This Subscription Agreement (this “Agreement”) is made by and between you (the “User”) and the IR Barn.
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY, SINCE YOUR ACCEPTANCE OF ITS TERMS AND USE OF ANY OF THE SERVICES CREATES A BINDING LEGAL AGREEMENT. YOU MUST ACCEPT THESE TERMS IF YOU WISH TO USE ANY OF THE SERVICES. IF YOU CHOOSE TO ACCEPT THESE TERMS, YOU MUST DO SO AS THEY ARE PRESENTED TO YOU; NO CHANGES (ADDITIONS OR DELETIONS) WILL BE ACCEPTED BY IR BARN.
A. This Agreement commences on the date the User agrees to the terms of this Agreement (the “Effective Date”).
B. The term “Affiliate” means an entity that directly, or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, a party. For this purpose, “control” shall mean the possession, direct or indirect, of the power to direct or cause the direction of management and policies of the party, whether through the ownership of voting securities, by contract, or otherwise, provided that once such relationship of control ceases to exist, the affected entity will no longer qualify as an Affiliate.
C. The term “Information” means any information, including any Category, Topic or Resource, included in the IR Barn database.
D. The term “Services” means User’s access to the Information and any other services or software provided via IR Barn’s website (the “Website”).
1. Services and Usage.
1.1. During the Term and in consideration for User paying the fees applicable for the Services (the “Service Fees”) and complying with the terms and conditions of this Agreement. User shall be entitled to use the Services in accordance with the terms and conditions of this Agreement and all applicable laws and regulations. Upon termination of this Agreement, User’s right to access or use the Services shall terminate on the last day of the month of termination.
1.2. User agrees and acknowledges that all of the Information and resources included in the Services are proprietary. The Services may be used only for the purposes of assisting the User with the day to day operations of Investor Relations and/or CFO responsibilities.
1.3. User may not market, sell, distribute or otherwise provide the Services or any Information to any third party as a re-seller or for other commercial purposes.
1.4. User shall take reasonable security precautions to prevent any unauthorized individual or entity from using or accessing the Services, and shall comply with all reasonable IR Barn security specifications or instructions provided from time to time in order to prevent the Services or any Information from being used or accessed in a manner that is not in accordance with the terms and conditions of this Agreement. User (and any third party for which User enables access to such Information), is specifically prohibited from reverse engineering, or performing dynamic or static scanning of, the Services or any Information and if User (or such third party) engages in any such prohibited act, it shall constitute a material breach of this Agreement. In addition, IR Barn reserves the right to block IP addresses or malicious threats that may pose security threats to the Website on an as-needed basis and shall have no liability therefor.
1.5. IR Barn may make historical market data from third-party sources available to User, and IR Barn makes no guarantees, representations or warranties with regard to such third-party data.
1. Fees & Payment.
1.4. User agrees to pay IR Barn the Subscription Fees, including, but not limited to, any applicable interest and/or late fees. All Subscription Fees are exclusive of any sales tax, value added tax, goods and services tax, or any other taxes, including withholding taxes levied by any foreign or domestic, national, provincial or local government bodies. User shall pay any applicable taxes, charges or assessments (other than taxes imposed on the net income or personal property of IR Barn) levied by any foreign or domestic, national, state, provincial or local government bodies. All payments will be collected on approximately the monthly anniversary of the subscription date. All payments shall be deemed final and binding unless User provides IR Barn notice of any alleged discrepancies no later than ten (10) days from the date of payment. A late fee of 1.5% per month or the highest lawful interest rate, whichever is lower, may be applied to all amounts not paid when due.
1.5. IR Barn may, effective on the first day of January each year, adjust, or change the basis for calculating, any Subscription Fees on not less than ninety (90) days’ prior notice to User. User may terminate the relevant Services if IR Barn increases its Subscription Fees for such Services by more than five percent (5%) or if there is a Subscription Fee increase less than 3 years from initial subscription or from the last such price increase, whichever is most recent.
2. Intellectual Property.
2.1. As between User and IR Barn, User retains all intellectual property rights in the data, information and materials provided by User to IR Barn (the “User Data”).
2.2. As between User and IR Barn, IR Barn retains all intellectual property rights in the Services and any Information. User acknowledges that all intellectual property rights, including trade secrets, in and to the Information belong to IR Barn and/or its third-party providers, whether or not marked. Any Information provided to User as part of the Services under this Agreement belongs to IR Barn and User is granted a non-exclusive, non-transferable, limited subscription to use such Information for its internal business purposes during the Term. User shall not share, transfer, disclose, copy, publish or create derivative works from the Information without IR Barn’s prior written approval. User shall not modify or remove any markings or any proprietary rights notices of IR Barn or its third-party providers.
