BASIN COMMERCE, INC. d/b/a iBookFreight

Terms of Service

iBookFreight is a service mark of Basin Commerce, Inc. You are entering an agreement with Basin Commerce, Inc.

Welcome to Basin Commerce! This Agreement is between Basin Commerce, Inc., a Minnesota company, trading as “Basin”, and you. This Agreement governs your access to, and use of, the Basin services platform, which is available at basincommerce.com and its subdomains and related domains (the “Site”). The Platform, Site and Services are collectively called the “Basin Platform”.

This Agreement was last updated on August 1, 2017. It is effective between you and Basin as of the date of your acceptance of this Agreement.

Entering into this Agreement with Basin

By using the Basin Platform, you accept this Agreement, and you agree to be bound by all of its terms. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity, except where context implies it is referring to you as an individual. If you don’t accept the terms of this Agreement, we regret that you cannot use the Basin Platform.

Relationship to other agreements

To the extent that there is a conflict between this Agreement and any other documents executed between you and Basin, including any Purchase Project or Statement of Work between you and Basin which references this Agreement, the provisions of this Agreement will govern, unless you agree otherwise with Basin.

Basin Services

Types of Service. Through the Basin Platform, we offer different types of services as described in this Section. All of the services are referred to collectively as “Basin Services”. Our Basin Services may assist your own internal operations and/or may connect you with different stakeholders in the business of moving product from one location to another, and/or associated services including Bulk Logistic insurance or customs brokerage services (collectively, “Bulk Logistic Services”). Use of the Basin Platform to connect Buyers with Providers is also known as using the “Basin Network”. In addition, the Site may be accessed by a standard Web browser, mobile app, or, when we specifically permit access – for example through computer-to-computer communication via the “Basin API”.

Basin Platform:

Use as a Buyer: If you want to purchase Bulk Logistic Services from Providers through the Basin Platform, you are a “Buyer” and you engage in “Buying”. You can use the Basin Platform to search for suitable Providers, obtain price Quotes from those Providers and facilitate Projects between you and Providers.

Use as a Provider: If you provide, offer and sell Bulk Logistic Services, and if you choose to authorize Basin to offer your services and rates to Buyers through the Basin Platform, you are a “Provider” and you engage in “Providing”. We will act as your agent for the limited purposes of helping you to respond to quotes, calculate prices, advertise price quotes online (either publicly, or privately to specific categories of Buyers as you choose), receive Quotes, execute Project Agreements and/or collect payments online via the Basin Platform.

Roles: You may play the role of both a Buyer and/or a Provider.  

Changes to the Agreement or Basin Platform

Agreement. Given the dynamic nature of our business and industry, we may modify this Agreement at any time, at our sole discretion. If we do so, we’ll let you know by posting the modified Agreement on the Site. The changes will be effective immediately. It’s important that you review this Agreement whenever we modify it because if you continue to use the Basin Platform after we have told you that this Agreement has been modified, you are indicating to us that you agree to be bound by the modified Agreement. If you don’t agree to be bound by the modified Agreement, then you cannot use the Basin Platform any longer.

Basin Platform. As part of our efforts to continually improve the Basin Platform, we may change or discontinue any part of the Basin Platform at any time at our sole discretion.

Accounts and Intellectual Property Rights

Accounts

Registration: You must create an account (“Account”) to use certain features of the Basin Platform. You can register for an Account via the Site. From time to time we may also enable registration through your account with certain third-party services such as Linkedin or Google. If you choose the third-party Account option, we’ll create your Account by extracting from your external Account certain personal information such as your name and email address and other personal information that your privacy settings on the Account permit us to access.

Intellectual Property:

Basin IP: Subject to your rights described in this Agreement, we exclusively own all rights, title and interest in and to any software, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by us in connection with provision of the Basin Platform to you (collectively “Basin Materials”) as well as any text, data, images, information or other materials that are posted, generated, provided or otherwise made available by us through the Basin Platform (collectively “Basin Content”). Our rights expressly include all worldwide patent rights, copyright rights, trade secret rights, know-how and any other intellectual property rights (“Intellectual Property Rights”) in the Basin Materials and the Basin Content. You have no rights in any Basin Materials or Basin Content except as granted to you in this Agreement.

Buyer / Provider (collectively “Users”) IP.:

User Content: Subject to this Section, you exclusively own all rights, title and interest in and to any text, data, images, information or other materials posted, generated, provided or otherwise made available by you through the Basin Platform, including all Intellectual Property Rights in that User Content. You are solely responsible for the accuracy, quality, integrity, legality and reliability of all the User Content that you (or any Authorized User) submit to the Basin Platform. By making User Content available through the Basin Platform, you grant to Basin a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to access, process, analyze, store, use, copy, and modify your User Content in connection with operating the Basin Platform.

