This End User License Agreement (“EULA”) governs your access and use of all Portrait software applications (“Portrait Software”) on any Portrait sites (“Portrait Site”). Please carefully review the terms of this EULA. By registering as user, you are confirming that you have reviewed this agreement and you agree to all of the following terms and conditions governing use of the Portrait Software provided by Portrait.
The individual signing this EULA for themselves or on behalf of their company warrants they are fully authorized to do so and that their company is thereby legally bound by all the terms and conditions hereof.
Portrait hereby grants to you (the “Client”) a personal, nonexclusive, non-transferable, non-sub-licensable, worldwide license to access the Portrait Software hosted by Portrait via the Portrait Site solely for the purpose of creating a Portrait Account, and using the Portrait Account from any location or locations around the world (the “Portrait License”). The Portrait License includes Client's right to designate certain authorized persons (“Authorized Persons”) with specific access and use rights to the Portrait Account, provided that, Client is responsible for compliance by such Authorized Persons with this EULA. Portrait may, at its discretion and subject to the Portrait License, make certain upgrades, enhancements, modifications and corrections to the Portrait Software available to Client via the Portrait Site. The Portrait Software expressly excludes new modules or other developments which add to, or substantially increase the functionality of, the Portrait Software which Portrait generally makes available to third parties for an additional license fee, unless Client has agreed to license the same and pay to Portrait any such additional license fee. Except for the limited license grant herein, Portrait reserves all right, title and interest in and to the Portrait Software. Client will not, in whole or in part, copy or duplicate, cause or permit the reverse engineering, disassembly or de-compilation of the Portrait Software, nor will Client create derivative works based on the Portrait Software.
“Client Data” means and includes any and all Personally Identifiable Information, personal property, real property and intellectual property asset information, and estate and estate planning information, and any other data collected by or on behalf of Client and deposited into Client's Portrait Account information. Client shall be and remain the sole and exclusive owner of all right, title and interest in and to the Client Data. Client hereby grants Portrait, its subsidiaries and affiliates a nonexclusive right and license to (i) collect, receive, deposit, organize and maintain Client Data in Client's Portrait Account; (ii) access, use, extract and enhance Client Data to (a) provide services as requested by Client and supplied by Portrait and its resource providers, and contact Client regarding such services, (b) contact Client regarding new or improved services, (c) obtain Client consent for Portrait to contact Client in connection with other products, services and opportunities selected and offered by Portrait as potentially of interest to Client, (d) create and deliver specified reports to Client and Authorized Persons, and (e) comply with applicable law, (iii) permit access to the Portrait Account by Authorized Persons identified by Client, but only for the purposes specified in this EULA or by Client, (iv) extract and convert Client Data into a form that does not contain Personally Identifiable Information (“Anonymous Data”), and to aggregate such Anonymous Data with other data to produce grouped information for the use and benefit of clients (“Portrait Database”) which grouped information may also be used by Portrait for business purposes in improving the service and the product it provides to its Clients. “Personally Identifiable Information” means any piece of information which alone is sufficient to uniquely identify, contact or locate a Client. Portrait shall implement and maintain systems that provide for the effective backup and recovery of all Client Data entered into the Portrait Account via the Portrait Software. The rights granted to Portrait under this Section 2 include a grant to Portrait of the authority to allow contractors retained by Portrait, who are subject to confidentiality, to exercise, on behalf of Portrait, the rights granted to Portrait hereunder.
Client shall pay the periodic license fee set by Portrait (“License Fee”) or by Portrait’s authorized distributor (Portrait or authorized distributor “Licensor”) during the Term. All payments due under this EULA are stated and payable in U.S. Dollars and shall be paid by credit card, wire transfer or such other payment method as may be specified by Licensor, to such account as Licensor shall from time to time notify Client in writing. All payments specified in this EULA are exclusive of, and Client agrees to pay, any applicable sales or use tax related to the transactions described herein (other than taxes based on the net income to Licensor). License Fees are due upon receipt, unless otherwise agreed to by Licensor. Licensor reserves the right to charge a late fee of up to one and 5/10ths percent (1.5%) per month (or, if less, the maximum rate permitted by law) on any balance remaining unpaid for more than forty-five (45) days.
Portrait shall be and remain the sole and exclusive owner of all right, title and interest in and to its preexisting intellectual property, the Portrait Software, any and all improvements, modifications, enhancements and derivative works thereof, and all intellectual property rights therein (collectively, the “Portrait Property”). Client expressly agrees that Client has no rights, title or interests in and to the Portrait Property.
