(Updated Nov 2023)
1.1 “Account” means an account enabling an Authorized User to access and use the SaaS Component through such Authorized User’s login credentials.
1.2 “Affiliates” means an entity which: (a) is owned or Controlled by, (b) owns or Controls, or (c) is under common Control with a party; where “Control” means having more than fifty percent (50%) of the controlled entity’s shares or ownership interests representing the right to make decisions for such controlled entity.
1.3 “Application” means a hosted application, mobile application, or other downloadable application operated and maintained by Customer that interoperates and interconnects with the Portal Product for purposes of making the Integrations available to End Users.
1.4 “Authorized User(s)” means certain employees, contractors, or other personnel of Customer that are authorized by Customer to access and use the Portal Product on behalf of Customer.
1.5 “Confidential Information” means any information, whether in tangible or intangible form, disclosed by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) that (a) is identified as “confidential,” “proprietary,” “private,” “restricted,” “sensitive,” “secret” or “internal use only” at the time of disclosure, or (b) should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information may include, without limitation, specifications, software, costs, prices, names, finances, marketing plans, business opportunities, orders, personnel, customer information, research, development, know-how, technology, designs, devices, data, procedures, processes, practices, protocols, methods, or techniques. Confidential Information shall not include information which: (a) was rightfully in the possession of, or was known by, the Receiving Party prior to its receipt from the Disclosing Party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Receiving Party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
1.6 “Customer Branding” means the trademarks, service marks, logos, company name, domain names, and other branding elements of Customer, including any audio, video, text, or photographs owned, licensed, or otherwise authorized to be used by Customer.
1.7 “Customer Data” means the data, content, or other information that is provided, transmitted, or otherwise made available by or on behalf of Customer or its Users to Portal in the provision of the Portal Product, Professional Services, or Support Services.
1.8 “Device API” means the application programming interface made available by Portal under this Agreement to be integrated, contained, or otherwise embedded within the Application which facilitates the transmission of certain End User Data to Portal for purposes of making the features and functionalities of the Integrations available to End Users.
1.9 “Digital Assets” means any digital representation of value based on (or built on top of) a cryptographic protocol of a computer network, including virtual currency, cryptocurrency, non-fungible tokens, digital commodities, and any other digital assets.
1.10 “Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Portal relating to the Portal Product.
1.11 “End User(s)” means a person or entity that is authorized to access and use the Application.
1.12 “End User Data” means Customer Data relating to an End User that is provided, transmitted, or otherwise made available to Portal through the Device API or the On-Premises API.
1.13 “Integration(s)” means third-party hosted applications, online platforms, and other products or services made available to End Users through the interoperation and interconnection of the Portal Product with the Application.
1.14 “On-Premises API” means the application programming interface made available by Portal under this Agreement to be installed or otherwise deployed on Customer’s premises or private cloud environment that facilitates the transmission of certain End User Data between the parties for purposes of making the features and functionalities of the Integrations available to End Users.
1.15 “Order Form” means any online or other order form, purchase order, invoice or similar document that references and is governed by these Customer Terms & Conditions.
1.16 “Portal Product” means the version of the SaaS Component and the Portal SDK as of the Effective Date.
1.17 “Portal SDK” means the software development kit made available by Portal under this Agreement which is comprised of the Redistributable Code, Sample Code, On-Premises API, and Device API.
1.18 “Portal Technology” means any or all of the following and any tangible embodiments thereof that are used, provided, or otherwise made available by Portal with respect to the Portal Product: (a) software (whether in source code or in binary form) and other works of authorship; (b) inventions (whether or not patentable), discoveries, improvements; (c) proprietary and confidential information, trade secrets and know how; (d) databases, data compilations and collections and technical data; (e) methods and processes; and (f) devices, prototypes, designs, and schematics. For the avoidance of doubt, “Portal Technology” does not include the Portal Product.
1.19 “Redistributable Code” means the component of the Portal SDK provided by Portal in object code format under this Agreement that will be integrated, contained, or otherwise embedded within the Application.
1.20 “SaaS Component” means the online platform hosted on Portal’s private cloud environment that provides certain features and functionalities with respect to Customer’s and its Users’ access to and use of the Portal Product.
1.21 “Sample Code” means the component of the Portal SDK provided by Portal in source code format under this Agreement that will be integrated, contained, or otherwise embedded within the Application in object code format.
1.22 “Sensitive Data” means any Customer Data that constitutes: (a) “personal data,” personal information,” “personally identifiable information,” “nonpublic personal information,” or any similar concept under any applicable law, except for any such information or data that are Account credentials; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (c) credit, debit, or other payment card data or financial account information, including bank account numbers; or (d) social security numbers, driver’s license numbers, or other government identification numbers.
