Baselayer Services Agreement

1.1 Services; Ordering Process.

This Agreement governs Customer’s use of Baselayer’s proprietary platform and related web application and web service (the “Service”), as further identified in the online purchasing page for the Services or purchasing confirmation email, in each case that references the terms of this Agreement (an “Order”). Each Order may set forth further limitations on the Customer’s use of the Service, including the number of seats, and the time period the Order applies, and Customer will comply with the same.

1.2 Access; Authorized Users.

Subject to Customer’s ongoing compliance with the terms of this Agreement, Baselayer hereby grants to Customer a non-exclusive, non-transferable (except as set forth in Section 15.4), non-sublicensable, internal right during the Term to allow Customer and its permitted employees and contractors (“Authorized Users”) to access and use the Services for Customer’s internal business purposes, in accordance with any specifications set forth in the Order. Authorized Users may access the Service through software that acts on their behalf, including AI assistants and automated agents (“Agents”), as long as the Agent uses that Authorized User’s own credentials. Anything an Agent does under Customer’s account is treated as if the Authorized User did it, and Customer is responsible for it. Customer is responsible for: (a) identifying and authenticating all Authorized Users, (b) approving access by such Authorized Users to the Service, (c) controlling against unauthorized access by Authorized Users, (d) maintaining the confidentiality of usernames, passwords and account information, and (e) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts, other than as a result of Baselayer’s breach of this Agreement. Customer will notify Baselayer immediately of any unauthorized use.

1.3 Baselayer Data.

The Service includes the delivery, access or use of rating data, beneficial owner data, market data and any other data or information related to third-party businesses that have been furnished or otherwise provided by Baselayer and is included in Baselayer databases, in each case provided or made available by or Baselayer to Customer; and any copies or derivatives of such data or information, whether or not such data or information has been anonymized, aggregated, or is or could be linked back to an individual business or natural person (collectively, “Baselayer Data”). Customer may not resell, share, disclose, modify or create derivative works from Baselayer Data, and may only access, store, and use Baselayer Data for Customer’s internal business purposes subject to the terms and conditions of this Agreement. Customer may also access Baselayer Data through an Approved Platform. An “Approved Platform” is a third-party AI assistant or agent platform (for example, Anthropic’s Claude or OpenAI’s ChatGPT) through which Baselayer has chosen to make the Service available. When Customer uses an Approved Platform, Baselayer Data will be sent to and shown within that platform, and Customer may summarize it and include it in Customer’s own internal work product, such as memos, reports and decision records. This is still limited to Customer’s internal business purposes: it does not allow Customer to resell Baselayer Data, build a database or dataset from it, or pass it to anyone outside Customer’s organization other than Customer’s professional advisers. How an Approved Platform handles data is governed by that platform’s own terms and privacy policy, not by this Agreement. Baselayer does not authorize any Approved Platform to use Baselayer Data to train AI models. Baselayer reserves the right to withdraw or restrict access to Baselayer Data, and to otherwise revise, amend or supplement the terms or conditions or pricing under this Agreement or the Service to meet any requirement imposed by federal, state, or local law, rule or regulation, a third-party supplier, or to address matters concerning privacy, confidentiality or security, upon reasonable notice to Customer.

1.4 Documentation.

Baselayer grants Customer a non-exclusive, non-sublicensable, non-transferable (except as set forth in Section 15.4) license to use manuals, instructions or other documents or materials that Baselayer provides or makes available to Customer that describe the functionality, features or requirements of the Service (the “Documentation”) during the Term solely for Customer’s internal business purposes in connection with its use of the Service.

1.5 Restrictions.

Customer may not, directly or indirectly, and may not authorize any third party to: (a) use the Service to develop a similar or competing product or service; (b) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service, except to the extent such a restriction is expressly prohibited by applicable law (and then only with prior notice to Baselayer); (c) translate, adapt, modify or create derivative works of the Service (or any portion of) or copy any element of the Service; (d) remove or obscure any proprietary notices in the Service; (e) publish benchmarks or performance information about the Service; (f) interfere with the operation of the Service, circumvent any access restrictions, or conduct any security or vulnerability test of the Service; (g) transmit any viruses or other harmful materials to the Service; (h) take any action that risks harm to others or to the security, availability, or integrity of the Service; (i) permit the Service to be used by any persons other than Authorized Users; (j) transmit unlawful, infringing, harmful, or other data or code which Customer is not authorized to transmit, either to or from the Service; (k) alter or remove any trademarks or proprietary notices contained in or on the Service; or (l) access or use the Service in a manner that violates any applicable relevant local, state, federal or international laws, regulations and conventions, including those related to data privacy or data transfer, international communications, or export of data.