3. Confidential Information.
3.1. Each of IR Barn and User (each as “Disclosing Party”) is willing to disclose “Confidential Information” (as defined below) to the other party (as “Receiving Party”) on the condition that such information is protected as provided in this Section 3. “Confidential Information” means all information marked or designated confidential and disclosed, whether orally, in writing or otherwise, by Disclosing Party to Receiving Party, unless otherwise excluded below.
3.2. Confidential Information does not include information that (a) is already, or becomes, available to the public other than as a result of unauthorized disclosure by Receiving Party or any of its Affiliates; (b) is, or was previously, received by Receiving Party on a non-confidential basis from a third party under no obligation to maintain the confidentiality of such information; (c) is already known by Receiving Party prior to the disclosure of the same to Receiving Party by Disclosing Party and not subject to any confidentiality obligation; or (d) was independently developed by Receiving Party without use of or reference to the Confidential Information.
3.3. Receiving Party shall: (a) not use any Confidential Information for any purpose other than as contemplated by this Agreement; (b) use the same standard of care that it uses to protect its own confidential information to prevent the unauthorized use, dissemination or publication of the Confidential Information, and in any event, no less than a reasonable standard of care; and (c) not disclose any portion of the Confidential Information to any persons or entities other than the following persons (the “Associates”), and then only to the extent the Associates need to know such Confidential Information in connection with performance of this Agreement, are informed of the confidential nature of the Confidential Information and are bound by confidentiality obligations to Receiving Party which are materially equivalent to the terms of this Agreement:
i. Employees, officers and directors of Receiving Party;
ii. Receiving Party’s Affiliates and the employees, officers and directors of such Affiliates; or
iii. Any professional consultant or agent retained or used by Receiving Party or its Affiliate(s).
Receiving Party shall be responsible for any breach of this Agreement by Receiving Party’s Associates.
3.4. In the event of any legal action or demand for Confidential Information made to Receiving Party under applicable law or regulation, if Receiving Party is, in the reasonable opinion of Receiving Party’s legal counsel, required to disclose any Confidential Information, Receiving Party may disclose such Confidential Information without liability hereunder; provided, however, Receiving Party (a) to the extent Receiving Party’s legal counsel deems permissible, gives Disclosing Party written notice of the Confidential Information to be so disclosed as far in advance of its disclosure as is practicable; (b) shall furnish only that portion of the Confidential Information which is requested and, in the opinion of counsel, required; and (c) shall use all reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding anything otherwise set forth in this Agreement, IR Barn and its Affiliates may disclose Confidential Information:
(i) to any government agency with regulatory or oversight jurisdiction over one or more of IR Barn or its Affiliates; or (ii) in the course of fulfilling any of the regulatory responsibilities of IR Barn or its Affiliates, including responsibilities over members and associated persons under the Securities Exchange Act of 1934 or other applicable law or regulation.
3.5. The obligations of confidentiality hereunder shall survive the termination or expiration of this Agreement for three (3) years, except with respect to trade secrets and IR Barn’ information security policies and procedures, in relation to which the obligations of confidentiality survive indefinitely. Receiving Party may keep Confidential Information or copies thereof after termination or expiration of this Agreement only as necessary to comply with applicable law or regulation and/or bona fide document and data retention policies; provided, however, that the obligations of confidentiality and use restrictions in this Section 3 shall continue to apply to such Confidential Information and/or copies thereof.
4. Limitation of Liability.
4.1. Notwithstanding anything to the contrary in this Agreement, except for gross negligence or willful misconduct, if either party is for any other reason held liable to the other party or to any other individual or entity, including in contract, for indemnification or in tort, liability is limited to the actual fees paid by the User for the Services during the twelve (12) month period immediately preceding the date of the claim and such liability shall be in aggregate and not per incident. This limitation of liability shall also apply to any IR Barn Affiliate or Third-Party Provider.
4.2. IR Barn disclaims all responsibility and liability with respect to any User data that is processed or transmitted with the Information and any third-party data and/or functionality provided as part of the Services.
5. Consequential Damages. Neither party, nor any IR Barn Affiliate or third-party provider, shall be liable to the other party, or to any other entity or individual, for any loss of profits, revenues, trades or for any indirect, special, punitive, consequential or incidental loss or damage of any nature arising from any cause whatsoever, even if a party (or IR Barn Affiliate or third-party provider) has been advised of the possibility of such damage.
