Updated on: June 3, 2020
Effective as of: June 3, 2020
THIS SOFTWARE LICENSE – TERMS OF SERVICE (“Agreement” or “Terms of Service”) is a binding legal contract between myPortal.team, LLC (“myPortal”) with an address of 2222 South Utica Place, Suite 200, Tulsa, Oklahoma, 74114, and its Client from whom you, as a “User” (as defined below) obtained access to the “Application” (as defined below). AS THE CLIENT AND/OR AS A USER, YOU (A) REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCESS THE APPLICATION BY THE CLIENT, (B) HAVE AUTHORITY TO BIND THE CLIENT TO THE AGREEMENT, AND (C) AGREE TO BE BOUND TO THE AGREEMENT TO THE SAME EXTENT MYPORTAL’S CLIENT IS BOUND TO THE AGREEMENT.
A. Client has executed a Software License Quotation (“Quote”), incorporating these Terms of Service and expressing its desire to license that certain web-based portal technology as further described herein owned by myPortal (the “Application”), and myPortal wishes to license the Application to Client subject to the terms and conditions of this Agreement.
B. Client acknowledges that the Application represents ideas, information, and know-how that are not generally known, having been collected and developed at considerable time, expense, to which myPortal has succeeded and myPortal is seeking and intends to seek various forms of protection for the intellectual property represented by and related to the Application.
C. The Application shall be delivered to Client pursuant to the Quote and these Terms of Service under the condition that any information disclosed by myPortal to Client regarding the Application, the process, plans or otherwise, be kept confidential and used only for the purposes intended by this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:
a. The term “Application” refers to the software products owned or distributed by myPortal to which myPortal grants you access as part of the license, including user guides, and any program updates provided as part of the Application during the License Period.
b. The term “Users” means those individuals authorized by Client or on Client’s behalf to use the Application.
c. The term “Client Content” means all non-myPortal applications and software, data, and data files provided by Client or any User and that reside on, or run on or through, Client’s Application environment.
2. This Agreement will commence upon the date specified in the Software License Quotation for a one-month period and will automatically renew for successive one-month periods (each such period, individually and collectively, the “License Period”), until terminated by a party by providing at least 30 days prior written notice to the other party. Notwithstanding the foregoing, Client may terminate use of the Application at any time, and myPortal may terminate any password, account, and access to or use of the Application at any time for any reason, by providing the other party written notice thereof. Client acknowledges and agrees that myPortal has no obligation to retain Client Content, and that Client Content will be irretrievably deleted, following 30 days from the termination of the Agreement or expiration of the License Period. Termination of the Agreement will not affect any claim arising prior to the effective date of the termination.
3. Prior to or upon commencement of each License Period, Client shall pay myPortal a license fee in the sum specified in the Software License Quotation (“License Fee”) for use of the Application during the respective License Period. myPortal reserves the right to increase the License Fee upon prior written notice to Client. In addition to the License Fee, Client is responsible for all sales, use, or other taxes applicable to its use and license of the Application and hereby agrees to indemnify, defend, and hold harmless myPortal from any claim, liability, or penalty resulting from Client’s failure to pay such taxes. myPortal reserves the right, in its sole discretion, to suspend Client’s use of the Application for non-payment of the License Fee or applicable taxes.
4. For the duration of the License Period, Client shall have a nonexclusive, nontransferable, non-assignable, limited right to use the Application, subject to the terms of this Agreement, and solely for Client’s internal business and professional purposes (“Authorized Purposes”). In connection with access to and use of the Application, Client represents and warrants to myPortal that Client will comply with all laws, rules, and regulations applicable to Client’s use of the Application. Client may allow its Users to use the Application for the Authorized Purposes and is responsible for its Users’ compliance with this Agreement and any liability arising from User’s use of the Application or breach of the Agreement. myPortal may, in its sole discretion, suspend Client’s access to the Application if myPortal determines that (i) Client’s or User’s access or use of the Application is in violation of applicable law, or (ii) continued access or use of the Application would compromise the security of the Application due to, without limitation, hacking attempts, denial of service attacks, mail bombs, or other malicious activities.
5. Except for the rights granted by this Agreement, Client has no right, title, or interest in or to the Application or any component provided by myPortal in connection with the Application or any intellectual property rights related thereto, including without limitation any trademark, service mark, business name, trade name, or domain name. Client acknowledges that myPortal retains all proprietary right, title, and interest in and to the Application, related intellectual property, and any component thereof, including without limitation all modifications, enhancements, derivative works, configurations, translations, upgrades, and interfaces thereto. Client may not, and may not cause or permit other to: (a) remove or modify any program or services markings or any notice of myPortal’s or its licensors’ proprietary rights; (b) make the Application, including any myPortal programs or materials to which Client is provided access, available in any manner to any third party, exclusive of the Users; (c) modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the Application (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by myPortal programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to myPortal; (d) disclose results of any benchmark tests or performance tests of the services or myPortal programs without myPortal’s prior written consent; (e) perform or disclose security testing, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and/or (f) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Application, myPortal programs or materials available, to any third party. Client shall have 30 days to download Client Content after expiration or termination of the Agreement and must contact myPortal or its designated agent for download access and instructions. Upon the end of the License Period, whether by expiration or termination, Client’s right to access or use the Application shall terminate.