1.6 Connecting to the Service.

Customer is solely responsible for obtaining all third-party technologies and connectivity necessary to access and use the Service. Customer will obtain and maintain all equipment and services needed to connect to, access or otherwise use the Service. Baselayer is not liable for any delay or failure of performance to the extent caused by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

1.7 Fair Use of Data.

Baselayer provides information about businesses, and about the people connected to them, for commercial purposes. Customer may use Baselayer Data to decide whether to onboard, do business with, or extend credit to a business, including a sole proprietorship. Baselayer is not a consumer reporting agency under the U.S. Fair Credit Reporting Act (FCRA), and Baselayer Data is not a consumer report. Customer will not use Baselayer Data for any purpose the FCRA covers, including to decide whether an individual is eligible for credit or insurance for personal, family or household purposes, for employment (including hiring, promotion or retention), or for housing. Customer will not use Baselayer Data to harass, stalk, threaten or harm any person.

2.1 License to Customer Data.

Customer hereby grants a non-exclusive, worldwide, non-transferable (except as set forth in Section 15.4), sublicensable right to use, process, and exploit in any manner any data, information, inputs, or other materials that Customer provides to Baselayer or otherwise makes available to or via the Services (“Customer Data”): (a) to provide the Services; (b) to derive, generate, create or compile Telemetry solely to (i) track use of Service for billing purposes; (ii) provide support for Service; (iii) monitor, evaluate, and improve the Service and related Baselayer technology, including to improve and train any machine learning algorithms or to supplement and improve Baselayer’s databases; (iv) prevent or address technical issues with the Service; and (v) for all other lawful business practices, such as analytics, benchmarking, and reports; and (c) as otherwise required by applicable law or as agreed to in writing between the Parties. Customer will not interfere with the collection of Telemetry. “Telemetry” means information generated from use of the Service, such as technical logs, data, metrics, and learnings related to Customer’s and Authorized Users’ use of the Services, which information does not identify Authorized Users, Customer, or any natural human persons as the source thereof.

2.2 Customer Responsibilities.

Customer is responsible for its Customer Data, including its accuracy and content. Customer represents, warrants, and covenants to Baselayer that Customer made all necessary disclosures, provided all necessary notices, and has obtained all rights, permissions or approvals as necessary for Baselayer to exercise the rights granted under this Agreement with respect to Customer Data without violating any applicable laws, third-party rights, or other terms or policies that apply to the Customer Data.

2.3 Customer Marks.

Baselayer may use Customer’s name as a reference for marketing or promotional purposes on Baselayer’s website and in other communication with existing or potential Baselayer customers, subject to any written trademark policies Customer may provide Baselayer in writing. Customer hereby grants Baselayer a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) in connection with: (a) the operation and maintenance of the Service during the applicable Term; and (b) Baselayer’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a client of Baselayer.

2.4 Feedback.

Customer grants to Baselayer a perpetual, irrevocable, non-exclusive, worldwide, sublicensable, fully paid-up, and royalty-free license to use, modify, distribute, and otherwise freely exploit any suggestions, ideas, enhancement requests, feedback, recommendations, or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Service or any of Baselayer’s technology or current and future products and services.

3.1 Support Services.

Subject to Customer’s ongoing compliance with the terms of this Agreement (including timely payment of all applicable fees), Baselayer agrees to (a) provide reasonable technical support to Customer, by email or telephone, during Baselayer’s normal business hours of 9am-5pm PT, excluding U.S. holidays; (b) use commercially reasonable efforts to respond to support requests in a timely manner, and to resolve such issues by providing updates or workarounds to Customer, consistent with Baselayer’s assigned severity level to the issues identified in such requests and their impact on Customer’s business operations, in Baselayer’s reasonable discretion; and (c) provide such other support services as are specified in the applicable Order (if any).

