Allthenticate Solution Terms and Conditions

You are viewing these Allthenticate Solution Terms and Conditions (these “Terms”) because you are preparing to purchase authentication products and services for physical and digital access (collectively, the “Solution”).

IMPORTANT NOTE TO BE READ BEFORE PURCHASING AND ACCESSING OR USING THE SOLUTION

CAREFULLY READ THESE TERMS. BY ASSENTING TO THEM, YOU AND ANY ENTITY ON  WHOSE BEHALF YOU ARE PURCHASING RIGHTS TO THE SOLUTION (“CUSTOMER” “YOU”, AND “YOUR”) ARE ENTERING INTO A LEGALLY BINDING CONTRACT WITH ALLTHENTICATE INC. (“ALLTHENTICATE,” “WE,” OR “US”. IF YOU DO NOT ACCEPT THESE TERMS VIA ONE OR MORE OF THE ASSENT MECHANISMS DESCRIBED HERE,  THEN YOUR ORDER WILL NOT BE ACCEPTED OR PROCESSED, AND YOU WILL NOT BE ENTITLED TO RECEIVE ANY SOLUTION. YOU PROVIDE YOUR ASSENT VIA ANY ONE OR MORE OF THE FOLLOWING: CLICKING THE “I ACCEPT/AGREE” OR EQUIVALENT BUTTON, PAYMENT OF AN INVOICE REFERENCING THESE TERMS OR EXECUTION OF AN ORDER FORM.  

You and Allthenticate are sometimes referred to collectively herein as the “Parties”, or individually as a “Party.” Other words are used in these Terms in their capitalized form where grammar does not require. These words have, in both their singular and plural forms, the meaning to them in the Section in which they first appear.

1. SOLUTION. The Solution provided to You may comprise of the following:

1. Allthenticate’s proprietary software platform (“Software”);

2. Software related technology-enabled services (‘Services”); and/or

3. Hardware components which interact with the Software (“Hardware”). 

These Terms establish each of Your and Allthenticate’s legal rights and obligations with respect to Your purchase and Allthenticate’s delivery of the Solution. The specific Solution for which You purchase may be identified in a print or electronic ordering document or an invoice We provide (“Order”). These Terms and each Order entered into under them form a separate contractual arrangement between You and Allthenticate, each of which is referred to as an “Agreement.”

2. ACCOUNT.  As part of Your purchase, You will need to register and create an account (“Account”) by identifying a username  or email for Your Account (“Account Credentials”), which can be used to access Allthenticate’s online web portal located at https://admin.allthenticate.com.  This portal is used to manage Your access control for both physical and digital assets (e.g., doors and computers).  You will submit complete, accurate, and current information and data about You as required during the registration process and maintain and promptly update it as necessary. If You submit any information that is inaccurate or incomplete, or if Allthenticate has a reasonable belief that such is the case, We may immediately suspend or terminate the Account and your use of the Solution. Your commitment to maintaining the strict confidentiality of your Account Credentials is a material condition of your access and use of the Solution. You must not allow others to use Your Account Credentials and You agree to notify Us immediately if you have reason to believe that someone is using Your Account Credentials without Your permission or if any other breach of security related to Your Account occurs. You must also ensure that You log off and exit from Your Account at the end of each session. It is Your responsibility to notify us if you desire to cancel Your Account. Except to the extent required by law, Allthenticate will not be liable for any losses arising out of the unauthorized use of Your Account Credentials, either with or without your knowledge. You are responsible for all activity under Your Account.

3. SOFTWARE; USE RIGHTS AND RESTRICTIONS

3.1.  We deploy the Software remotely through the cloud and make it accessible via online, web-based interfaces such as https, VPN ,or API. We grant to You, during the Term (defined in Section 8.1), a personal, revocable, non-exclusive, non-assignable, non-transferable right to: (a) access and perform, remotely through the applicable online interface, the executable features and functions, and perform and display the content and graphical components of the Software solely in connection with your internal business operations; and (b) display and reproduce the documentation for the Solution as reasonably required for such use (collectively, “Use Rights”). The Order will also list the applicable metrics used to determine the Fees (defined in Section 9.1) for the Use Rights, which metrics may include such items as the number users (the “Usage Metrics”). Your Use Rights are subject to the Usage Metrics and any other scope restrictions or conditions in the applicable Order.