6. Client retains all ownership and intellectual property rights in and to Client Content. Client is solely responsible for any Client Content loaded into the Application, and agrees, at its sole cost and expense, to defend, indemnify, and hold harmless myPortal against any claim for any damages, liabilities, costs and expenses or the settlement agreed to by Client, arising out of or in any way connected with any such Client Content. Client acknowledges that myPortal is not responsible for the security of any Client Content that Client loads into or creates in connection with the Application license.
7. Client and its Users shall not store Client Content in the Application consisting of any individually identifiable health information or protected health information (collectively “PHI”), as those terms are defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations as amended (“HIPAA”), unless Client has notified myPortal in writing at least 30 days in advance of the PHI upload, in which case the parties shall execute a Business Associate Agreement in a form acceptable to myPortal, the terms of which shall be incorporated into this Agreement by this reference.
8. THE APPLICATION IS PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MYPORTAL HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS WITH REGARD TO (A) THE SERVICES, INCLUDING BUT NOT LIMITED TO SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS AND (B) MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. MYPORTAL DOES NOT GUARANTEE THAT (A) THE APPLICATION WILL PERFORM VIRUS FREE, ERROR-FREE, OR UNINTERRUPTED, OR THAT MYPORTAL WILL CORRECT ALL ERRORS IN THE APPLICATION; (B) THE APPLICATION WILL OPERATE IN COMBINATION WITH CLIENT CONTENT, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; AND/OR (C) THE APPLICATION WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS. CLIENT ACKNOWLEDGES THAT MYPORTAL DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. MYPORTAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9. Each party shall apply reasonable technical, organizational and administrative security measures to keep Client Content protected in accordance with industry standards, and Client shall retain a current copy of Client Content outside the Application. myPortal will not monitor Client’s or its users’ use of the Application, and myPortal will not view, access or process any Client Content, except: (i) for the sole purpose of providing the services under this Agreement, (ii) as directed or instructed by Client and its Users, and/or (iii) for compliance with myPortal policies, applicable law, regulation, or governmental request. Client shall comply with all intellectual property laws related to the Client Content and legal duties applicable to Client as a data controller by virtue of the submission or storage of Client Content within the Application, including providing all information or notices Client is required by law to provide to users and obtain consent of the users, where required.
10. Client and its Users acknowledge that myPortal may establish general practices and limits concerning use of the Application, including without limitation the maximum number of days that Client and User Content will be retained by the Application, the number of users with whom you may share Content, the nature of Content to be uploaded or displayed, and other limitations at any time. You agree that myPortal has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by the Application. myPortal may engage certain affiliates, subcontractors or other third parties to provide all or part of the Application to you, and you hereby acknowledge and agree that such third-party involvement is acceptable. You acknowledge that in using the Application to send message or transmit other Content, you will be causing communications to be sent through computer networks owned by third parties that are located throughout the United States. You further acknowledge that myPortal reserves the right to modify these general practices and limits from time to time.
11. To use the Application, Client must have a myPortal account. Access to and use of password protected or secure areas of the Application site is restricted to authorized Users only. Client and Users may not share password(s), account information, or access to the Application. Client is responsible for identifying and authenticating all Users, for approving access by such Users to the Application, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. myPortal is not liable for any harm caused by Users, including individuals who were not authorized to have access to the Application but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis. Client is responsible for all activities that occur under its Users’ passwords or accounts or as a result of such Users’ access to the Application, and agrees to notify myPortal immediately of any unauthorized use. Client agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Application. Client is solely responsible for (i) the configuration of Client’s account, (ii) the operation, performance and security of Client’s equipment, networks and other computing resources used to connect to the Application, (iii) ensuring all Users exit or log off from the Application at the end of each session, (iv) maintaining the confidentiality of Client’s accounts, user id’s, conference codes, passwords and personal identification numbers used in conjunction with the Application, and (v) all uses of the Application by Client and its Users. myPortal reserves the right to suspend Client’s use of the Application or terminate the Agreement if Client misuses or otherwise shares login information among Users. myPortal reserves the right to review Client’s account to the extent necessary to confirm compliance with the terms of this Agreement, and to terminate or suspend Client’s access for overuse and/or misuse.