3.2 Service Levels.

Baselayer will use commercially reasonable efforts to (a) make the Service available to Customer at least 99.00% measured on a rolling 6-month basis during the Term, excluding any unavailability arising out of or related to: (i) Force Majeure Events, (ii) scheduled maintenance, (iii) Customer’s use of the Service in a manner not authorized by this Agreement, (iv) Customer’s software, equipment, network connections or other infrastructure, (v) third-party platforms or systems, or (vi) general internet problems; (b) prepare and implement a disaster recovery plan intended to restore service within 48 hours after any material interruption of the Service; and (c) implement commercially reasonable measures to secure the Service against unauthorized access to or alteration of Customer Data; provided that Customer is solely responsible for maintaining the security and operability of the systems and devices that Customer uses to access the Service and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer Data.

3.3 Reporting Security Issues.

Anyone, including Customer and third parties, may report a suspected security vulnerability in the Service by email to support@baselayer.com. Baselayer will look into every report with reasonable care and will respond within a reasonable time.

4.1 Third-Party Platforms

Customer acknowledges that Baselayer engages third-party solutions and services in connection with the Service and Baselayer will have no warranty or other obligation with respect to such third-party solutions and services. The Services may support integration with third-party platforms, add-ons, services, or products not provided by Baselayer (“Third-Party Platforms”). Use of any Third-Party Platforms integrated with or made available through the Services is subject to Customer’s agreement with the relevant provider and not this Agreement. Baselayer does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Baselayer to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

4.2 AI and Third-Party Integrations

Notwithstanding Section 1.3, Customer may access and use the Service through third-party applications, artificial intelligence services, agents, and other integrations that Baselayer makes available or supports (“Supported Integrations”), including by permitting such Supported Integrations to receive and process Baselayer Data on Customer’s behalf.

Customer may use Baselayer Data through a Supported Integration solely for Customer’s permitted internal business purposes under this Agreement. Customer remains responsible for its use of each Supported Integration and for complying with the applicable terms of the third-party provider.

By enabling a Supported Integration, Customer authorizes Baselayer to exchange Customer Data and Baselayer Data with that Supported Integration as necessary to provide the requested functionality.

Baselayer is entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to any or all part of the Service at any time in the event: (a) that Baselayer reasonably suspects that the Service is being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement; (b) that Baselayer determines that the Service is being used in an unauthorized or fraudulent manner; (c) that Baselayer determines that the use of the Service adversely affects Baselayer’s equipment or service to other clients; (d) Baselayer is prohibited by an order of a court or other governmental agency from providing the Service; or (e) any other event which Baselayer determines, in its sole discretion, may create a risk to the Service or to any other users of the Service. Without limitation, Baselayer will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s right to use the Service in accordance with this Agreement. Where practicable, Baselayer will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing) and, if the issue that led to the suspension is resolved, will restore Customer’s access to the Service.

If Customer receives access to or use of the Service or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Free Access”), such access or use is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Baselayer. This Free Access will be considered part of the Service and, subject to the remainder of this Section 6, all provisions of this Agreement relating to the Service will apply to this Free Access. Free Access is optional and either Party may terminate Free Access at any time for any reason. Service provided via Free Access may be inoperable, incomplete, or include features that Baselayer may never release, and their features and performance information are deemed to be Baselayer’s Confidential Information. Baselayer may suspend Customer’s access to the Service via Free Access or terminate this Agreement at any time. Customer’s use of Free Access is at Customer’s own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BASELAYER PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR FREE ACCESS, AND BASELAYER’S LIABILITY FOR FREE ACCESS WILL NOT EXCEED US$50.00.

7.1 Pricing.

Baselayer reserves the right to determine pricing for the Service. Baselayer will use reasonable efforts to keep pricing information for the Service up to date at www.baselayer.com/pricing (“Pricing Page”). Baselayer encourages Customer to check the Pricing Page regularly for current pricing information. Unless Baselayer and Customer otherwise agree in writing, Baselayer may change the Fees specified on the Pricing Page for the Service (including any feature or functionality of the Service) and Baselayer will notify Customer of any such changes before they apply.