5.1 “Confidential Information” means all information provided by the disclosing party (“Discloser”) to the receiving party (“Recipient”) hereunder that is proprietary and/or non-public including, without limitation, all information related to Intellectual Property, Client Data, and any other information that is designated as confidential by the Discloser. Portrait Confidential Information shall include the Portrait Property, information relating to Portrait's financial and business affairs including client, pricing and other proprietary and trade secret information in any form. All of the Discloser's Confidential Information, including any derivative works and improvements thereof, is, and shall remain, the sole and exclusive property of the Discloser. Confidential Information does not include information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) lawfully received by Recipient from a third party without any obligation of confidentiality; (iii) already in Recipient's possession prior to the date of receipt from Discloser; or (iv) independently developed by Recipient without reference to or reliance upon the Discloser's Confidential Information; provided, however, in each case that such foregoing information was not delivered to or obtained by Recipient as a result of any breach of this EULA, the law or any contractual, ethical or fiduciary obligation owed to Discloser.
5.2 At all times a Recipient shall: (i) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care; (ii) not use, disclose, distribute, or disseminate the Discloser's Confidential Information to any third party except as permitted pursuant to this EULA; and (iii) disclose Discloser's Confidential Information to its employees and contractor on a “need to know” basis only, provided that each employee and consultant is bound by written obligations of confidentiality and restrictions against disclosure at least as restrictive as those contained in this EULA. Each party, when applicable, shall be responsible for the compliance of its employees and contractors with the provisions of this EULA. Recipient may disclose Discloser's Confidential Information to the extent such disclosure is required by law, provided that Discloser is given prompt notice of such disclosure requirement, to the extent practicable, so that Discloser has an opportunity to petition for protective concealment of or oppose such disclosure.
6.1 Each party represents and warrants to the other party that: (i) it has full authority to enter into this EULA, and the person signing this EULA is authorized to sign on its behalf; and (ii) it will comply with all applicable laws in the performance of its obligations under this EULA. Client further represents and warrants to Portrait that it is the owner of the Client Data and any other materials supplied by Client, with full right and authority to grant a license therein to Portrait for purposes of this EULA.
6.2 Portrait makes no representation or warranty that the operations of the Portrait Software will be error free or uninterrupted. If the Portrait Software is found to contain an operability problem, bug, virus or other destructive programming device (whether or not any of the same are documented), then Portrait's sole obligation and liability hereunder shall be, upon the request of Client, to use commercially reasonable efforts to correct the operability problem, bug, virus or other programming device (such as by providing an effective bypass or patch where technically practicable) at no charge to Client. If Portrait is unable to do so, then either party may terminate this EULA. The foregoing shall constitute Client's sole and exclusive remedy.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, PORTRAIT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND AGAINST INFRINGEMENT.
7.1 Portrait shall, at its expense, defend any third party suit or claim against Client alleging that the Portrait Software infringes a validly issued U.S. patent, copyright, trademark or trade secret right (each, a “Claim”), and indemnify Client for any final judgment of damages and costs awarded against Client. Portrait's obligations hereunder are conditioned upon Client (i) notifying Portrait of the Claim in writing within ten (10) days after Client receives notice thereof; (ii) granting Portrait sole authority to defend or settle the Claim; (iii) providing Portrait with all data, information and materials in Client's control concerning the Claim; and (iv) reasonably assisting Portrait with defense of the Claim.
7.2 If any Portrait Software becomes, or in Portrait's reasonable opinion is likely to become, the subject of a Claim, then Portrait may, at its option and expense, (i) obtain the right for Client to continue using the Portrait Software in accordance with this EULA, or (ii) replace or modify the Portrait Software so that it is non-infringing.
7.3 Portrait shall have no liability to Client under this Section to the extent any Claim is based upon the use of the Portrait Software (i) in combination, operation or use with any product not furnished by Portrait; (ii) in a modified state not authorized by Portrait; or (iii) in a manner other than as authorized by this EULA. The foregoing states the entire liability of Portrait for any infringement or misappropriation by the Portrait Software or the intellectual property rights therein.
8.1 This EULA shall commence on the date that Client accepts its terms and shall continue for so long as Client pays the License Fee, unless terminated in accordance with this Section (the “Term”).
8.2 Portrait may terminate this EULA upon written notice to Client at least thirty (30) days prior to the due date of a License Fee. Either party may terminate this EULA upon written notice if the other party (i) files for or becomes a party to any involuntary bankruptcy, receivership, or similar proceeding, and such proceeding is not dismissed within thirty (30) calendar days after filing; (ii) makes an assignment for the benefit of creditors, (iii) fails to perform a material obligation under this EULA, which failure to perform continues for a period of thirty (30) days after such party's receipt of written notice thereof, or (d) makes an assignment in violation of this EULA.
8.3 Upon expiration or termination of this EULA (i) all rights and licenses granted herein will immediately cease, (ii) Client shall, within fifteen (15) days after such termination or expiration, pay any outstanding License Fee and any other sums due and owing on the effective date of termination or expiration, (ii) each party shall (a) return to the other party all tangible forms of such Confidential Information that the receiving party has acquired from the other party, except that Portrait may retain an archival copy of the Client Data for compliance purposes (b) use all reasonable efforts to destroy all copies of all materials that incorporate or reflect such Confidential Information, and (c) if requested, certify to the disclosing party that such materials have been either returned, destroyed or archived, and (iii) Portrait shall have the right to retain, use and disclose the Anonymous Data in the Portrait Database for business purposes. Neither party will be liable to the other party for any damages resulting solely from termination of this EULA as permitted for under this EULA.