Anonymous Data and Reference Data. You grant Basin the right to use User Content to generate aggregate, anonymous, statistical data based on such User Content (for example, an average price calculated across multiple Users without naming those Users), which will not identify you (“Anonymous Data”), and to use such Anonymous Data in any manner in which we see fit, including selling such Anonymous Data. This Anonymous Data is not Confidential Information for purposes of this Agreement and is owned by Basin. Similarly, in order to improve the Basin Services for you and others, Basin may make use of reference data, which is by its nature is not confidential or proprietary, including, but not limited to, formats of industry tariffs or publicly available information including vessel names, tow and tugboat names, barge IDs, mile markers and names/web sites of corporations (“Reference Data”) and this Reference Data is not User Content for purposes of this Agreement.

Software License: The Basin Platform is provided to you as software-as-service accessible via the Site. We grant you a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license, without the right to grant sublicenses, to use the “Basin Platform”.

Trademark License: We grant you a non-exclusive, non-transferable, non-assignable, royalty-free, worldwide license, without the right to grant sublicenses, to use the “Basin” name and logo on your website, your list of vendors or list of technologies you use. All goodwill associated with the use of such name and logo inures to the benefit of Basin. You grant us a non-exclusive, transferable, assignable, royalty-free, worldwide license to list your name and logo on Basin list of customers (whether in a general customer list or a list of customers for a specific product, service or sector). All goodwill associated with the use of your name and logo inures to your benefit.

Reservation of Rights: We reserve all rights in and to Intellectual Property Rights, Software, Basin Materials and Basin Content not expressly granted to you under this Agreement.

Data Maintenance and Backup Procedures. We will use commercially reasonable efforts to store, secure, and backup your Customer Content, including selecting reputable infrastructure or platform providers. We will follow our standard storage, backup and archival procedures for all Customer Content submitted into the Basin Platform. In the event of any loss or corruption of Customer Content, we will use our commercially reasonable efforts to restore the lost or corrupted Customer Content from the latest backup of such Customer Content maintained by us. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER CONTENT CAUSED BY ANY THIRD PARTY. OUR EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER CONTENT PURSUANT TO THIS SECTION WILL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE BASIN PLATFORM. 

Buying

Buying Bulk Logistic Services:

Quotes: You can use the Basin Platform to look for Providers and to request price quotes and related terms for a shipment and delivery of product (“Quotes”). In addition to discovering new Providers, and obtaining Quotes, we may add features from time to time to help you evaluate Providers and manage your Quotes, Projects and other documents.  

Representations: If you are a Buyer, by using the Basin Platform you represent to Basin and to Providers that you understand the way in which Bulk Logistic Services work and that you hold all the necessary permits to legally procure any Bulk Logistic Services that you buy.

Accepting Quotes:

Projects: When you accept a Quote, we create a “Project” on your behalf which is a legally binding agreement between you and the Provider(s) who provided that Quote. Provider(s), not Basin, are responsible for honoring any Projects and performing the applicable Bulk Logistics Services. The identity of the Provider(s) will be clearly marked on the Project. As a Buyer, you agree to accept any terms, conditions, rules and restrictions associated with such Bulk Logistic Services that are imposed by the Provider. You acknowledge and agree that you, and not Basin, will be responsible for performing the Buyer’s obligations of the Project(s) and any other contracts with Provider(s).

Project Detail: We are in no way a party to the Project agreement between you and Provider. You therefore agree that the terms listed in the agreed Project will become part of the Project agreement between you and the Provider(s), subject to any conflicting terms imposed by the Provider(s) which will take precedence.

Basin is Not the Provider. We help you find Quotes from Providers, but we are not a Provider and we don’t provide Bulk Logistic Services. Providers are not agents, contractors, or otherwise affiliated entities of Basin. We don’t endorse any Providers, and we don’t in any way supervise, direct or control a Provider’s performance of Bulk Logistic Services, nor do we warrant that any Provider will meet your expectations in performing Bulk Logistic Services. We are not obliged to conduct background checks on any Provider. In Project to assist you, we may publish reviews of Providers or vet particular Providers from time to time, but we don’t guarantee the accuracy of any reviews and warn you that reviews can be misleading. Your access to and use of the Basin Platform is at your own risk and we encourage you to do you your own research and due diligence on any Provider with which you may engage though a Project, just like you would if you found a Provider outside of the Basin Platform.

