AppManager Web End User License Agreement

Last Updated:  August 6, 2018

BASELINE SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT


This Software as a Service Subscription Agreement is made and entered into the date Subscriber clicks the “accept” button prior to the first use of the Licensed Software, as defined below (the “Effective Date”). This Agreement is between Baseline, Inc. (“Baseline”) and the individual or entity purchasing the Software and clicking the “accept” button prior to the first use of the Licensed Software (“Subscriber”). In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:

1.    DEFINITIONS


1.1    “Documentation” means Baseline-provided user documentation, in all forms, relating to the Licensed Software (e.g., user manuals, on-line help files).

1.2    “Licensed Software” means the current object code release of one, or any combination of the following software applications provided to Subscriber in accordance with this Agreement and the specific activation key provided to Subscriber upon purchase: AppManager, BaseManager Plus, PipView, and/or the FlowStation App.  All controllers must be operated on the same type and version of the Licensed Software.

2.    USE OF LICENSED SOFTWARE

2.1    Use of the Licensed Software.  Subject to the terms and conditions of this Agreement, Baseline grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) right during the term of this Agreement to use the Licensed Software solely in connection with Subscriber’s internal business operations. 

2.2    Use of the Documentation.  Subject to the terms and conditions of this Agreement, Baseline grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) license, without right of sublicense, during the term of this Agreement to internally use a reasonable number of copies of the Documentation solely in connection with use of the Licensed Software in accordance with this Agreement.

2.3    Third-Party Software. The Licensed Software may contain or be accompanied by third-party software that requires notices and/or additional terms and conditions. Such required third-party software notices and/or additional terms and conditions may be requested from Baseline and are made a part of and incorporated by reference into this Agreement. By clicking “Accept,” Subscriber expressly agrees to any and all additional terms and conditions, if any, related to such third-party software.

2.4    Support Services.  Subscriber may purchase installation and support services by entering into a separate Services Agreement and paying the fees specified therein.

2.5    Use Restrictions.  Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, resell, lease, or otherwise permit third parties to use the Licensed Software or Documentation; (b) use the Licensed Software to provide retail services to third parties; nor (c) circumvent or disable any security or other technological features or measures of the Licensed Software. The foregoing notwithstanding, the Licensed Software may be resold to end users by authorized resellers approved by Baseline in its sole discretion, provided that such end users agree to the terms of this Agreement prior to using the Licensed Software.

2.6    Service Levels.
(a)    Baseline will use reasonable efforts to provide the Licensed Software so that, other than for scheduled or emergency maintenance, the Licensed Software will be accessible in all material respects 90% of the time during any 24-hour period, 95% of the time during any 7-day period, and 98% of the time during any 30-day period.  The availability of the Licensed Software may be subject to limitations, delays, and other problems inherent to the general use of the internet and other public networks or caused by Subscriber or third parties.  Baseline is not responsible for any delays or other damage resulting from problems outside of Baseline’s reasonable control.

(b)    Performance Issue Corrections.  If the Licensed Software is not accessible as specified in paragraph 2.6(a) (“Performance Issue”), Baseline will use reasonable efforts to correct the Performance Issue with a level of effort commensurate with the severity of the Performance Issue.  Baseline and Subscriber will comply with the following resolution procedures for all Performance Issues reported by Subscriber:

(i)    Notice of Performance Issue.  If Subscriber encounters a Performance Issue, Subscriber must sufficiently define the Performance Issue in a written notice to Baseline.  After receipt of written notice of a Performance Issue from Subscriber, Baseline will notify Subscriber if Baseline cannot identify the cause of the Performance Issue.  If Baseline cannot identify the cause of the Performance Issue, Subscriber will provide additional information regarding the Performance Issue as Baseline may request in order to assist Baseline with identifying the cause of the Performance Issue.  Subscriber will provide a separate written notice for each Performance Issue encountered by Subscriber.

(ii)    Performance Issue Classification.  In its notice of a Performance Issue, Subscriber will reasonably classify for Baseline the initial priority of the Performance Issue.  Subscriber will use the nature of the Performance Issue and Subscriber's business situation to initially classify each Performance Issue.  Subscriber will classify each Performance Issue in accordance with the severity classification table below.  To the extent that Baseline disagrees with any Performance Issue classification provided by Subscriber, Baseline will promptly advise Subscriber of the revised classification of any Performance Issue.

(iii)    Response Time.  Baseline will use reasonable efforts to respond to each of Subscriber's written notices of Performance Issue within the period set forth in severity classification table below.  Response time is the elapsed time between Subscriber's first report of an identified Performance Issue and the provision of a plan for resolution by a Baseline technical contact. 

