Self-Hosted AppManager and BACnet Manager End User License Agreement

Last Updated:  August 6, 2018

APPMANAGER AND BACNET MANAGER END USER LICENSE AGREEMENT


This End User License Agreement ("Agreement") is made and entered into as of the date the Licensee 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 ("Licensee").

In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:

1. DEFINITIONS

1.1 "Documentation" means the most current version of any documentation, in all forms, that formally describes the use, function, or technical details of the Licensed Software (e.g., reference manuals, user manuals, on-line help files, and training manuals) provided to Licensee for use with the Licensed Software in accordance with this Agreement.

1.2 "Error" means a failure of the Licensed Software to perform substantially in accordance with the applicable material technical and functional specifications set forth in the Documentation. The failure must be reproducible by Baseline on an unmodified copy of the most current release of the Licensed Software (excluding faults in the Documentation itself).

1.3 "Licensed Software" means one, or any combination of the following software applications provided to Subscriber in accordance with this Agreement and the specific activation key provided to Licensee upon purchase: AppManager, BaseManager Plus, PipeView, the FlowStation App, and BACnet Manager. All controllers must be operated on the same type and version of the Licensed Software.

1.4 "Scope Limitations" means the type and number of users, controllers, features, and other specific use restrictions agreed upon when the Licensed Software was purchased.

1.5 "Support Services" means installation and technical support services. Licensee may purchase installation and support services by entering into a separate Services Agreement and paying the fees specified therein.

1.6 "Unauthorized Use" means any use, possession, knowledge, viewing, inspection, examination, copying, disclosure, or other activity involving any part of the Licensed Software or Documentation that is not expressly authorized under this Agreement or otherwise in writing by Baseline.

2. LICENSE GRANTS

2.1 License to the Licensed Software. Subject to the terms and conditions of this Agreement, Baseline grants to Licensee a limited, worldwide, non-exclusive, perpetual (subject to termination in accordance with the terms of this Agreement), non-transferable (except as permitted in Section 11.2) license, without right of sublicense to: (a) reproduce, without modification, the number of executable object code copies of the Licensed Software included with Licensee's activation key; (b) install the Licensed Software on the number computers agreed upon when Licensee purchased the Licensed Software, which must be operated by or for Licensee; and (c) internally use installed copies of the Licensed Software.

2.2 License to the Documentation. Subject to the terms and conditions of this Agreement, Baseline grants to Licensee a limited, worldwide, non-exclusive, perpetual (subject to termination in accordance with the terms of this Agreement), non-transferable (except as permitted in Section 11.2) license, without right of sublicense to reproduce, without modification, and 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 signing or clicking "Accept," Licensee expressly agrees to any and all additional terms and conditions, if any, related to such third-party software.

2.4 Reservation of Rights. The Licensed Software and Documentation are licensed, not sold, by Baseline to Licensee, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Licensed Software or Documentation. Licensee will not have any rights in or 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 Licensee in accordance with this Agreement. Baseline retains all copyright, patent, and other intellectual property rights in and to the Licensed Software and Documentation. Licensee acknowledges that the Licensed Software and Documentation, all copies of the Licensed Software and Documentation, any derivative works, compilations, and collective works of the Licensed Software and Documentation, and any know-how and trade secrets related to the Licensed Software and Documentation are the sole and exclusive property of Baseline and contain Baseline's confidential and proprietary materials.

3. DELIVERY, DEPLOYMENT, AND SUPPORT SERVICES

3.1 Delivery. Baseline or its distributor has delivered, or will deliver to Licensee within a reasonable time after Effective Date, the number of copies of the Licensed Software and Documentation purchased by Licensee.

3.2 Deployment Services. Licensee is solely responsible for the deployment of the Licensed Software for operation, including installation, configuration, integration, and testing, unless Licensee has contracted to have Baseline perform such deployment services in accordance with the terms of Baseline's professional services agreement.

4. LICENSEE OBLIGATIONS

4.1 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Licensee will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Licensed Software; (b) rent, lease, resell, or sublicense the Licensed Software; (c) use the Licensed Software on a service bureau or application service provider basis; (d) provide, divulge, disclose, or make available to, or permit the use of the Licensed Software by any third party; nor (e) circumvent or disable any technological features or measures in the Licensed Software.

