Last Updated: 03/14/2023
These Terms of Service (this “Agreement”), are entered into by and between Porter Apps, Inc., a Delaware corporation (“Porter”), and the business entity listed on the signature line of the Order Form (defined below) (the “Customer”), effective as of the last date of execution set forth on the signature line of the Order Form (the “Effective Date”).
Porter shall provide to Customer the software-as-a-service platform (the “Services”) that allows artists and studios to connect with clients to provide their services, or as otherwise set out in one or more applicable order forms or service order documents that are mutually agreed to by both parties (an “Order Form”). The Services will allow the Customer to have its own Services link that can be provided on the Customer’s website or social media for its clients to schedule appointments. Each Order Form is subject to, governed by, and incorporates by reference, this Agreement. Porter shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement. To the extent the terms and conditions of this Agreement contradict any terms in any applicable Order Form, the terms of the Order Form shall control.
Provided that Customer pays all the required fees under this Agreement and complies with all other terms of this Agreement, Porter hereby grants to Customer a limited, non-exclusive, terminable, non-transferable right to access and use the Services pursuant to this Agreement, solely for the duration of the applicable Order Form, and subject to Porter’s intellectual property rights in the Services. Customer shall not use or otherwise access the Services in a manner that exceeds Customer’s authorized use as set forth in this Agreement and the applicable Order Form(s).
Customer is responsible for providing access to the Services to its employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder and as further provided in an applicable Order Form (“Authorized Users”). Authorized Users shall also include, without limitation, any employees or contractors providing services on behalf of Customer. Customer will provide reasonable cooperation with Porter to enable Porter to provide the Services to Customer. Porter shall authorize access to Customer’s Authorized Users (“Customer Accounts”). CUSTOMER SHALL BE RESPONSIBLE FOR ANY ACTIVITY OCCURRING THROUGH THE CUSTOMER ACCOUNTS, INCLUDING UNAUTHORIZED ACTIVITY AND AUTHORIZED USERS’ USE AND PROCESSING OF ANY PERSONAL INFORMATION, AND CUSTOMER SHALL BE RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY AUTHORIZED USERS. Customer shall use reasonable efforts to prevent unauthorized access to or use of the Services, including any personal information, and shall promptly notify Porter in the event of any unauthorized access or use. Customer shall comply, and shall ensure that its Authorized Users comply, with all applicable local, state, federal, and foreign laws, treaties, and regulations applicable to Customer’s use of the Services, including without limitation those related to data protection, electronic communications, and anti-spam legislation.
Customer shall not use the Services beyond the scope of the rights granted in this Agreement and applicable Order Form. Customer shall be liable for its Authorized Users’ access to the Services and any misuse of the Services by such Authorized Users. Customer shall not (a) directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Services, (b) rent, lease, lend, sell, license, sublicense, publish, adapt, or otherwise make available the Services, (c) remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Services, (d) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, or (e) access the Services in order to build (or permit any third party to build) a similar service or competitive product or service. Customer shall be responsible for obtaining and purchasing all equipment, Internet access services, modifying its network, and doing all other things necessary in order to access and use the Services.
Customer shall pay the fees as set forth on the Order Form in order to obtain access to the Services (the “Fee(s)”). Unless otherwise specified in the applicable Order Form, Porter will automatically withdraw the Fees of the Services on an monthly basis from your specified financial account, credit or debit card, or other payment method. If Customer disputes any invoiced amounts in good faith, Customer shall notify Porter in writing of such disputed amount within ten (10) days after receipt of the applicable invoice, in sufficient detail to permit Porter to investigate the dispute, otherwise such invoice will be deemed accepted. All amounts payable for Services pursuant to an Order Form are non-cancelable and non-refundable. Customer agrees to pay invoiced Fees in U.S. dollars. If applicable, Customer shall reimburse Porter for all agreed upon and reasonable travel and out-of-pocket expenses incurred by Porter in connection with the performance of the Services. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Porter for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
Clients of the Customer that schedule an appointment through the Services may provide deposit payments before their scheduled appointment occurs. Customer has sole discretion on the cost of such deposit amount. Porter facilitates this deposit payment between the Customer client and the Customer. Customer acknowledges and agrees that Porter will take a three and 50/100 percent (3.50%) fee from the deposit for such services (the “Deposit Fee”). Such Deposit Fee will be added to the Customer client’s total deposit price prior to submitting the deposit. Additionally, Porter uses a payment processor that charges a processing fee per transaction. This processing fee will be deducted from the deposit after the Deposit Fee payment. For avoidance of doubt, on a $100 deposit from Customer client, Porter will charge $103.5 (this includes the 3.5% Deposit Fee), where Porter’s Deposit Fee is $3.5, and the Customer will get $100 less the payment processor fees.