1.23 “Subscription Term” means the term of Customer’s access to and use of the Portal Product (as specified in the Order Form).
1.24 “Transaction(s)” means any financial transaction facilitated by or through the Application involving the purchase, sale, trade, transmission, disposition, transfer, or exchange of fiat currency or Digital Assets by an End User in connection with such End User’s access to or use of the Integrations.
1.25 “Usage Data” means any aggregated Customer Data reflecting performance, analytical, or usage information that is generated, created, or otherwise collected in connection with the Portal Product.
1.26 “Users” means Authorized Users and End Users.
2. Portal Product
2.1 SaaS Component; Accounts. Subject to the terms and conditions of this Agreement and the applicable Order Form, Portal hereby grants Customer, during the Subscription Term, a non-exclusive, non-sublicensable, non-transferable (except in accordance with Section 123.56), worldwide right, exercisable only by and through those of its Authorized Users who have created an Account in accordance with this Section, to access and use the SaaS Component in strict accordance with its Documentation solely for its internal business purposes to facilitate the interoperation and interconnection of the Portal Product with the Application, subject to the Usage Limit set forth in Section 2.3 below. In order to access and use the SaaS Component, Customer and its Authorized Users must register an Account. When registering for an Account, Customer and its Authorized Users will be required to provide Portal with certain registration information (including, the full corporate name of Customer, an email address, and other contact information). Customer acknowledges and agrees, on behalf of itself and its Authorized Users, that the information provided to Portal is accurate, complete, and not misleading, and that Customer will keep, and will require that its Authorized Users keep, such information accurate and up to date at all times. Each Account is personal to that Authorized User and may not be transferred, sold, or otherwise assigned to or shared with any other third party. Each Authorized User must keep its login credentials for its Account confidential and not share them with anyone else. Customer is responsible and liable for its Authorized Users’ compliance with this Agreement and any acts or omissions associated with their Accounts as if such acts or omissions were those of Customer. Customer will immediately notify Portal at email@example.com if it becomes aware of, or has a reasonable basis to believe that, any of its Authorized Users’ login credentials or their Accounts have been compromised or are no longer secure.
2.2 Portal SDK. Subject to the terms and conditions of this Agreement and the applicable Order Form, Portal hereby grants Customer, during the Subscription Term, a non-exclusive, non-sublicensable, non-transferable (except in accordance with Section 123.56), worldwide license, exercisable only by and through its Authorized Users, to download, install, and use a reasonable number of copies of the Portal SDK in strict accordance with its Documentation solely for its internal business purposes to develop and test an Application that interoperates and interconnects with the Portal Product and subject to the Usage Limit set forth in Section 2.3 below. The foregoing license only permits Customer to: (a) integrate, distribute, and embed the Device API as an integrated component of the Application; (b) install, deploy, and use the On-Premises API on Customer’s premises or private cloud environment; (c) reproduce and internally modify Sample Code solely as an integrated component of the Application; (d) reproduce and distribute the Sample Code and Redistributable Code only in object code format solely as integrated components of the Application (except for those components of the Sample Code that are required to be distributed in source code format as specified in the Documentation); and € grant each End User to whom Customer has distributed the Device API and the object code form of such Sample Code or Redistributable Code as integrated components of the Application with a non-sublicensable, non-transferable right to download, install, and use each of the foregoing solely for such End User’s personal, non-commercial use in connection with the Application (in each case of (a) through (e) above, in a manner that is at all times consistent with the terms and conditions of this Section).
2.3 Usage Limit. Customer shall comply with any usage limits associated with Customer’s Subscription (as defined below). In the event the Customer exceeds the applicable usage limit in any given month, Customer will be charged for such excess usage at Portal’s then-current pricing.
