WELLAWARE HOLDINGS, INC. ORDER TERMS AND CONDITIONS
These These WellAware Holdings, Inc. (“WellAware”) Order Terms and Conditions (these “Terms”) govern each order form (each an “Approved Order”) that is issued by WellAware and accepted by the entity identified on the Order Form (a “Customer”).
1.
SCOPE OF AGREEMENT. These Terms shall govern WellAware’s delivery, sale
and licensing of any Products or Services specified on an Approved Order.
Any capitalized terms not defined in these Terms shall be defined as set forth
in the applicable Approved Order. To the extent that there is an
inconsistency between these Terms and any Approved Order, the Approved Order
shall control with respect to the specific Equipment, Subscription Monitoring
Services and Software and prices listed in that Approved Order. These Terms,
together with the applicable Approved Order, supersede any prior agreements
(including without limitation any nondisclosure agreements), proposals or other
communications, oral or written, between the parties with respect to the
Products and Services specified in that Approved Order. These Terms,
together with the applicable Approved Order, supersede all documents, including
any purchase orders issued by Customer with respect to equipment, software and
services to be provided by WA and any additional or different terms or
conditions included on any such documentation are hereby expressly rejected by
WellAware. All references to “days” shall refer to calendar days unless
“business days” is expressly referenced, in which case “business days” shall be
defined as any day Monday through Friday other than days observed by WellAware
as holidays.
2. DELIVERY. Except as otherwise set
forth in the applicable Approved Order, title and all risk of loss of, or
damage to Equipment delivered by WellAware pursuant to the Approved Order, will
pass to Customer upon delivery by WellAware to the carrier, freight forwarder
or Customer, whichever occurs first. Customer will be responsible for and
pay all packing, delivery, freight and insurance charges, which charges WellAware
may require Customer to pay in advance.
3. WARRANTIES AND ACCEPTANCE.
3.1 WELLAWARE-MANUFACTURED HARDWARE. Click here for a specific WellAware-manufactured hardware
warranty information: https://wellaware.us/wellaware-warranty-policy/
3.2 EQUIPMENT WARRANTIES. If the Approved Order specifies that WellAware will provide
Equipment and/or Hardware, that Equipment (including any software that is
integrated and/or incorporated into the Equipment) and Hardware will be
warranted to the same extent as the warranties (and subject to the same
exclusions) provided by the manufacturers, which shall be assigned by WellAware
to Customer to the extent assignable.
3.3 INTEGRATION SERVICES. If the Approved Order specifies that WellAware will provide
Integration Services relating to Equipment, WellAware will provide Customer
with notice that the integration of Equipment has been completed, including any
changes orders requested and/or authorized by Customer at the time of integration.
Customer will have a period of no more than three (3) business days (the “Acceptance Period“) to confirm that the Equipment has
been installed in substantial conformance with the terms of this Approved
Order, including any change orders. Unless Customer provides WellAware with
express written notice within the Acceptance Period that the Equipment integration
is not satisfactory, including a detailed explanation and description of the
non-conformities, Customer will be deemed to have accepted the Equipment as
installed. If Customer provides such written notice, WellAware will promptly
confirm and correct any non-conformities and give Customer notice of such
correction, initiating a subsequent Acceptance Period. This procedure shall
repeat until Customer has accepted or is deemed to have accepted the Equipment
as installed. Customer acknowledges that WellAware’s obligation to complete any
Equipment integration is conditioned on Customer’s performance of its
obligations, including sufficient cooperation, information and access to enable
WellAware to complete the integration. Customer is required to provide
WellAware with applicable information to build and complete integration
activities no later than 90 days from the date of the Approved Order.
3.4
Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS OR
THE APPLICABLE APPROVED ORDER, WELLAWARE MAKES NO EXPRESS, IMPLIED OR STATUTORY
REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH ANY PRODUCTS OR
SERVICES PROVIDED UNDER THAT APPROVED ORDER. UNLESS OTHERWISE EXPLICITLY
STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL PRODUCTS AND
SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS”
BASIS WITH NO WARRANTY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD
PARTY RIGHTS. WELLAWARE DOES NOT REPRESENT THAT THE USE OF THE PRODUCTS
AND SERVICES WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT ALL
ERRORS WILL BE CORRECTED.