(iv)    Expedited Response Time.  To the extent that Subscriber may seek Baseline to respond to any written notice of Performance Issue within a time period other than as set forth in the table below, Subscriber may request such response and Baseline may elect to provide such additional services to Subscriber on terms and conditions as the parties may agree upon in writing (which may include, without limitation, additional costs and expenses payable by Subscriber to Baseline in connection with such any expedited services).  Notwithstanding the foregoing, Baseline will have no obligation to enter into any such agreement with respect to any such additional services.  To the extent that the parties enter into any such agreement, Baseline will invoice Subscriber for, and Subscriber will pay, any such additional amounts as set forth in this Agreement (unless otherwise agreed upon by the parties in writing).


Severity Classification Description of Performance Issue Response Time
Class A: Emergency Any Performance Issue that causes the Licensed Software to be completely inaccessible 2 hours
Class B: Urgent
Any Performance Issue that causes a material degradation in the performance of the Licensed Software 4 hours
Class C: Non-urgent Any Performance Issue that causes a non-critical degradation in the performance of the Licensed Software 12 hours
                          
(b)    Subscriber Obligations. Subscriber will provide Baseline with reasonable access to all necessary personnel to answer questions regarding Performance Issues reported by Subscriber.

2.7    Good Standing.  The provision of the Licensed Software by Baseline during the term of this Agreement is contingent upon Subscriber’s performance of its payment and other obligations under the Agreement.  Baseline reserves the right, in addition to other remedies available, to suspend its provision of the Licensed Software.

2.8    Compliance with Laws.  Subscriber will use the Licensed Software and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Baseline or the Licensed Software.

2.9    Protection against Unauthorized Use.  Subscriber will use its best efforts to prevent any unauthorized use of the Licensed Software and Documentation and immediately notify Baseline in writing of any unauthorized use that comes to Subscriber’s attention.  If there is unauthorized use by anyone who obtained access to the Licensed Software directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use.  Subscriber will cooperate and assist with any actions taken by Baseline to prevent or terminate unauthorized use of the Licensed Software or Documentation.

2.10    Reservation of Rights.  Baseline grants to Subscriber a limited right to use the Licensed Software and Documentation under this Agreement.  Subscriber will not have any rights to the Licensed Software or Documentation except as expressly granted in this Agreement.  Baseline reserves to itself all rights to the Licensed Software and Documentation not expressly granted to Subscriber in accordance with this Agreement.

2.11    Reference.  Subject to Section 9 regarding confidentiality, Subscriber will: (a) make one or more representatives reasonably available for reference inquiries from potential Baseline Subscribers, partners, and investors; (b) permit Baseline to create and publish a case study describing in general terms the nature of Subscriber’s use of the Licensed Software; (c) permit Baseline to issue and publish a press release containing a quotation from a representative of Subscriber announcing that Subscriber has licensed the Licensed Software and the general context of the intended use; and (d) allow the name and logo of Subscriber to be posted on Baseline’s website and in marketing and advertising materials subject to compliance with Subscriber’s brand guidelines or other specifications regarding logo usage.

2.12    Government Restricted Rights.  If the Licensed Software is licensed for use by the United States or for use in the performance of a United States government prime contract or subcontract, Subscriber agrees that the Licensed Software is delivered as:  (i) "commercial computer software" as defined in DFARS 252.227-7013, Rights in Technical Data - Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (ii) as a "commercial item" as defined in FAR 2.101; or (iii) as "restricted computer software" as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable.  The use, duplication, and disclosure of the Licensed Software by the Department of Defense shall be subject to the terms and conditions set forth in the accompanying license agreement as provided in DFARS 227.7202 (Oct 1998).  All other use, duplication and disclosure of the Licensed Software and Documentation by the United States shall be subject to the terms and conditions set forth in the accompanying license agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data -- General Alternative III (Jun 1987).  Contractor/licensor is Baseline, Inc.,  10259 W. Emerald St., STE 160, Boise, ID 83704

3.    FEES AND PAYMENT

3.1    Fees and Payment Terms


(a)    Subscriber will pay Baseline the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes.  Subscriber will pay all amounts due within 30 days of the date of the applicable invoice.


(b)    Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.  Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Baseline to collect any amount that is not paid when due.  Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.  All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.


3.2    Taxes.  Other than net income taxes imposed on Baseline, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement.  Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Baseline after all such taxes are paid are equal to the amounts that Baseline would have been entitled to in accordance with this Agreement as if the taxes did not exist.


4.    TERM AND TERMINATION


4.1    Term.  This Agreement will commence upon the Effective Date and continue for the initial term specified upon Subscriber’s acceptance of this Agreement unless this Agreement is terminated earlier in accordance with the terms of this Agreement.  This Agreement will automatically renew for additional successive one-year terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.


4.2    Termination for Material Breach.  If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.  Without limiting the foregoing, any failure by Subscriber to timely pay to Baseline any amounts owing under this Agreement will constitute a material breach of this Agreement. If Subscriber fails to timely pay any fees for Technical Support Services, Baseline may, without limitation to any of its other rights or remedies, suspend performance of Licensed Software and Technical Support Services until it receives all amounts due.