8.4 The following Sections shall survive the termination or expiration of this EULA: 2, 4, 5, 6, 8, 9 and 11.
IN NO EVENT SHALL PORTRAIT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES OR SAVINGS, EVEN IF PORTRAIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL PORTRAIT'S LIABILITY FOR DAMAGES TO CLIENT OR ANY THIRD PARTIES EXCEED, IN THE AGGREGATE, THE FEES PAID BY CLIENT TO PORTRAIT DURING THE THREE (3) MONTHS PRIOR TO THE DATE SUCH CAUSE OF ACTION ARISES. CLIENT ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN PORTRAIT, PORTRAIT AFFILIATES AND CLIENT, AND THAT THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO CLIENT IN THIS AGREEMENT ARE EXCLUSIVE.
No joint venture, partnership, employment, or agency relationship exists between Client and Portrait as a result of this agreement or use of the Portrait License.
All notices under this EULA shall be in writing and shall be deemed to have been duly given: (i) on the date of service if served personally on the party hereto to whom notice is to be given, or (ii) on the day after delivery to commercial or postal overnight carrier service, to each party at the addresses provided below. Either party hereto may change its address for the purpose of this section by giving the other party timely, written notice of its new address in accordance with this Section or to such other names or addresses for each Party, as the case may be, shall designate by notice to each other person entitled to receive notices in the manner specified in this Section 10.1
No party hereto shall assign this EULA or any rights nor delegate obligations hereunder without the prior written consent of the other party hereto, and any such attempted assignment without the prior written consent of the other party shall be void and of no force or effect. Consent shall not be required in the event of (i) a recapitalization, (ii) a transaction where all or substantially all of a party's assets are acquired or merged into another entity, (iii) the voting control of a party changes, (iv) a merger or consolidation in which control of either party changes, or (v) a public offering, provided that, the assignee or surviving entity, as applicable, must agree to abide by the terms and conditions of this EULA. This EULA will be binding upon the parties' respective successors and permitted assigns.
This EULA shall be governed by and construed under the laws of the State of Delaware without regard to the choice or conflicts of law provisions of any jurisdiction. The parties irrevocably submit to the exclusive jurisdiction of courts located in the State of Illinois. In the event of a breach or threatened breach of any confidentiality obligations or against any Intellectual Property, the non-breaching party may sustain irreparable harm and may have no adequate remedy in money or damages and, accordingly, shall be permitted to seek an injunction against such breach, and shall not be required to post a bond in connection with seeking such injunction.
The titles and headings of the various sections and paragraphs in this EULA are intended solely for convenience of reference and are not intended for any other purpose whatsoever or to explain, modify, or place any construction on any of the provisions of this EULA.
No amendment, waiver or modification to this EULA shall be valid or enforceable unless in writing, manually executed by the authorized representatives of Client and Portrait and incorporated as an Addendum to this EULA. Facsimiles of a party's authorized representative's signature shall be deemed to be binding upon such party, unless otherwise prohibited by law.
If any provision of this EULA is held to be unenforceable by a court of competent jurisdiction, the parties shall substitute for the affected provision an enforceable provision which approximates the intent and economic effect of the affected provision, and the remaining provisions of this EULA shall be unimpaired and shall remain in full force and effect.
No failure or delay on the part of any party in exercising any right or remedy provided in this EULA shall operate as a waiver thereof; nor shall any single or partial exercise of or failure to exercise any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy provided herein or at law or in equity. Except as expressly provided herein, no remedy specified in this EULA is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to every other right or remedy provided herein or available at law or in equity.
This EULA shall be binding upon and inure solely to the benefit of the parties. The parties intend that there shall be no third party beneficiaries, including employees, contactors, service providers, vendors and clients of a Party, under this EULA, and that no person or entity, except the parties, shall have any rights or remedies under this EULA, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.
Portrait shall not be responsible for delays nor failure of performance resulting from acts beyond its reasonable control. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of Client’s suppliers to perform, governmental regulations, power failure(s), earthquakes, or other disasters.
Except as set forth in this Section 10.11, any controversy, dispute or claim between or among the parties pursuant to this EULA will be submitted to mandatory, final and binding arbitration upon demand by a party by providing notice to the other party.
Any dispute, controversy or claim between the parties arising out of or in connection with this Agreement, including but not limited to its existence, validity, interpretation, performance or non-performance, breach, or damages in tort or other legal claim, and the jurisdiction of the arbitral panel, shall be settled by final and binding arbitration at the place of Portrait’s business under the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association, subject to the following:
By checking the box for this online agreement, you are confirming you have reviewed this EULA and you agree to all of the terms and conditions governing use of the Portrait Software provided by Portrait.