3.2. The Use Rights are the only acceptable use of the Software.  You shall not, directly or indirectly do the following to the Software, or use it for the purposes of, or in connection with: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or algorithms; (b) modify, translate, or create derivative works; (c) scrap, crawl, download, screen-grab, or other similar actions; (d) copy them; (e) commercially exploiting or providing them to third parties (whether by sublicense, sale or other means) including for timesharing or service bureau purposes; (f) introduce, transmit or store malicious code; (g) interfere with their security or operation; (h) frame or mirror them; (i) create, benchmarking or gather competitive intelligence; (j) defame or harass; (k) fraudulent activity; (l) infringe another’s intellectual property right including failing to obtain permission to upload/display works of authorship; (m) intercept or expropriate data; (n) spam, spoof or otherwise misrepresenting transmission sources; (o) use of a single Account for multiple business entities; (p) attempts to gain unauthorized access to the Software or their related systems or networks; and/or (p) remove any proprietary notices or labels. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  

4. HARDWARE

4.1. All delivery times and shipment dates for Hardware are approximate and may be changed by Us.  We may ship Your entire Hardware order in a single shipment, or in Our discretion, in multiple shipments from time to time. All shipments will be sent on an as-ready basis based on Our inventory and required internal preparations only following Your acceptance of an Order and Our receipt of any payment.  We reserve the right to use any shipping method or carrier that We see fit and make no guarantee of shipment date or arrival date. 

4.2. Allthenticate shall arrange and pay for shipment of the Hardware risk of loss shall be FOB Origin INCOTERMS (2020).  Title shall not transfer until fees, taxes and other applicable charges are paid in full. We retain a security interest in any Hardware shipped until all such amounts are paid.  You agree to take all actions that We may reasonably request to maintain and protect the Hardware, and to perfect, protect, maintain or continue, and not to do anything to interfere with, Our interests (including Our security interest) in the Hardware. We may offset any amounts We may owe You against any amounts You owe Us.

4.3. You agree to inspect and test the Hardware immediately upon receipt from Us. You shall notify us in writing: (a) within seven (7) days from delivery of the Hardware if any Hardware (i) that does not conform to the SKU in the applicable Order; or (ii) is physically damaged; or (b) within one (1) day from delivery of the Hardware if (i) the Hardware exceeds the quantity identified in the Order; or (ii) the Hardware (or parts thereof) are missing from Your Order; or (c) within one (1) day from the expected delivery date where there are any missing shipments of Hardware whether ordered alone or together indicated as being shipped in separate shipments (“a” -“c” collectively, “Nonconforming Hardware”). You will be deemed to have accepted Hardware unless You provide Us with written notice of Nonconforming Hardware within the applicable aforementioned days stating with specificity all nonconformities, and furnishing such other written evidence or documentation as may be reasonably required by Us. All non-conformities that are not so specified will be deemed waived by You, such Hardware shall be deemed to have been accepted by You, and no attempted revocation of acceptance will be effective.  If You timely notify Us of any Nonconforming Hardware, We shall determine, in Our reasonable discretion, whether the Hardware is Nonconforming Hardware. If We determine that such Hardware is Nonconforming Hardware, We shall, in Our sole discretion, either: (a) replace such Nonconforming Hardware with conforming Hardware; or (b) refund to You such amounts paid by You to Us for such Nonconforming Hardware returned by You to Use and any related fees for Software. You shall ship, at Your expense and risk of loss, all Nonconforming Hardware to Us to locations as We may instruct in writing.  If We exercise Our option to replace Nonconforming Hardware, We shall ship to the delivery location, at Our expense and risk of loss, the replacement Hardware.     

5. YOUR OBLIGATIONS

5.1. You shall not nor shall you allow the export or re-export of the Solution  in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  

5.2. You represent, covenant, and warrant that you will use the Solution only in compliance with all applicable laws and regulations. Although We have no obligation to monitor Your use of the Solution, We may do so in accordance with applicable laws and may suspend use of the Solution We believe is in violation of this Agreement; provided, however, that any suspension of the Solution must allow You to manually operate all doors equipped with Hardware or Software, and access all rooms otherwise subject to the Solution.

