This Master Agreement (the “Agreement”) applies to your purchase and use of any software and/or hardware products, and/or services related thereto (such software, hardware and services being collectively referred to herein as the “System”), offered by Portal Entryways Inc. ("Portal Entryways"). By using the System or paying any invoice for fees associated with the System, you are deemed to have accepted this Agreement. You will be referred to herein as “you” or “Customer.”Portal Entryways and Customer will each be referred to herein as a “Party,” and collectively as “Parties.”
THIS AGREEMENT GOVERNS YOUR USE OF THE SYSTEM. BY USING THE SYSTEM OR PAYING ANY INVOICE ISSUED TO YOU BY PORTAL ENTRYWAYS, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND IT TO THIS AGREEMENT, IN WHICH CASE "YOU" OR “CUSTOMER” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PORTAL ENTRYWAYS IS UNWILLING TO PROVIDE THE SYSTEM TO YOU, AND YOU MAY NOT USE THE SYSTEM.
1. LICENSE TO USE THE SYSTEM.
1.1. Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement, Portal Entryways hereby grants to Customer a limited, nonexclusive, nontransferable (other than to affiliates) license, during the term of this Agreement, to access and use the System and allow its employees, contractors and users to access and use the System (the “License”).
1.2. Restrictions. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the System; modify, translate, or create derivative works based on the System (except to the extent expressly permitted by Portal Entryways or authorized within the System); use the System for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or otherwise use the System in any way that violates the use restrictions contained in this Agreement or authorize a third party to do any of the foregoing.
1.3. Support Services; Maintenance’ Installation. Portal Entryways will use reasonable efforts to provide support services for the Systems. Customer may contact Portal Entryways at either email@example.com or 657-464-5404 to request support services. Portal Entryways will provide Customer with all software and hardware updates that it generally makes available to its customers for no additional charge.Unless otherwise mutually agreed, Customer will be responsible for installing the System.
1.4. Mobile Application. All end user use of the mobile application component of the Systems will be governed by the applicable end user license agreement that is available via the mobile application.
2. LICENSE FEES AND PAYMENT TERMS. In consideration for the License provided herein, Customer shall pay to Portal Entryways the non-refundable (except as expressly provided for herein) license fees (the “License Fees”), hardware fees, initialization fees and/or installation fees(collectively, the “Fees”) set forth in the applicable invoices. The License Fees for the Initial Term (as defined below) and any one-time Fees will be invoiced by Portal Entryways up-front, and the License Fees for any Renewal Terms will be invoiced promptly after the start of each Renewal Term. Customer must pay each invoice in full within 30 days after the date of such invoice. Portal Entryways reserves the right to change the Fees and to institute new charges and fees at the end of the Initial Term or then current Renewal Term. Customer shall be responsible for all taxes associated with the System other than U.S. taxes based on Portal Entryways’ net income.
3. TERM AND TERMINATION. This Agreement starts on the Effective Date and will continue for a one-year period(the “Initial Term”), and thereafter will automatically renew for successive additional one-year periods (each a “Renewal Term”) unless terminated earlier pursuant to this Section 3or if either Party gives written notice of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or current Renewal Term, as applicable.Customer may terminate this Agreement without cause by giving 30 days written notice to Portal Entryways, however, for avoidance of doubt, Customer will not be entitled to a refund of any Fees paid in the event of such a termination.This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:(i)if the other Party breaches any material term or condition in this Agreement and fails to cure such breach within ten days after receipt of written notice of such breach from the non-breaching Party; provided, however, that there shall be no cure period for a breach of Section 5;(ii)if the other Party: (a) makes a general assignment for the benefit of creditors,(b) admits in writing its inability to pay debts as they come due, (voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (d) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within 120 days after such filing; or(iii)if the other Party is prevented from performing or unable to perform any of its obligations under this Agreement for more than 60 days due to a Force Majeure Event (as defined below).Regardless of the date of, or the reason for, termination or expiration of this Agreement, Customer shall continue to be obligated to pay all Fees in full.Upon any termination or expiration of this Agreement, the licenses granted by Portal Entryways to Customer hereunder shall terminate and Portal Entryways will have the right to deactivate the applicable hardware. Any provision hereof which by its nature shall survive will survive any termination or expiration of this Agreement.
4.1. System. As between Customer and Portal Entryways, Portal Entryways shall own and retain all right, title, and interest in and to: (i) the System; (ii) the data derived from all use of the System; (iii) the documentation and any and all Confidential Information provided to Customer by Portal Entryways; and (iv) all intellectual property rights in the foregoing. Portal Entryways and its licensors reserve all rights and licenses in and to the System not expressly granted to Customer under this Agreement.
4.2. Customer Logos and Designs. Customer shall retain all right, title and interest in and to all of Customer’s logos, promotional graphics and related marketing designs (collectively, the “Customer Materials”), provided, however, that Customer hereby grants to Portal Entryways a worldwide, royalty-free, non-exclusive license to use the Customer Materials, as well as Customer’s corporate and/or trade name, for purposes of fulfilling its obligations hereunder and marketing Portal Entryways’ products and services to third parties.
5. CONFIDENTIALITY. “Confidential Information” means: (i)the System, and any features, results or output produced by, and other information relating to, the System; and (ii)any business or technical information of Portal Entryways or Customer, including, but not limited to, any information that is designated by Portal Entryways or Customer as “confidential” or “proprietary” or that a reasonable person would understand to be confidential given its nature and the circumstances surrounding disclosure. The obligations in this Section 5 will not apply with respect to: (i) Confidential Information after three years following the disclosure thereof; or (ii) any Confidential Information that the party receiving such information (the “Receiving Party”) can document: (a) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) generally available to the public; or(b) was in its possession or known by it without restriction prior to receipt from the party disclosing such information (the “Disclosing Party”); or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent, reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to participate in the proceeding.The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials); (ii) not to divulge any such Confidential Information to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except to perform its obligations under this Agreement; and (iv) not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information or product thereof. The Receiving Party may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
6. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants to the other Party that: (i) it is a legal entity duly organized and validly existing under the laws of its relevant jurisdiction;(ii) it has the full right, power and authority to enter into this Agreement; (iii) this Agreement is a valid and binding obligation of such Party; (iv) it has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder; and (v) it shall comply with all applicable laws, rules and regulations.
7. WARRANTIES. Portal Entryways warrants (the “Limited Warranty”) to Customer that any hardware including in the System (collectively, the “Warranted Product”) will be free from material defects in materials and workmanship for a period of 12 months from the date of installation (the “Warranty Period”). If the Warranted Product fails to conform to this warranty during the Warranty Period and Customer has provided Portal Entryways with reasonable evidence of such failure, Portal Entryways will repair or replace any defective Warranted Product, and if Portal Entryways determines that the foregoing will not remedy the material defect, then accept the return of the Warranted Product and refund the money actually paid by Customer for the Warranted Product. Portal Entryway’s foregoing obligation to repair or replace any defective Warranted Product is conditioned on Customer being current on the payment of all Fees due and payable as of the date of a request by Customer to repair or replace a defective Warranted Product. If the Warranted Product or a component incorporated within it is no longer available, Portal Entryways may replace the Warranted Product with a similar product of similar function, at Portal Entryways’ sole discretion. This is Customer’s sole and exclusive remedy for breach of this Limited Warranty. Any Warranted Product that has either been repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty for the longer of 90 days from the date of delivery or the remaining Warranty Period. This Limited Warranty does not cover the following (collectively “Ineligible Products”): Warranted Products that have been subject to: (i) modifications, alterations, tampering, or improper maintenance or repairs; (ii) handling, storage, installation, testing, or use not in accordance with the instructions provided by PortalEntryways; (iii) abuse or misuse of the Warranted Product; (iv) breakdowns, fluctuations, or interruptions in electric power or the telecommunications network; or (v) a Force Majeure Event. Unauthorized use of the System can impair the Warranted Product’s performance and may invalidate this Limited Warranty. Portal Entryways will bear all costs of delivery and installation incurred by Customer for any Warranted Product replaced pursuant to this Section 7. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, PORTAL ENTRY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND PORTAL ENTRYWAYS EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NON INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. PORTAL ENTRYWAYS DOES NOT WARRANT THE RESULTS OF USE OF THE SYSTEM, AND CUSTOMER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. CUSTOMER SHOULD NOTE THAT IN USING THE SYSTEM, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER PORTAL ENTRYWAYS’ CONTROL (SUCH AS A THIRD PARTY SERVERS). PORTAL ENTRYWAYS MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.8.LIMITATION ON LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PERSONAL INJURY, PROPERTY DAMAGE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL PORTAL ENTRYWAYS OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF PORTAL ENTRYWAYS HAS BEEN ADVISED OF 3THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PORTAL ENTRYWAYS’ OR ITS AFFILIATES’ TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AGGREGATE OF THE FEES PAID BY CUSTOMER TO PORTAL ENTRYWAYS UNDER THIS AGREEMENTDURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSE WHICH GAVE RISE TO SUCH DAMAGES.