4.3    Post-Termination Obligations.  If this Agreement is terminated for any reason, (a)  Subscriber will pay to Baseline any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will provide Baseline with a written certification signed by an authorized Subscriber representative certifying that all use by Subscriber of the Licensed Software and Documentation has been discontinued.


5.    WARRANTIES AND DISCLAIMER


5.1    Mutual Warranties.  Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

5.2    Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 5, BASELINE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  BASELINE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR SUBSCRIBER’S PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.  BASELINE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE LICENSED SOFTWARE OR AGAINST INFRINGEMENT.  BASELINE DOES NOT WARRANT THAT THE LICENSED SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE SECURE OR UNINTERRUPTED.  BASELINE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE SUBSCRIBER’S USE OF THE LICENSED SOFTWARE.  SUBSCRIBER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BASELINE TO ANY SUBSCRIBER, OR OTHER THIRD PARTY.

6.    INTELLECTUAL PROPERTY INFRINGEMENT

6.1    Infringement Defense.  Baseline will defend Subscriber from any actual or threatened third-party claim that the Licensed Software infringe or misappropriates any copyright or trade secret of any third party during the term of this Agreement if:  (a) Subscriber gives Baseline prompt written notice of the claim; (b) Baseline has full and complete control over the defense and settlement of the claim; (c) Subscriber provides assistance in connection with the defense and settlement of the claim as Baseline may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

6.2    Infringement Indemnification.  Baseline will indemnify Subscriber against: (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any proceeding under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Baseline’s consent after Baseline has accepted defense of such claim); and (c) if any proceeding arising under Section 6.1 is settled, all amounts paid to any third party as agreed to by Baseline in settlement of any such claims.


6.3    Mitigation of Infringement Action.  If Subscriber’s use of the Licensed Software is, or in Baseline’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 6.1, then Baseline will either: (a) procure the continuing right of Subscriber to use the Licensed Software; (b) replace or modify the Licensed Software in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Baseline is unable to do either (a) or (b), Baseline will (c) terminate the licenses with respect to the Licensed Software subject to the infringement claim and refund to Subscriber all unused Subscription Fees pre-paid by Subscriber.


6.4    Exclusions.  Baseline will have no obligation under this Section 6 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of the Licensed Software with a third party product or service if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Licensed Software required by or provided by Subscriber, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Licensed Software outside of the scope of the license granted to the Subscriber; (d) Subscriber’s failure to use the latest release of the Licensed Software or to comply with instructions provided by Baseline, if the alleged infringement would not have occurred but for such failure; (e) any modification of the Licensed Software not made by Baseline where such infringement would not have occurred absent such modification; or (f) unauthorized use of the Licensed Software.  Subscriber will reimburse Baseline for any costs or damages that result from these actions.


6.5    Exclusive Remedy.  This Section 6 states Baseline’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property right by the Licensed Software.


7.    SUBSCRIBER INDEMNIFICATION


7.1    Defense.  Subscriber will defend Baseline from any actual or threatened third-party claim arising out of or based upon Subscriber’s use of the Licensed Software or Subscriber's breach of any of the provisions of this Agreement.  Baseline will: (a) give Subscriber prompt written notice of the claim; (b) grant Subscriber full and complete control over the defense and settlement of the claim; (c) assist Subscriber with the defense and settlement of the claim as Subscriber may reasonably request and at Subscriber’s expense; and (d) comply with any settlement or court order made in connection with the claim.


7.2    Indemnification.  Subscriber will indemnify Baseline against: (a) all damages, costs, and attorneys’ fees finally awarded against Baseline in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Baseline in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of such claim); and (c) if any proceeding arising under Section 7.1 is settled, Subscriber will pay any amounts to any third party agreed to by Subscriber in settlement of any such claims.


8.    LIMITATIONS OF LIABILITY

8.1    Disclaimer of Indirect Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BASELINE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, INABILITY TO USE EQUIPMENT, LOSS OR CORRUPTION OF DATA OR LOSS OF BUSINESS, EVEN IF BASELINE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

8.2    Cap on Liability.  UNDER NO CIRCUMSTANCES WILL BASELINE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO BASELINE UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

8.3    Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY Baseline TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.  THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

8.4    Unauthorized Access; Lost or Corrupt Data. BASELINE IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO ANY DATA, FACILITIES, OR EQUIPMENT BY ANYONE USING THE SOFTWARE OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, CORRUPTION, LOSS, OR DESTRUCTION OF ANY DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SOFTWARE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. SUBSCRIBER IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS. SUBSCRIBER WAIVES THE RIGHT TO ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. BASELINE IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH BASELINE’S PROVISION OF THE LICENSED SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LICENSED SOFTWARE IS DONE AT SUBSCRIBER’S DISCRETION AND RISK AND SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S COMPUTER SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