4.2 Proprietary Rights Notices. Licensee will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Licensed Software. In addition, when reproducing any part of the Licensed Software in accordance with this Agreement, Licensee must include all copyright and other proprietary rights notices as are currently contained on each part of the Licensed Software.

4.3 Compliance with Laws. Licensee will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Licensed Software, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Baseline or the Licensed Software. Licensee will inform Baseline of any requirements of laws, statutes, ordinances, rules, and regulations of all governmental authorities that directly or indirectly affect Licensee's use of the Licensed Software.

4.4 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, Licensee 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

4.5 Export. The Licensed Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee must comply strictly with all such regulations that are now or later in effect. Licensee acknowledges responsibility to obtain licenses to export, re-export, or import the Licensed Software.

4.6 No Warranties. Licensee will not make or publish any representations, warranties, or guarantees on behalf of Baseline concerning the Licensed Software without Baseline's specific prior written approval.

4.7 Protection against Unauthorized Use. Licensee acknowledges that the Licensed Software and Documentation furnished to Licensee by Baseline involve valuable proprietary rights of Baseline. Licensee will take appropriate steps and precautions for the protection of the Licensed Software and Documentation. Without limiting the generality of the foregoing, Licensee will use its best efforts to prevent any Unauthorized Use and immediately notify Baseline in writing of any Unauthorized Use that comes to Licensee's attention. In the event of any Unauthorized Use by anyone who obtained access to the Licensed Software or Documentation directly or indirectly through Licensee or any of its employees, agents, representatives, or contractors, Licensee will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Licensed Software or Documentation in the possession or control of the person or entity engaging in such Unauthorized Use. Licensee will provide to Baseline such cooperation and assistance related to any such Unauthorized Use as Baseline may reasonably request.

4.8 Reference. Subject to Section 10 regarding confidentiality, Licensee will: (a) make one or more representatives reasonably available for reference inquiries from potential Baseline licensees, partners, and investors; (b) permit Baseline to create and publish a case study describing in general terms the nature of Licensee's use of the Licensed Software; (c) permit Baseline to issue and publish a press release containing a quotation from a representative of Licensee announcing that Licensee has licensed the Licensed Software and the general context of the intended use; and (d) allow the name and logo of Licensee to be posted on Baseline's web site and in marketing and advertising materials subject to compliance with Licensee's brand guidelines or other specifications regarding logo usage.

5. FEES AND PAYMENT

5.1 Fees and Payment Terms
(a) Licensee warrants that it has paid the distributor of the License Software all required fees related to the Licensed Software. Licensee will pay Baseline directly for any additional fees as agreed upon between Baseline and Licensee. Licensee will pay all amounts due within 30 days of the date of the applicable invoice, or prior to the installation and use of the Licensed software as determined by Baseline.

(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. Licensee 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. Baseline may accept any check or payment in any amount without prejudice to Baseline's right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due from Licensee under this Agreement may not be withheld or offset by Licensee against amounts due to Licensee for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Licensee will pay all such amounts in United States dollars.

5.2 Taxes. Other than federal and state net income taxes imposed on Baseline, Licensee will bear all taxes, duties, and other governmental charges (collectively, "taxes") resulting from this Agreement. Licensee 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 which Baseline would have been entitled to in accordance with this Agreement as if the taxes did not exist.

5.3 Audit. During the term of this Agreement and for 3 years thereafter, Licensee will keep current, complete, and accurate records regarding the reproduction and use of Licensed Software. Licensee will provide such information to Baseline and certify that it has paid all fees required under this Agreement within five business days of any written request, so long as no more than four requests are made each year. Licensee will, after reasonable prior notice from Baseline, provide Baseline reasonable access to Licensee's premises, records, and personnel so that Baseline may audit and confirm that Licensee complies with this Agreement. If an audit reveals any reproduction, use, or distribution of the Licensed Software that is not compliant with this Agreement, Licensee will promptly comply with this Agreement and make an additional payment as contemplated in this Agreement, plus interest at the rate specified in Section 5.1(b). If the amount of the underpayment is 5% or greater, Licensee will promptly reimburse Baseline for its reasonable costs of conducting such audit.

6. TERM AND TERMINATION

6.1 Term. This Agreement will commence upon the Effective Date and continue until terminated in accordance with this Agreement.

