This website is operated by Hartigen Solutions, LLC ("Hartigen," "We," or "Us"), a Katy, TX company. These terms and conditions (the "Terms") govern your access to the Hartigen website www.Hartigen.com, the PowerOptix platform, and any mobile applications or other web services owned, controlled, or offered by Hartigen now or in the future (all collectively referred to as the "Services").

These Terms are important and affect your legal rights, so please read them carefully. Note that these Terms contain a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.

The Services are offered to you conditioned on your acceptance without modification of the Terms contained herein. Certain features, services, or tools of the Services may be subject to additional guidelines, terms, or rules, which will be posted with those features and are a part of these Terms. Your use of the Services constitutes your agreement to all such Terms.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING, USING, OR BROWSING THE SERVICES, YOU ARE AFFIRMING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES.

1. PRIVACY POLICY

Your use of the Services is subject to the Hartigen Privacy Policy. The protection and security of the information shared by our customers and their authorized users is among our highest priorities. Our Privacy Policy details how we may use, share, and maintain the information you voluntarily provide to us, which may include, without limitation, business contact information (name, title, company, business email address, and phone number), Account credentials and billing information, and other information provided in connection with your use of the Services.

2. USE OF OUR SERVICES

Hartigen develops and supports PowerOptix ,a bid-to-bill transaction management and decision support software platform for energy companies that participate in Independent System Operator (“ISO”) or Regional Transmission Organization (“RTO”) markets. This website, and any related online resources, request forms, or webinars, provides general information about Hartigen and its products and services (collectively, the "Services"). Depending on the area of the website you use, this may include:

●      Information and resources about PowerOptix and Hartigen’s other products and services, such as overviews, guides, case studies, and documentation;

●      Forms and tools to request a demo, ask a sales question, or contact our support team; and

●      If you are an existing customer, a link to sign in to a customer or support portal.

These Terms govern your use of this website and its content. They do not govern your use of the PowerOptix platform itself if you are a Hartigen customer; that use is instead governed by a separate order form, subscription agreement, or master services agreement between you (or your employer) and Hartigen (a "Subscription Agreement"). Nothing on this website is intended to modify or supersede the terms of a Subscription Agreement, and if these Terms conflict with a Subscription Agreement, the Subscription Agreement controls with respect to your use of the platform.

The information made available through the Services is provided for general informational purposes only and should not be construed as energy trading, brokerage, investment, or financial advice.

Certain areas of the website may require you to register for an account, for example to access a customer support portal, download gated resources, or manage your communication preferences (the "Account"). You must be at least eighteen (18) years of age, or the age of majority in your jurisdiction, to create an Account. We do not knowingly collect, either online or offline, personal information from persons under the age of 13.

Access to the website is permitted on a temporary basis, and we reserve the right to withdraw or amend the Services we provide without notice. We will not be liable if for any reason the Services are unavailable at any time or for any period.

3. THIRD-PARTY REFERENCES AND INFORMATION

This website may reference or link to third parties, including ISOs/RTOs, industry publications, and Hartigen customers or partners, for general informational purposes. Hartigen does not control, and makes no representation or warranty regarding, the accuracy, completeness, or timeliness of information about or from these third parties. Any case studies, testimonials, or customer references on the website reflect the experience of the specific organizations described and may not be representative of every customer’s experience.

If you are a Hartigen customer, your use of the PowerOptix platform, including any reliance on market data, third-party integrations, or custom configurations within the platform, is governed by your Subscription Agreement and not by these Terms.

4. REGISTRATION, ACCOUNT AND COMMUNICATION PREFERENCES

In order to access and use certain areas or features of the Services, you may need to have an account with us (the "Account"). We may maintain different types of Accounts for different types of Users. If you create an Account on behalf of a company, organization, or other entity, then (i) "you" includes you and that entity; (ii) you represent and warrant that you are an authorized representative of the entity with authority to bind the entity to these Terms; and (iii) you agree to these Terms on the entity’s behalf. By creating an Account, you agree to (i) provide accurate, current and complete account information about yourself as necessary, (ii) maintain and promptly update your Account information as necessary, (iii) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any security breach related to your Account. In creating an Account, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction. We reserve the right to suspend or terminate your Account if any information provided during registration or thereafter proves to be inaccurate, false, or misleading.

(a) Communication Preferences. By creating an Account, you also consent to receive electronic communications from us (e.g., via email or by posting notices to the Services). These communications may include notices about your Account (e.g., password changes, updates, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirement, including that such communications be in writing.

(b) Account Information. You agree to provide current, complete, and accurate account information for your Account. You agree to promptly update your Account information, including your email and address, so that we can complete transactions and contact you as needed. We reserve the right to suspend the Services, or any part thereof, if any information provided during registration or thereafter proves to be inaccurate, false, or misleading. You are responsible for all activity that occurs under your Account, whether by you or another person using your Account.

(c) Account Access and Security. You are responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer or mobile device, and you agree to accept responsibility for all activities that occur under your Account or password. You may not assign or otherwise transfer your Account to any other person or entity. We are not responsible for third-party access to your Account resulting from theft or misappropriation of your Account. We reserve the right to refuse or cancel Services, terminate Accounts, or remove or edit content from the Services if, in our opinion, you have failed to comply with these Terms.

5. ACCESS TO THE SERVICES

We shall use commercially reasonable efforts to ensure the availability of the Services, except that we shall not be liable for: (a) scheduled downtime; or (b) any unavailability caused directly or indirectly by circumstances beyond our reasonable control, including without limitation (i) a force majeure event; (ii) internet provider, web hosting, cloud computing platform, or public telecommunications network failures or delays, or denial-of-service attacks; (iii) a fault or failure of your computer systems or networks; or (iv) any breach of these Terms by you. Any service-level commitments applicable to your use of the Platform are set out in your Subscription Agreement.

6. TERMINATION OR SUSPENSION OF SERVICES

Hartigen reserves the right to refuse or suspend access to any User, for any reason or no reason, and without notice, subject to any contrary provision in a Subscription Agreement. You agree that any termination of your access to the Services may be without prior notice, and you agree that Hartigen will not be liable to you or any third party for any such termination, except as otherwise provided in a Subscription Agreement. Where needed, we reserve the right to alert law enforcement authorities about suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services.

7. PROHIBITED USES

Use of the Services is limited to the permitted uses expressly authorized by us. Any violation of the guidelines or this Agreement, as determined by Hartigen in its sole discretion, may result in the termination of your access to the Services. The Services shall not be used to:

  1. Harass, abuse, stalk, threaten, defame, or otherwise infringe or violate the rights of any other party (including rights of publicity or other proprietary rights);

  2. Engage in any unlawful, fraudulent, or deceptive activities;

  3. Misrepresent the source, identity, or content of information transmitted via the Services;

  4. Use technology or other means to access unauthorized content or non-public spaces;

  5. Use or launch any automated system or process, including "bots," "spiders," or "crawlers," to access unauthorized content or non-public spaces;

  6. Attempt to introduce viruses or other harmful computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment;

  7. Probe, scan, or test the vulnerability of the Services or any system or network; use any robot, spider, scraper, or other automated means to access the Services without our express written permission;

  8. Use the Services in connection with hazardous environments requiring fail-safe performance, or any application in which the failure or inaccuracy of that application or the Services could lead to death, personal injury, or physical or property damage;

  9. Modify the Services in any manner or form; develop any application that interacts with the Services or provides access to other users’ content or information without our written permission; or use modified versions of the Services to obtain unauthorized access to the Services;

  10. Attempt to damage, disable, overburden, or impair our servers or networks;

  11. Attempt to gain unauthorized access to the Services, other accounts, or any computer systems or networks connected to Hartigen, through hacking, password mining, or any other means, or interfere with the proper working of the Services;

  12. Display the Services or Account data on any external display, monitor, or public setting without the prior consent of all participants, or in a manner that infringes on the intended use of the Services;

  13. Encourage the commission of any illegal purpose, or act in violation of any local, state, national, or international law, including laws governing criminal acts, prohibited or controlled substances, intellectual property and other proprietary rights, data protection and privacy, and import or export control; or

  14. Violate these Terms in any manner.

8. INTELLECTUAL PROPERTY RIGHTS

You are granted a non-exclusive, non-transferable, revocable license to access and use this website strictly in accordance with these Terms. As a condition of your use of the Services, you warrant that you will not use the Services for any purpose that is unlawful or prohibited by these Terms. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.

All content included as part of the Services, such as text, graphics, logos, images, product names, and any compilation thereof, is the property of Hartigen or its suppliers and protected by copyright and other intellectual property laws. You agree to observe and abide by all copyright and other proprietary notices, legends, or other restrictions contained in any such content and will not make any changes thereto.

You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale of, create derivative works from, or otherwise exploit any of the content found on this website, in whole or in part, without Hartigen’s express written permission. Your use of the Services does not entitle you to make any unauthorized use of any protected content, and you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your own informational purposes and will make no other use of the content without Hartigen’s express written permission. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to Hartigen’s intellectual property or that of our licensors except as expressly authorized by these Terms.

[Note: this section governs website content only (text, logos, marketing materials, etc.). Your license to use the PowerOptix platform itself, if you are a customer, is granted separately under your Subscription Agreement and is not affected by this section.]

9. DMCA NOTICE AND TAKEDOWN POLICY

Hartigen respects intellectual property rights and expects its users to do the same. If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Services infringes your copyrights, you may submit a notification to Hartigen’s Designated Copyright Agent with the following information in writing:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple works on the Services are covered by a single notification, a representative list of such works;

  3. Identification of the material claimed to be infringing, and information reasonably sufficient to permit Hartigen to locate the material, and to contact the complaining party (address, telephone number, and email address, if available);

  4. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

  5. A statement, under penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the copyright owner.

Hartigen’s Designated Copyright Agent can be reached as follows: Hartigen Solutions, LLC, Attention: Copyright Claims, 2002 West Grand Parkway North, Suite 150, Katy, TX 77449.

For clarity, only notices under this section should go to the Designated Copyright Agent. Failure to comply with the requirements of this Section may render a DMCA notice invalid. Under Section 512(f) of the U.S. Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

10. FEEDBACK

You may submit questions, comments, suggestions, ideas, or other information about Hartigen or the Services (collectively, "Feedback"). Feedback is non-confidential and shall become the sole property of Hartigen. We shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

11. LINKS TO THIRD-PARTY WEBSITES/THIRD-PARTY SERVICES

The Services may contain links to other websites or services ("Linked Websites"). Linked Websites are not under our control, and we are not responsible for the contents of any Linked Website, including any link contained in a Linked Website, or any changes or updates to a Linked Website. We provide these links only as a convenience, and the inclusion of any link does not imply our endorsement of, or association with, its operators. By using any product, service, or functionality originating from the Services, you acknowledge and consent that we may share related information and data with any third party with whom we have a contractual relationship to provide the requested product, service, or functionality on behalf of Hartigen and our customers.

To the fullest extent permitted by applicable law, you release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature that has arisen or arises directly or indirectly out of, or relates to, (a) any interactions with, or acts or omissions of, other users of the Services, or (b) any third-party site, product, service, or link accessed through the Services. If you are a California resident, you waive California Civil Code Section 1542 in connection with the foregoing.

12. CONTENT YOU SUBMIT TO US

This Section applies to feedback, support ticket content, forum posts, and other information you voluntarily submit to us through the website or support channels ("Posted Information"). It does not apply to data you upload to, or that is generated within, the PowerOptix platform in the course of using the Services (e.g., trading, scheduling, settlement, or configuration data) ("Customer Data"). Ownership, license, and use of Customer Data is governed exclusively by your Subscription Agreement, and Hartigen claims no ownership interest in Customer Data beyond what is necessary to provide the Services to you.

It is important that you act responsibly when providing Posted Information. We reserve the right to investigate and, at our discretion, take appropriate legal action against anyone who violates these Terms, including removing any offending communication from the Services and terminating the account of such violators.

By posting Posted Information through the Services, you grant, and represent and warrant that you have the right to grant, Hartigen and its contractors an irrevocable, perpetual, royalty-free, fully sublicensable, fully paid-up, worldwide license to use, copy, publicly perform, digitally perform, publicly display, and distribute such Posted Information, and to adapt, edit, translate, prepare derivative works of, or incorporate it into other works.

13. ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on the Services that contains typographical errors, inaccuracies, or omissions relating to product or service descriptions, pricing, promotions, offers, charges, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel transactions if any information on the Services is inaccurate, at any time and without prior notice. We undertake no obligation to update, amend, or clarify information on the Services except as required by law. We do not represent, warrant, or otherwise endorse that the Services or any content, information, or services available or advertised through the Services are accurate, complete, available, or current.

14. ELECTRONIC COMMUNICATIONS

Using the Services or sending emails to us constitutes electronic communications. If you provide us with your email address through our contact form, you consent to receive electronic communications from us, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically, via email or through the Services, satisfy any legal requirement that such communications be in writing.

15. INDEMNIFICATION

WITH THE EXCEPTION OF HARTIGEN’S GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS HARTIGEN, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AND THIRD PARTIES, FOR ANY LOSSES, COSTS, LIABILITIES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RELATING TO OR ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SERVICES, YOUR VIOLATION OF THESE TERMS, YOUR VIOLATION OF ANY RIGHTS OF A THIRD PARTY, OR YOUR VIOLATION OF ANY APPLICABLE LAWS, RULES, OR REGULATIONS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

16. HARM FROM COMMERCIAL USE

You agree that the consequences of commercial use or re-publication of content or information from the Services may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that we will be entitled to temporary and permanent injunctive relief to prohibit such use.

17. NO WARRANTIES

You acknowledge that we have no control over, and no duty to take any action regarding: (a) which users gain access to the Services, (b) what Content you access, (c) what effect the Content may have on you, (d) how you may interpret or use the Content, or (e) what actions you may take as a result of having been exposed to the Content. You release us from all liability for you having acquired, or not acquired, or your use of, Content. We have no special relationship with or fiduciary duty to you.

WE PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE.” WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS OBTAINED FROM USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE, OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF THIRD-PARTY DATA OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES, EXCEPT AS EXPRESSLY SET FORTH IN A SUBSCRIPTION AGREEMENT. HARTIGEN MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE, AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION, EXCEPT AS EXPRESSLY SET FORTH IN A SUBSCRIPTION AGREEMENT. HARTIGEN DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE ERROR-FREE, BUG-FREE, OR FREE FROM DEFECTS, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES, SOFTWARE, OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS, OR OTHER HARMFUL ITEMS.

18. LIMITATION OF LIABILITY

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR ACCOUNT, EXCEPT AS OTHERWISE PROVIDED IN A SUBSCRIPTION AGREEMENT. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO HARTIGEN UNDER THE APPLICABLE SUBSCRIPTION AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (b) $100, UNLESS A DIFFERENT LIMITATION IS EXPRESSLY STATED IN YOUR SUBSCRIPTION AGREEMENT, IN WHICH CASE THE SUBSCRIPTION AGREEMENT CONTROLS.

IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542.

19. INFORMAL DISPUTE RESOLUTION

You and Hartigen agree that any dispute that has arisen or may arise between us relating in any way to your use of or access to the Services, any validity, interpretation, breach, enforcement, or termination of this Agreement, or otherwise relating to Hartigen in any way (collectively, "Covered Dispute Matters") will be resolved in accordance with the provisions set forth in this Section 19.

If you have any dispute with us, you and Hartigen agree that before taking any formal action, you will contact us at Info@hartigen.com, provide a brief written description of the dispute and your contact information (including your email address), and allow sixty (60) days to pass, during which we will attempt to reach an amicable resolution of any issue with you.

20. MANDATORY ARBITRATION: IMPORTANT INFORMATION ABOUT YOUR RIGHTS

BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST HARTIGEN ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS ARBITRATION AGREEMENT. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST HARTIGEN, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST HARTIGEN BY SOMEONE ELSE.

(a) Arbitration Procedure. You and Hartigen agree that any dispute, claim, or controversy arising out of or relating to (i) these Terms or the existence, breach, termination, enforcement, interpretation, or validity thereof, or (ii) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Hartigen, and not in a court of law. The arbitration shall be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act ("FAA") will govern its interpretation and enforcement. If the FAA and AAA Rules are found not to apply to any issue under this Arbitration Agreement, that issue shall be resolved under the laws of the State of Texas. The Arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding, or arbitration arises out of or concerns these Terms, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees. YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY. This Arbitration Agreement shall survive the termination of these Terms.

(b) Exceptions to Our Agreement to Arbitrate Disputes. There are only two exceptions to this Agreement to arbitrate: (i) if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief without bond in any court of competent jurisdiction; or (ii) each party will retain the right to seek relief in a small claims court for disputes or claims within the scope of the jurisdiction of such courts.

(c) Who Bears the Costs of Arbitration. You and Hartigen agree that payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules unless otherwise stated in this Agreement to arbitrate. If the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, you agree that Hartigen is relieved of its obligation to reimburse you for any fees associated with the arbitration.

(d) Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Hartigen prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to arbitrate that have arisen or may arise between you and Hartigen. If you do not agree to these amended terms, you shall not access or use the Services, and the revised terms will not bind you.