2.4 Restrictions. Except as otherwise permitted by applicable law, the licenses and rights granted to Customer in this Agreement do not include any right to, and Customer will not, and will not permit any third parties (including any Users) to: (a) modify the Documentation; (b) implement the Device API or On-Premise API in any software other than in connection with the Application or to support any interfaces between computing devices or computing functions other than as expressly required to facilitate the interoperation and interconnection of the Portal Product with the Application; (c) modify, translate, or create a derivative work of any portion of the Portal Product (except for the limited right to modify the Sample Code as expressly set forth in Section 2.2); (d) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Portal Product to any third party (except for the limited right to distribute the Device API, Sample Code, and Redistributable Code as expressly set forth in Section 2.2); (e) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of the Portal Product (except for the Sample Code); (f) display, expose or disclose any portion of the Portal Product to any third party (except for the limited right to distribute the Device API, Sample Code, and Redistributable Code as expressly set forth in Section 2.2); (g) remove, alter, or cover any copyright notices or other proprietary rights notices placed, displayed, contained, or embedded on or in any part of the Portal Product (except as expressly permitted under Section 2.3); (h) use the Portal Product to create or develop any command set, application or other application programming interface or software (including without limitation the Application) that (1) can be used with any service or product other than the Portal Product, (2) is competitive with, directly or indirectly, with any of Portal’s products and/or services, or (3) otherwise detrimental to Portal’s business; (i) release or otherwise commercially distribute to third parties (including End Users) any Application that is not fully compatible with the Portal Product and the Portal Technology; (j) circumvent, disable, or otherwise interfere with the operation, security, or other technical features or measures of the Portal Product or of the Portal Technology (including any access or usage restrictions); (k) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Portal Product); (l) conduct any security or vulnerability testing of the Portal Product or of the Portal Technology; or (m) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Portal Product or the Portal Technology.
2.5 Affiliate Purchases. Customer may allow any of its Affiliates to enter into its own Order Forms with Portal under this Agreement; provided that Portal may refuse to enter into any such Order Form with any such Affiliate in its sole discretion. Such Affiliate will be deemed to be the “Customer” only for purposes of such Order Form, but Customer will at all times be solely liable for such Affiliate’s and its Authorized Users’ access to and use of the Portal Product and their compliance with the terms and conditions set forth herein (including any Fees due under any such Order Form).
2.6 Feedback. If Customer or any of its Authorized Users provides Portal with feedback, input, or suggestions relating to the Portal Product, the Portal Technology, or any other Portal products or services (collectively, “Feedback”), Customer hereby grants Portal an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Portal Product and Portal Technology and to create other products and services. Portal will have no obligation to provide Customer or its Authorized Users with attribution for any Feedback provided to Portal.
2.7 Open Source. The Portal Product may be distributed with certain third-party open source software (“OSS”), as listed in the Documentation or as specified by Portal upon prior written request by Customer. Any use of OSS on a stand-alone basis will be subject to the terms of the applicable OSS license and not this Agreement.
2.8 Reservation of Rights. All rights not expressly granted to Customer in this Agreement are reserved by Portal. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Customer by implication, estoppel or otherwise. Except for Customer’s right to access and use the Portal Product as expressly set forth in this Agreement, Portal and/or its licensors retain all intellectual property and other proprietary rights in the Portal Product, Professional Services, Deliverables, and Portal Technology (including any modifications, enhancements, or improvements to any of the foregoing).
2.9 Trial and Betas. If Customer or any of its Authorized Users receives access to the Portal Product, or any features or functionality relating thereto, on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), any access to or use of the Trials and Betas by Customer or its Authorized Users is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Portal or otherwise set forth in an Order Form (not to exceed thirty (30) days unless otherwise agreed upon by the parties in writing). These Trials and Betas will be considered part of the Portal Product and all provisions of this Agreement relating to the Portal Product will apply to Trials and Betas as well. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Portal may never release, and their features and performance information are deemed to be Portal’s Confidential Information. Portal may suspend Customer’s and its Authorized Users’ access to the Trials and Betas at any time. Customer’s and its User’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PORTAL PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED $50.00 (USD).
2.10 Suspension. Portal may immediately suspend access to the Portal Product and related services if: (1) Portal reasonably believes, in its reasonable, good faith discretion, that Customer or any User has accessed or used the Portal Product in an unauthorized manner or that Customer’s use of the Portal Product exceeds any usage limits or restrictions imposed on it by Portal; (2) Customer’s account is thirty (30) days or more overdue; or (3) Portal reasonably believes, in its reasonable, good faith discretion, that Customer’s or its Users’ acts or omissions may pose a risk of harm to others or to the security, operation, availability, stability, or integrity of the Portal Product or the Portal Technology. Where practicable and at its reasonable, good faith discretion, Portal will use reasonable efforts to provide Customer with prior notice of the suspension. Portal will use reasonable efforts to restore Customer’s and its Authorized Users’ access to the Portal Product in accordance with this Agreement once the basis of such suspension is resolved to Portal’s reasonable, good faith satisfaction.
3. Regulatory Disclaimers
3.1 Regulated Services. Customer hereby acknowledges and agrees that: (a) Portal is not a licensed or registered money transmitter, money service business, or custodian under applicable law, nor does Portal provide any services requiring a money transmitter license, registration as a money service business, or a license to perform custodial services under applicable law (collectively, “Regulated Services”); (b) any Regulated Services are to be performed by Customer; and (c) nothing contained herein will be interpreted or otherwise construed as Portal being deemed to be the provider of Regulated Services.
