict the trading activities of Client and its affiliates. Blue Heron will not seek but may inadvertently come into possession of material non-public information through its research by way of unsolicited disclosure by its Sources (as defined below). Blue Heron will use commercially reasonable efforts to redact or otherwise remove any material non-public information from the Content.

b. Sources. The Content may contain details about Blue Heron’s sources (“Sources”). Client acknowledges and agrees that the identity of such Sources is confidential and proprietary information of Blue Heron and shall be treated as Confidential Information within the meaning of Section 3(a) hereof. Client shall not directly or indirectly attempt to reverse engineer the identity of any Source, contact any Source for any purpose, or disclose the identity of any Source to any other party. The information contained in the Content shall be obtained from Sources reasonably believed to be reliable. Blue Heron shall not ask or induce any Source to breach any confidentiality agreements or other legal, contractual or fiduciary obligations or duties concerning non-disclosure of information. Blue Heron will specifically advise all Sources that they should not provide any information in violation of any duty, obligation or agreement and will verbally confirm with each Source their agreement not to provide any such information at the time an interview is conducted. Blue Heron will further advise such Sources that the information they provide will not be kept confidential and may be disclosed to third parties.

3. Confidentiality.

a. Confidential Information. The parties acknowledge that by reason of their relationship hereunder, each party shall disclose or provide access to the other certain Confidential Information. For purposes of this Agreement, “Confidential Information” means any proprietary or non-public information of the other party, whether written, electronic, oral or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party, including, without limitation, the terms and conditions of this Agreement, any information about a party’s strategies, operations, investors, business plans, finances, technology, or methodologies, any third party data labeled as confidential by its provider, and, with respect to Blue Heron, the Sources and Content. Notwithstanding the foregoing, Confidential Information shall not include information that, as demonstrated by documentary evidence: (i) is or becomes publicly available through no breach of the Agreement by the receiving party or any of its Representatives (as defined below); (ii) is received by the receiving party from a third party entitled to disclose such information without restriction; or (iii) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.

b. Restricted Use. The receiving party shall hold the disclosing party’s Confidential Information in strict confidence, shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the disclosing party’s prior written consent. Client shall not disclose any Content or the information contained therein or any of Blue Heron’s Confidential Information to any company or individual that is the target or subject of the Content. The receiving party shall disclose Confidential Information only to its officers, directors, employees, professional advisers, affiliates, lending partners and deal partners (collectively, “Representatives”) who have a need to know such information in the performance of their duties and are bound by confidentiality provisions or professional standards no less stringent than those contained herein; provided, however, that the receiving party shall be fully responsible for any breaches by its Representatives. The receiving party shall protect the Confidential Information with at least the same standard of care as it exercises to protect its own confidential information of like importance, but in no event less than reasonable care. Without limiting the generality of the foregoing, the receiving party shall: (i) protect Confidential Information in accordance with the requirements of all applicable personal information, personal data, data security and privacy laws; and (ii) maintain adequate security measures to protect against unauthorized access to the Confidential Information. Notwithstanding anything herein to the contrary, Blue Heron shall have the right to collect, use and disseminate data and information relating to Client’s and its Authorized Users’ use of the Platform and Content, including, without limitation, service level data and usage patterns (collectively, “Usage Data”), solely in an aggregated and anonymized manner for Blue Heron’s business purposes; provided, that Usage Data shall not identify Client or contain Client’s Confidential Information.

c. Compelled Disclosure. If the receiving party or any of its Representatives becomes compelled by legal or administrative process or proceeding, or applicable law or regulation, or by a self-regulating entity to disclose any of the disclosing party’s Confidential Information, the receiving party shall provide the disclosing party with written notice as promptly as practicable after it becomes aware of such requirement so that the disclosing party may seek a protective order or other appropriate remedy.

d. Injunctive Relief. The parties acknowledge and agree that any breach or threatened breach of this Section 3 will cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain and cannot be adequately compensated through money damages. Accordingly, in the event of any breach or threatened breach of these provisions, the parties agree that the non-breaching party will have the right to seek immediate injunctive or other equitable relief without the necessity of posting a bond or proving damages and that the remedies afforded hereunder are cumulative and in addition to those provided at law or equity.