Customer shall be responsible for all taxes, including, without limitation, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Porter’s net income.
In addition to all other remedies available under this Agreement or at law, Porter shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed Fees when due hereunder and such failure continues for ten (10) days following notice thereof. Notwithstanding the foregoing, Porter may, at its sole discretion, temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Porter reasonably determines that there is a threat or attack on any of Porter’s intellectual property; (ii) Porter’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (iii) Porter concludes that Customer’s use of the Services is causing immediate, material, and ongoing harm to Porter or any other individual or entity.
Customer acknowledges and agrees that Porter retains sole and exclusive ownership of all right, title, and interest in and to the Services, including any modification, improvement, enhancement, or configuration made to the Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration. Additionally, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Services are either owned or licensed by the Company.
Customer acknowledges that Customer’s use of the Services may require the processing and transmission of documents, content, data and/or other materials created by Customer, or submitted by or on behalf of Customer and Authorized Users (collectively, “Customer Content”) to Porter. As between Customer and Porter, Customer shall own all Intellectual Property Rights in and to the Customer Content. Notwithstanding the foregoing, when Customer or its Authorized Users uploads, submits, or stores Customer Content through the Services, Customer grants Porter a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Customer Content to provide, support, and improve the Services. Porter is not responsible for any electronic communications and/or Customer Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under the Agreement on behalf of Porter). Without limiting Customer’s rights and remedies under the Agreement, Customer acknowledges that Customer Content and information regarding its accounts will be processed by Porter and stored and processed using online hosting services selected by Porter. Customer represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Customer Content to grant Porter the rights granted hereunder. Customer Content will be collected, processed and disclosed as provided in Porter’s Privacy Policy.
From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information (whether written, oral, or electronic) of Disclosing Party that, may or may not be labeled as “confidential,” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 11; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession on a non-confidential basis prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to Receiving Party’s personnel or agents who need to know the Confidential Information to assist Receiving Party in performing its obligations under this Agreement, and whom are bound by confidentiality obligations consistent with this Section 11 as to such Confidential Information. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements reasonably in advance of any such compelled disclosure, so as to afford Disclosing Party the opportunity to seek, at its sole cost and expense, a protective order or other remedy.
This Agreement shall commence as of the Effective Date and shall continue for as long as any applicable Order Forms are in effect (the “Term”), unless sooner terminated pursuant to this Agreement. Unless otherwise stated in the Order Form, the Customer shall pay for the Services on a monthly basis and can terminate the Services at any time, upon such termination of the services, Customer’s and its Authorized User’s access to the Services will terminate at the end of the cancelled billing cycle.
Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which, if involuntary, is not dismissed or vacated within forty five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this section, Porter may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure continues for ten (10) days after Porter’s notice to Customer of nonpayment. The parties acknowledge that in the event of a termination for any reason, except as provided in Section 11 above: the rights granted by Porter to Customer will cease immediately and, upon the request of either party, the other party shall delete, destroy, or return all Confidential Information.
Porter welcomes inquiries or feedback on the Services. Any inquiries, feedback, suggestions, ideas, materials, comments or other information Customer provides to Porter (collectively, “Submissions”) will be treated as non-proprietary, non-confidential and property of Porter. Porter may use Submissions to improve or modify the Services and in advertising campaigns and other promotions. Customer may not use false identifying information or contact information, impersonate any person or entity, or otherwise mislead us as to the origin of any Submission.
This Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
Each party represents, warrants and covenants that (a) it has the full corporate right, power and authority to enter into this Agreement, (b) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and (c) it shall use commercially reasonable efforts to prevent unauthorized access to, and maintain and assure the strict confidentiality of, all Confidential Information.