3.2 Authorizations. Customer shall be solely responsible for obtaining and maintaining where applicable, all governmental, regulatory, or other legally required licenses, registrations, permits and authorizations to: (a) conduct its business in every jurisdiction where it is required to do so; (b) operate, maintain, sell, offer to sell, market, or perform services relating to the Application in each jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer; and (c) perform its obligations under this Agreement and in connection with any Transaction, including with respect to Regulated Services (collectively, “Authorizations”). Customer agrees to comply with all applicable laws in its use of the Portal Product and services hereunder.
4. Customer Obligations
4.1. Application. Customer will ensure: (a) the Application does not directly or indirectly adversely affect, impede, or otherwise hinder or disrupt the functionality, stability, security, operation, or performance of the Portal Product, the Portal Technology, the Integrations, or any other applications using the Portal Product; (b) the Application correctly identifies itself to the Portal Product when requesting authorization; (c) the Application does not attempt to modify the Portal SDK or the Portal Product in any way; (d) the Application (including its use, access, operation, maintenance, sale, offering for sale, and marketing thereof) complies with all applicable laws in each jurisdiction with legal authority, regulatory oversight, or supervision over the Application; and (e) that it will not subject any portion of the Portal Product or any Portal intellectual property right in any portion of the Portal Product to the terms of any “open source” license, including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works, or (3) be re distributable at no charge.
4.2 Sensitive Data. Customer will not, and will require that its Users do not, transmit, upload, or otherwise make available any Sensitive Data to Portal. To the extent permitted under applicable law, Portal reserves the right, in its sole discretion, to immediately delete any Sensitive Data transmitted, uploaded, or otherwise made available to Portal with or without notice to Customer.
4.3 Customer Technology. Customer will be solely responsible for obtaining and maintaining any equipment, software, Internet connectivity, networking infrastructure, ancillary services, and other tangible embodiments of technology not provided by Portal that are needed to facilitate the operation and maintenance of the Application and the interoperation and interconnection of the Portal Product with the Application, including as set forth in the Documentation. Customer will be solely liable for implementing, securing, and maintaining such technology, and Portal will not be liable to Customer for any failure or non-fulfillment of Customer to do so).
4.4 Smart Contract Firewall. Certain features and functionalities made available to Customer through the SaaS Component permit Customer to enable, modify, rescind, or otherwise implement certain permissions, restrictions, and other controls with respect to Transactions and the Integrations (“Smart Contract Firewall”). Customer is solely responsible and liable for its acts or omissions (including those of its Authorized Users) relating to its use and access to the Smart Contract Firewall (including the permissions, restrictions, and other controls relating thereto).
4.5 Unauthorized Use. Customer acknowledges and agrees that the Portal Product and any other materials furnished to Customer by or on behalf of Portal involve valuable proprietary rights of Portal. Customer will, and will require that its Users, take all necessary and appropriate steps and precautions to protect the Portal Product from any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of the Portal Product or Documentation that is not expressly authorized under this Agreement (collectively, “Unauthorized Use”). Without limiting the generality of the foregoing, Customer will, and will require that its Users, use their best efforts to prevent any Unauthorized Use and will immediately notify Portal in writing of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Portal Product directly or indirectly through Customer or any of its customers, employees, agents, representatives, or contractors (including Users), Customer will take, and will require that its Users take, all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the Portal Product in the possession or control of the person or entity engaging in such Unauthorized Use. Customer will, and will require that its Users, provide Portal with such cooperation and assistance related to any such Unauthorized Use as Portal may reasonably request.
4.6 Communications. Customer shall be responsible and liable for any and all communications sent by or on behalf of Customer that are facilitated by or through the Portal Product, including, any communications sent to Portal or to End Users. Customer agrees that it will not, and will require that its Authorized Users do not, submit, upload, publish, broadcast, or otherwise transmit any message, content, or material on through the Portal Product that: (a) is libellous, harmful to minors, obscene, violent, offensive, abusive, insulting, threatening, discriminatory, or constitutes pornography; (b) infringes the intellectual property or proprietary rights of any third party or is otherwise unlawful; (c) constitutes or encourages conduct that could constitute a criminal or indictable offense; or (d) promotes or encourages racism, sexism, discrimination, hatred, or bigotry.
