ADMINISTRATOR SOFTWARE LICENSE AGREEMENT
(MASTER SERVICES LICENCE AGREEMENT)
This administrator software license agreement (the Agreement) is a legal agreement by and between Portia International Inc. (PORTIA) and you or the entity that you represent, concerning access to and use of this software product (the Software). If you are entering into the Agreement on behalf of an entity, you are agreeing to these terms and conditions on behalf of that entity and representing and warranting that you have legal authority to bind the entity (as defined herein).
PLEASE READ THE AGREEMENT CAREFULLY. THIS AGREEMENT AFFECTS THE CUSTOMER’S AND AUTHORIZED USERS’ LEGAL RIGHTS AND OBLIGATIONS. BY SELECTING “I AGREE” CUSTOMER OR AUTHORIZED USER (AS DEFINED HEREIN) IS INDICATING ITS/THEIR ACCEPTANCE OF, AND AGREEMENT TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT, AND ANY AMENDMENTS THERETO, SHALL GOVERN THE ACCESS AND USE OF THE SOFTWARE BY CUSTOMER AND ITS AUTHORIZED USERS DURING THE TERM OF THIS AGREEMENT. IF CUSTOMER OR AUTHORIZED USER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER/AUTHORIZED USER MUST NOT USE THIS PRODUCT AND ACCESS AND USE OF THE SOFTWARE IS NOT PERMITTED.
PORTIA MAY CHANGE THE TERMS AND CONDITIONS OF THIS AGREEMENT AT ANY TIME AT ITS SOLE DISCRETION. PORTIA WILL PROVIDE NOTICE TO YOU BY POSTING THE AGREEMENT ON ITS WEBSITE. CUSTOMERS AND AUTHORIZED USERS WHO CONTINUE USING THE SERVICE AFTER THE CHANGES ARE POSTED ARE INDICATING THEIR AGREEMENT TO THE CHANGES.
In consideration of the mutual promises, covenants, and conditions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, PORTIA and Customer agree as follows:
1.0 LICENSE GRANT AND RESTRICTIONS
1.1 License. PORTIA hereby grants to Customer, subject to the terms and conditions of this Agreement, a worldwide, limited, non-exclusive, non-transferable and non-assignable license to use the Software for the Permitted Purpose (as defined herein) during the Term (the Licence).
1.2 Permitted Purpose. In this Agreement, Permitted Purpose means to: (a) access and use the Software remotely through the Internet or other agreed-to communications network solely for Customer’s internal business purposes as an “administrator” in connection with the treatment and instruction of individuals under the care and/or treatment of Customer (each a Learner), subject to any limitations, restrictions or requirements specified herein; and (b) allow the Authorized Users (as defined herein) to access and use the Software through the Internet or other agreed-to communications network solely for the Customer’s internal business purposes and subject to any limitations, restrictions or requirements specified herein. Authorized Users are individuals who are 18 years of age and older and limited to the Customer’s management, employees, workers, and contractors as well as parents or legal guardians of Learners. Authorization for other individuals can be requested from PORTIA. PORTIA retains sole discretion for authorizing additional users.
1.3 Documentation. The foregoing License shall include the right of Customer and each of Customer’s Authorized Users, to use for its permitted purposes in connection with its use of the Software, any related and available documentation, including the user guide provided by PORTIA to Customer (in any form) (the Documentation). For certainty, the foregoing does not oblige PORTIA to provide any Documentation to Customer.