Porter warrants that the Services will comply with the documentation for the Services as published by Porter. PORTER (A) MAKES NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (B) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, PORTER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET ALL OF CUSTOMER’S OR ANY OTHER PERSON’S PURPOSES OR NEEDS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Customer will defend, indemnify, and hold harmless Porter and its directors, officers, employees, and agents, from and against any and all claims, losses, damages, and expenses (including attorney costs and litigation fees) arising out of or relating to (a) Customer’s use of the Services; (b) Customer Content; (c) breach of this Agreement by Customer or its employees or agents; (d) the actions, errors, omissions, negligence, willful misconduct, violations of law, or fraud of Customer or its Authorized Users; or (e) any dispute or other proceeding (including, without limitation, response to any third-party subpoena, but excluding any dispute between Customer and Porter) in which Porter becomes involved (even if only as a non-party or third-party participant) as a result of Customer’s use of the Services, including reimbursement of Porter’s time and expenses (including reasonable external and internal legal costs) incurred to respond to any request or participate in any proceedings. In (e) above, Customer agrees to pay Porter the hourly rates of Porter professionals for time spent preparing for and participating in responding to and participating in subpoenas, depositions, other discovery, litigation, hearings and dispute resolution proceedings in whatever form they may take.
Porter will defend and indemnify Customer, at Porter’s expense, against any claim or suit brought by a third party against Customer based on an allegation that Customer’s authorized use of the Services infringes or violates any third party’s Intellectual Property Right. The foregoing obligations are conditioned on the following: (a) Customer must give Porter prompt written notice of any claim, (b) Porter shall have the right to control the defense and settlement of the claim, and (c) Customer shall reasonably cooperate with Porter in connection with the defense of the claim, at Porter’s request and expense. If Porter believes that there is a likelihood of a successful claim of infringement, Porter may, at Porter’s sole option and expense modify or substitute the affected Services, obtain the right to continued use for a reasonable period of time as determined by Porter, or terminate the license to the affected Services (or portion thereof), and refund to Customer a portion of the pre-paid fees attributable to the period after such termination, if any. Porter will have no obligation under this section to the extent any claim or liability is based upon: (i) modifications to the Service not made by Porter; (ii) products and services not supplied by Porter (iii) work performed to Customer’s specifications; or (iv) Customer’s failure to use an updated version of the Services provided or offered by Porter. This section sets forth Porter’s sole liability and Customer’s exclusive remedy for indemnification and infringement.
IN NO EVENT SHALL PORTER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PORTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PORTER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO PORTER IN THE SIX (6) MONTH PERIOD PRECEDING THE LAST EVENT GIVING RISE TO THE CLAIM.
Each party shall deliver all communications in writing either in person, by certified mail, return receipt requested and postage prepaid, by facsimile or email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other party at the addresses set forth herein or in an applicable Order Form (or to such other address that the receiving party may designate from time to time in accordance with this Section).
Customer may not directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not Customer is the surviving entity), operation of law, or any other manner, without the prior written consent of Porter. Any purported assignment or delegation in violation of this Section shall be null and void. Customer acknowledges that Porter may subcontract all, or portions of, the Services. Porter may, without notice to or consent from the Customer, assign this Agreement, including but not limited to, in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that the assignee confirms in writing that it has assumed all obligations of the assignor under this Agreement.
This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the United States of America and the State of California, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Venice, California USA. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; AND (C) KNOWINGLY WAIVES ANY RIGHT TO TRIAL BY JURY. The parties have required that this Agreement and all documents related to this Agreement be drawn up in English. As to any ambiguities resulting from translation from English to any other language, provisions in the English language shall be controlling in all respects. PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (“UN CONVENTION”), THE PARTIES AGREE THAT THE UN CONVENTION WILL NOT APPLY TO THIS AGREEMENT.
This Agreement may be executed in any number of counterparts. Unless otherwise prohibited by law, this Agreement and related documents (including the Order Form) may be accepted in electronic form (e.g., by an electronic or digital signature, symbol, initial, or other means of demonstrating assent as defined under U.S. federal ESIGN Act of 2000) and Customer’s acceptance will be deemed binding on the Customer. Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.
Each of the parties hereto shall use commercially reasonable efforts to, from time to time at the request of the other party, without any additional consideration, furnish the other party such further information or assurances, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The parties may not amend this Agreement except by written instrument signed by the parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise; provided that, the parties intend that the remedy set out in Section 17 (Limited Warranty) is Customer’s exclusive remedy for the Porter’s breach of the limited warranty set out in Section 17. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Porter hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): weather and other Acts of God, government restrictions or orders, pandemics or epidemics, acts of terrorism, widespread Internet outage(s), wars, insurrections and/or any other cause beyond the control of the Impacted Party. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 24, either party may thereafter terminate this Agreement.