9.1. General Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify and hold the other Party and its officers, directors, employees, agents and affiliates harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of such Indemnifying Party’s gross negligence or willful misconduct.
9.2. Indemnification by Portal Entryways. Portal Entryways shall indemnify and hold Customer and its officers, directors, employees, agents and affiliates harmless from and against any losses, costs liabilities and expenses, including attorneys’ fees, arising out of any third party claim or suit brought against Customer arising out of an assertion that the System infringes upon any patent issued in the United States, any trademark rights or copyrights enforceable in the United States, or misappropriates any trade secret. If Portal Entryways determines that the System is or may be subject to an infringement claim, Portal Entryways may, at its option and expense, either procure for Customer a license to continue using such System, or replace or modify the allegedly infringing portion or component of the System. If Portal Entryways determines that neither of the foregoing is practical or otherwise reasonably available, Portal Entryways may immediately terminate this Agreement. Portal Entryways’ obligations under this Section 9.2 do not apply with respect to the System or portions or components thereof that are: (i) provided by any third party; (ii) modified by any person other than a Portal Entryways certified technician; (iii) combined with other software or unsupported hardware; or (iv) used other than in accordance with this Agreement. THIS SECTION 9.2 STATES THE ENTIRE LIABILITY OF PORTAL ENTRYWAYS WITH RESPECT TO ANY ALLEGED VIOLATION, MISAPPROPRIATION OR INFRINGEMENT OF ANY PROPRIETARY RIGHTS OF ANY THIRD PARTY.
9.3. Requirements for Indemnification. The indemnity obligations set forth in this Section 9shall only apply if the party seeking indemnification (the “Indemnitee”) notifies the party providing indemnification (the “Indemnitor”) promptly in writing of any claim or suit, and gives the Indemnitor sole control of any defense or settlement negotiations, and, at the Indemnitor’s expense, gives the Indemnitor proper and full information and assistance. The Indemnitor may participate in the defense or settlement with the Indemnitee’s own counsel at Indemnitee’s sole cost. The Indemnitor agrees to pay, subject to the limitations set forth herein any final judgment entered against the Indemnitee as a result of such claim or suit defended by the Indemnitor.
10.GENERAL PROVISIONS. Portal Entryways and Customer are independent contractors, and neither Portal Entryways nor Customer is an agent, representative, employer, employee, or partner of the other. This Agreement constitutes the entire and exclusive agreement between Portal Entryways and Customer regarding the subject matter herein and supersedes any and all prior agreements, communications and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. Neither Party shall be liable for any delay or failure in performing any of its obligations under this Agreement if such delay is caused by circumstances outside the control of the Party, such as, fire, earthquake, war, riot, embargoes or acts of civil or military authorizes (a “Force Majeure Event”). The delayed Party shall take all necessary steps to mitigate such delay and provide notice of a revised schedule as soon as practicable. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the State of Delaware and the parties hereby consent to the personal jurisdiction and venue therein. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party. Customer may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Portal Entryways, and any such attempted assignment without such consent will be null and of no effect. Portal Entryways may freely assign this Agreement. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the invoice or to such other address as may be specified by either party to the other in accordance with this Section.