4. Intellectual Property.

a. Blue Heron Properties. As between the parties, Blue Heron and its licensors are the sole and exclusive owners of all right, title and interest in and to the Platform, the Content, Blue Heron’s Confidential Information, Usage Data, any deliverables, including Directed Research Reports, and all documentation, materials, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how embodied therein, or that Blue Heron or its affiliates may develop or supply in connection with the Platform, including, without limitation, all copies, portions, extracts, selections, arrangements, compilations, adaptations, modifications, improvements, and derivative works thereof, all of the foregoing excluding Third-Party Materials (as defined below), and all intellectual property and proprietary rights relating to the foregoing (collectively, the “Blue Heron Properties”). This is not an assignment or “work for hire” agreement, and nothing in this Agreement grants to Client any ownership or use rights with respect to the Blue Heron Properties except for the license and access rights expressly granted in this Agreement. Client shall not remove, delete, alter or obscure any intellectual property or proprietary rights notices from the Blue Heron Properties.

b. Third-Party Materials. Blue Heron may from time to time make Third-Party Materials available to Client, which may be subject to their own terms and conditions. For purposes of this Agreement, “Third-Party Materials” means any materials and information, in any form or medium, including, without limitation, any open source software or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Platform or Content or otherwise found on or made available through the Platform, including, without limitation, any external websites or resources, that are not proprietary to Blue Heron or its affiliates. Nothing in this Agreement limits Client’s rights under, or grants Client rights that supersede, any applicable terms and conditions for such Third-Party Materials. If Client does not agree to comply with the terms applicable to any Third-Party Materials, then Client must not access or use such Third-Party Materials.

c. Changes. Blue Heron reserves the right, in its sole discretion, to make any changes to the Blue Heron Properties that it deems necessary or useful to comply with applicable law or to maintain or enhance the quality, delivery, or efficiency of the Platform or Content to its customers, or the competitive strength of or market for its products or services.

d. Feedback. If Client or any Authorized User provides to Blue Heron any feedback in any format or medium concerning the Blue Heron Properties, including, without limitation, concerning the functionality, performance, potential errors and improvements thereof (“Feedback”), Client hereby grants to Blue Heron a non-exclusive, worldwide, transferrable, irrevocable, perpetual right and license to use the Feedback on an anonymous basis without payment or restriction.

5. Termination.

a. Termination. Each party shall have the right to terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach. Blue Heron shall have the right to terminate this Agreement immediately upon written notice if Client or any Authorized User infringes, misappropriates or otherwise violates Blue Heron’s or its licensors’ intellectual property or proprietary rights or breaches its obligations of confidentiality under Section 3 of these Terms and Conditions. Each party shall have the right to terminate this Agreement immediately upon written notice if the other party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors.

b. Effect of Termination. Neither Blue Heron nor its suppliers shall be liable to Client or any third party for an authorized termination of Client’s access to, or right to use, the Platform or Content under this Agreement. Client shall pay the balance due for the Subscription up to the date of termination. Upon the effective date of termination of this Agreement for any reason, all rights, licenses, consents, and authorizations granted by Blue Heron to Client hereunder shall terminate and Client shall cease accessing and using the Platform and Content. The obligations of the parties and the provisions of this Agreement that expressly survive or may be reasonably expected to survive the expiration or termination of this Agreement shall survive, including, without limitation, Sections 1(c), 2(b), 3, 4, 5(b), 6(c), 7, 8, and 9.

6. Representations and Warranties; Disclaimer.

a. Mutual Warranties. Each party represents and warrants to the other party that: (i) it has full power and authority to execute and deliver this Agreement; (ii) entering into and performing under this Agreement will not conflict with, or result in a breach of, any duty or obligation to any third party or result in the violation of any applicable law, rule or regulation to which it is subject; (iii) in providing and/or receiving the Subscription, Platform and Content, it shall comply with all applicable laws, regulations, and professional standards, including, without limitation, privacy and security laws; and (iv) it has all necessary licenses and registrations in the U.S. and in all other applicable jurisdictions necessary to provide and receive the Subscription, Platform and Content.

b. No Unlawful Payments. Blue Heron represents that it has not and shall not knowingly pay, offer, promise, or authorize the payment or transfer of anything of value, directly or indirectly, to any government official or employee (including employees of government owned or controlled companies or public international organizations) or to any political party, party official, or candidate for public office, to obtain or retain business or secure any improper advantages or for any other improper purpose. Blue Heron represents and warrants that no person employed by it is an official of the government of any country, or of any agency thereof, or otherwise a “foreign official” as defined in the Foreign Corrupt Practices Act, or a government or public official as defined under applicable law, or an official of a state-owned or state-controlled entity, or of any political party or public international organization.

c. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE BLUE HERON PROPERTIES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY AND TITLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BLUE HERON DOES NOT WARRANT: (i) THAT THE BLUE HERON PROPERTIES ARE ERROR-FREE OR THAT OPERATION OF THE PLATFORM SHALL BE SECURE OR UNINTERRUPTED; OR (ii) THAT CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE PLATFORM IS ACCURATE, COMPLETE, TIMELY OR WILL ALWAYS BE AVAILABLE. BLUE HERON UNDERTAKES NO LIABILITY OR OBLIGATION WITH RESPECT TO ANY TRANSACTIONS IN SECURITIES OR FINANCIAL INSTRUMENTS FOR OR BY CLIENT OR ANY AUTHORIZED USER. CLIENT ACKNOWLEDGES AND AGREES THAT THE CONTENT PROVIDED BY BLUE HERON IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE OR ADVICE TO BUY, OR SELL, OR ENGAGE IN ANY OTHER TRANSACTIONS REGARDING ANY SECURITIES, EQUITY INTERESTS, OR OTHER FINANCIAL INSTRUMENTS OR INVESTMENTS.

