Welcome to
byporte.com. Porte Inc and/or its affiliates (“Porte”) provides a web business
application on-the-cloud and other integrated products and services to you when
you use the software provided by Porte (collectively, “Services”).
BY CLICKING THE “I ACCEPT” BOX OR OTHERWISE ACCEPTING THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT (“ORDER FORM”), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE, REFERENCES TO “YOU” OR “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.
This Porte Services Agreement (this “Agreement”) is made between Porte and the individual or entity that has executed this Agreement (“You” or “Your”). This Agreement sets out the terms and conditions that govern orders placed by You for the purchase and use of the Services under this Agreement.
IF YOU REGISTER FOR A 30-DAY FREE TRIAL FOR OUR SERVICES, THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL ALSO BE APPLICABLE TO THE FREE TRIAL.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Definitions
2. Free Trial
3. Our Responsibilities
4. Use of the Services and Content
5. Non-Porte Providers
6. Fees and Payment for Purchased Services
7. Proprietary Rights and Licenses
8. Confidentiality
9. Representations, Warranties, Exclusive Remedies and Disclaimers
10. Mutual Indemnification
11. Limitation of Liability
12. Term and Termination
13. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
14. Data Protection
15. Security
16. General Provisions
“Account Updater Service" is a feature in the Porte application that enables a User to update his or her payment account information.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Porte Services Agreement.
“Content” means information obtained by Porte from publicly available sources or third party content providers and made available to You through the Services, or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via byporte.com or login to the applicable Service.
"External-Facing Services" means an approved system of tools and resources in an operating system that enables developers to create software or process of bringing together data from and to Porte’s on-the-cloud services to function as authorized system integrators.
“Free Trial Services” means the products and services that are ordered by You under an Order Form or provided to You under a free trial, and made available online by Us.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“MasterCard” shall mean MasterCard WorldWide, Inc.
“Merchant” shall mean a User established under this Agreement that engages in the sale of goods or services.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, Your or Your Affiliate agree to be bound by the terms and conditions of this Agreement.
“Payment Gateway” is the communication tool that enables a Merchant or You to authorize, settle and manage credit card and electronic check payments.
“Payment Gateway Agreement” is the agreement executed by a Merchant governing the provision of Payment Gateway Account services.
“Payment Network” shall mean Visa, MasterCard, or any other electronic payment system used to process transactions made by credit cards for products or services.
“Service” or “Services” means the Porte on-the-cloud services (including related software or program) that You have ordered under an Order Form, and more specifically described in the Order Form.
“System Integrations" means a process of bringing together the component subsystems into one system and ensuring that the subsystems function together as a system.
“Transaction” means any credit card or electronic check authorization, credit, debit, capture or settlement request, or decline transaction, or any request for fraud risk evaluation submitted or completed by a Payment Gateway, or any payment profile update under the Account Updater Service.
“Visa” shall mean Visa, Inc.
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Porte company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the individual or entity that has executed this Agreement.
“Your Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Porte Applications.
2.1. If You register on Our website for a 30-day free trial, We will make one or more Free Trial Services available to You on a trial basis free of charge until the earlier of the following is reached (a) the end of the free trial period for which You registered to use the applicable Free Trial Service(s), (b) You reach the maximum use of the number of Free Trial Service(s) allocated in the free trial plan, or (c) the start date of any Service subscriptions ordered by You for such Service(s), or (d) termination of the Free Trial Services by Us in our sole discretion.
2.2. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.3. The Free Trial Services are provided on an “as is” and “as available” basis and We do not offer any technical or other support or offer any warranty for such Free Trial Services.
2.4. Certain Services and features will not be available under the Free Trial Services and any information or data that you enter into the Free Trial Services, or customizations made to the Free Trial Services by or for You will be permanently loss unless you (a) purchase a subscription to the same Services as those covered by the free trial, (b) purchase applicable upgraded Services, or (c) migrate or export such information or data before the end of the free trial period. Please review the applicable Service’s Documentation during the free trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3.1.