4.7 Integrations. Customer hereby agrees and acknowledges that: (a) the Integrations are not owned or otherwise controlled by Portal; (b) any use of Integrations by an End User or by Customer (including its Authorized Users) is subject to, and governed by, a separate agreement with the relevant provider of such Integrations and not this Agreement; (c) Portal will not be liable for Customer’s or its Users’ use of Integrations (including (1) their security, functionality, operation, availability, or interoperability, (2) the settlement, execution, processing, transmission, distribution, disposition, or transfer of fiat currency or Digital Assets in connection with any Transaction facilitated by or through the Integration, or (3) how the Integrations or their providers access or use End User Data); and (d) once End User Data is shared transmitted, disclosed, or otherwise provided to the provider of the Integration, Portal will have no control over such End User Data. By making an Integration available through the Application, Customer hereby authorizes Portal to access and exchange End User Data with the Integration. Customer hereby represents and warrants that it will notify all End Users of their obligation to agree to a separate agreement with the relevant provider of an Integration prior to their accessing or using the Integration.
5.1 License and Right to Customer Data. Customer hereby grants Portal a non-exclusive, royalty-free, fully paid-up, non-transferable (except in accordance with Section 123.56), non-sublicensable, worldwide license, during the Subscription Term and the Retention Period (as defined below), to use, copy, store, transmit, publicly display, modify, create derivative works of, and otherwise process Customer Data: (a) to facilitate the interoperation and interconnection of the Portal Product with the Application; (b) to make the Integrations available to End Users through the Application; (c) provide the Portal Product, Professional Services and Support Services; (d) to collect, generate, derive, and otherwise process Usage Data; and (e) as otherwise set forth under this Agreement.
5.2 Usage Data. As between the parties, Portal owns all right, title, and interest, including all intellectual property and other proprietary rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Portal Product or Portal Technology made based on the Usage Data. Portal may collect, generate, derive, and otherwise process Usage Data for Portal’s business purposes, including to: (a) use it to monitor, operate, improve, and support the Portal Product and the Portal Technology and their performance, security, and stability; (b) create analytics, benchmarking, and performance data and reports; (c) track usage for billing purposes; and (d) develop new products and services. Customer will not interfere with the collection of Usage Data. Portal will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been aggregated with usage data from other Portal customers.
6.1 Obligations. The Receiving Party agrees that it shall take, and shall cause each of its directors, officers, employees, contractors, agents and consultants (including those of its Affiliate(s)) (collectively, “Representatives”) to take, all reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party shall protect the Disclosing Party’s Confidential Information using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information. The Receiving Party shall use the Disclosing Party’s Confidential Information solely to perform its rights and obligations under this Agreement and for no other purpose, and the Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third parties, except to Representatives (provided that: (a) any such Representative (1) has a need to know the Disclosing Party’s Confidential Information in order to perform obligations on behalf of the Receiving Party or to exercise rights granted under this Agreement on behalf of the Receiving Party, (2) is made aware of the obligations under this Agreement, and (3) is bound by written agreements or professional obligations containing restrictions prohibiting the unauthorized disclosure or use of Confidential Information that are at least as protective as the terms of this Agreement; and (b) the Receiving Party remains liable for the acts and omissions of such Representatives with respect to the Confidential Information of the Disclosing Party). If the Receiving Party is subject to judicial or governmental proceedings requiring disclosure of the Confidential Information of the Disclosing Party, then, prior to any such disclosure, the Receiving Party will provide the Disclosing Party with reasonable prior written notice (to the extent legally permitted) and will obtain, or provide the Disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information of the Disclosing Party. Each party’s obligations of confidentiality hereunder shall survive the termination of this Agreement for a period of five (5) years following such termination (except that, as to any information that is identified as a trade secret under applicable law, each party’s obligations shall survive for so long as such information remains a trade secret).
6.2 Return. Upon the termination of this Agreement, or upon a Disclosing Party’s written request: (a) all rights to the Disclosing Party’s Confidential Information shall terminate; (b) the Receiving Party shall, at the Disclosing Party’s option, return or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control in accordance with the Receiving Party’s standard data retention policies then in effect within thirty (30) days of the effective date of termination of this Agreement or the date of receipt of the Disclosing Party’s request; and (c) upon written request, the Receiving Party will confirm in writing that it has complied with the obligations set forth in this Section 67.2.
6.3 Equitable Relief. Each party acknowledges and agrees that a breach of this Section 67 may result in irreparable harm to the other party for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, each party shall be entitled to seek equitable relief, including an injunction, from any court of competent jurisdiction in the event of any breach or threatened breach of this Section 67 in order to enforce its rights hereunder without the necessity of proving actual damages or posting any bond.
7. Subscriptions, payment and cancellation
7.1 Pricing and Fees. All fees are as set forth in the applicable Order Form or on Portal’s pricing page available at https://www.portalhq.io/pricing, unless Portal and Customer have entered into a separate Order Form [that expressly supersedes Portal’s pricing page]. You agree to pay all applicable fees for the Portal Product to which that Customer has subscribed to (“Subscription”). Except as expressly set forth in this Agreement, all fees are non-refundable.