6.2 Notice of Material Breach or Default. If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may give the defaulting party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, and the action required to cure the material breach or default) and of the non-defaulting party's intention to terminate the Agreement pursuant to Section 6.3 if the material breach or default is not cured within 30 days after the defaulting party's receipt of such notice (or such later date as may be specified in such notice). Without limiting the foregoing, any failure by Licensee to timely pay to Baseline any amounts owing under this Agreement will constitute a material breach of this Agreement.

6.3 Notice of Termination. If the defaulting party fails to cure a material breach or default specified in any notice under Section 6.2 within 30 days after receipt of such notice (or such later date as may be specified in such notice), then the non-defaulting party may terminate this Agreement by giving the defaulting party written notice of termination. If Licensee fails to timely pay any support fees, Baseline may, without limitation to any of its other rights or remedies, suspend performance of Support Services until it receives all amounts due.

6.4 Post-Termination Obligations. If this Agreement or any licenses in this Agreement are terminated for any reason, (a) Licensee 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) Licensee will destroy all copies of the Licensed Software within five days of such termination, and immediately thereafter, if requested by Baseline, provide Baseline with a written certification signed by an authorized Licensee representative certifying that all copies of such Licensed Software have been destroyed and all use of such Licensed Software has been discontinued.

7. WARRANTIES AND DISCLAIMER

7.1 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 delivery, or performance of this Agreement; and (c) the 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.

7.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 7, 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 LICENSEE'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 LICENSEE'S USE OF THE LICENSED SOFTWARE. LICENSEE WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF BASELINE TO ANY LICENSEE, OR OTHER THIRD PARTY.

8. INTELLECTUAL PROPERTY INFRINGEMENT

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

8.2 Infringement Indemnification. Baseline will indemnify Licensee against: (a) all damages, costs, and attorneys' fees finally awarded against Licensee in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Licensee 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 8.1 is settled, all amounts to any third party agreed to by Baseline in settlement of any such claims.

8.3 Mitigation of Infringement Action. If Licensee'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 8.1, then Baseline will either: (a) procure the continuing right of Licensee 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 Licensee an amount equal to the depreciated License Fees paid by Licensee (calculated on a straight line basis over a three-year life).

8.4 Exclusions. Baseline will have no obligation under this Section 8 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 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 Licensee, 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 Licensee; (d) Licensee'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. Licensee will reimburse Baseline for any costs or damages that result from these actions.

8.5 Exclusive Remedy. This Section 8 states Baseline's sole and exclusive liability, and Licensee's sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property right by the Licensed Software.

9. LIMITATIONS OF LIABILITY

9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BASELINE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE 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.

9.2 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 LICENSEE TO BASELINE UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

9.3 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 LICENSEE 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 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

9.4 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. LICENSEE IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS. LICENSEE 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 LICENSEE'S DISCRETION AND RISK AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE'S COMPUTER SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

10. CONFIDENTIALITY; DATA USE

10.1 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. "Confidential Information" will only include items covered by this definition and that are disclosed or embodied in materials delivered in tangible form (including diskette, CD, email, and other means of electronic delivery) and clearly marked as proprietary or confidential or, if disclosed orally, are summarized in writing, clearly marked as proprietary or confidential, and provided to the receiving party within 30 days following each such disclosure.

10.2 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 10; and (c) protect the other party's Confidential Information from unauthorized use and disclosure 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.

10.3 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 and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.

10.4 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 they 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.

10.5 Existing Obligations. The obligations in this Section 10 are in addition to, and supplement, each party's obligations of confidentiality under any nondisclosure or other agreement between the parties.

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

10.7 Anonymized Usage Data. Licensee 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 Licensee's use of the Licensed Software. Baseline may use, disclose, market, license, and sell or otherwise commercialize such Anonymized Usage Data and Licensee agrees not to object to or make any claim related thereto.

11. GENERAL

11.1 Relationship. Baseline will be and act as an independent contractor (and not as the agent or representative of Licensee) 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. Licensee must not represent to anyone that Licensee is an agent of Baseline or is otherwise authorized to bind or commit Baseline in any way without Baseline's prior authorization.

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

11.3 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.

11.4 Nonsolicitation. During the term of this Agreement and for a period of one year thereafter, Licensee 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.

11.5 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.

11.6 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.

11.7 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.

11.8 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.

11.9 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.

11.10 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 limitation or restriction on the grant of any license to Licensee under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

11.11 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding the licensing 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. 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 Licensee 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.