Provision of Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable Porte standard support for the Services to You at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Porte Application, or denial of service attack.
3.2.
Customer Service. During the term of this Agreement, and provided that there is no outstanding fees due and owing by You to Us and You are otherwise not in breach of any of the terms and conditions of this Agreement, We shall provide customer service to You via telephone and email.
3.3.
Technical Assistance. We will provide reasonable technical assistance to You as may be necessary and appropriate to assist You in using the Services effectively.
3.4.
Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. These safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems pertaining to the Services, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
4.1.
Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2.
Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified (a) a quantity in an Order Form refers to Services that You purchase for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). If You exceed a contractual usage limit for a particular Service or Content, or if You hit a minimum threshold for a particular Service or Content, You authorize Us to charge You for such usage in accordance with the payment obligation as set forth in Section 6.2 (Invoicing and Payment).
4.3.
Your Responsibilities. You will (a) be responsible for Your Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for all activities that occur under Your and/or Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services, (c) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use the Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-Porte Applications with which You use the Services or Content.
4.3.1
Payment Network. Transactions to be settled through Services and Content come with APIs connections to Payment Network. Unless otherwise expressly provided, You shall be solely responsible for the costs of Payment Gateway in accordance with the provider’s Payment Gateway Agreement. You agree to be bounded by the Automatic Payment Clearing House Association Rules as promulgated by the National Automatic Clearing House Association that are in effect from time to time during the term of this Agreement.
4.3.2
Regulatory Compliance. You remain solely responsible for Your regulatory compliance in connection with Your use of the Services. You are responsible for making Us aware of any technical requirements that result from Your regulatory obligations prior to entering into an Order Form governed by this Agreement. We will use our best endeavors to cooperate with your efforts to determine whether the use of the Services is consistent with Your regulatory requirements. In this respect, additional fees may apply to any additional work performed by Us or changes or modifications to the Services.
4.4.
Usage Restrictions. You will not (a) make any Service or Content available to, or use or permit use of any Service or Content for the benefit of, anyone other than You or Your Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use or permit use of a Service or Non-Porte Application to store or transmit infringing, libelous, or otherwise unlawful or obscene material, or to store or transmit any material in violation of third-party privacy rights, (d) use a Service or Non-Porte Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-Porte product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our sole opinion threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services. In addition to any other rights afforded to Us under this Agreement, We reserve the right to take remedial action if any material violates the above usage restrictions, including removing or disabling access to such material. We shall have no liability to You in the event that We take such remedial action.
4.5.
Removal of Content and Non-Porte Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Porte Application hosted on a Service by You may violate Our External-Facing Services or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Porte Application or modify the Non-Porte Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Porte Application until the potential violation is resolved.
4.6.
Audit. We may audit Your use of the Services (eg. through the use of software tools) to assess whether Your use of the Services is in accordance with Your order. You agree to cooperate with Our audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay Us, within 30 days of written notification, any fees applicable to Your use of the Services in excess of Your rights under the Order Form or the Documentation. We shall not be responsible for any of Your costs incurred in cooperating with Us in the audit.
5.1. We may make available third-party products or services, including, for example, Non-Porte Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Porte provider, product or service is solely between You and the applicable Non-Porte provider. We do not warrant or support Non-Porte Applications or other Non-Porte products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.1.1 The Services may enable You to link to, transmit Your Content to, or otherwise access other websites, contents, products or services, and information of third parties. We do not control and are not responsible for such third party website or any such third party content, products or services, and information accessible from or through the Services, and You agree to bear all risks associated with access to and use of such third party websites and third party content, products or services and information.
5.2.
Non-Porte Applications and Your Data. If You choose to use a Non-Porte Application with a Service, You grant Us permission to allow the Non-Porte Application and its provider to access Your Data as required for the interoperation of that Non-Porte Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Porte Application or its provider.
5.3.