7.2 Automatic Renewal. Each Subscription will automatically renew upon each applicable billing cycle, unless Customer cancels in accordance with this Section 7.
7.3 Cancellation of Monthly Subscriptions. Customer may cancel a monthly Subscription at any time by providing notice to Portal by [emailing firstname.lastname@example.org or using its account settings in the Portal Product]. Upon Portal receiving such notice, the Subscription Term will continue until the end of the then-current monthly billing period, at which time the Subscription Term will terminate. Customer will not receive a refund, prorated or otherwise.
7.4 Cancellation of Annual Subscriptions. Customer may cancel an annual Subscription at any time by providing notice to Portal by [emailing email@example.com or using its account settings in the Portal Product]. Upon Portal receiving such notice, the Subscription Term will continue until the end of the then-current annual billing period, at which time the Subscription Term will terminate. Customer will not receive a refund, prorated or otherwise, unless otherwise agreed upon by Portal on a case-by-case basis.
7.5 Upgrades. If Customer upgrades its Subscription from a monthly to an annual Subscription, Customer’s billing period will reset to begin on the date on which Customer upgraded its Subscription to an annual Subscription. Upon such upgrade, Customer will be charged a prorated amount equal to the full cost of the annual Subscription less the value of the days remaining on Customer’s previous monthly Subscription.
7.6 Downgrades. If Customer does not pay Subscription fees when they are due, Portal may downgrade Customer’s Account to only free tier access. If Customer is downgraded, Customer may lose access to certain features or functionality of the Portal Product, but this Agreement will continue to apply.
7.7 Price Changes. If Portal increases its pricing, Portal will provide prior notice of the new pricing, and the new pricing will go into effect on renewal. If Customer does not cancel its Subscription before renewal, Customer hereby authorizes Portal to collect payment for the increased pricing.
7.8 Payment. Customer hereby authorizes Portal to charge its credit card on file or invoice Customer for each renewal until Customer cancels its Subscription.
7.8.1 Invoices. If Portal chooses to bill through invoice, Customer shall pay the amounts set forth on the applicable invoice within 30 days of the invoice receipt date. If Customer fails to make payment when due, without limiting Portal’s other rights and remedies: (a) Portal may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Portal for all reasonable costs incurred by Portal in collecting any late payments or interest, including attorneys’ fees; and (c) if such failure continues, Portal may suspend Customer’s and its Authorized Users’ access to the Portal Product until such amounts are paid in full.
7.8.2 Credit Cards. If Customer is paying fees using a credit card or any digital payment method supported by Portal, Customer authorizes Portal to charge Customer’s account for the Portal Product using that payment method. Customer must keep all information in its billing account current to ensure that all fees are charged to the appropriate account and are timely paid. If Customer notifies Portal to stop using a previously designated payment method and fails to designate an alternative, Portal may immediately suspend use and access to the Portal Product. Any notice from Customer changing its billing account will not affect charges Portal submits to Customer’s billing account before Portal reasonably can act on Customer’s request. Portal uses a third-party intermediary to manage credit card processing. Notice (including email) from Portal’s third-party credit card processor declining Customer’s credit card or otherwise relating to Customer’s account will be deemed valid notice from Portal.
7.9 Taxes. Customer shall be responsible for all sales, service, value-added, use, excise, consumption and any other taxes on amounts payable by Customer under the Order Form(s) and this Agreement (other than any taxes on Portal’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Customer is required to deduct or withhold any taxes under applicable laws outside the United States, Customer shall remit such taxes in accordance with those applicable laws and all fees payable shall be increased so that Portal receives an amount equal to the sum it would have received had no withholding or deduction been made.
8. Term, termination
8.1 Term. This Agreement will commence upon the Effective Date and will continue in full force and effect until it is terminated in accordance with the terms of this Agreement.
8.2 Termination for Cause. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (a) is incapable of cure, or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
8.3 Other Termination Rights. Customer may terminate this Agreement in accordance with Section 7.3 and 7.4, as applicable. Portal may terminate this Agreement and/or any Order Form: (a) for convenience upon sixty (60) days’ prior written notice to Customer, or (b) immediately upon written notice to Customer in the event of (1) Customer’s failure to obtain or maintain any Authorizations required for the conduct of its business or to operate, maintain, sell, offer to sell, market, or perform services relating to the Application in any jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer, or (2) any material change in or the adoption of any applicable law, regulation, judgment or decree that, in Portal’s reasonable, good faith discretion, makes the conduct of Customer’s business or the subject matter of this Agreement illegal, unlawful, or otherwise prohibited in any jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer. In the event that Customer determines, in its sole discretion, to discontinue the use of Portal Technology within the Application, or discontinue the Application, Customer will notify Portal in writing of such discontinuation at least thirty (30) days prior to the effective date of any such discontinuation and Customer may terminate this Agreement for convenience by providing Portal with written certification that such discontinuation has been effectuated.
8.4 Refunds. In the event of a termination of this Agreement by Portal pursuant to Section 8.3(a) or by Customer pursuant to Section 8.2, Portal will provide Customer with a refund for any prepaid Fees under any Order Form then in effect, which will be pro-rated for the terminated portion of the remaining months of the Subscription Term. Customer will not be entitled to any refund of any Fees if this Agreement is terminated by Portal pursuant to Section 8.2 or Section 8.3(b) or by Customer pursuant to Section 8.3.
8.5 Effects of Termination. Upon any termination of this Agreement: (a) Customer will immediately cease all use of the Portal Product; (b) the licenses granted to Customer herein will immediately terminate; (c) all Order Forms then in effect will automatically terminate (unless otherwise agreed to by the parties in writing); and (d) Customer will pay to Portal any Fees or other amounts that have accrued prior to the effective date of any such termination. Notwithstanding the foregoing, any sub licenses granted to End Users pursuant to Section 2.2 will survive termination of this Agreement (except that Customer (a) will promptly modify the Application such that the Portal Product is not required in order for End Users to access or otherwise use the Application, and (b) acknowledges and agrees that, upon termination of this Agreement, certain features and functionalities of the Application which require the Portal Product may be impacted, interrupted, or otherwise not operate or function properly). All rights to payment, causes of action, and any provision that, by their terms, are intended to survive termination (including Section 5.2), shall survive termination of this Agreement.
Upon the expiration of the Retention Period, except to the extent required by applicable law, Portal will have no further obligation to maintain, store, provide, or otherwise make available End User Data to Customer and Portal reserves the right to permanently delete the End User Data.
9. Disclaimer of warranties
9.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN: (a) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, DUTIES, AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (b) THE PORTAL PRODUCT, PORTAL TECHNOLOGY, AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY PORTAL UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” PORTAL DOES NOT WARRANT THAT THE PORTAL PRODUCT, THE PORTAL TECHNOLOGY, OR ANY PORTION THEREOF, OR ANY MATERIALS OR CONTENT OFFERED OR MADE AVAILABLE THROUGH THEM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PORTAL DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OR ON BEHALF OF CUSTOMER THROUGH THE PORTAL PRODUCT OR FROM PORTAL OR ANY MATERIALS OR CONTENT MADE AVAILABLE ON OR THROUGH THE PORTAL PRODUCT WILL CREATE ANY WARRANTY REGARDING PORTAL, THE PORTAL PRODUCT, OR THE PORTAL TECHNOLOGY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 910.13 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Portal does not disclaim any warranty or other right that Portal is prohibited from disclaiming under applicable law.
10. Limitations of liability
10.1 Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
10.2 Direct Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF PORTAL TO CUSTOMERFOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT OF FEES PAID AND PAYABLE TO PORTAL IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE FIRST GIVING RISE TO THE LIABILITY.
10.3 Exclusions. The foregoing limitations of liability set forth in this Section 101 will not apply to liabilities arising from: (a) a party’s gross negligence, willful misconduct, or fraud; (b) Customer’s indemnification obligations under this Agreement; or (c) Customer’s express payment obligations under this Agreement (including all Order Forms).
10.4 Essential Purpose. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 101 WILL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.1 By Portal. Portal will defend or at its option settle any and all claims, demands, or actions made by a third party (“Claims”) brought against Customer alleging that the Portal Product infringes or misappropriates any U.S. patent or U.S. copyright right of a third party (“IP Claim”), and Portal will pay any final judgments awarded in any such IP Claim defended by Portal or settlements entered into by Portal. Notwithstanding the foregoing, Portal will have no obligation under this Section for IP Claims arising from: (a) access to or use of the Portal Product in combination with other products or services (including the Application) if such infringement or misappropriation would not have arisen but for such combination; (b) Portal’s compliance with any designs, requirements, or specifications required or otherwise provided by Customer (including with respect to Professional Services and the Deliverables), if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) unauthorized access to or use of the Portal Product by Customer or its Users; (d) any modification of the Portal Product not made or authorized in writing by Portal where such infringement or misappropriation would not have occurred absent such modification; (e) any Customer Branding; (f) the Application; (g) Customer’s gross negligence, willful misconduct, or fraud; or (h) the Integrations (subsections (a) through (g) are collectively referred to as “Excluded Claims”). In the event any IP Claim is brought, or reasonably likely to be brought (in Portal’s reasonable, good faith discretion), against Customer, then Portal may at its sole option and expense: (a) procure for Customer the right to continue using the infringing component of the Portal Product; (b) replace the infringing component of the Portal Product with a non-infringing equivalent; or (c) in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and the rights granted herein. THIS SECTION 112.1 STATES THE ENTIRE LIABILITY AND OBLIGATION OF PORTAL, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION BY THE PORTAL PRODUCT OF ANY INTELLECTUAL PROPERTY RIGHTS.