1.4 Restrictions on Use. Except as otherwise permitted by this Agreement, Customer’s access and use of the Software is subject to the following restrictions and limitations: (a) Customer shall limit access to the Software to its Authorized Users who require such access in order to permit Customer to use the Software and Documentation as expressly permitted under this Agreement; (b) the Customer is solely responsible for its own account including but not limited to ensuring that the Authorized Users are accurately assigned a role and have the appropriate permissions/level of access; (c) Customers are required to obtain approval from PORTIA prior to providing access to any third party outside of the Customer’s organization, including but not limited to third party billing providers (e) Customer shall not, except as may be expressly provided herein, and shall ensure the Authorized Users do not: (i) provide, disclose, sublicense, lease, rent or otherwise permit any person other than Customer or an Authorized User to access, use, read, disseminate, transmit, distribute or reproduce the Software or Documentation; (ii) adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part; (iii) disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software; (iv) transfer, sell, resell, lease, assign, or otherwise convey the Software to any party except as may be otherwise expressly provided for herein; (v) alter any proprietary notices appearing in the Software; or (vi) access the Software for the purpose of copying any features of the Software, or building a competitive service, or for any improper purpose, including but not limited to, damaging, destroying, disrupting, monitoring, or overburdening the Software. Without limiting the generality of foregoing, the customer shall not permit use, review, disclosure of the Software to any User, including but not limited to, any competitor or prospective competitor.
1.5 Access by Authorized Users. Customer agrees that any access or use of the Software by any Authorized User shall be subject to: (a) each Authorized User, prior to being able to access and/or use the Software, agreeing with PORTIA to terms and conditions of service governing such Authorized User’s access to and use of the Software; (b) Customer promptly notifying PORTIA of any non-compliant or suspected non-compliant access to or use of the Software by any Authorized User; and (c) Customer remaining fully responsible and liable to PORTIA in respect of any Authorized User’s access or use of the Software and/or any failure by an Authorized User to comply with applicable Laws (as defined herein) and the terms of this Agreement. Subject to the restrictions in the Order Form, Customer may invite management, senior therapists, instructor therapists, and parents/guardians of Learners (each an Authorized User) to access and/or use the Software remotely via the Internet or other agreed-to communications network solely for the purpose of allowing such Authorized User to support, or in connection with, Customer’s internal business purposes. Customers agree to immediately remove access to the Software from any User who is no longer authorized by reason of change/cessation of employment, change/cessation of contract, non-compliance with this Agreement and/or non-compliance with applicable Laws.
1.6 Compliance with Laws. Customer shall comply with all applicable laws, statutes, regulations, codes, treaties ordinances, orders, decrees, rules, regulations and municipal by-laws, judicial, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings or awards of any governmental authority, policies, guidelines and protocols (herein referred to as “Laws”), including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Health Information Protection Act, 2004 (Ontario) and any similar laws governing the protection of personal information or personal health information in any jurisdiction in which the Customer operates (Privacy/Retention Laws). The Customer is responsible for understanding and complying with all applicable laws and Customer warrants that they have reasonable policies and procedures in place to comply with the applicable laws and to protect access to the Software.
1.7 Customer Responsibilities. Customer is solely responsible for: (a) ensuring that devices used to access the Software meet the system requirements established by PORTIA from time to time; (b) monitoring and controlling the activity of each Authorized User; (c) ensuring each Authorized User maintains the security of any password, username, or other form of authentication involved in obtaining access to the Software; (d) ensuring that there is no unauthorized access to the Software and notifying PORTIA promptly of any such access of which Customer becomes aware; and (e) the reliability, accuracy, quality, integrity and legality of all Data (as defined herein) and the means by which Customer and each Authorized User obtains, collects, uses and discloses such Data. Customer agrees that its access or use of the Software shall be subject to agreeing with PORTIA to terms and conditions of service governing Customer’s access to and use of the Software, and that in the event that there is any conflict between the terms of this Agreement and such terms and conditions of service regarding Customer access and use of the Software, the terms of this Agreement shall govern.
1.8 No Support. Customer acknowledges that PORTIA is not obligated hereunder to provide any support or maintenance (including to correct any errors or defects in the Software) or to provide any Updates, as defined herein, to or in respect of the Software. At its sole discretion, PORTIA may elect to provide technical support for the Software to Customer.