4
SUBSCRIPTION MONITORING
SERVICES.
4.1 SUBSCRIPTION MONITORING SERVICES. If the
applicable Approved Order specifies that WellAware will provide Subscription
Monitoring Services to Customer, the following terms shall apply.
(a)
Term of Subscription
Monitoring Services. WellAware reserves the right to make changes to its
hosting and technical infrastructure during the Order Term as deemed reasonably
necessary by WellAware, provided such changes will not materially degrade the
performance or functionality of the Subscription Monitoring Services. Unless
otherwise specified in the applicable Approved Order, Subscription Monitoring
Services are purchased for the initial subscription term specified in this
Approved Order and shall automatically renew at the end of the initial
subscription term for an additional period equal to the period of the initial
subscription term unless Customer gives WellAware written notice of non-renewal
at least sixty (60) days prior to the end of the then current subscription
term. Subscription Monitoring Services are non-cancelable before the end of the
then current subscription term. After the initial term, WellAware reserves the
right to amend the fees payable for the Subscription Monitoring Services for the
subsequent renewal term upon thirty (30) days prior written notice to Customer.
(b)
License Restrictions.
Subject to the terms and conditions of the Approved Order, WellAware
hereby grants to Customer a limited, non-exclusive, non-transferable,
non-sublicensable license to: (i) access and use the Subscription Monitoring
Services limited to the number of users for which Customer has paid the
applicable fee for the Subscription Monitoring Services specified in the
corresponding Approved Order (the “Subscription Fee”) and (ii) use any
then-current documentation (if any) provided by WellAware in connection with
the Subscription Monitoring Services (collectively, “Subscription
Documentation”), in the case of (i) and (ii) solely for internal
business purposes in accordance with the applicable Approved Order. Where
applicable, WellAware will deliver to Customer all user IDs and passwords as
necessary for Customer’s authorized employees and agents to access the
Subscription Monitoring Services in accordance with the applicable Approved
Order. Customer is responsible for all activities conducted under its user IDs
and passwords and for ensuring its employees’ and agents’ compliance with these
Terms and the applicable Approved Order. Customer shall not: (i) resell,
sublicense, lease, time-share or otherwise make the Subscription Monitoring
Services available to any third party; (ii) use the Subscription Monitoring
Services to send or store infringing or unlawful material; (iii) use the
Subscription Monitoring Services to send or store viruses, worms, time bombs,
Trojan horses and other harmful or malicious code, files, scripts, agents or
programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity
or performance of, the Subscription Monitoring Services or the data contained
therein; (v) modify, copy or create derivative works based on the Subscription
Monitoring Services; (vi) reverse engineer decompile, disassemble or otherwise attempt
to discover the source code or underlying ideas or algorithms of the
Subscription Monitoring Services; (vii) access the Subscription Monitoring
Services for the purpose of building a competitive product or service or
copying its features or user interface; (viii) use the Subscription Monitoring
Services, or permit it to be used, for purposes of product evaluation,
benchmarking or other comparative analysis intended for publication without
WellAware’s prior written consent; or (ix) permit access to the Subscription
Monitoring Services by a direct competitor of WellAware.
(c)
Data Rights.
Customer shall retain all ownership rights in any data stored by Customer in
the Subscription Monitoring Services (the “Customer Data“) and
in Customer’s confidential information, provided that Customer hereby grants
WellAware a non-exclusive, worldwide royalty-free, fully paid-up license
(including the right to sublicense through multiple tiers) to use, reproduce,
distribute and modify any Customer Data, in whole or in part, and Customer’s
confidential information as necessary to provide the Subscription Monitoring
Services and to evaluate technology performance and benchmarking and marketing
purposes, as well as use or incorporate any Customer Data in analysis,
conversions, projections, abstracts, computations, algorithms and similar work,
provided that WellAware continues to maintain the confidentiality and security
of such information and data, and WellAware shall own all such analysis,
conversions, projections, abstracts, computations, algorithms and anything
similar.