6.1. IR Barn warrants that it shall provide the Services in a professional and workmanlike manner. In the event of any claimed breach of this warranty, User must notify IR Barn promptly of any such claimed breach. In such an event, User’s sole and exclusive remedy, and IR Barn’s sole liability, shall be re-performance of the portion of the Services that is the subject of the claimed breach.
6.2. Except as provided in Section 7.1 above, IR Barn and its third-party providers make the Services available on an “as is” basis and make no warranties or representations of any kind, express, implied or statutory, regarding the Services, including any representation or warranty of quality, performance, commercial utility, merchantability, fitness for a particular purpose or non- infringement. IR Barn does not represent or warrant that the Services will be complete, timely, uninterrupted or error-free, nor does it make any representation or warranty as to the results to be obtained from the use of the Services. User agrees that it is using the Services at its own risk, that the Services does not constitute an endorsement of or recommendation to buy or sell securities of any kind, and that IR Barn has not undertaken any liability or obligation relating to the purchase or sale of securities for or by User or any other person.
7. Force Majeure. Neither party shall be obligated to perform or observe their obligations undertaken in this Agreement if prevented or hindered from doing so by circumstances beyond its reasonable control.
8.1. User will indemnify, defend and hold harmless IR Barn and its employees, officers, directors, third-party providers and other agents from any and all liabilities, damages, costs and expenses (including reasonable attorneys’ fees and expenses) for any third-party claim relating to, or arising out of, the User Data, including, but not limited to, violations of intellectual property rights.
8.2. IR Barn shall indemnify, defend and hold harmless User and its employees, officers, directors, third-party providers and other agents from any and all liabilities, damages, costs and expenses (including reasonable attorneys’ fees and expenses) for any third-party claim relating to, or arising out of, the Services, including, but not limited to, violations of intellectual property rights.
8.3. Each party’s obligation to indemnify the other party under this Section 8 shall be conditioned on the following: (a) the indemnified party shall promptly, but in any event, in a time frame that does not prejudice the rights of the indemnifying party, provide the indemnifying party with written notice of the claim, action or allegation; and (b) the indemnifying party shall have sole control of the defense and related settlement negotiations. However, the indemnified party shall have the right to consent to any settlement that requires the indemnified party to accept legal or financial obligations that are not set forth in this Agreement. In addition, IR Barn has no indemnification obligation for any claim arising from any of the following circumstances: (i) any User Data that IR Barn uses in connection with the Services or IR Barn’s compliance with any designs, specifications or instructions provided by User or by a third party on User’s behalf; (ii) User’s combination, distribution, operation or use of the Services or any Information with any product, data, apparatus, business method or information that IR Barn does not provide or authorize in writing; (iii) modifications to the Services by User that IR Barn does not authorize in writing; (iv) if User has not started to pay the Fees due hereunder; or (v) if User has not used the Services in accordance with this Agreement. To the extent a claim arises in relation to data and/or functionality obtained from a third-party provider, IR Barn’ indemnity shall be limited to the amount IR Barn recovers from the relevant third-party provider in proportion to other claims (actual or potential) arising out of the alleged infringement.
8.4. If any claim of infringement is made, or, if in IR Barn’ reasonable opinion, such claim appears likely to be made, User shall permit IR Barn, at its sole option and cost, to: (a) implement measures to enable User to continue to use the Services; (b) modify the Services so they become non-infringing; or (c) replace affected data and/or functionality of the Services, provided that the relevant Services are functionally equivalent in all material respects. In the event such options are not commercially reasonable, IR Barn shall have the right, upon written notice to User, to terminate this Agreement or the affected Services and provide User a prorated refund of prepaid Fees for the terminated Services, relating to the period after termination, without any further liability.
9. Term and Termination.
9.1. This Agreement shall commence on the Effective Date (as defined above) and shall survive until terminated by User or IR Barn as set forth herein.
9.2. Either party may terminate the Agreement by giving written notice to the other. Any termination will be effective as of the first day of the calendar month immediately following the date of delivery of the termination notice. For instance, if the User terminated this Agreement by notice delivered on January 5th, the User would maintain access through January 31st and the effective termination date would be February 1.
9.3. Either party may terminate this Agreement with immediate effect if the other party is in breach of any material provision of this Agreement and such breach continues uncured for a period of thirty (30) days after the non-breaching party delivers written notice of the breach to the breaching party.
9.4. Either party may terminate this Agreement upon written notice with immediate effect, if the other party liquidates, ceases to do business or becomes insolvent.
9.5. In the event User is in breach of the Agreement, IR Barn shall also have the right to suspend access to the Services and User’s rights granted in relation to them, in whole or in part, without liability upon written notice with immediate effect, until such breach is remedied. In this case, Section 10 of this Agreement and any payment term shall continue to apply.
