PLATEAU TERMS OF SERVICE

Last Modified: May 15, 2020

This Terms of Service Agreement (this "Agreement" or “Terms of Use”) is a binding contract between you ("Customer," "you," or "your") and ClearPath TMS, LLC ("ClearPath," "we," or "us"). This Agreement governs your access to and use of the Plateau™ Services.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "REGISTER" BUTTON WHEN YOU REGISTER FOR AN ACCOUNT ON THE PLATEAU SERVICES PLATFORM (the "Effective Date"). BY CLICKING "REGISTER" YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS

IF YOU DO NOT ACCEPT THESE TERMS, DO NOT REGISTER FOR A PLATEAU SERVICES ACCOUNT AND YOU MAY NOT ACCESS OR USE THE PLATEAU SERVICES.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion . All changes are effective immediately when we post them and apply to all access to and use of the Plateau Services thereafter. In the event of any material changes to these Terms of Use, you will be prompted to review and accept the modified terms when you log in to access and use the Plateau Services.

1. Definitions.

"Aggregated Statistics" means anonymized and aggregated data derived, at least in part, from the data and information related to Customer's use of the Plateau Services that is collected, generated, and used by ClearPath for its own business purposes, including without limitation to compile statistical and performance information related to its provision and operation of the Plateau Services.
"Authorized User" means Customer and Customer's employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Plateau Services on Customer’s behalf under the rights granted to Customer pursuant to this Agreement.
"Customer Data" means the information, data, and other content, in any form or medium, that is submitted or otherwise transmitted by or on behalf of Customer in the course of registering for and using the Plateau Service, including but not limited to Transport Load Data supplied by Customer, but excluding Aggregated Statistics.
"Documentation" means ClearPath's user manuals, handbooks, guides and other documentation relating to the Plateau Services, whether in electronic or hard copy form.
"ClearPath IP" means the Plateau Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, ClearPath IP includes Aggregated Statistics and any information, data, or other content derived from ClearPath's monitoring of Customer's access to or use of the Plateau Services, but does not include Customer Data.
"Plateau Services" means the collection of cloud-based software services ClearPath provides under this Agreement to facilitate the brokering of vehicle loads for transport and delivery between a shipper, broker, primary carrier, and/or a sub-hauler and the exchange of Transport Load Data from one company’s software system to another company’s software system, as generally described on the Plateau website available at http://www.joinplateau.com.
"Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Plateau Services.
"Transport Load Data" means all data collected, transmitted and/or stored by the Plateau Services as provided, directly or indirectly, by or on behalf of Customer or any other shipper, broker, primary carrier, or sub-hauler, pertaining to a load of one or more vehicles for transport and delivery to a designated location. Transport Load Data includes but is not limited to Vehicle Identification Number(s) (“VIN(s)”), vehicle descriptions, images, delivery requirements, GPS data, delivery confirmations, and any other data transmitted to or collected by the Plateau Service from the TMS system of any shipper, broker, primary carrier, or sub-hauler that has been authorized by ClearPath to use the Plateau Service.

2. Access and Use.

Registration. In order to access and use the Plateau Services, you must first register and create an account by providing your company name, DOT#, SCAC Code (if applicable), contact name, your valid e-mail address, your working telephone number, and the name of your TMS provider, if one exists . ClearPath may approve or reject your registration in its sole discretion. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.
Provision of Access. Subject to ClearPath’s approval of your registration and conditioned on your payment of all applicable Fees and compliance with all other terms and conditions of this Agreement, ClearPath hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Plateau Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. ClearPath shall provide you the necessary access credentials to allow you to access the Plateau Services.
Documentation License. Subject to the terms and conditions contained in this Agreement, ClearPath hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Plateau Services.
Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Plateau Services, any software component of the Plateau Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, ClearPath may monitor Customer's use of the Plateau Services and collect and compile data and information related to Customer's use of the Plateau Services to be used by ClearPath in an aggregated and anonymized manner as Aggregated Statistics ("Aggregated Statistics"). As between ClearPath and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by ClearPath. You acknowledge that ClearPath may compile Aggregated Statistics based on Customer Data input into the Plateau Services. You agree that ClearPath may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
Reservation of Rights. ClearPath 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 ClearPath IP.
Suspension. Notwithstanding anything to the contrary in this Agreement, ClearPath may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Plateau Services if:
1. ClearPath reasonably determines that
  1. there is a threat or attack on any of the Plateau Services or ClearPath IP;
  2. Customer's or any other Authorized User's use of the Plateau Services disrupts or poses a security risk to the Plateau Services, ClearPath IP or to any other customer or vendor of ClearPath;
  3. there is a threat or attack on any of the Plateau Services or ClearPath IP;
  4. there exist significant technical or technological that are impairing the Plateau Services from properly interfacing and working with Customer’s TMS system;
  5. Customer may be in material breach of this Agreement;
  6. subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding;
  7. ClearPath's provision of the Plateau Services to Customer or any other Authorized User is prohibited by applicable law; or
  8. the Plateau Services, or any component thereof, becomes or is likely to become the subject of any claim of intellectual property infringement or misappropriation;
2. any vendor of ClearPath has suspended or terminated ClearPath's access to or use of any third-party services or products required to enable Customer to access and/or use the Plateau Services or any component thereof; or
3. in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension").
No Suspension Related Liability. ClearPath will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur or allege as a result of a Service Suspension.