5.3. Allthenticate’s ability to provide the Solution is conditioned upon the following assumptions and dependences:  (a) Customer shall be responsible for obtaining and maintaining any equipment and ancillary services that are required to connect to, access or otherwise use the Solution, including, without limitation, modems, electromagnetic door locks, web browsers, smartphones, bluetooth, hardware, servers, software, operating systems, networking, web servers and the like (collectively, the “Customer Equipment”); (b) Customer shall be responsible for maintaining the security of the Customer Equipment and for all uses of  the Customer Equipment with or without Your knowledge or consent; (c) Customer shall be responsible for the installation of the Hardware whether performed by Customer or a third party; (d) Customer will provide such reasonable and timely cooperation as Allthenticate may require of Customer, including access to Customer’s information and/or personnel; (e) Allthenticate may rely on information, data, or materials submitted by, and consents, confirmations, and permissions provided by, Customer and Allthenticate has no obligation to independently verify the accuracy, completeness, or authority of the foregoing; (f) Customer will maintain a commercial high-speed uninterrupted Internet connection to the Solution; and (g) Customer will maintain an uninterrupted connection between the Hardware and the Software for necessary updates to be provided to the Hardware from time to time ((a) – (g) collectively “Assumptions and Dependencies”). Cloud-based elements of the Solution are provided under the industry standard “shared responsibility” model between Allthenticate and the third party cloud provider, currently AWS (the “Cloud Provider”)  such that Allthenticate is responsible for the security configuration and availability of the Software, and the security of the pod (IF AWS); while the Cloud Provider remains responsible, including as among the Cloud Provider, Allthenticate and Customer, for the security and availability of the cloud infrastructure and availability of the cloud (tenant/pod).   To the maximum extent permitted by applicable law and the Cloud Provider, Allthenticate hereby passes-through and/or assigns to Customer all the rights of and protections afforded by, the Cloud Provider.

5.4. You agree to (a) be solely responsible for Users’ compliance with these Terms and each Agreement, (b) be solely responsible for the accuracy, quality, integrity, and legality of Your Customer Data (as defined in Section 6) and of the means by which Users acquire Customer Data; (c)  use reasonable efforts to prevent unauthorized access to or use of the Software and Services, and promptly notify Us in writing of any such unauthorized access or use; and (d) use the Software and Services only in accordance with their respective user manuals, if applicable (which may be supplied by the manufacturer). “Users” means You and the individuals who are authorized by You to use the Software and Services, and may include, but are not necessarily limited to, Your employees, family, consultants, contractors, and/or agents.

5.5. .Allthenticate shall not be responsible or liable for any non-performance and/or any delays or failures in the Allthenticate Solution, and may require the payment of additional fees, if the Assumptions and Dependencies prove inaccurate or otherwise fail and cannot be reasonably mitigated. In connection with Customer’s installation of Hardware, Allthenticate may recommend to Customer third party service providers, for avoidance of doubt, Allthenticate has no affiliation with such third party service providers and shall have no responsibility or liability for any acts or omissions of such service providers. We shall not be responsible for the quality and/or performance of Customer Equipment, and/or any modifications You make to any Customer Equipment. We are not responsible for failings in individual operating systems and custom configuration of operating systems, operating system components, software, hardware, and/or inside wiring.