Integration with Non-Porte Applications. The Services may contain features designed to interoperate with Non-Porte Applications. To use such features, You may be required to obtain access to such Non-Porte Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Porte Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Porte Application ceases to make the Non-Porte Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
6.1.
Fees. You will pay all fees specified in the Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) Your order(s) is non-cancelable and fees paid are non-refundable, and (iii) quantities of the Services or Content purchased cannot be decreased during the relevant subscription term.
6.2.
Invoicing and Payment. You will provide Us with valid and updated credit card information for the purposes of making payment(s) under an Order Form. By providing Your credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be made by a method other than a credit card, We will issue an invoice to You in advance and otherwise in accordance with the relevant Order Form. You understand and agree that You may receive multiple invoices for the Services You ordered. Unless otherwise stated in the Order Form, all fees are due and payable to Us within 30 days from the date of the invoice. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3.
Overdue Fees. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies under this Agreement and/or in law, (a) We shall be entitled to charge interest on all overdue fees at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4.
Suspension of Service and Acceleration. If any amount owing by You under this Agreement or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the provision of the Services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending the provision of Services to You.
6.5.
Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases under this Agreement. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.5, We will issue an invoice to You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.6.
Future Functionality. You agree that Your purchases under this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7.1.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2.
Access to and Use of Content. For the duration of the subscription period of the Services and subject to Your payment obligations, You have the right to access and use applicable Content solely for Your business operations subject to the terms of applicable Order Forms, this Agreement and the Documentation. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users’ compliance with this Agreement and the Order Form.
7.3.
License to Host Your Data and Applications. To enable Us to provide You and/or Your Users with the Services, You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to use, process, host, copy, transmit and display Your Data, and any Non-Porte Applications and program code created by or for You using a Service or for use by You with the Services, in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or in relation to any of Your Data, Non-Porte Application or such program code. If YourData includes third party programs, You agree that We may allow providers of such third party programs to access the Your Data, as required for the interoperation of such third party programs with the Services. We will not be responsible for any use, disclosure, modification or deletion of Your Data resulting from any such access by third party program providers or for the interoperability of such third party programs with the Services.
7.4.
License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Your Users relating to the operation of Our or Our Affiliates’ services.
7.5.
Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the 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 a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8.1.
Definition of Confidential Information. “Confidential Information” means all information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, trade secrets including, without limitation, technology and technical data or information and know-how relating to the business of each party, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Porte Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.1.
Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2.
Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Porte Applications” section above, We will not materially decrease the overall functionality of the Services. If the Services provided to You were not performed as warranted, You must promptly notify Us by providing written notice to Us that describes the deficiency in the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9.4.
No Guarantee. WE DO NOT GUARANTEE THAT (A) THE SERVICES WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL BE COMPATIBLE WITH, OR WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR DATA, YOUR CONTENT, YOUR APPLICATIONS OR THIRD PARTY CONTENT. WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIM ALL LIABILITIES ARISING FROM OR RELATED TO SUCH THIRD PARTY CONTENT.
10.1.
Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You within two (2) working days of receipt of the Claim Against You, (b) give Us sole conduct and control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance and cooperation as We may require from You, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Porte Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms. For avoidance of doubt, We will not indemnify you to the extent that an infringement claim is based on third party content or any material or data from a third party source that is accessible to You within or from the Services (eg. a third party webpage accessed via a hyperlink). We will not indemnify You for infringement caused by Your actions against any third party if the Services as delivered to You and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. We will not indemnify You for any intellectual property infringement claim(s) known to You at the time the Services are purchased.
10.2.
Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3.
Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11.1.
Limitation of Liability. This section sets out Our entire financial liability (including any liability for acts or omissions of Our employees, agents, consultants or Affiliates) to You in respect of (a) any breach of this Agreement, (b) any use made by You of the Services, and (c) any representation, statement or tortious act or omissions (including negligence) arising under or in connection with this Agreement. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF US TOGETHER WITH ALL OF OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU AND YOUR AFFILIATES TO US FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, LOSS OF CORRUPTION OF DATA OR INFORMATION, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.3.