4.2
INTERNET CONNECTIONS; STORAGE; BANDWIDTH. Customer is responsible for obtaining and maintaining all
computer hardware, software and communications equipment needed to access the
Internet and use the Subscription Monitoring Services, including all
third-party access, telecommunications and Internet connection charges.
WellAware will use commercially reasonable efforts to implement and maintain
generally accepted industry standard technical, administrative and physical
security measures, policies and procedures designed to ensure the
confidentiality and privacy of personal data provided to or obtained or stored
by WellAware in connection with its provision of the Subscription Monitoring
Services to Customer.
5. SOFTWARE LICENSE.
5.1 Software. Subject to and conditioned upon Customer’s compliance with
these Terms, WellAware and its suppliers grant to Customer a non-exclusive,
non-transferable license to use any Software provided by WellAware during the
term of the applicable Approved Order, subject to WellAware’s standard Terms of
Service (“ToS”) provided with the Software, either in the product packaging or
presented prior to Customer downloading the Software.
5.2 Restrictions. Except as otherwise expressly provided under this
Agreement, Customer shall have no right and specifically agrees not to: (i)
transfer, assign or sublicense any of the license rights granted herein to any
other person, or use software provided by WellAware except as expressly
permitted by this Agreement or the applicable ToS, and any such attempted
transfer, assignment, sublicense or use shall be void; (ii) make error
corrections to or otherwise modify or adapt software provided by WellAware or
create derivative works based thereon, or to permit third parties to do the
same; or (iii) decompile, decrypt, reverse engineer, disassemble or otherwise
reduce software provided by WellAware to human-readable form, except to the
extent otherwise permitted by law notwithstanding this clause.
5.3 Terms of Service. To the extent that the applicable Approved Order
permits Customer to provide access to the Software specified in that Approved
Order to any of its employees, consultants or agents, Customer shall require
any employee, consultant or agent given access to Software provided by
WellAware under this Agreement to execute, either in writing or as a
click-through acknowledgement, WellAware’s standard ToS applicable to the
Software that they will be using or accessing.
6. SUPPORT SERVICES. WellAware will use commercially reasonable efforts to
provide the appropriate level of support services for the Equipment and the
appropriate service levels for the Subscription Monitoring Services
(collectively and individually referred to as the Support Services). WellAware
may change how it provides Support Services at any time with or without notice,
provided that if any change is a material and adverse change, then WellAware
will give Customer prior written notice of the change. Certain support services
for the Equipment may require a charge to the Customer, which will be based
upon time and labor required.
WellAware shall use commercially
reasonable efforts to make the Subscription Monitoring Services available for
access and use by the Customer over the Internet at least 99.5% of the time as
measured over the course of each calendar month during the Order Term,
excluding unavailability as a result of scheduled maintenance (the “Base Availability Standard”). If the
Subscription Monitoring Services do not meet the Base Availability Standard for
two consecutive months, a service credit will be issued following such
two-month period upon written notice to WellAware.
Customer acknowledges that WellAware uses
third party providers to enable aspects of the Support Services such as, for
example, but not limited to, data storage, synchronization, and communication
through third-party services including mobile carriers, that WellAware does not
control and is not responsible for the acts or omissions of such third-party
service providers. Services may be subject to sporadic interruptions and
failures for a variety of reasons beyond WellAware’s control, including
cellular intermittency, third-party provider uptime and carriers, among others.
Customer acknowledges these limitations and agree that WellAware is not
responsible for damages allegedly caused by the failure or delay of the
Services.