1.9 Changes and Improvements. PORTIA may, at any time and at its sole discretion, change, modify or discontinue the Software, its services, or any portion thereof. PORTIA may, but is not required to, provide to Customer improvements, enhancements, modifications, updates, and patches to the Software (Upgrades) to: (a) improve upon or repair existing features and operations within the Software; (b) modify the Software to comply with applicable Laws; or (iii) add enhanced functionality to the Software. Customer acknowledges that PORTIA may apply any Upgrades to the Software as such Upgrades are developed and released to PORTIA’S general user base. PORTIA reserves the sole and exclusive right to determine how and when to develop and apply any Upgrades. PORTIA retains the sole and exclusive discretion to provide new functionality as an Upgrade to existing Software or as separate, stand-alone software. Customer may request improvements or enhancements to the Software which PORTIA may provide at extra charge to Customer, in its sole discretion, at its then current standard software development rates as established by PORTIA from time to time as subsequently agreed to by PORTIA and Customer in writing. Any amounts that may be due and payable by Customer under this Section 1.9 shall be invoiced in advanced and due immediately upon receipt of PORTIA’s invoice unless the parties hereto otherwise agree in writing.
1.10 Third Party Service Providers and Hosting Services. PORTIA may use subcontractors, including third party service providers. PORTIA shall cause the Software to be maintained on servers, including cloud servers, and equipment selected by PORTIA, such that the Software is available to Customer through the Internet. Customer acknowledges that Data (as defined herein) may be transferred, processed and stored on servers in countries outside of Canada, including the United States, and may therefore be subject to different laws than those applicable in Canada.
1.11. Billing Services. If specified in the Order Form, Portia shall provide to Customer the insurance billing services described in the Order Form (“Billing Services”).
1.12 Additional Services. All costs and expenses incurred by Customer in its operation and use of the Software shall be borne solely by Customer. In the event that Customer requests that PORTIA provide Customer with any assistance, technical support, services or training in connection with Customer’s use of the Software, any such assistance, services or training will be provided at PORTIA’s sole discretion and to the extent that PORTIA is unwilling to provide such assistance, services or training free of charge, may be provided at extra charge to, and paid for by, Customer, provided that PORTIA shall obtain the written approval of Customer prior to incurring any additional costs or expenses for which it seeks reimbursement. Any amounts that may be due and payable by Customer under this Section 1.11 shall be invoiced in advanced and due immediately upon receipt of PORTIA’s invoice unless the parties hereto otherwise agree in writing.
1.13 No Other Services. The services provided by PORTIA do not constitute medical advice, business advice, or billing advice. Customer assumes all risks associated with the use of the Services in relation to its Learners.
1.14 Monitoring and Investigation. PORTIA reserves the right to monitor or investigate any use of its Software to verify compliance with this Agreement, to comply with the applicable law, to respond to complaints, and for any other proper purpose. PORTIA, at its sole discretion, may suspend access to the Software when it reasonably believes there has been a breach of the Agreement, Laws, or for the purpose of protecting its Software, Customers, Authorized Users or the public.
2.0 PAYMENT
2.1 Fees. In consideration of PORTIA’S provision of the Software and/or Billing Services, Customer shall pay to PORTIA the applicable fees for each Learner of Customer (the License Fees), as specified in the Order Form. License Fees are subject to change upon thirty (30) days’ notice from PORTIA to Customer, which notice may be provided to Customer by PORTIA. Unless otherwise specified in the Order Form, the License Fees shall be calculated based on the actual total number of Learner profiles inputted into the Software at any time during the preceding month, which number shall be determined exclusively by PORTIA. Where a Learner profile is added after the fifteenth (15th) day of the preceding month, the Fees shall be one-half of the usual monthly per Learner License Fee.
2.2 Payment. License Fees shall be paid by Customer on the first day of each month during the Term in advance for each month in which access to the Software is provided by PORTIA. Unless otherwise, specified in the Order Form, License Fees must be paid and pre-approved using a valid credit card acceptable to PORTIA in its sole discretion prior to PORTIA continuing to make the Software available to Customer. PORTIA will provide Customer with notice of the amount of Licensee Fees at least ten (10) days prior to the date of the pre-approved payment of the License Fees for the applicable month. Customer consents and agrees to be billed for, and to pay, License Fees automatically on a recurring basis in compliance with applicable Laws and the card association and network rules of Visa Europe Ltd, Visa U.S.A., Inc., Visa Canada Inc. and Visa International, MasterCard International Incorporated, Discover, American Express or other applicable card network. Credit card payments are processed for PORTIA by a third party payment processor called “STRIPE” (the Processor) and, as such, Customer’s Personal Information (as defined herein), and financial, credit card, or transaction information may be transferred, processed and stored by the Processor outside of Canada and may be subject to disclosure as required by applicable Law in accordance with Portia’s then current privacy policy. Customer hereby authorizes PORTIA and/or the Processor to share information with law enforcement about Customer, Customer’s transactions, or Customer’s use of the Software if PORTIA and/or the Processor reasonably suspect Customer’s account has been, or may be, used for an unauthorized, illegal, or criminal purpose. PORTIA reserves the right to not authorize or settle any payment for any License Fees that PORTIA believes, in its sole discretion, is in violation of this Agreement or any agreement between PORTIA and the Processor, or exposes Customer, PORTIA, other users of the Software (including Authorized Users), or other users of services provided by the Processor to harm. Customer may cancel any pre-approved payment within three (3) Business Days of the scheduled date of the pre-approved License Fees payment, however Customer shall remain liable to PORTIA for the amount of such Licensee Fees payment and shall pay PORTIA by alternative means.
2.3 No Refund. Fees are non-refundable, in whole or in part, except where required by applicable laws. If Customer purchases a monthly subscription to the Software or Billing Services, Customer’s obligation to pay Fees continues through the end of the month during which it cancels its subscription.
2.4 Taxes. All amounts payable by Customer pursuant to this Agreement are exclusive of any sales, goods and services, harmonized sales, value-added, stamp, customs, transfer, consumption, use, excise or similar taxes, duties or charges (collectively, Taxes) and the parties hereto agree that Customer shall be liable for all Taxes payable in connection with the transactions contemplated by this Agreement.
2.5 Additional Payment Terms. If Customer has failed to pay any fees or amounts under this Agreement within thirty (30) days of their due date such unpaid amount shall bear interest from the due date to the date of payment at the rate of one percent (1.0%) per month (being 12% per annum) or the maximum interest rate permitted under applicable Laws if less, such interest to accrue from day to day and to be compounded on a monthly basis. If Customer has failed to pay any undisputed fees or amounts under this Agreement within sixty (60) calendar days of their due date, such failure shall be deemed to be a material breach of this Agreement and PORTIA may terminate this Agreement or suspend Customer’s (and all Authorized Users’) access to, and use of, the Software. Payment shall be made without any right of set-off or deduction. Customer confirms that in entering into payment obligations under this Agreement it has not relied on the future availability of any Software Update, improvement, release or any other version or functionality.
3.0 CONFIDENTIALITY AND PROPRIETARY RIGHTS
3.1 Confidential Information. Customer acknowledges that the Software, the Documentation and all related technical and product information (inclusive of all trade secrets, ideas, concepts, processes, procedures, and know-how contained therein) disclosed in connection with this Agreement, in any form, is the confidential and proprietary information of PORTIA (Confidential Information). Except as and to the extent expressly authorized hereunder, Customer may use the Confidential Information only to the extent required in the exercise of its rights hereunder. Customer shall hold the Confidential Information in confidence and shall protect the Confidential Information from harm, loss, theft, reproduction and unauthorized access and shall ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any other person except as provided in this Agreement, without PORTIA’s prior written approval. Customer agrees that the Confidential Information is the sole and exclusive property of PORTIA. PORTIA shall not be under any obligation to make any particular Confidential Information available to Customer or to supplement or update any Confidential Information previously furnished.
3.2 Ownership of Software. Customer acknowledges and agrees that all right, title and interest in and to the Software (including all intellectual property rights therein, including all copyright) and the Documentation is, and shall be, owned solely and exclusively by PORTIA and/or its third party licensors, if any. Nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to Customer any title, rights or interest in any intellectual property, including copyrights, methodologies, ideas and concepts, in or to the Software or the Documentation other than the Licence or other rights specifically and expressly granted herein.
3.3 Relief. Customer acknowledges and agrees that damages may be an inadequate remedy for a breach of this Article 3.0 or the provisions of this Agreement relating to Customer’s access to and use of the Software and agrees that such breach shall constitute irreparable harm to PORTIA. Customer agrees not to contest or object to an application for equitable relief by PORTIA in such circumstances and waives any and all immunities from injunctive relief to which it may be entitled. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. Customer agrees that the provisions of this Section 3.3 are fair and reasonable in the commercial circumstances of this Agreement, and that PORTIA would not have entered into this Agreement but for the provisions of this Section 3.3.
3.4 Ownership of Data. Customer acknowledges and agrees that all right, title and interest in and to any and all data collected by Customer or any Authorized User through Customer’s or an Authorized User’s use of the Software, or inputted by Customer or an Authorized User into the Software (Data) (including all Personal Information and intellectual property rights therein) is, and shall be, as between Customer and PORTIA, owned exclusively by Customer. Customer acknowledges and agrees it will not upload copyrighted material, including images, unless owned by the Customer. Customer hereby grants to PORTIA, subject to the terms and conditions of this Agreement, (a) non-exclusive, worldwide, limited, sub-licensable, royalty-free license during the Term to use, display, copy, and modify the Data for the purpose of providing the Software and Billing Services; and (b) a perpetual, worldwide, limited, sub-licensable, royalty-free, non-exclusive, personal, non-transferable and non-assignable license to access, use and disclose the Data only in aggregated, anonymous form, without any Personal Information (as defined herein) for Portia’s own business purposes, including but not limited to marketing research and product development. Customer agrees that PORTIA is not required to create a back-up of any Data.
3.5 Personal Information. Customer agrees that in using the Software it shall comply at all times with all applicable Laws, including in connection with its collection, use and disclosure of personal information and personal health information as defined by Privacy Laws (Personal Information). Customer covenants that any and all Personal Information will be collected with the consent of each individual to which such Personal Information relates (if such consent is required under applicable Privacy Laws), and covenants that such consents will be obtained by Customer in a manner that allows the parties hereto to use the Data as contemplated in this Agreement. Customer covenants and agrees that Personal Information in the Data will be used only for the purposes for which the Personal Information was initially collected or for a subsequent purpose for which consent is subsequently obtained, or has been collected, used or disclosed for a purpose in respect of which consent may, under applicable Privacy Laws, be implied, including as contemplated by this Agreement. Each of Customer and PORTIA shall use commercially reasonable efforts to protect and safeguard any Personal Information in the Data against unauthorized collection, use or disclosure, as provided by applicable Privacy Laws and shall cause its representatives, including in the case of Customer, the Authorized Users, to observe the terms of this Section 3.5.
3.6 Data Breach. In the event of actual or suspected unauthorized access to, loss or theft of any Customer Data comprising personal information or personal health information in the power, possession or control of Portia (Data Breach), Portia agrees that it shall comply with the applicable laws and: (i) take all reasonably necessary steps to contain the Data Breach; (ii) conduct an investigation into the cause of the Data Breach and the types of Personal Information that may have been compromised; (iii) inform Customer of information gathered in accordance with this section, continue to keep Customer informed of any new information revealed in the investigation, and keep all records relating to the investigation and Data Breach; and (iv) otherwise provide any reasonable assistance to Customer to allow Customer to comply with any legal or regulatory obligations in respect of the Data Breach.
3.7 Remedy. In the event of any loss or corruption of Data during the Term, PORTIA shall use its commercially reasonable efforts to restore the lost or corrupted Data from the latest backup of such Data maintained by Company in accordance with Portia’s archival procedures. Portia is not responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Data howsoever caused. PORTIA’S EFFORTS TO RESTORE LOST OR CORRUPTED DATA PURSUANT TO THIS SECTION 3.7 SHALL CONSTITUTE PORTIA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF DATA.
4.0 RISK MANAGEMENT
4.1 No Warranties. CUSTOMER ACKNOWLEDGES THAT ITS USE THE SOFTWARE IS ENTIRELY AT ITS OWN RISK. CUSTOMER ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM AND THAT PRIVACY AND CONFIDENTIALITY CANNOT BE GUARANTEED. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND ALL RELATED INFORMATION, DATA, PRODUCTS AND/OR SERVICES OR ASSISTANCE PROVIDED BY PORTIA TO CUSTOMER, IS PROVIDED ON AN “AS AVAILABLE” AND “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND OR NATURE WHATSOEVER INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR THAT THE SOFTWARE WILL BE ERROR FREE, OR CONCERNING THE SOFTWARE’S FUNCTIONALITY, QUALITY, SUITABILITY, USEFULNESS, RELIABILITY, SECURITY, COMPLETENESS, PERFORMANCE, OPERATION OR USE BY CUSTOMER AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY PORTIA WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF ITS (OR ITS AUTHORIZED USER’S) ACCESS OR USE OF THE SOFTWARE, AND ANY SERVICES OR ASSISTANCE PROVIDED BY PORTIA IN ANY CONNECTION THEREWITH, REMAINS WITH CUSTOMER.
4.2 Limitation. CUSTOMER AGREES THAT PORTIA (OR ITS AFFILIATES OR LICENSORS, IF ANY) ARE NOT, AND WILL NOT BE, LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR ANY LOSS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, CONSEQUENTIAL DAMAGES, OR LOSS OF DATA SUFFERED BY CUSTOMER OR ANY THIRD PARTY HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION OR BASIS OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE), EVEN IF SUCH DAMAGES ARE FORESEEABLE OR PORTIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER HEREBY ASSUMES ALL RISKS AND LIABILITIES IN CONNECTION WITH ITS (OR ITS AUTHORIZED USER’S) USE OF THE SOFTWARE, INCLUDING ANY INCOMPLETENESS, ERRORS, VIRUSES, BUGS, PROBLEMS, INACCURACIES, OR OTHER LIMITATIONS IN THE SOFTWARE OR ANY INTERRUPTION IN THE USE OF THE SOFTWARE . THIS SECTION SHALL SURVIVE ANY BREACH OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY REMEDY CONTAINED HEREIN. IF CUSTOMER IS DISSATISFIED WITH THE SOFTWARE OR WITH THIS AGREEMENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SOFTWARE.
4.3 Acknowledgement. CUSTOMER EXPRESSLY ACKNOWLEDGES AND CONFIRMS THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS AGREEMENT ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES, AND THAT PORTIA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND LICENSED THE SOFTWARE BUT FOR CUSTOMER’S AGREEMENT TO SUCH LIMITATIONS AND EXCLUSIONS.
4.4 Indemnification. Customer hereby agrees to fully defend, indemnify and hold harmless, PORTIA and its officers, directors, employees, agents, representatives, licensors, and all of their respective successors and assigns, against any and all threatened claims, claims, damages and losses of any type, expenses (including reasonable legal fees), actions, demands, liabilities, settlements, or judgments that result from or arise out or which such persons may suffer or incur, directly or indirectly, as a result of or arising out of, or in any way connected with a Customer’s use of the Software, acts or omissions in relation to the Software, and/or breach of this Agreement. This includes any unauthorized access to the Customer’s account.
5.0 TERM AND TERMINATION
5.1 Term. This initial term of this Agreement shall commence on the date specified in the Order Form (the Effective Date) and shall continue for the term specified in the Order Form (the Initial Term) and after the expiration of such Initial Term shall be renewed automatically thereafter for additional periods which are equal in length to the Initial Term (each a Renewal Term and together with the Initial term, the Term), unless Customer gives notice to PORTIA of its intention to terminate this Agreement at least fourteen (14) days prior to the expiration of the then-current Initial Term or Renewal Term. Together the Initial Term and Renewal Term shall be the Term.