3. Customer Responsibilities.

Acceptable Use. All Customer Data supplied to ClearPath under this Agreement will be true, accurate and complete, and you will only use the Plateau Services for the purpose for which it has been offered and provided by ClearPath. Your use of the Plateau Services must comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, you must not:
1. Provide false or materially misleading information to ClearPath or to any other user of the Plateau Services;
2. Copy, modify, or create derivative works of the Plateau Services, any software component of the Plateau Services, or Documentation, in whole or in part;
3. Rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Plateau Services or Documentation except as expressly permitted under this Agreement;
4. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Plateau Services, in whole or in part;
5. Remove any proprietary notices from the Plateau Services or Documentation;
6. Engage in any activity that could disable, overburden, damage, restrict, inhibit, or otherwise impair the Plateau Services or any other person’s use of the Plateau Services, including their ability to engage in real time activities through the Plateau Services, or which may expose ClearPath, the Plateau Services or any other user of the Plateau Services to any liability;
7. Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or may be technologically harmful to ClearPath’s systems, including but not limited to the Plateau Services, to any Transport Load Data, or to any software or systems, including but not limited to the TMS systems, of other users;
8. Access or attempt to access the Plateau Services account of any other user without their express, written authorization;
9. Impersonate or attempt to impersonate ClearPath, a ClearPath employee, another user, or any other person or entity (including, without limitation, by using the personal names or contact information associated with any of the foregoing);
10. Submit or transmit any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
11. Promote any illegal activity, sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or advocate or assist in any of the foregoing;
12. Upload or submit any material that infringes any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person;
13. Violate the legal rights (including the rights of publicity and privacy) of others or submit or transmit any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use;
14. Submit or transmit any information or material that is likely to deceive any other person;
15. Cause annoyance, inconvenience, or needless anxiety or engage in activity likely to upset, embarrass, alarm, or annoy any other person; or
16. Send, knowingly receive, upload, download, use, or re-use any information or material that does not comply with these Terms of Use or that is not intended for use in connection with the Plateau Services.
Account Use. You are responsible and liable for all uses of the Plateau Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are 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 you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Plateau Services and shall cause Authorized Users to comply with such provisions.
Customer Data. You hereby grant to ClearPath a non-exclusive, royalty-free, worldwide license to reproduce, transmit, distribute, disclose to other users of the Plateau Services , and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ClearPath to provide the Plateau Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Plateau Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
Cooperation with Enforcement. You acknowledge and agree that we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose information related to your use of the Plateau Services, including but not limited to your identity, the identity of your Authorized Users, Customer Data, and any other information that may be deemed Confidential Information under Section 6. YOU WAIVE AND HOLD HARMLESS CLEARPATH AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OR AT THE DIRECTION OF CLEARPATH DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER CLEARPATH OR LAW ENFORCEMENT AUTHORITIES.

4. Support. The access rights granted hereunder do not entitle Customer to any support services. In addition, Customer may be offered, at ClearPath’s discretion, the opportunity to purchase support services pursuant to a separate agreement. ClearPath will endeavor to respond to any questions or issues related to the Plateau Services as soon as is reasonably possible.

5. Fees and Payment. Customer shall pay ClearPath the fees, if any, as described in ClearPath’s written proposal to Customer (as may be amended from time to time as set forth herein) ("Fees") within thirty (30) days from the invoice date without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting ClearPath's other rights and remedies: (a) ClearPath 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; (b) Customer shall reimburse ClearPath for all costs incurred by ClearPath in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (c) ClearPath, in its sole discretion, may terminate this Agreement or suspend Customer's and all other Authorized Users' access to any portion or all of the Plateau Services until such amounts are paid in full. 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 ClearPath's income. ClearPath may modify its Fees for access and use of the Plateau Services upon ninety (90) days’ notice to Customer.

6. Confidential Information. From time to time during the Term, ClearPath and Customer 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 orally or in written, electronic, or other form or media whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (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; (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, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) 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; (ii) to establish a party's rights under this Agreement, including to make required court filings; or (iii) in the case of ClearPath as provided in Section 3(e). Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; 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. Privacy Policy. ClearPath complies with its privacy policy available at [http://www.joinplateau.com/home/privacy] ("Privacy Policy"), in providing the Plateau Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Plateau Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.

8. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Plateau Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data . If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Plateau Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential and, if incorporated into the Plateau Services and/or Documentation to thereafter be considered ClearPath IP subject to this Agreement. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

9. Limited Warranty and Warranty Disclaimer..

Limited Warranty. ClearPath warrants that it will use commercially reasonable efforts to provide and maintain the Plateau Services in accordance with this Agreement but makes no representations or warranty regarding uptime or availability of the Plateau Services. THE FOREGOING WARRANTY DOES NOT APPLY, AND CLEARPATH EXPRESSLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
No Warranty on Load Transport Data. You understand and acknowledge that You are responsible for verifying and validating the accuracy and completeness of all Load Transport Data that you (i) input or otherwise cause to be supplied or transmitted to the Plateau Services, whether such data is input or supplied directly or indirectly via a TMS system, and (ii) receive from another user of the Plateau Services. You acknowledge and agree that ClearPath has no obligation to validate any Load Transport Data and that the Plateau Services do not validate or in any way check the accuracy and completeness of any Load Transport Data.
No Dispute Resolution or Settlement. All payment and other disputes arising between you and any other user(s) of the Plateau Services must be resolved by you directly with the other user(s). ClearPath will not mediate, resolve, settle, or otherwise have any involvement, responsibility or liability with respect to any disputes between you and any other users of the Plateau Services.
Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE PLATEAU SERVICES ARE PROVIDED "AS IS" AND CLEARPATH EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CLEARPATH 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. CLEARPATH MAKES NO WARRANTY OF ANY KIND THAT THE PLATEAU SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Exclusive Remedy for Breach of Warranty. UNLESS PROHIBITED BY APPLICABLE LAW, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLEARPATH’S BREACH OF THE WARRANTY IN SECTION 9(a) IS TO TERMINATE THIS AGREEMENT AND TO RECEIVE A PRO-RATED REFUND OF ANY FEES PAID TO CLEARPATH FOR THE REMAINING APPLICABLE PERIOD COVERED BY SUCH FEES, REGARDLESS OF WHETHER CLEARPATH WAS ADVISED OF THE POSSIBILITY OF OTHER DAMAGES AND REGARDLESS OF WHETHER THE WARRANTY OR THIS EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10. Indemnification.

ClearPath Indemnification.
1. ClearPath shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Plateau Services, or any use of the Plateau Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Customer promptly notifies ClearPath in writing of the Third-Party Claim, cooperates with ClearPath, and allows ClearPath sole authority to control the defense and settlement of such Third-Party Claim.
2. If such a Third-Party Claim is made or either party reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit ClearPath, at ClearPath's sole discretion, to (A) modify or replace the Plateau Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If ClearPath determines that neither alternative is reasonably available, ClearPath may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Plateau Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
3. This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
Customer Indemnification. Customer shall indemnify, hold harmless, and, at ClearPath's option, defend ClearPath and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's rights; (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Plateau Services in a manner not authorized by this Agreement; or (iii) otherwise arising from Customer’s breach of this Agreement; provided that Customer may not settle any Third-Party Claim against ClearPath unless ClearPath consents to such settlement, and further provided that ClearPath 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.

11. Limitations of Liability. IN NO EVENT WILL CLEARPATH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR 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 CLEARPATH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CLEARPATH’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, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CLEARPATH UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Term and Termination.

Term. The term of this Agreement begins on the Effective Date and continues until terminated.
Termination. In addition to any other express termination right set forth in this Agreement:

You may terminate this Agreement for any reason or no reason immediately upon written notice to ClearPath;
ClearPath may terminate this Agreement for any reason or no reason upon thirty (30) days' advance notice to Customer;
ClearPath may terminate this Agreement immediately upon written notice to Customer if Customer has not used the Plateau Services for a period of thirty (30) consecutive days;
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 for 30 days after the non-breaching party provides the breaching party with written notice of such breach; or
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.

Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue all access and use of the Plateau Services and all ClearPath IP. Except as provided in Section 9(d), no termination of this Agreement will relieve Customer of its obligation to pay all Fees that may have become due before such termination or entitle Customer to any refund.
Survival.This Section 12(d), Sections 2(e), 5, 6, 8, 9(b), 9(c), 10, 11, 12(c), 14, 15, 16, 17, and 18 and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination.

13. Export Regulation. You 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 Plateau Services or the software or technology included in the Plateau Services available outside the US.

14. US Government Rights. Each of the software components that constitute the Plateau Services and the Documentation is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Plateau Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.

15. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Florida 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 Florida. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Palm Beach County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

16. Force Majeure. This agreement is governed by and construed in accordance with the internal laws of the State of Florida 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 Florida. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Palm Beach County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

17. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Sections 3(a) or 6, would cause ClearPath irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, ClearPath 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.

18. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address at 605 East Boynton Beach Blvd., Boynton Beach, FL 33435 and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Plateau Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. If any provision of this Agreement is deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement, which will otherwise be enforced according to the remaining terms, or invalidate or render unenforceable such term or provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.