6. IPR OWNERSHIP; DATA RIGHTS. As between You and Allthenticate, all intellectual property rights (including copyrights, trademarks and patents), proprietary rights (including trade secrets), and moral rights (including rights of authorship and modification) throughout the world (“IPR”) in and to the Software and Services and all of its derivative works and improvements, are owned or licensed by, and are proprietary to, Allthenticate. Your rights in and to them are limited to the scope of the Use Rights. You hereby grant to us a worldwide, perpetual, irrevocable, non-exclusive, license to possess and use all data entered into the Solution by You (“Customer Data”) in any lawful manner necessary to deliver the Solution, to improve and enhance the Solution and for other development purposes in connection with Our business provided that any disclose such Customer Data shall solely be in an aggregate or other de-identified form. You hereby represent and warrant to us that you have all right and authority necessary to lawfully transfer Customer Data to us for use in the Solution and as otherwise contemplated hereby. To the extent Customer Data may include those portions of Customer Data that are defined as “personal information”, “personally identifiable information”, “non-public personal information”, “personal data” or the like under applicable law (“Personal Data”) you hereby expressly consent to our possession, use and sharing of the Personal Data to the same degree as described by the foregoing license. As between you and Allthenticate, you are solely responsible for ensuring you have the necessary authorization of any third party to provide the foregoing consent with respect to Personal Data deemed to be theirs. The Solution may contain software code, data, or other content owned by and licensed from third parties (the “Third Party Content”). When we include Third Party Content as part of the Solution, we provide it to you on either a sublicense or pass-through basis subject to the separate terms and conditions of its owners and licensors. We do not have the authority to modify those terms and conditions. We do, however, warrant that we have the authority to grant you the rights granted under the Use Rights.

7. CONFIDENTIALITY. In the course of Your use of the Solution, We necessarily may disclose to You or You may access confidential, non-public information (“Confidential Information”). You shall hold Confidential Information in strictest confidence and shall not: (a) use the Confidential Information, including internally within your own organization, except to the extent necessary in connection with your Use Rights; or (b) disclose the Confidential Information except to those of Your employees, service providers, and individual independent contractors who are bound to substantially similar obligations of confidentiality and have a need to know. You always shall handle Confidential Information with at least reasonable care and shall be responsible for the actions of those persons to whom disclosure is made. If you are required by a court to disclose the Confidential Information, so much as is legally required may be disclosed but only after providing us with written notice and reasonable assistance in obtaining and enforcing means of safeguarding the Confidential Information. Data privacy and security obligations, if any, are as set forth in the Allthenticate Data Protection Addendum made available to Customer, as updated by Allthenticate from time to time.   

8. TERM AND TERMINATION.

8.1. Your right to enter into Orders under these Terms commences upon the effective date of Your initial Order (“Effective Date”) and continues, unless earlier terminated pursuant to this Section, until the later of the first anniversary of the Effective Date or for so long as at least on Order remains continuously in effect, whichever is longer (the “Term”).  

8.2. You acknowledge that the Term is different from the term of each individual Order and any Use Rights granted thereunder (the “Order Term”). You may need to purchase renewal rights for an Order or your Use Rights thereunder prior to expiration of the Term. Unless earlier terminated or if different renewal terms are expressly set forth therein, each Order shall, except where one Party provides the other with 45 days advance written notice of non-renewal, automatically renew for successive renewal terms commensurate with its initial Order Term.

8.3 We may terminate these Terms and/or an Agreement immediately if You: (a) are in default of or have breached any provision of an Agreement and such default or breach has not been cured within ten (10) days of Our written or emailed notice thereof to You; (b) become insolvent or seek protection, voluntarily or involuntarily, under any bankruptcy laws or any attempt by you to obtain protection from creditors or wind down operations or any attempted assignment or transfer by you in breach of Section 13.2; (c) Your or any users breach of Section 3; or (c) engage in any illegal, unfair, or deceptive business practices or in violation of applicable federal, state, local and foreign laws, regulations and rules.

8.4. In the event We terminate these Terms and/or an Agreement, We may: (i) declare all amounts owed to Us to be immediately due and payable; (ii) cancel any Services and/or support We provide to You under these Terms or an Agreement; and (iii) suspend or cease performance of all Our other obligations without liability to You.  Our rights and remedies set forth herein shall be cumulative and in addition to all other rights and remedies available to Us in law or equity.

8.5. Upon any termination of these Terms and/or an Agreement, (a) all copies and embodiments of Our Confidential Information must be returned; and (b) we will make all Customer Data available to You for electronic retrieval for a period of thirty (30) days after the date of termination, but thereafter We may, but are not obligated to, delete stored Customer Data. 

8.6. All sections of these Terms which by their nature should survive termination shall survive termination, including, without limitation, rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations, and limitations of liability.