8.5    Connectivity. Access to the Licensed Software will be provided over various facilities and communications lines. Information will be transmitted over local exchange and Internet backbone carrier lines, through routers, switches, and other devices owned, maintained, and serviced by third-party providers, all of which are beyond Baseline’s control. Baseline will not be liable for any loss or liability, including the inability of Subscriber to use the Licensed Software solely or proximately caused by failure or limitations of any such carrier lines or infrastructure. It is Subscriber’s sole responsibility to determine the adequacy of its systems, Internet connections and other infrastructure required for the installation and proper operation of the Licensed Software.  


9.    CONFIDENTIALITY; Data use


9.1    Definition.  “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party.  Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.


9.2    Restricted Use and Nondisclosure.  During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement, and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 9; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.


9.3    Required Disclosure.  If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure, to the extent permitted by law, and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.


9.4    Return of Materials.  Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control.  Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.


9.5    Access to and Disclosure of Subscriber Data. Anything to the contrary herein notwithstanding, Baseline may access, use, and store Subscriber data for the purpose of responding to Subscriber requests for technical support and/or providing other. Subscriber further agrees that Baseline may collect usage data from or relating to Subscriber’s use of the Licensed Software and remove any identifying information therefrom (“Anonymized Usage Data”). Anonymized Usage Data will not include identifying information about Subscriber’s customers or any protected personal information.


9.6     Anonymized Usage Data.  Subscriber consents to the transfer and assignment to Baseline of all right, title, and interest in and to all Anonymized Usage Data that Baseline receives through Subscriber’s use of the Licensed Software. Baseline may use, disclose, market, license, and sell or otherwise commercialize such Anonymized Usage Data and Subscriber agrees not to object to or make any claim related thereto.


10.    GENERAL

10.1    Relationship.  Baseline will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.  This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting Baseline’s performance of any services for any third party or the provision of products to any third party.  Subscriber must not represent to anyone that Subscriber is an agent of Baseline or is otherwise authorized to bind or commit Baseline in any way without Baseline’s prior authorization.


10.2    Assignability.  Subscriber may not assign its right, duties, or obligations under this Agreement without Baseline’s prior written consent.  If consent is given, this Agreement will bind Subscriber’s successors and assigns.  Any attempt by Subscriber to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.


10.3    Subcontractors.  Baseline may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Baseline remains responsible for all of its obligations under this Agreement.


10.4    Reference.  Subject to Section 9 regarding confidentiality, Subscriber will: (a) make one or more representatives reasonably available for reference inquiries from potential Baseline customers, partners, and investors; (b) permit Baseline to create and publish a case study describing in general terms the nature of Subscriber’s use of the Licensed Software; (c) permit Baseline to issue and publish a press release containing a quotation from a representative of Subscriber announcing that Subscriber has subscribed to use the Licensed Software and the general context of the intended use; and (d) allow Subscriber’s name and logo to be posted on Baseline’s web site and in marketing and advertising materials, subject to compliance with Subscriber’s brand guidelines or other specifications regarding logo usage.


10.5    Nonsolicitation.  During the term of this Agreement and for a period of one year thereafter, Subscriber will not, directly or indirectly, employ or solicit the employment or services of a Baseline employee or independent contractor without the prior written consent of Baseline.

10.6    Notices.  Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed.  Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.  Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. 

10.7    Force Majeure.  Baseline will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Baseline’s reasonable control, so long as Baseline uses all commercially reasonable efforts to avoid or remove such causes of non-performance.

10.8    Governing Law; Arbitration.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Idaho, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. In the event of a claim or dispute in any way related to the Licensed Software, this Agreement or the subject matter hereof, the parties shall first attempt to settle the claim or dispute by direct discussions. If discussions are not successful, the parties shall arbitrate pursuant to the rules of the American Arbitration Association (“AAA”) with one arbitrator selected by the AAA. The final decision of such arbitrator in any such dispute shall be entered as a final judgment in any competent court of law. The exclusive venue for discussions and arbitration shall be Boise, Idaho, U.S.A.

10.9    Commencing Legal Action.  An action for breach of this Agreement or any other action otherwise arising out of this Agreement must be commenced within one year from the date the right, claim, demand, or cause of action first occurs or be barred forever.

10.10    Waiver.  The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

10.11    Severability.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the use of the Licensed Software under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Licensed Software will immediately terminate.

10.12    Entire Agreement.  This Agreement is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Licensed Software.  This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Licensed Software that Baseline may provide.  No employee, agent, or other representative of Baseline has any authority to bind Baseline with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.  No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.  This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.  Baseline will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Baseline specifically agrees to such provision in writing and signed by an authorized agent of Baseline.