Prohibition of Bringing an Action Against Us. No action, regardless of form, arising out of transactions occurring under or contemplated under this Agreement may be brought by You or Your Affiliates against Us more than 6 years after the cessation or termination of the Services pursuant to this Agreement.
12.1.
Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions for the Services hereunder have expired or have been terminated.
12.2.
Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 48 hours before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or onetime priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. Any mid-cycle renewal of subscription with new selected plan will result in carrying forward the previous plan remaining per-unit pricing balance.
12.3.
Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4.
Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5.
Your Data Portability and Deletion. Upon the termination of this Agreement, You will no longer have rights to access or use the Services. Upon written request by You made within 30 days after the effective date of termination or expiration of this Agreement however, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and as provided in the Documentation, will thereafter delete, destroy or otherwise render inaccessible any of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
12.6.
Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Removal of Content and Non-Porte Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
13.1. You are contracting with Porte, Inc., 6200 Stoneridge Mall Road, Suite 300, Pleasanton, CA 94588, U.S.A., Attn.: General Manager.
13.2. You are contracting with Porte Pte Ltd., 52 Ubi Ave #01-33/34/35, The Frontier, Singapore 408867, Singapore, Attn.: General Manager.
13.3.
Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
13.4. Agreement to Governing Law and Jusrisdiction.
13.5. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other Porte company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14.1. Each party shall only use information, including any personal data, for the purposes for which it was disclosed by the other party. In any event, You warrant that You are at all times in compliance with the Singapore Personal Data Protection Act 2012 and its subsidiary legislation, rules and guidelines.
15.1. We maintain physical, electronic and procedural safeguards to protect the confidentiality and
security of personal information transmitted to us. To help guard your information, we use Secure
Sockets Layer (SSL). SSL encrypt your payment account information such as credit card number or
bank account number so only Porte is able to decode your information. Porte sends notifications for
any changes done to the each party’s account information. We also ask each party to carefully
review their account and immediately report any unexpected activity.
15.2. Each party shall take measure to help protect personal information in their account, including the following:
Install the latest security updates and anti-virus software on your computer to help prevent malware and viruses
Reset your email account password
Use complex passwords (a minimum of 8 alpha/numeric case sensitive and special characters combinations)
Do not use the same password on more than one website
Do not share your password with others
Password protect your personal mobile device(s)
Sign out/log off website sessions so that your session is closed and cannot be accessed by another user on the same computer, especially when using a public computer or terminal
15.3. Each party shall have options to select payment providers such as PayPal, credit card gateway, or other financial institutions. User is giving security authorization to Porte where one or more connections shall be established with selected payment providers to complete user’s requested action within the application. User shall agree to follow security and privacy policy of both Porte and payment providers.
15.4. All security and access rights to payment providers are governed by terms and conditions of the payment providers.
16.1. Export Compliance. The Services, Content, other technology We make available, and derivatives
thereof may be subject to export laws and regulations of the United States and other jurisdictions.
Each party represents that it is not named on any U.S. government denied-party list. You shall not
permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba,
Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
16.2. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe,
kickback, payment, gift, or thing of value from any of Our employees or agents in connection with
this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do
not violate the above restriction. If You learn of any violation of the above restriction, You will use
reasonable efforts to promptly notify Our Legal Department.
16.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You
and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous
agreements, proposals or representations, written or oral, concerning its subject matter. Except as
otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement
will be effective unless in writing and signed by the party against whom the modification, amendment
or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase
order or in any other of Your order documentation (excluding Order Forms) is void. In the event of
any conflict or inconsistency among the following documents, the order of precedence shall be: (1)
the applicable Order Form, (2) this Agreement, and (3) the Documentation.
16.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by
operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably
withheld); provided, however, either party may assign this Agreement in its entirety (together with all
Order Forms), without the other party’s consent to its Affiliate or in connection with a merger,
acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
16.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
16.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
16.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
16.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.