9. PURCHASE TERMS AND CONDITIONS

9.1. The fees for the Solution (the “Fees”) and any additional payment information are listed in each applicable Order. You authorize Us to charge the method of payment in Your Account for the Fees. You understand and agree that We may charge the method of payment in Your Account in advance for the Fees related to the Solution until we receive Your written notice of cancellation of an Agreement in accordance with the terms set forth herein.  By submitting card information or other payment information to us, you represent and agree that: (a) you are fully entitled to use that card or account; (b) all payment information provided is complete and accurate; (c) you will be responsible for any credit card fees; and (iv) that sufficient funds exist to pay us the amount(s) due.  

9.2. You agree that You will be fully and solely responsible for clearing the Solution for import and for payment of any and all taxes, fees, licenses, import duties, and expenses as may be applicable.  You further agree that, to the extent applicable, You will obtain at Your own risk and expense any import license or other official authorization and carry out all customs formalities for the importation of the Solution, and, where necessary, for their transit through another country. Unless expressly stated otherwise, all prices are expressed in U.S. Dollars.

9.3. We are not responsible for any amounts relating to insufficient funds, including chargebacks and Subscriber shall pay all associated amounts. If a Debit is returned or not processed for Non-Sufficient Funds (NSF) or similar reason, You authorize Us to collect a return payment fee of thirty-five U.S. Dollars ($35.00), by electronic debit from the method of payment in Your Account.  We will not be liable if a Debit is dishonored by Your bank or other financial institution.  In such case and at such time, We may, in Our sole discretion, attempt multiple times to Debit the method of payment in Your Account.  You will be deemed not to have paid the charge until the funds are actually collected. If You provide Allthenticate with a credit card, charge card, or debit card we may request and receive updated card information from your card issuer, such as updated card numbers and expiration date information when your card has expired. If we receive such updated information, we will update your Account information accordingly and Allthenticate reserves the right to charge any renewal card issued to You as a replacement without Your additional consent and charges up to four percent (4%) for credit card processing fees.

9.4. Notwithstanding anything to the contrary in this Agreement, We may, without limiting Our other rights and remedies, immediately and automatically without notice suspend your Use Rights and Services for Your failure to timely pay any Fees.  Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection (including, but not limited to, Our reasonable attorneys’ fees). 

1. Payment obligations are non-cancelable and all Fees are non-refundable

10. WARRANTIES AND DISCLAIMERS. THE SOLUTION IS PROVIDED “AS IS” AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  We do not warrant that the Solution will be uninterrupted or error free.  

11. INDEMNITY. You agree to defend, indemnify, and hold Us and Our officers, directors, shareholders, employees, agents, and representatives (collectively, “Indemnified Parties”), from any and all damages, losses, liabilities, claims, demands, suits, proceedings, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) (collectively, “Claims”) incurred by an Indemnified Party in connection with any claim or action arising out of or relating to: (i) Your breach or alleged breach of these Terms or an Agreement; (ii) Your use of the Solution; (iii) any loss of or damage to real property or tangible personal property caused or alleged to be caused by Your negligent act(s) or omission(s) or Your willful or intentional misconduct in connection with Your use of the Solution; or (iv) any fraud, abuse, and/or unauthorized use of the Solution; provided, however, that You shall not settle or agree to enter judgment that includes any payment by or admission of liability or other matter against the interest of any Indemnified Party.   We and the relevant Indemnified Party shall be permitted to participate in such defenses, negotiation, and/or settlement by counsel of Our and its own choosing and expense, and You shall reasonably cooperate with Us.

12. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT, FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THESE TERMS, AN AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. OUR LIABILITY TO YOU UNDER AN INDIVIDUAL AGREEMENT, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY YOU TO US UNDER THAT SAME INDIVIDUAL AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER RESULTING FROM OR RELATED TO ANY FAILURE, LOSS OF DATA, OR DELAY IN THE PERFORMANCE OF THE SOLUTION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF.

13. GENERAL TERMS AND CONDITIONS

13.1. These Terms and each Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the choice of law rules of any jurisdiction.  The U.N. Convention on the International Sales of Goods shall not apply or otherwise have any legal effect with respect to these Terms, including an Agreement.