7.2 Fees.

During the Term, Customer will pay Baselayer all fees of the type, amount and on the payment schedule set forth in the applicable Order (“Fees”). In addition to the Fees specified in an applicable Order, Baselayer will also invoice Customer any government passthrough fees, solely if specified and as further described in the Order. If Customer’s actual use of the Service exceeds the number of Authorized Users, usage of the Service, or other license or service units for which Fees have been paid under the applicable Order, then Customer will pay for such additional use at the overage per-use rates specified on the Pricing Page. Except as otherwise expressly set forth in an applicable Order, all Fees are non-cancellable and non-refundable and non-recoupable.

7.3 Payment Terms.

All Fees will be billed as set forth in the applicable Order, and all invoices for Fees are due and payable within 30 days of the invoice date (unless otherwise set forth in the applicable Order), without deduction or setoff. Notwithstanding the foregoing, if any Fees are charged as part of a prepaid annual commitment pursuant to an Order, such Fees must be paid in advance, as further described in the Order. Any unpaid Fees will accrue interest at the lesser of 1.5% per month or the lowest rate permitted by applicable law. Baselayer’s invoices will be deemed to be accurate, correct and acceptable to Customer unless Customer advises Baselayer in writing no later than 10 business days after the closing date on the first billing statement in which the error or problem appeared with a detailed description of such error.

7.4 Taxes.

Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Baselayer’s net income).

7.5 Authorization.

Customer authorizes Baselayer to charge all sums for the orders that Customer makes and any level of Service that Customer selects as described in this Agreement or the applicable Order, including all applicable taxes, to the payment method specified in Customer’s account. Customer agrees that Baselayer may seek pre-authorization of the credit card account Customer provide to Baselayer for payment prior to any purchase to verify that the credit card is valid and has the necessary funds or credit available to cover such purchase. Customer’s account will be charged automatically on the billing date specified on the Order and thereafter on the Renewal Term for all applicable Fees for the next Renewal Term. Customer must provide a notice of non-renewal prior to the start of the next Renewal Term in accordance with Section 10 in order to avoid billing to Customer’s account of the next periodic Fee for such Renewal Term.

8.1 Mutual.

Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and (c) this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8.2 Limited Warranty.

Baselayer warrants to Customer that the Services will perform materially as described in its Documentation and Baselayer will not materially decrease the overall functionality of the Services (“Limited Warranty”) during the Term (“Warranty Period”).

8.3 Warranty Remedy.

If Baselayer breaches the Limited Warranty during the Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by Baselayer within 30 days of discovering a breach of the Limited Warranty, then Baselayer will use reasonable efforts to correct the non-conformity. If Baselayer cannot do so within 30 days of receipt of Customer’s warranty claim, either Party may terminate this Agreement as it relates to the non-conforming Service. Baselayer will then refund to Customer any pre-paid, unused fees for the terminated portion of the Term. This Section sets forth Customer’s exclusive remedy and Baselayer’s entire liability for breach of the Limited Warranty. The Limited Warranty does not apply to: (a) issues caused by Customer’s or Authorized Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the Services other than according to the Documentation; or (d) Free Access or other free or evaluation use of the Services.

8.4 Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING ANY ORDERS STILL IN EFFECT), BASELAYER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. BASELAYER DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICE WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY OR THROUGH THE SERVICE WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES. BASELAYER SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY SOFTWARE, PRODUCTS, OR SERVICE PROVIDED WITH THE SERVICES AND FOR THE AVAILABILITY OR CUSTOMER’S USE OF ANY DATA OR INFORMATION STORED ON THE SERVICE.

Neither Party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the Parties, Customer retains all intellectual property rights and other rights in the Customer Data and systems and devices that Customer uses to access the Service. Except for Customer’s use rights in this Agreement, Baselayer and its licensors retain all intellectual property rights and other rights in the Service, Telemetry, Baselayer Data, and other Baselayer technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Baselayer.