Remedy with Providers: By using the Basin Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Providers or other third parties will be limited to a claim against the particular Providers or other third parties who caused you harm, and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.

Buyer Payment Terms:

Basin as Payment Agent: You agree to pay the Provider for the Bulk Logistic Services associated with a Project. We act as the payment agent of the Provider (also known as agent of the payee). This means that we collect money from you on behalf of the Provider, which we then pass on to the Provider. At our discretion, we may request in respect of a particular Project that you pay the Provider directly, but any such Project remains a Project made through the Basin Platform.

Payment Policies: We have our own policies and practices as to how and where we collect money from you and how we pass that money on to the Provider. Due to the complexities of our industry, policies and practices may vary depending on factors such as geography, volume and type of Bulk Logistic Services, Buyer’s track record, and Provider’s track record. For example, payment may or may not be required at the time of making a Project, or we may accept part payment at the time of making a Project with the balance being required at a later time, such as prior to releasing the product from the destination. The terms of the payment policy applying to your Project will be presented to you at the time of making the Project and there may be further guidelines published from time to time in the Basin Platform.

Quotes: A quote contains estimates from the Provider(s) based on information you provide. You agree to pay the actual amounts as determined by the Provider(s) at the time the service(s) is delivered. These actual amounts will be presented to you in an Invoice from the Basin Platform. You agree to pay the actual amounts presented to you contained in the Invoice, and any other amounts that you owe to the Provider(s) in connection with a Project. You also agree to provide any documentation reasonably requested by Provider for the purposes of your Project and you are responsible for the accuracy and timely submission of such documentation to Basin or the Provider. However, as we have already explained, each Provider has its own terms and conditions of sale which may apply to any Project you make with that Provider, and you may be charged an amount that is additional to the amount of the Quote in certain circumstances.

Insurance, Customs Brokerage and Import Duties: Unless specifically stated, Bulk Logistic insurance and customs brokerage charges are not included in a Quote for Bulk Logistic Services. Import duties you may have to pay to the destination government are never included unless the Quote explicitly states Delivery Duty Paid (DDP). Value added tax and/or sales tax (if applicable) are only included if they are specifically listed in the fee breakdown of a Project.

Selling

Selling Bulk Logistic Services:

Where You Can Sell: You can use the Basin Platform to sell your Bulk Logistic Services to Buyers introduced by Basin.  

Representations: If you are a Provider, by using the Basin Services you represent to Basin and to Buyers that you understand the way in which Bulk Logistic Services work and that you hold all necessary permits, licenses, knowledge and experience to offer the Bulk Logistic Services that you provide.

Reselling: As stated above, you may play the role of both Buyer and / or Provider. 

Basin is Your Agent:

Appointment of Agent: If you’re a Provider, you appoint us as your limited agent for the following purposes. As your agent, we may:

Solicit Buyers of your services on your behalf;

Present you with requests for Quotes from interested Buyers;

Present your estimated Quote based on the information you provide through the use of the Basin Platform;

Advertise and promote your Bulk Logistic Services on the Basin Platform, subject to the configuration options you choose;

Facilitate some communication or document exchange between you and the Buyer;

Create Project Agreement for accepted Quote between you and Buyer; and

Collect payment from Buyers on your behalf (also known as agent for payee).

Contract with Buyer: If a Buyer engages you for provision of Bulk Logistic Services by executing a Project Agreement, the Project Agreement and any subsequent agreement that you enter into with the Buyer will be between you and the Buyer only. We don’t act as your insurer, broker, contracting agent or other representative. You acknowledge and agree that you, and not Basin, are and will be responsible for providing the Bulk Logistic Services and performing your other obligations under of any agreements with Buyers, and we are not a party to such agreements and disclaim all liability arising from or related to such agreements. That said, in order to help us collect payment on your behalf, we may on rare occasions request that you hold off releasing product to a Buyer if the Buyer has not fulfilled its payment obligations.

No Endorsement of Buyers: We don’t endorse any Buyers. We are not obliged to conduct background checks on any Buyer, but we might do so on a discretionary basis and we may vet particular Buyers from time to time. Your access to and use of the Basin Services is at your own risk and we encourage you to do you your own research and due diligence on any Buyer with which you may engage though a Project, just like you would if you found a Buyer outside of the Basin Platform.

No Endorsement of Providers: We don’t endorse any Providers or Bulk Logistic Services, and using the Basin Services does not mean that you or your Bulk Logistic Services are endorsed in any way by us. We don’t necessarily conduct background checks on any Provider, but we reserve the right to do so on a discretionary basis and you agree to co-operate with us and to provide us with all information we request from you in the event that we decide to conduct a background check on you as well as accurate information for us to place in your profile in the Basin Platform. You are not an agent, contractor, employee or affiliated entity of Basin and we do not in any way supervise, direct or control your performance of Bulk Logistic Services.

Subagent: In order for Basin to find more customers for you, you authorize Basin to appoint sub-agents who may also market the Quotes that are generated for your Bulk Logistic Services via the Basin Platform.

Remedy with Buyers. By using the Basin Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyers or other third parties will be limited to a claim against the particular Buyers or other third parties who caused you harm, and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.

Provider Fees:

Quote and Applicable Terms: A quote contains estimates from you based on information from the Buyer. The Buyer agrees to pay the actual amounts as determined by you at the time the service(s) is delivered. These actual amounts will be presented to the Buyer by an Invoice from the Basin Platform. Buyer agrees to pay the actual amounts presented in the Invoice, and any other amounts that you are owed in connection with a Project. You also agree to provide any documentation reasonably requested by Buyer for the purposes of your Project and you are responsible for the accuracy and timely submission of such documentation to Basin or the Buyer.

Project Detail: We are in no way a party to the Project agreement between you and Buyer. You therefore agree that the terms listed in the agreed Project will become part of the Project agreement between you and the Buyer.

Remittance of Funds: We will charge you a marketing success fee for each Project Agreement made with you by a Buyer (a “Provider Fee”). Provider Fees are described in the Basin Price List which are available in your Provider Account. We reserve the right to change the Provider Fees from time to time but we will notify you of any changes in advance of their implementation. We will invoice you for the Provider Fees and either (i) deduct the Provider Fees from the payments made by Buyers collected by us on your behalf before remitting funds to you, in which case you authorize us to make such deduction, or (ii) in case we don’t make such deduction you agree to pay the Provider Fees within fifteen days of the date of an invoice we send you.

Payment Policies: We aim to have our Providers paid in a timely and convenient manner. We have our own policies and practices as to how and when we collect money from Buyers and how we pass that money on to you, and under what circumstances (if any) we make a payment to you if a Buyer doesn’t pay us. We reserve the right to make changes to our payment policies and practices at any time and for any reason, but we will notify you of any changes by email and/or posting to the Basin Platform.

Non-Circumvention. We’ve worked hard to develop the Basin Platform and we have invested and continue to invest a lot of time and money in connecting you with Buyers. When a specific Buyer makes a Project with you through the Basin Platform (“Initial Project”) for Bulk Logistic Services, you agree that for at least twenty four (24) months you will only sell Bulk Logistic Services to that Buyer either via the Basin Platform, or if you accept any Project from that Buyer during that time period not via the Basin Platform, you will immediately inform Basin in writing, and Provider Fees will apply as if the Project was placed via the Basin Platform (“Non-circumvention”). We reserve the right to charge you additional fees, to terminate or suspend your Account.

Mutual Non-Disclosure Agreement

Confidential Information. “Confidential Information” means: (i) Basin Materials and Basin Content; (ii) Customer Content; (iii) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.

Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure. Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.

General Use

Acceptable Use. You agree not to do any of the following in connection with your use of the Basin Services:

Post, upload, publish, submit or transmit any Customer Content that: (i) infringes, misappropriates or violates a third party’s Intellectual Property Rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.

Use, display, mirror or frame the Basin Platform or any individual element within the Basin Platform, Basin’ name, any Basin trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, unless expressly allowed under the terms of this Agreement;

Access, tamper with, or use non-public areas of the Basin Platform or Basin computer systems;

Attempt to probe, scan or test the vulnerability of any Basin system or network or breach any security or authentication measures;

Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Basin or any of Basin’ providers or any other third party (including another user) to protect the Basin Platform or Basin Content;

Attempt to access or search the Basin Platform, Basin Content or Customer Content, or download Basin Content or Customer Content from the Basin Platform through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Basin or other generally available third-party web browsers;

Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Basin Platform;

Collect or store any personally identifiable information from the Basin Platform from other users of the Basin Services without their express permission;

Impersonate or misrepresent your affiliation with any person or entity;

Violate any applicable law or regulation; or

Encourage or enable any other individual to do any of the foregoing.

Our Enforcement Rights. Although we’re not obligated to monitor access to or use of the Basin Platform or to review or edit any Customer Content, we have the right to do so for the purpose of operating the Basin Platform, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements, or to improve the user experience. We reserve the right, but are not obligated, to remove or disable access to any Customer Content, or any Account, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Customer Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects Basin. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Digital Millennium Copyright Act (DMCA)

Basin respects copyright law and expects its users to do the same. It is our policy to terminate in appropriate circumstances Account holders and users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our website terms and conditions for further information.

Audit.

During the term of this Agreement and for one year following termination, you will maintain complete and accurate books and records regarding your use of Basin Services. During this time, we have the right to inspect and audit such books and records for the purpose of confirming your compliance with the terms of this Agreement. Any audit will be conducted by a reputable firm of certified public accountants during regular business hours and in a manner that minimizes interference with your normal business activities. If we discover any payment error in the audit, the party in whose favor the error was made will pay the other the amount of the error. We will pay for the audit unless the audit uncovers payment errors in our favor of five percent (5%) or more of the total amount of Provider Fees paid by you to us under this Agreement. In this case, you must pay for the cost of the audit and all our related expenses.

Termination

Term. This Agreement will commence when you accept its terms, and unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect for as long as we are providing Basin Services to you.

Termination of Accounts. We may terminate your access to and use of the Basin Platform, at our sole discretion, upon 90 days’ notice. However, given the importance of maintaining the integrity of our platform for all users, if we have reason to suspect abuse or a substantial breach of this agreement, we may terminate your Account at any time at our sole discretion and will only provide notice if we feel it is reasonable and feasible to do so. You may cancel your Account at any time by sending an email to us at move@Basin.com.

Effect of Termination. Upon the expiration or termination of this Agreement, you will no longer be able to access and use the Basin Platform or Basin Services and each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control.

Projects that are Still in Process. If you are a Provider, in the event that upon the expiration or termination of this Agreement, a Buyer has a copy of a valid unexpired Quote from you, and wishes to execute Project agreement, or the performance of Bulk Logistic Services under a Project made through the Basin Platform is ongoing, the expiration or termination of this Agreement will not affect the terms of such Quote or Project. Providers are obligated and agree to carry out the Bulk Logistic Services specified in such Project to completion in accordance with the terms of the agreement between the Provider and Buyer for the Project in question and Buyers are obligated and agree to fulfil their obligations under such Project, including payment obligations to us as described above.

Survival. The rights and obligations of the parties contained in the following Sections will survive termination of this Agreement or any Statement of Work: Intellectual Property; Data Maintenance and Backup Procedures; Disputes with Providers; Disputes with Buyers; Non-Circumvention; Data Services Disclaimer; Mutual Non-Disclosure Agreement; Our Enforcement Rights; Audit; Effect of Termination; Projects that are Still in Process; Survival; Warranties; Indemnity and Limitation of Liability.

Disclaimer of Warranties

THE BASIN PLATFORM AND BASIN SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT USING THE BASIN PLATFORM OR BASIN SERVICES WILL RESULT IN HIGHER NUMBERS OF CUSTOMERS OR INCREASED REVENUE FOR YOU OR YOUR BUSINESS. WE MAKE NO WARRANTY THAT THE BASIN PLATFORM OR BASIN SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.

Indemnity

You will indemnify, defend and hold Basin and its officers, directors, employee and agents harmless, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Basin Platform or Basin Services, (ii) your Customer Content, or (iII) your violation of this Agreement.

Limitation of Liability

NEITHER BASIN NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE BASIN SERVICES OR BASIN PLATFORM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE BASIN SERVICES OR BASIN PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BASIN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT WILL BASIN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE BASIN SERVICES OR BASIN PLATFORM EXCEED THE AMOUNTS YOU HAVE PAID TO BASIN FOR USE OF THE BASIN SERVICES IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BASIN AND YOU.

General

Assignment. You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. We may assign or transfer this Agreement without restriction or your consent to an affiliated company or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, or the sale of all or substantially all of our assets. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.

No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under this Agreement or available at law or in equity or otherwise.

Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, excluding its body of law controlling conflict of laws. Any disputes will be resolved exclusively by binding arbitration in Minnesota.

Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

Notices. Any notices or other communications provided by us under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Basin Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Notices to Basin should be sent to move@Basincommerce.com.

Waiver. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by our duly authorized representative.

Entire Agreement. This Agreement, together with all documents which incorporate this Agreement (including any customer specific Projects or Statements of Work) and which are incorporated by reference into this Agreement constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter.

Language. This Agreement may be translated from time to time for your convenience, but the English language version of the Agreement is the binding version.