12. The Application may provide, or third parties may provide, links to other World Wide Web sites or resources. Because myPortal has no control over such sites and resources, you acknowledge and agree that myPortal is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that myPortal shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
13. Client (OR USER, as applicable) will indemnify and hold MYPORTAL harmless with respect to any damage or other loss resulting from the USE (INCLUDING BUT NOT LIMITED TO THE MISUSE OF THE APPLICATION), OPERATION, MODIFICATION, OR ALTERATION OF THE APPLICATION FROM THE EFFECTIVE DATE, except to the extent caused by MYPORTAL’S GROSS NEGLIGENCE or willful misconduct.
14. Client agrees to be identified as a customer of myPortal and you agree that myPortal may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in myPortal’s marketing materials and website. You hereby grant myPortal a fully-paid, irrevocable, perpetual, world-wide license to use your name and any of your trade names and trademarks solely in connection with the rights granted to myPortal pursuant to this marketing section.
15. If Client’s use of the Application is, or in myPortal’s opinion is likely to be, enjoined as a result of an infringement claim, myPortal shall, at its sole expense, either: (a) procure for Client the right to continue to use the Application as contemplated herein, or (b) replace or modify the Application to make its use non-infringing without degradation in performance or material reduction in functionality. If options (a) and (b) of the preceding sentence are not reasonably available, myPortal may, in its sole discretion and upon written notice to Client, terminate this Agreement, discontinue Client’s access to the Application, and refund to Client any prepaid, but unused License Fee. myPortal assumes no liability, and shall have no liability, for any infringement claim based on (w) Client’s access to and/or use of the Application after notice to Client of an infringement claim, (x) any modification of the Application by Client or third party at Client’s request, (y) Client’s combination of the Application with third party programs, services, data, hardware, or other materials, or (z) any trademark of copyright infringement involving any marking or branding not applied by myPortal or involving any marking or branding applied at Client’s request. The foregoing states myPortal’s sole liability and Client’s exclusive remedy with respect to any infringement claim.
16. Client acknowledges that during the License Period, it may receive certain confidential information (“Confidential Information”) from myPortal, including, some or all of the non-public confidential and proprietary information related to the Application. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. Client agrees not to make myPortal’s Confidential Information available in any form to any unauthorized third parties. Client agree to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Client shall keep all Confidential Information in absolute confidence and the obligations of this Agreement relating thereto shall survive termination of this Agreement.
17. If Client or any User breaches this Agreement, Client (or the User, as applicable) shall be liable for any damages to myPortal because of the breach and agrees that myPortal would be irreparably harmed by the breach and is entitled to an injunction in addition to any other remedies. Unless otherwise expressly stated in this Agreement, all remedies are cumulative.
18. MYPORTAL WILL NOT BE LIABLE TO CLIENT OR ITS USERS FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, OR BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THE AGREEMENT, THE APPLICATION, THE LICENSE GRANTED HEREUNDER, LOSS OF DATA, OR LOSS OF INCOME, OPPORTUNITY OR PROFITS. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE DAMAGES OR OTHER RELIEF SOUGHT ARE BASED IN CONTRACT OR TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. MYPORTAL’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE SUM OF THE LICENSE FEE PAID FOR USE OF THE APPLICATION FOR THE THEN-CURRENT LICENSE PERIOD.
19. Neither party will be liable for any damage, claim, or loss attributable to a party’s failure to perform or delay in performance where such failure or delay is caused by labor troubles (including, without limitations, strikes, slow downs and lockouts) or civil disturbance, government regulations, inability to obtain or revocation of export or import license, interruptions of or delay in transportation, material shortages, fire, flood, acts of God, power failures, accidents or other causes of like or different character beyond the affected party’s reasonable control.
12. This Agreement may not be assigned or transferred by Client without the prior written consent of myPortal.
21. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. Client acknowledges that myPortal’s business partners, including any third party firms retained by Client to provide computer consulting services, are independent of myPortal and are not myPortal’s agents. myPortal is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a myPortal subcontractor on an engagement ordered under this Agreement.
22. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. No person or entity not a party to this Agreement, inclusive of the Users, will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
23. Provisions that survive termination or expiration of this Agreement are those which by their nature are intended to survive.
24. This Agreement shall be construed in accordance with the laws of the state of Oklahoma, without regard to its choice of law provisions. The state and federal courts located in Tulsa County, Oklahoma shall be the exclusive venue and jurisdiction for any dispute arising from or related to this Agreement.
25. This Agreement is the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter hereof. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other non-myPortal document and no terms included in any such purchase order or other non-myPortal document shall apply to the services ordered. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted by authorized representatives of Client and of myPortal. myPortal’s failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce such terms in the future. This Agreement may be executed in counterparts, which together shall constitute the agreement of the parties.