7. Indemnification.

a. By Client. Client agrees to defend, indemnify, and hold harmless Blue Heron and its directors, officers, members, principals, agents, consultants, employees and each of their respective successors and assigns from and against all losses, damages, judgments, settlements, liabilities, payments, penalties, fines, costs, or expenses, including reasonable attorneys’ fees (collectively, “Losses”) arising from any claim, action, proceeding, demand or lawsuit (collectively, “Claims”), arising from or relating to: (i) Client’s or its Authorized Users’ use or misuse of the Platform and Content, including, without limitation, any decisions, determinations, or actions that Client may or may not take that are based in any way on the Content; (ii) Client’s breach of this Agreement (including, without limitation, Client’s confidentiality obligations hereunder) or violation of applicable law; or (iii) Client’s gross negligence, willful misconduct or fraud. The foregoing obligation does not apply to the extent that such Losses result from Blue Heron’s gross negligence, willful misconduct or fraud.

b. By Blue Heron. Blue Heron agrees to defend, indemnify, and hold harmless Client and its directors, officers, members, principals, agents, consultants, employees and each of their respective successors and assigns from and against all Losses arising from any third-party Claim that Client’s use of the Platform or Content in accordance with this Agreement infringes any third-party’s U.S. intellectual property right. In the event that the Platform or Content are held by a court of competent jurisdiction to be infringing, Blue Heron shall, at its sole option and expense: (i) obtain for Client a license to continue using the Platform or Content; (ii) replace or modify the Platform or Content to be non-infringing; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused Fees for the affected offering, calculated on a monthly prorated basis. The foregoing represents Client’s sole remedy and Blue Heron’s sole liability for such infringement.

8. Limitation of Liability.

a. EXCEPT FOR A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3, INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BLUE HERON OR ITS SUPPLIERS, LICENSORS, PARTNERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, THE “BLUE HERON PARTIES”) OR CLIENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITIES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF DATA, LOST PROFITS, AND LOSS OF SECURITIES VALUE) ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM OR THE CONTENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

b. EXCEPT FOR A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3, INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, CLIENT’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE BLUE HERON PARTIES OR CLIENT ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAID BY CLIENT TO BLUE HERON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE PARTIES ACKNOWLEDGE THAT THE FEES ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. General Terms.

a. Notices. All notices and other communications required or contemplated under this Agreement shall be in writing and shall be deemed to have been duly given (i) upon written confirmation of receipt if delivered by hand or nationally recognized delivery service, or (ii) one (1) business day after the business day of electronic mail.

b. Entire Agreement; Amendment; Waiver. This Agreement constitutes the entire agreement and supersedes all prior agreements, oral or written, between the parties concerning the subject matter hereof. The terms of this Agreement may be altered or amended only by a written instrument executed by both parties. The waiver by either party hereto of any breach or default by the other party of any of the terms of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by either party to assert its rights hereunder.

c. Governing Law; Jurisdiction. This Agreement shall be governed by and enforced in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. Subject to the last sentence of this Section, any dispute or controversy between the parties arising out of or relating to this Agreement or the relationship between the parties shall be submitted exclusively to arbitration in the City of New York administered by the American Arbitration Association. Any decision or award rendered by the arbitrator shall be final and binding on the parties and shall not be subject to appeal except as provided by law. Judgment on the award may be enforced in any court of competent jurisdiction. The parties expressly authorize the arbitrator to require that all or a portion of the prevailing party’s fees and expenses (including reasonable attorneys’ fees) in the arbitration be allocated to and borne by the other party, if the arbitrator determines that the other party’s positions were sufficiently frivolous so as to make such allocation equitable. The proceedings in arbitration shall be kept confidential. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the Supreme Court of the State of New York, New York County, and of the United States District Court for the Southern District of New York, for temporary injunctive or other relief in aid of arbitration or to prevent irreparable harm prior to the appointment of the arbitrator, and irrevocably waive, to the fullest extent they may effectively do so, the defense of inconvenient forum to the maintenance of any action for any such relief in any such court. Nothing herein shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to Blue Heron’s products and services.

d. Class Action Waiver; Waiver of Jury Trial. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless otherwise agreed by the parties in writing, the arbitrator may not consolidate more than one person’s claims. EACH PARTY AGREES THAT, BY ENTERING INTO THIS AGREEMENT, IT IS WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. Each party hereby further irrevocably waives its rights to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.

e. No Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent; except that Client may assign this agreement to an affiliate of Client, upon notice to Blue Heron. Notwithstanding the foregoing, either party may assign or transfer this Agreement in connection with a merger or sale of all or substantially all of such assigning party’s assets without the other party’s prior written consent. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. Any purported assignment in violation of the foregoing is null and void.

f. Independent Contractor. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not a partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract.