We have updated our Master Services Agreement. If you are new Customer, then this Master Services Agreement will be effective as of March 1, 2021. If you are an existing Customer, we are providing you with prior notice of these changes which will be effective as of April 1, 2021.

THIS MASTER SERVICES AGREEMENT (THIS “AGREEMENT”) CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU AND AUTHORIZED USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.

By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Authorized User to access or use a Service, you agree to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Pathwave that you have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer,” “you,” “your” or a related term herein shall refer to such Entity and its Affiliates. If you do not have such authority, or if you do not agree with this Agreement, you must not use or authorize any use of the Services.

The purpose of this Agreement is to establish the terms and conditions under which Customer may purchase Pathwave’s Services as described in an Order Form signed by you.

In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form, the terms of the Order Form shall control.

AGREEMENT

1.    Definitions.

(a) “Affiliate” means, with respect to an entity, any other entity that, now or in the future, either directly or through one or more intermediaries, controls, is controlled by, or is under common control with, that entity or any of its successors.

(b) “Authorized User” means an employee or contractor of Customer who Customer permits to access and use the Software and/or Documentation pursuant to Customer’s license hereunder.

(c) “Customer Data” means all data specifically identifying Customer or its personnel, customers or suppliers (other than Pathwave) of Customer, including without limitation, Customer’s work product created using the Software.

(d) “Documentation” means Pathwave’s user manuals, handbooks, and installation guides relating to the Software provided by Pathwave to Customer either electronically or in hard copy form.

(e) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(f) “Order Form” means our generated service order form(s) or online ordering document or process completed, executed or approved by you with respect to your subscription to a Service or Software, which may detail, among other things, the number of Authorized Users authorized to use a Service under your subscription.

(g) “Party” or “Parties” means, respectively or collectively, Pathwave and Customer. 

(h) “Pathwave” means Pathwave, Inc., a Minnesota corporation, or any of its successors or assignees.

(i) “Services” means the products and services that are ordered by you online through a link or via an Order Form referencing this Agreement.

(j) “Software” means the Pathwave commercial cloud-based telecom site management software application (including Updates) in executable format provided to Customers pursuant to this Agreement.

(k) “Term” has the meaning set forth in Section 12(a). 

(l) “Third-Party Materials” means any third-party products or third-party sourced information provided with or incorporated into the Software or Services, including, without limitation, those described in the Order Form.

(m) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Pathwave generally makes available free of charge to all Customers of the Software. 

2.    License. 

(a) License Grant.  Subject to and conditioned on Customer’s payment of all applicable Fees and compliance with the terms and conditions of this Agreement, Pathwave hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license during the Term to: (i) use the Software solely for Customer’s internal business purposes in accordance with the Documentation up to the number of Authorized Users set forth in the Order Form; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.  To use the Software, you must create login credentials for all Authorized Users (e.g. a username and password).  You are responsible for all activity occurring under your login credentials and will notify Pathwave as soon as possible if you believe there has been an unauthorized use of your login credentials. 

(b) Evaluation Use.  Pathwave may make Software or a new feature or functionality available on an evaluation or beta basis (“Evaluation Offering”).  Each Evaluation Offering is made available and provided “AS IS” without any obligation of continuing service, update, support or warranty of any kind or nature.  Customer agrees to only use an Evaluation Offering for evaluation purposes during the evaluation period set by Pathwave.

(c) Use Restrictions.  Customer shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

(d) Reservation of Rights.  Pathwave reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software.

3.    Customer Responsibilities.

(a) General.  Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and shall cause Authorized Users to comply with such provisions.

(b) Third-Party Materials.  Pathwave may distribute or provide access to certain Third-Party Materials with the Software or require Customer to obtain certain Third-Party Materials in order for the Software to function. An example of some, but not all, Third-Party Materials included with the Software is set forth on the Order Form.  For purposes of this Agreement, such Third-Party Materials are subject to their own license terms and Customer is responsible for reviewing and agreeing to those terms. If Customer does not agree to abide by the applicable terms for such Third-Party Material, then Customer should not install or use such Third-Party Material, however, such failure to install or use those Third-Party Materials may impact the functionality of the Software. Pathwave expressly disclaims any liability or responsibility for Third-Party Materials, including, without limitation, the reliability of information accessed through such Third-Party Materials (e.g. weather information, mapping/GPS capabilities or location of nearest medical providers). 

4.    Support.  Pathwave shall provide Customer with the support services described in the Order Form for the duration of the Term. 

5.    Ordering, Fees and Payment. 

(a) Orders.  Customers shall purchase the Software and Services directly from Pathwave.  Purchase orders do not need to be signed to be valid and enforceable.  No terms or conditions of any order, purchase order, acknowledgement or other business form that you use in connection with any purchase from Pathwave (including subsequent purchases from Pathwave of additional subscription terms under new agreements) will have any effect on the terms of any agreement regardless of failure to object to such terms or conditions.  Pathwave rejects all additional or conflicting terms or conditions.  No order is binding on Pathwave until Pathwave delivers license keys to the email address associated with your account,.  All orders are non-refundable and non-cancelable except as expressly provided in this Agreement.

(b) Affiliate Orders.  Your Affiliates whom you identify in an email sent to Pathwave at [email protected] may submit orders as “Customer” to “Pathwave” under this Agreement.  You will place orders with Pathwave as indicated on the Order Form.  Customer is responsible for its Affiliate’s compliance with this Agreement.

(c) Fees.  After any applicable evaluation period identified on the Order Form, Customer shall pay Pathwave the fees (“Fees”) set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Pathwave may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Pathwave for all costs incurred by Pathwave in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days following written notice thereof, Pathwave may prohibit access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to the Software.

(d) Taxes.  All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Pathwave’s income.

6.    Confidential Information.  From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether provided orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 

7.    Data Security and Protection.

(a) Customer Data.  As between the Parties, Customer Data will be and remain Customer’s property.  Pathwave may not use Customer Data for any purpose other than to provide the Services.  

(b) Service Data.  Pathwave may collect de-identified information and aggregated information about the use and performance of the Software and the Services (“Service Data”). Service Data may include information about the frequency of feature usage, technical performance, and product configuration.  Service Data never includes Customer Data.  Pathwave owns the Service Data and uses it to improve Pathwave’s offerings and create new products.

(c) Administrative Data.  Pathwave will also collect account specific data during your use of the Software and Services (“Administrative Data”).  Administrative Data does not include Customer Data.  Pathwave uses the Administrative Data to provide the Services, billing purposes, new product offerings and to comply with Pathwave’s contractual obligations and applicable law. 

(d) Data Security; Privacy.  Customer Data will be subject and maintained by Pathwave in accordance with Pathwave’s privacy policy, as the same shall be updated from time to time. Pathwave will establish and maintain at a minimum reasonable administrative, technical and physical safeguards against the destruction, loss, alteration or disclosure of, or unauthorized access to, Customer Data in the possession or control of Pathwave that are no less rigorous than those maintained by Pathwave for its own data of a similar nature.  If Pathwave becomes aware of any actual or suspected loss, destruction or alteration of, or unauthorized access to, any Customer Data in its possession or control, it will immediately notify Customer and fully cooperate with Customer and all relevant governmental authorities in investigating such actual or suspected incident and in recovering any affected Customer Data.

8.    Intellectual Property Ownership; Feedback. 

(a) Intellectual Property Ownership.  Pathwave is the exclusive owner of all right, title and interest to and in the Software and all content and services offered through the Software; including, without limitation, all Intellectual Property Rights. Customer does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, of this Agreement. The license to use the Software does not grant Customer any right to use the trademarks, service marks or logos of Pathwave or its Affiliates. Pathwave reserves all rights to modify, remove or otherwise change any of the content provided through the Software. Customer acknowledges that, as between Customer and Pathwave, Pathwave owns all right, title, and interest, including all Intellectual Property Rights, in and to the Software, Documentation and Service Data, with respect to Third-Party Materials, the applicable third-party licensors own all right, title and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. 

(b) Feedback.  If Customer or any of its employees or contractors sends or transmits any communications or materials to Pathwave by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Pathwave is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Pathwave on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Pathwave is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Pathwave is not required to use any Feedback.

9.    Warranty. 

(a) Warranty Period.  Pathwave warrants that the Software and Services will substantially conform to all applicable Documentation during the Term (“Warranty Period”). Pathwave’s sole liability and Customer’s exclusive remedy for any breach of this warranty shall be that Pathwave shall use commercially reasonable efforts to remedy any failure of the Software or Services to materially conform to its Documentation, provided that: (i) Customer has fully paid all applicable fees; (ii) Customer is not otherwise in breach of the Agreement; and (iii) Customer notifies Pathwave in writing of the claimed failure promptly upon discovery and within the Warranty Period, with a specific description of the Software’s nonconformance and Pathwave is able to replicate such nonconformance. Alternatively, Pathwave, at its sole discretion, may choose to issue a refund of any unused subscription fee.

(b) Warranty Disclaimer.  THE SOFTWARE, DOCUMENTATION AND ALL SERVICES ARE PROVIDED “AS IS” AND PATHWAVE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PATHWAVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PATHWAVE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

10.    Indemnification. 

(a) Pathwave Indemnification. 

(i)    Pathwave shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US registered copyrights or patents, provided that Customer promptly notifies Pathwave in writing of the claim, cooperates with Pathwave, and allows Pathwave sole authority to control the defense and settlement of such claim. 

(ii)    If such a claim is made or appears possible, Customer agrees to permit Pathwave, at Pathwave’s sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Pathwave determines that none of these alternatives is reasonably available, Pathwave may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. 

(iii)    This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Pathwave or authorized by Pathwave in writing; (B) modifications to the Software not made by Pathwave; (C) use of any version other than the most current version of the Software or Documentation delivered to Customer; or (D) Third-Party Materials. 

(b) Customer Indemnification.  Customer shall indemnify, hold harmless, and, at Pathwave’s option, defend Pathwave from and against any Losses resulting from any Third-Party Claim based on Customer’s, or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by Pathwave or authorized by Pathwave in writing; (iv) modifications to the Software not made by Pathwave; (v) use of any version other than the most current version of the Software or Documentation delivered to Customer, provided that Customer may not settle any Third-Party Claim against Pathwave unless such settlement completely and forever releases Pathwave from all liability with respect to such Third-Party Claim or unless Pathwave consents to such settlement, and further provided that Pathwave will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.  Customer shall also indemnify, hold harmless, and, at Pathwave’s option, defend Pathwave from and against any Losses resulting from any Third-Party Claim based on Customer’s, or any Authorized User’s, violation of data privacy laws as it pertains to Customer Data. 

(c) Sole Remedy.  THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PATHWAVE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PATHWAVE’S LIABILITY UNDER THIS SECTION 10 EXCEED THE TOTAL AMOUNTS PAID TO PATHWAVE UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

11.    Limitations of Liability.  IN NO EVENT WILL PATHWAVE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PATHWAVE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PATHWAVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TWO TIMES THE TOTAL AMOUNTS PAID TO PATHWAVE UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 
 12.    Term and Termination. 

(a) Term.  The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until two years from such date (the “Initial Term”). This Agreement will automatically renew for successive one year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

(b) Termination.  In addition to any other express termination right set forth in this Agreement:

(i)    Pathwave may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than fifteen days after Pathwave’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;

(ii)    either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty days after the non-breaching Party provides the breaching Party with written notice of such breach;

(iii)    following the Initial Term, Pathwave may terminate this Agreement for convenience, upon thirty (30) days’ prior written notice; or

(iv)    either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination.  Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Customer’s obligations under Section 6, Customer shall cease using and delete, destroy, or return all copies of the Software and Documentation and, if requested by Pathwave, certify in writing to Pathwave that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.  Pathwave agrees to work with Customer for a period of not more than thirty (30) days to offboard any Customer Data to Customer.  The fees for any such offboarding services requested by Customer shall be at Pathwave’s prevailing hourly rates for such services.

(d) Survival.  This Section 12(d) and Sections 1, 5, 6, 8, 9, 10, 11, 13 and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

13.    Disputes.  Subject to each party’s rights to injunctive relief as provided below, all controversies, claims and disputes between the Parties arising under or in connection with this Agreement (a “Dispute”) will be resolved by mediation or, failing mediation, by binding arbitration.  The Parties will attempt in good faith to resolve the Dispute by mediation within sixty (60) days of receipt of written notice by one of the Parties.  If the Dispute has not been resolved by mediation as provided above, then the Dispute will be resolved by binding arbitration in Minneapolis, Minnesota.  The arbitration will be governed by the substantive laws of Minnesota in any court of competent jurisdiction.  The Parties voluntarily waive their rights to have any Dispute tried and adjudicated by a judge or jury.  The arbitration proceedings will be conducted under the Commercial Arbitration Rules of the American Arbitration Association, as such rules may be modified by this Agreement.  Unless the Parties agree otherwise, they will be limited in their discovery to directly relevant documents.  The arbitrator(s) will resolve any discovery disputes.  The arbitrator(s) will have the authority to award actual money damages, specific performance and temporary injunctive relief, but the arbitrator(s) will not have the authority to award exemplary or punitive damages inconsistent with this Agreement.  The costs of arbitration will be shared equally by the Parties.  If a party fails to proceed with arbitration, unsuccessfully challenges the arbitration award, or fails to comply with the arbitration award, the other party is entitled to costs, including reasonable attorney’s fees, for having to compel arbitration or defend or enforce the award.  Except as otherwise required by law, the Parties agree to maintain as confidential all information or documents obtained during the arbitration process, including the resolution of the Dispute.  Notwithstanding the above, either party may seek injunctive relief or decree of specific performance to restrain a breach or threatened breach of this Agreement.  This provision will continue in full force and effect despite the expiration or termination of this Agreement.  

14.    Miscellaneous.  

(a) Entire Agreement.  This Agreement, together with Pathwave’s End User License Agreement and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

(b) Notices.  All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure.  In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver.  No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability.  If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction.  This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in the city of Minneapolis and County of Hennepin, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 

(g) Assignment.  Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Pathwave. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. 

(h) Export Regulation.  The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US. 

(i) Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(j) Counterparts.  This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.