7. PROPRIETARY RIGHTS. WellAware warrants that it has the right and authority to
provide the Equipment, Software and Subscription Monitoring Services made
available to Customer by WellAware. Customer acknowledges and agrees, as
between WellAware and Customer, WellAware will own all right, title and
interest in the Software, Subscription Monitoring Services and any other
materials furnished or made available by WellAware hereunder, other than any
Equipment for which the purchase price has been fully paid to WellAware, and
all modifications and enhancements thereof, including all rights under
copyright and patent and other intellectual property rights. There are no
implied rights or licenses granted under this Agreement, and nothing in this
Agreement transfers any ownership interest in any intellectual property
embodied in any Equipment, Software or Subscription Monitoring Services
provided by WellAware hereunder. Customer grants to WellAware a non-exclusive,
royalty-free, worldwide license to use the Customer Data and perform all acts
with respect to the Customer Data as may be necessary for WellAware to provide
the Subscription Monitoring Services to Customer, and a non-exclusive,
transferable, sub-licensable, perpetual, irrevocable, worldwide, royalty-free,
fully paid license to use, reproduce, modify, distribute, perform and display
the Customer Data as a part of any Anonymized Statistics, as defined below.
WellAware may monitor Customer’s use of the Subscription Monitoring Services
and Software and use data and information related to such use and Customer Data
in any aggregate or anonymous manner, including to compile statistical and
performance information related to the provision and operation of the Software
or Subscription Monitoring Services (“Anonymized Statistics”).
All right, title and interest in the Anonymized Statistics and all intellectual
property rights therein, belong to and are retained solely by WellAware, and
WellAware may use or disclose Anonymized Statistics in its sole discretion.
8. PAYMENT TERMS. All charges, payments and amounts will be in United States
dollars. WellAware will invoice the customer no later than 90 days after
the date of an Approved Order unless WellAware has not fulfilled the Products
under the Approved Order. Late payments may be assessed and will be calculated
as one and one-half percent (1.5%) of the outstanding balance per month, or the
maximum rate permitted by law, whichever is lower, from the date payment was
due until the date paid. Customer shall reimburse WellAware for all reasonable
costs incurred by WellAware in collection of delinquent amounts not subject to
a reasonable and good faith dispute. Customer is responsible for any
direct or indirect local, state, federal or foreign taxes, levies, duties or
similar governmental assessments of any nature, including value-added, sales,
use or withholding taxes, excluding taxes based on WellAware’s net
income. Customer shall reimburse WellAware for all reasonable,
pre-approved and appropriately documented travel and related expenses incurred
by WellAware in performing integration or support services, training or
other professional services ordered by Customer. WellAware shall have the right
to audit Customer’s records and use of Software or Subscription Monitoring
Services to verify Customer’s compliance with all the terms of this Agreement
and any applicable Approved Order. In the event that any audit reveals a material
non-compliance, Customer shall reimburse WellAware for the reasonable cost of
the audit and shall pay any omitted fees with applicable late penalty.
9. OBLIGATIONS UPON TERMINATION. In the
event of termination of an applicable Approved Order, the Customer shall not be
relieved from fulfilling and paying for the unamortized cost of Equipment and integration
services, if any, within any terminated Approved Order entered into prior to
the effective termination date of the applicable Approved Order, nor shall the Customer
be relieved from payment for services and payment obligations that are
outstanding as of the effective termination date. In the alternative, if
another company takes over the Equipment and enters into a monitoring
arrangement with Supplier, the Customer will not be liable for any unamortized
Equipment or integration service costs. WellAware will continue to use
reasonable commercial efforts to support existing end users of the Customer
utilizing WellAware Products or Services, including any necessary firmware or
software updates or fixes, for the remaining Term of the Approved Order upon Customer’s
commitment to meet the payment obligations of such Approved Order. The Customer
shall return WellAware’s equipment in good working condition at Customer‘s
expense. If Customer is unable or unwilling to remove and/or return WellAware’s
equipment, WellAware will be given appropriate access to locations or
facilities to pick up equipment for a fair and reasonable charge to the
Customer.
10.
CONFIDENTIALITY. “Confidential Information” means any
information that the receiving party knows or has reason to know (either
because such information is marked or otherwise identified by the disclosing
party orally or in writing as confidential or proprietary, has commercial
value, or because it is not generally known in the relevant trade or industry)
is being provided by the disclosing party with an expectation that it be
treated as confidential and not disclosed to others. The existence and terms
and conditions of this Agreement, all Order Forms and all Approved Orders shall
be treated as Confidential Information of WellAware. Each party agrees that it
will not use, copy or reproduce such Confidential Information other than to
fulfill its duties and obligations under this Agreement. The prohibitions
contained in this Section will not apply to information (i) already lawfully
known by the receiving party without restriction on disclosure prior to
disclosure by the disclosing party, (ii) generally known to the public without
the receiving party’s breach of any confidentiality obligations to the
disclosing party, or (iii) lawfully obtained by the receiving party without
restriction on disclosure from a third party who is not violating any
confidentiality obligations to the disclosing party by making such disclosure.
Neither party may disclose to third parties, other than its agents and
representatives on a need-to-know basis in order to fulfill the receiving
party’s duties and obligations under this Agreement, any Confidential
Information of the other party, without the prior written consent of the other
party. Notwithstanding the foregoing, each party will be entitled to disclose
the Confidential Information of the other party (a) to the extent required by
applicable law or (b) the order of a court of competent jurisdiction,
government agency or other legal process, provided that the disclosing party
will, to the extent not prohibited, provide notice of such required disclosure
and allow the non-disclosing party to object prior to the disclosure of the
Confidential Information.
11.
INDEMNIFICATION AND
INSURANCE.
11.1
WellAware
Indemnification. WellAware
shall defend Customer against any claims, demands, suits, or proceedings made
or brought against Customer by a third party (a “Claim”) alleging
that any Products or Services provided by WellAware in the its original form,
without modification, and used by Customer in accordance with applicable usage
instructions from WellAware, infringes or misappropriates any intellectual
property rights of a third party enforceable in the United States. Upon
notice of a claim of intellectual property infringement or if, in WellAware’s
opinion, a claim of intellectual property infringement is likely, WellAware
shall have the right, at its sole option and expense, to: (a) procure for
Customer the right to continue using the affected Products and Services under
the terms of this Agreement; (b) replace or modify the affected Products or
Services claimed to be non-infringing without material decrease in functionality;
or (c) if the foregoing options are not commercially reasonable, terminate this
Agreement and if applicable, refund Customer all prepaid fees for the remainder
of its Subscription Monitoring Services term after the date of termination.
The remedy set forth in this Section states the sole and exclusive obligation
and liability of WellAware for intellectual property rights infringement or
misappropriation of any kind.
11.2
Customer
Indemnification. Customer
shall defend WellAware against any Claim alleging that the Customer Data, or
Customer’s use of any Products and Services in contradiction of usage
instructions from WellAware or in violation of this Agreement, infringes or
misappropriates the intellectual property rights of, or has otherwise harmed,
such third party. Customer will pay any damages, losses, attorneys’ fees
and costs awarded against WellAware as a result of any such Claim.
11.3
Indemnification
Procedure. The indemnified party
will (i) promptly notify the indemnifying party in writing of any Claim for
which indemnity is claimed, provided that failure to so notify will not remove
the indemnifying party’s obligation except to the extent it is prejudiced thereby,
(ii) allow the indemnifying party to solely control the defense of any Claim
and all negotiations for settlement (provided that in no event may either party
enter into any third-party agreements which would in any manner whatsoever
affect the rights of, or bind the other party in any manner to such third
party, without the prior written consent of the other party) and (iii) provide
reasonable cooperation to the indemnifying party, at the indemnifying party’s
sole expense, in defending the Claim.
12.
WAIVER OF CONSEQUENTIAL
DAMAGES. NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM
CUSTOMER’S USE OR RELIANCE ON PRODUCTS OR SERVICES. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT,
EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, BUSINESS INTERRUPTION, USE
OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR
CUSTOMER’S USE OF THE PRODUCTS OR SERVICES, HOWEVER ARISING, EVEN IF A PARTY
KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
13.