10.1 Term.

This Agreement starts on either (a) the date specified on the Order; or (b) if no date is specified on the Order the date Customer first accessed or used the Service (the “Effective Date”) and continues for the period specified in the applicable Order (the “Initial Term”). Unless otherwise specified in the Order, upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of equal length as the Initial Term (each, a “Renewal Term”) unless a Party delivers written notice of such non-renewal at least 60 days prior to the first day of the applicable Renewal Term. Each Renewal Term, together with the Initial Term, is the “Term”.

10.2 Termination.

Either Party may terminate this Agreement (including the Order) by written notice if the other Party (a) is in material breach of this Agreement or such Order, where such material breach is not cured within 30 days after written notice of such breach from the non-breaching Party; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within 45 days. If Customer fails to pay within 15 days after written notice of nonpayment of any amounts owed to Baselayer, such nonpayment will be deemed a material breach. For the avoidance of doubt, Customer’s noncompliance with Section 1.5 (Restrictions) is deemed a material breach of this Agreement.

10.3 Effect of Termination.

Upon the effective date of expiration or termination of this Agreement for any reason: (a) all outstanding Orders and access to the Service will automatically terminate; (b) all outstanding payment obligations of Customer will become due and payable immediately; (c) Customer may within 15 days request return or export of Customer Data (after which time, Baselayer has no further obligation to store or permit retrieval of such data); and (d) unless this Agreement is terminated by Baselayer for cause, all Fees paid in advance will be pro-rated for the portion of the Term not yet elapsed at the termination and refunded to the Customer, unless otherwise stated on the Order. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.5, 2.1 (with respect to Telemetry), 2.3, 2.4, 7 (with respect to Fee amounts due), 9, 10.3, 11, 12, 13, 14, and 15.

11.1 Definition.

“Confidential Information” means (a) any information disclosed, directly or indirectly, by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (b) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the Services and Baselayer Data are Baselayer’s Confidential Information (subject to the uses of Baselayer Data that Section 1.3 allows). However, Confidential Information does not include any information which (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure, as shown by the Recipient’s contemporaneous records; (iii) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; or (iv) is independently developed by the Recipient without use of or reference to Discloser’s Confidential Information or breach of an obligation owed to the Discloser.

11.2 Use; Maintenance.

As a Recipient, each Party will: (a) hold Discloser’s Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and (b) only use Discloser’s Confidential Information to fulfill its obligations and exercise its rights in this Agreement. Recipient will take at least reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of, Discloser’s Confidential Information, and will take at least those measures that it takes to protect its own most highly confidential information. Recipient may disclose Discloser’s Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including prospective investors and purchasers) provided Recipient remains responsible for their compliance with this Section 11 and they are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 11. Unauthorized use or disclosure of Discloser’s Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 11, without necessity of posting a bond or proving actual damages. Nothing in this Agreement prohibits either Party from making disclosures, including of Customer Data and other Confidential Information, if required by applicable law, subpoena, or court order, provided (if permitted by applicable law) it notifies the other Party in advance and cooperates in any effort to obtain confidential treatment.

12.1 Indemnification by Baselayer.

Baselayer will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer in accordance with this Agreement, infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Baselayer resulting from the claim.

12.2 Indemnification by Customer.

Customer will defend Baselayer from and against any third-party claim to the extent resulting from Customer Data or alleging facts that, if true, would result in Customer’s breach of Section 2.2 (Customer Responsibilities) and will indemnify and hold harmless Baselayer against any damages and costs awarded against Baselayer (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.

12.3 Procedures.

The indemnifying Party’s obligations in this Section 12 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified Party, at the indemnifying Party’s expense for reasonable out-of-pocket costs. The indemnifying Party may not settle any claim without the indemnified Party’s prior consent if settlement would require the indemnified Party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Baselayer is the indemnifying Party). The indemnified Party may participate in a claim with its own counsel at its own expense.

12.4 Mitigation.

In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Baselayer determines necessary to avoid material liability, Baselayer may at its option: (a) procure rights for Customer’s continued use of the Service; (b) replace or modify the allegedly infringing portion of the Service to avoid infringement or misappropriation without substantially reducing the Service’s overall functionality; or (c) terminate this Agreement and refund to Customer all Fees paid in advance, pro-rated for the portion of the applicable remainder of the Term not yet elapsed.