9.6. IR Barn may, by providing User with as much notice as is reasonably practicable, terminate the Services, in whole or in part, or modify the terms on which they are provided, if all or part of such Services (a) depends on an agreement between IR Barn, or one of its Affiliates, and a third-party provider and that third-party agreement is modified or terminated during the Term; or (b) becomes illegal or contrary to any rule, regulation, guideline or request of any regulatory authority having jurisdiction over IR Barn’s ability to provide the Services.
10.1. Waiver and Severability. Except where otherwise provided in this Agreement, any waiver or failure of a party in insisting in any one or more instances upon the performance of any provisions of this Agreement shall not be construed as a waiver or relinquishment of that party’s rights to future performance of such provision and the other party’s obligation in respect of such future performance shall continue in full force and effect. Any waiver must be made in writing. If any part of this Agreement that is not fundamental is found to be illegal or unenforceable, this will not affect the validity and enforceability of the remainder of the Agreement.
10.2. Publicity. With User’s prior consent, IR Barn may disclose in its publicity materials that the User is a client of IR Barn for the Services. All media releases, public announcements and public disclosures by either party relating to this Agreement, or its subject matter, including promotional or marketing material, shall be mutually agreed to in writing by the parties prior to release.
10.3. Survival of Provision. Each party’s obligations under the following sections will survive any termination or expiration of this Agreement: 1, 2, 3, 4, 5, 6 and 11.
10.4. No Agency. Nothing in this Agreement shall create a partnership or joint venture between the parties and, except as expressly provided herein, neither party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf the other party, or pledge the credit of or otherwise bind or oblige the other party.
10.5. Notices. All notices and other communications shall be in writing. User agrees that IR Barn may provide notices to User in the following ways: (1) a banner notice on the Website, or (2) an email sent to an address provided by User, or (3) through other
means including mobile number, telephone, or mail. You agree to keep your contact information up to date. Any notices or other
communication for IR Barn must be sent to Four Hills Advisors LLC; 9160 Shetland Road; Eden Prairie, MN 55347. All notices shall be deemed to have been duly given (i) upon the delivery date (for notices posted on the Website or sent via email); (ii) upon actual receipt (or date of first refusal); (iii) upon constructive receipt (or date of first refusal) if sent by certified mail, return receipt requested; or (iv) if another delivery method is used that actually obtains a signed delivery receipt.
1.1. California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, (a) If you have a question or complaint regarding the Services, please send an email to email@example.com. You may also contact us by writing to the address set forth in Section 11.5 above, or by calling us at (612) 567-4087, and (b) you may report complaints to the Complaint
Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.6. Audit. IR Barn has the right, by itself and/or through its agents and/or representatives, during normal business hours, to audit User to verify User’s compliance with the Agreement, provided IR Barn shall give User at least five (5) business days’ advance notice of the audit. User will pay the costs of such audit and any applicable charges if, and only if, the audit reveals that User has not been in compliance with the Agreement. During the verification, IR Barn and its agents will comply with User’s reasonable requirements relating to security, health, safety and confidentiality. IR Barn may reconcile the number of subscriptions in use by the User with the number of subscriptions paid for and charge User the difference.
10.7. Entire Agreement, Assignment and Subcontractors. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, communications, writings and understandings and may not be modified except in a writing signed by both parties. IR Barn shall be entitled to use subcontractors to generate some, or all, of the Services and, in such instances, IR Barn shall remain liable for work performed by its subcontractors. Except as expressly provided herein, neither party may assign or transfer this Agreement (including by operation of law), or any of its rights or obligations, to a third party without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that IR Barn shall be entitled to assign or transfer (including by operation of law) any rights or obligations, in whole or in part, to an Affiliate or in connection with its reorganization, the sale of a division, product or Services of IR Barn or any other business transaction of a similar nature, in each case, without the prior written consent of User. Except as expressly provided herein, this Agreement is for the sole benefit of the parties to this Agreement and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
1.2. Amendment. IR Barn may amend this Agreement at any time by posting the amended terms on the Website. IR Barn’s right to amend the Agreement includes the right to modify, add to, or remove terms in the Agreement. IR Barn will provide 30 days’ notice of any amendment by posting the amended terms on the Website. Additionally, IR Barn may notify User of any amendment by email, provided that such notification is not required to make any amendment effective. Users continued access or use of the Services constitutes your acceptance of the amended terms. IR Barn may also ask User to acknowledge acceptance of the Agreement through an electronic click-through. This Agreement may not otherwise be amended except through mutual agreement by User and an IR Barn representative who intends to amend this Agreement and is duly authorized to agree to such an amendment.