(e) Judicial Forum for Legal Disputes. If the Agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, you agree (except as otherwise provided by law) that any claim or dispute that has arisen or may arise between you and Hartigen must be resolved exclusively by a state or federal court located in Katy, TX. You and Hartigen agree to submit to the exclusive personal jurisdiction of the courts situated in Katy, TX, for the purpose of litigating all such claims or disputes.

(f) Arbitration Opt-Out Procedure. If you are a new user, you can choose to reject the agreement to arbitrate provision ("opt-out") by emailing us an opt-out notice to info@hartigen.com ("Opt-Out Notice"). The Opt-Out Notice must be received no later than thirty (30) days after the date you accept the terms of this Agreement for the first time. If you are not a new user, you have until thirty (30) days after the posting of new terms to submit an arbitration opt-out notice. To opt-out, you must email your name, address, email address to which the opt-out applies, and an unaltered digital image of your valid driver’s license to info@hartigen.com. This procedure is the only way to opt out. If you opt out, all other parts of this Agreement continue to apply to you. Opting out does not affect any previous, other, or future arbitration agreements you may have with Hartigen. By agreeing to this agreement, you irrevocably waive any right you may have (i) to a court trial (other than small claims court as provided above), (ii) to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration, or other proceeding filed against us and/or related third parties, and (iii) to a trial by jury even if any arbitration is not required under this agreement. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the site, Services, or this agreement must be filed within one (1) year after such claim or cause of action arises, or it will be forever barred.

(g) Applicable Law. You and we agree that United States federal law, including the Federal Arbitration Act, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of Texas, without regard to conflict-of-laws principles, will govern all Covered Dispute Matters, regardless of your residence or the location from which you use the Services.

21. CLASS ACTION WAIVER

Any arbitration or action under these Terms will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE, AND/OR REPRESENTATIVE PROCEEDING, INCLUDING IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION. Further, the arbitrator or judge may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

22. ENTIRE AGREEMENT

Unless otherwise specified herein, this agreement, together with any applicable Subscription Agreement, constitutes the entire agreement between you and us with respect to the Services, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us.

23. RELIANCE ON INFORMATION POSTED

Commentary and other materials posted on the Services are not intended to amount to advice on which reliance should be placed. We disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to the Services, or by anyone informed of their contents.

24. CHANGES TO TERMS

We reserve the right, in our sole discretion, to change the Terms under which the Services are offered. The most current version of the Terms will supersede all previous versions. We encourage you to periodically review the Terms to stay informed of updates. We may alter or amend our Terms by giving you reasonable notice. By continuing to use the Services after expiry of the notice period, or by accepting the amended Terms, you will be deemed to have accepted any amendment to these Terms.

25. RELATIONSHIP BETWEEN THE PARTIES

The parties are independent contractors, and nothing in these Terms shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor, or employee of the other. Each party has sole responsibility for its activities and personnel and shall have no authority to bind or obligate the other party.

26. SEVERABILITY

If any term, clause, or provision of these Terms is held invalid or unenforceable, that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining provision.

27. FORCE MAJEURE

We shall be excused from performance under these Terms, to the extent we are prevented or delayed from performing, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware, networks, or software failures; or (f) other causes beyond the reasonable control of Hartigen.

28. EXPORT CONTROLS

The Services originate in the United States and are subject to United States export laws and regulations. The Services may not be exported or re-exported by you to certain countries, persons, or entities prohibited from receiving exports from the United States. The Services may also be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Services.

29. NOTICE TO CALIFORNIA RESIDENTS

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210, to resolve a complaint regarding the Services or to receive further information.

30. MISCELLANEOUS

These Terms constitute the entire agreement between you and us relating to your access to and use of the Services (together with any applicable Subscription Agreement, which controls in the event of conflict). The Services are controlled and operated from within the United States; we make no representation that the Services, information, or other materials available through the Services are applicable or available for use in other locations, and access from territories where they are illegal is prohibited. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent. The failure of Hartigen to exercise any right provided hereunder shall not be deemed a waiver of that right or any other right under these Terms. Headings used in these Terms are for reference only and shall not affect their interpretation. No person or entity not party to this agreement will be deemed a third-party beneficiary of these Terms.

31. CONTACT US

We welcome your questions or comments regarding these Terms. By email: info@hartigen.com.