11.2 By Customer. Customer will indemnify, defend and hold harmless Portal from and against any and all Claims and all resulting liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by Portal arising from or in connection with: (a) any breach or non-fulfillment by Customer or its Authorized Users of any representation, warranty, or covenant set forth herein or that is otherwise provided by Customer to an End User or to any other third party (including, without limitation, by way of the end user license agreement governing an End User’s access to or use of the Application); (b) any violation of applicable law (including those that apply with respect to the Application); (c) any Customer Data; (d) any Claim that the Application infringes or misappropriates the intellectual property rights of a third party; or (e) the Excluded Claims.
11.3 Procedures. Any Claim subject to indemnification under this Section 112 will be subject to the following provisions: (a) the indemnifying party will be given prompt written notice of the Claim by the indemnified party, provided that any delay in providing notice will not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (b) the indemnifying party will have the right to control the defense and all negotiations relative to the settlement of any such Claim (except that the indemnified party may participate in a Claim with its own counsel at its own expense), provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party (not to be unreasonably withheld, conditioned, or delayed); and (c) the indemnified party will reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
12.1 No Partnership, Joint Venture or Franchise. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
12.2 Export. The Portal Product, Customer Data, and the Application may be subject to U.S. export jurisdiction and other applicable national or international laws, and Customer will comply with all applicable international and national laws that apply to any of the foregoing, including the U.S. Export Administration Regulations.
12.3 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except as specified in Section 123.45, any action, dispute, or claim arising out of or in connection with this Agreement will be brought in the state or federal courts in San Francisco County, California, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
12.4 Arbitration. Any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in San Francisco, California, under the Rules of the American Arbitration Association (“Rules”) by three arbitrators appointed in accordance with the Rules. If there is a conflict between the Rules and this Agreement, this Agreement will prevail. All other disputes will be resolved by a court specified in Section 123.34. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. Nothing in this Section will be interpreted or otherwise construed as preventing a party from applying at any time to a court of competent jurisdiction to seek and obtain injunctive and other equitable relief (including, without limitation, a temporary restraining order) and by doing so will not breach or waive the agreement to arbitrate disputes set forth in this Section. The parties, their representatives, the arbitrator, and other participants shall keep confidential the existence, content, and result of the arbitration. Each party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement.
12.5 Assignability. Customer may not assign its rights, duties, and obligations under this Agreement without Portal’s prior written consent. Any assignment in violation of this Section 123.56 is null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
12.6 Construction; Waiver. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
12.7 Publicity. Neither party may make any public announcement relating to this Agreement except with the other party’s prior written consent or as required by applicable laws. Portal may reference Customer’s name and include Customer’s trademarks, logos, and other branding elements (“Marketing Materials”) in Portal’s customer lists, promotional materials, and in connection with its marketing, advertising, promotional, or sales practices or activities; provided that Customer may require that Portal cease further use of Marketing Materials upon written notice to Portal (except that Portal will not be obligated to cease its use of any tangible materials containing, embodying, or including Marketing Materials that are in existence at the time of Portal’s receipt of such notice from Customer).
12.8 Force Majeure. In no event will Portal be liable or responsible to Customer, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any obligation under this Agreement to the extent such failure or delay is caused by any circumstances beyond Portal’s reasonable control, including (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) inability to obtain sufficient supplies, transportation, services, materials, technology, or other essential commodity or service required in the conduct of its business; and (i) any material change in or the adoption of any applicable law, regulation, judgment or decree that prevents, or alters Portal’s ability to perform its obligation under this Agreement (each a "Force Majeure Event").
12.9 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth above and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
12.10 Entire Agreement. This Agreement (including all Order Forms and any exhibits or addendums attached hereto) is the final and complete expression of the agreement between the parties regarding the subject matter of this Agreement. This Agreement supersedes, and will govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. The terms and conditions in any Customer purchase order, ordering document, or business form will not amend or modify this Agreement and are expressly rejected by Portal; any of these Customer documents are for administrative purposes only and have no legal effect.