13.2. Neither these Terms or an Agreement nor any right or obligation hereunder or thereunder may be assigned, transferred, delegated, pledged, or encumbered by You (“Assignment”) without Our prior written consent in Our sole discretion. For avoidance of doubt, Allthenticate may withhold such written consent until any outstanding amounts are paid in full.  Any purported Assignment without such consent will be void and of no force or effect.  We may freely assign Our rights and duties hereunder.  Except as otherwise provided herein, these Terms shall be binding upon and inure to the benefit of the successors and assigns (whether by operation of law, merger, change of control, or otherwise) of the Parties.

13.3. No waiver by Us of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of these Terms.

13.4. If any term, clause, or provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause, or provision shall be deemed to be severed from these Terms.

13.5. We will not be liable to You, or considered to be in breach of these Terms, on account of any delay or failure to perform as a result of any acts of God, actual or threatened acts of terrorism, acts of any political entity, natural or artificial disasters, epidemic or pandemic, or any governmental restrictions or regulations related thereto, delay by carrier, shortage of Services, material shortages, delays in transportation or inability to obtain labor, materials, or products through Our regular sources, or any other causes or conditions that are beyond Our reasonable control (collectively, “Force Majeure Event”). In the event of a Force Majeure Event, We may, at our option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to You.

13.6. These Terms and the Agreements formed by them shall not be construed to be a joint venture or a partnership between the Parties. Except as expressly set forth in an Agreement, neither Party has any authority of any kind to bind the other in any respect whatsoever.

13.7. You shall not use Our name or logo, or any derivations thereof, in any advertisement, publications, or sales materials without Our prior written consent.

13.8. We may provide notices to you via the email address provided in your Account. Any notice required to be given to Us under these Terms or an Agreement shall be in writing and delivered to Us by certified, registered or Express mail, or by reputable overnight courier.  All such notices by either party shall be deemed given three (3) business days after being sent. All notices required to be sent to Us pursuant to these Terms shall be sent to: Allthenticate, Inc., 808 Travis St, Ste 310, Houston, Texas 77002.

13.9. In the event of a dispute between the Parties arising out of or relating to these Terms, including its interpretation (“Dispute”) that cannot be resolved between the Parties after a good faith effort at negotiation shall be submitted for binding arbitration administered by the American Abitration Association (“AAA”).  The AAA will apply the Commercial Arbitration Rules then in force bythe AAA, including its Appeal Procedures, before a single arbitrator. In order to facilitate understanding by the arbitrator, all arbitration proceedings shall be conducted in English (which may include the use of translators at the expense of the Party who or whose witness needs such assistance).  The arbitration shall be conducted in Houston, Texas. The arbitrator shall prepare in writing and provide to the Parties an award including factual findings and the reasons on which his or her decision is based. The arbitrator shall not have the power to award damages not permitted under these Terms. The arbitration award may be enforced in any court of competent jurisdiction.  Notwithstanding the foregoing, this arbitration provision does not apply if You have violated and/or have threatened to violate any of Our intellectual property rights, or if You have failed to pay any Fees as required herein, in which case We may seek injunctive and/or other relief in any state or federal court in Houston, Texas.   

13.10. The state of California requires that certain warnings be given concerning products that contain chemicals subject to Proposition 65.  A list of chemicals regulated by Proposition 65 can be found at www.oehha.ca.gov.  Proposition 65 warnings, to the extent applicable, are provided with the Product upon purchase.

13.11. The headings in these Terms are for convenience only and are not to be used in the interpretation of these Terms.  

13.12. These Terms and related Orders entered into under them constitute the complete and exclusive agreement between the Parties regarding the subject matter hereof, and any and all previous representations, discussions, and writings are superseded by this Agreement. We may, at any time and in Our sole discretion, amend these Terms without notice to You. Any amendments will become effective immediately upon the publication thereof.

13.13. These Terms and each Order may be signed in separate, identical counterparts deemed to be one instrument.

13.14. Conflicts between these Terms and an Order with respect to amounts or timing of payments will be resolved in favor of the Order. All other conflicts will be resolved in favor of these Terms. Purchase orders or similar documents issued by You or Your agents are void and of no effect. If Customer’s procurement processes require use of an internal purchase order neither it nor its terms shall supersede, replace, or amend any Agreement. Sections 6, 7, 11, 12, and those portions of Sections 8, 9, and 13 that by their nature should survive, each shall survive expiration or termination of any Agreement.