LIMITATION OF
LIABILITY. EXCEPT FOR THE PARTIES’
INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER
PARTY’S AGGREGATE LIABILITY ARISING OUT OF AN APPROVED ORDER, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED A SUM EQUAL TO
THE AMOUNTS ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING
THE INCIDENT GIVING RISE TO LIABILITY LESS ANY AMOUNTS PAID FOR PRIOR CLAIMS.
14.
GOVERNMENT USERS. If Customer is a federal government entity, all Products
and Services provided by WellAware, including related software and technology,
are provided for ultimate federal government end use solely in accordance with
the following: Government technical data and software rights related to the
Products and Services include only those rights customarily provided to the
public as defined in this Agreement. This customary commercial license is
provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212
(Software) and, for Department of Defense transactions, DFAR 252.227-7015
(Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial
Computer Software or Computer Software Documentation). If greater rights are
needed, a mutually acceptable written addendum specifically conveying such
rights must be included in the applicable Approved Order.
15.
USE OF NAMES AND LOGOS;
MARKETING. Either party may refer
to the other party in its customer or vendor lists.
16. RELATIONSHIP OF PARTIES. The parties are independent contractors, and no
partnership, franchise, joint venture, agency, fiduciary or employment
relationship between the parties is created hereby. There are no third party
beneficiaries to these Terms or any Approved Order.
17. NOTICES. Any notice required or permitted hereunder will be given in
writing and delivered: (a) in the case of Customer, to the contact person
listed on the relevant or latest Approved Order and (b) in the case of
WellAware, to the contact person listed below, by either personal delivery,
established overnight courier, facsimile transmission, certified or registered
mail, or electronic delivery, receipt confirmed.
WellAware Holdings, Inc.
3424 Paesanos Parkway, Suite 200
San Antonio, TX 78231
Attn: CEO and President
18. ASSIGNMENT. Customer may not assign these Terms or any Approved Order
or any of its rights or obligations hereunder, whether by operation of law or
otherwise, without the prior written consent of WellAware, and any such
attempted assignment in violation of the foregoing will be void. These Terms
and the corresponding Approved Order shall bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
19. ATTORNEYS’ FEES. In any action to enforce these Terms or an Approved Order,
the prevailing party shall be awarded all court costs and reasonable attorneys’
fees incurred, including such costs and attorneys’ fees incurred in enforcing
and collecting any judgment.
20. EXPORT/IMPORT. Both parties shall strictly comply with all applicable laws
and regulations relating in any manner to the distribution of Products and
Services, including all applicable import and export laws, rules and
regulations.
21. GENERAL. No waiver of any provision of these Terms shall be
effective unless in writing and signed by the party against whom the waiver is
to be asserted. If any of these Terms is held by a court of competent
jurisdiction to be contrary to law, the provision shall be modified by the
court and interpreted so as best to accomplish the objectives of the original
provision to the fullest extent permitted by law, and the remaining terms shall
remain in effect. Except as otherwise
provided, remedies provided herein are in addition to, and not exclusive of,
any other remedies of a party at law or in equity. Except for Customer’s payment obligations,
neither party shall be liable to the other for any delay or failure to perform
hereunder (excluding payment obligations) due to circumstances beyond such
party’s reasonable control, including acts of God, acts of government, flood,
fire, earthquakes, civil unrest, acts of terror, strikes or other labor
problems (excluding those involving such party’s employees), service
disruptions involving hardware, software or power systems not within such
party’s possession or reasonable control, and denial of service attacks.
These Terms and all Approved Orders
shall be governed exclusively by the internal laws of the State of Texas,
without regard to its conflicts of laws rules, and all disputes hereunder shall
be subject to the exclusive jurisdiction of the courts located in Bexar County,
Texas. The United Nations Convention on Contracts for the International Sale of
Goods shall not apply. No modification of any of these Terms shall be
effective unless in writing and either signed or accepted electronically by an
authorized representative of the party against whom the modification is to be
asserted.