12.5 Exceptions.

Baselayer’s obligations in this Section 12 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of the Service or use of the Service in combination with items not provided by Baselayer (including Third-Party Platforms); (b) to use of the Service in violation of this Agreement; (c) if Customer settles or makes any admissions about a claim without Baselayer’s prior consent; (d) to Free Access or other free or evaluation use; or (e) for any claims related to Customer Data.

12.6 Exclusive Remedy.

This Section 12 sets out Customer’s exclusive remedy and Baselayer’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.

IN NO EVENT WILL BASELAYER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BASELAYER’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDERS GIVING RISE TO THE CLAIM DURING THE 6-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

Baselayer may audit Customer’s use of the Service to assess whether Customer’s use of the Service is in compliance with this Agreement. Customer agrees to cooperate fully with Baselayer’s audit and provide reasonable assistance and access to information. Any such audit will not unreasonably interfere with Customer’s normal business operations. If such audit reveals an underpayment to Baselayer, Customer will pay within 30 days of notification all unpaid amounts owed to Baselayer revealed by the audit. Baselayer will have no responsibility for any costs incurred by Customer in cooperating with the audit, and if such audit reveals an underpayment of over 5%, Customer will bear the cost of such audit.

15.1 Publicity.

Neither Party will issue any press release or publish or disseminate any white papers, case studies describing the activities taking place under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld, except as set forth in Section 2.3.

15.2 Modification of Agreement.

Baselayer may, from time to time, amend or modify this Agreement by either (a) posting such amended Agreement on Baselayer’s website or (b) emailing the Customer in advance, in each case noting the date of such last amendment. Upon the commencement of any Renewal Term, this Agreement will renew on the then-current version of this Agreement. Customer’s continued use of the Service after the effective date of the changes will indicate acceptance of such changes.

15.3 Changes to Services.

Baselayer may make changes or updates to the Services during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Baselayer Data without notifying Customer; provided however, that any such changes will not result in a material reduction in the level of performance or availability of the applicable Service provided to Customer during the Term. Baselayer will have no liability for any change or modification to the Service as a result thereof.

15.4 Assignment.

Neither Party may assign this Agreement without the prior consent of the other Party, except that either Party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which this Agreement relates to the other Party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.

15.5 Force Majeure; Delays.

Except for Customer’s obligation to pay Fees, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, epidemic, pandemic, governmental act or failure or degradation of the Internet (collectively, “Force Majeure Events”). The delayed Party must give the other Party notice of such cause and use commercially reasonable efforts to correct such failure or delay in performance. Baselayer is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform any of its obligations under this Agreement.

15.6 Governing Law, Jurisdiction and Venue.

This Agreement is governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York, New York and both Parties submit to the personal jurisdiction of those courts.

15.7 Notices.

Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the Order or the first paragraph of this Agreement and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either Party may update its address with notice to the other Party pursuant to this Section. Baselayer may also send operational notices to Customer by email or through the Service.

15.8 Entire Agreement.

This Agreement is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

15.9 Amendments.

Except as set forth in Section 15.2, any amendments, modifications, or supplements to this Agreement must be in writing and signed by each Party’s authorized representatives or, as appropriate, agreed through electronic means provided by Baselayer. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Baselayer; any of these Customer documents are for administrative purposes only and have no legal effect.

15.10 Waivers and Severability.

Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of this Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.

15.11 Subcontractors.

Baselayer may use subcontractors and permit them to exercise Baselayer’s rights, but Baselayer remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

15.12 Independent Contractors.

The Parties are independent contractors, not agents, partners, or joint venturers.

15.13 Export.

Customer will comply with all relevant U.S. and foreign export and import laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

15.14 Open Source.

The Services may incorporate third-party open source software (“OSS”), including as listed in the Documentation or otherwise disclosed by Baselayer in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

15.15 Government End-Users.

Elements of the Service may include commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.

15.16 Conflicts in Interpretation.

If there are inconsistencies or conflicts between the terms of any Order and this Agreement the terms of the Order will control to the extent of the conflict.