5.2 Termination. This Agreement shall continue during the Term until terminated in accordance with the terms hereof. This Agreement may be terminated by PORTIA immediately in the event of a breach of this Agreement by Customer, including non-payment, or any violation of law, or good faith belief in a violation of law. PORTIA may also terminate this agreement for any reason, upon providing 30 days written notice.
5.3 Effects of Termination. Upon any termination of this Agreement: (a) the License shall immediately terminate and Customer shall cease all use of, and shall have no access to, the Software; and (b) Customer shall pay any and all License Fees accrued or payable to PORTIA prior to the effective date of termination.
5.4 Future Access to Data Post-Termination. Upon any termination of this Agreement, howsoever caused, the Customer shall cease to have access to the Software and information and data contained therein. Portia does not represent or warrant that any of the Customer’s or Learner’s information or data will be preserved, except in accordance with applicable law. Access to data or information, if available, will be charged to the former Customer at a rate to be determined by PORTIA at its sole discretion.
6.0 GENERAL PROVISIONS
6.1 Entire Agreement, Law, etc. (a) This Agreement constitutes the entire agreement between the parties hereto pertaining to all the matters herein and supersedes all prior agreements, proposals, understandings, representations, negotiations and discussions between the parties, whether oral or written and may only be amended or modified by agreement of the authorized representatives of the parties. No additional term or condition included in any Customer purchase order or other document issued by Customer that has not previously been agreed to in writing by PORTIA shall bind PORTIA. If Customer is a corporation, organization, partnership or other non-individual entity, it shall cause its employees, agents, contractors, directors and officers to comply with these Terms of Service and shall be responsible at all times for all such employees, agents, contractors, directors and officers. (b) This Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein. For the purpose of all legal proceedings, this Agreement shall be deemed to have been performed in the Province of Ontario, Canada and the parties hereto expressly confirm that the law of the Province of Ontario is the proper law. The parties hereto irrevocably attorn to the jurisdiction of the Courts of the Province of Ontario in respect of all matters and disputes arising hereunder. (c) It is the express wish of the parties hereto that this Agreement be in English. La volonté expresse des parties aux présentes est que ce Agreement soit rédigé en anglais. The parties hereto hereby waive any right to use and rely upon any other language. (e) This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of the parties hereto, their respective successors and permitted assigns. Customer may not assign all or any part of this Agreement without the prior consent of PORTIA. PORTIA may assign this Agreement without the consent of Customer at any time. (f) No delay or omission by a party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights. (g) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law. (h) The provisions of Sections 2.0, 3.0, 4.0, 5.3, 6.0 and any other terms herein which expressly state that such terms will survive shall survive the termination or expiration of this Agreement for any reason. (i) Except as otherwise provided in this Agreement, all notices, requests, claims, demands and other communications required or permitted to be given hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by commercial overnight courier service (with recipient signature required), by registered or certified mail (postage prepaid, return receipt requested), or by e-mail with confirmation of receipt of such e-mail by the receiving party to the respective party at the addresses or e-mail address for each provided to the other, as may be changed by either party in accordance with the terms of this Section. (j) In this Agreement: (i) all usage of the word “including” or “include” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation”; (ii) the division of this Agreement into separate Articles, Sections and Subsections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement; (iii) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; (iv) Business Day means any day other than a Saturday, Sunday or a statutory or civic holiday in the city of Toronto, Ontario; (v) if any action is required to be taken pursuant to this Agreement on a day which is not a Business Day, then such payment or action, as the case may be, shall be made or taken on the next day that is Business Day; (vi) unless otherwise specified, all amounts referred to in this Agreement are in USD and will be payable in USD; and (vii) the terms and conditions of this Agreement shall not be construed in favour of or against any party hereto by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement. Any questions concerning the Agreement or its terms and conditions should be directed to: info@portiapro.com.
This version of the Agreement is current as of April 28th, 2022.