USA - Terms and Conditions


These Terms and Conditions govern the relationship between iPortalis LLC whose registered office is at 500 Lake Cook Road, Suite #350, Deerfield, Illinois 600015 (iPortalis) and the Client (as defined below and named in an Order Document). The word “party” when used in these Terms and Conditions means either iPortalis or the Client as the context so permits and “parties” refers to both iPortalis and the Client.

These Terms and Conditions and the Order Document collectively create the “agreement” between the parties and is binding on completion and signature by both parties of an Order Document. In the case of conflict between a provision of these Terms and Conditions and the Order Document, these Terms and Conditions shall take precedence unless otherwise specified and agreed between the parties in writing.

  1. Definitions

The definitions in this clause apply in this agreement.

  • Applicable Laws: as applicable and binding on the Client, iPortalis and/or the Solution: (i) any law, statute, regulation, byelaw or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Solution is provided to or in respect of; (ii) the common law and laws of equity as applicable to the parties from time to time; (iii) any binding court order, judgment or decree; or (iv) any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business;
  • Authorised Named Users: the fixed number (as specified in the Authorised Named User Count on the Order Document or otherwise agreed in writing between the parties) of employees, agents and independent contractors of the Client who are authorised by the Client to use the Solution and the Documentation, as further described in clause 4.
  • Authorised Named User Count: the number of Authorised Named Users the Client has subscribed for to access and use the Solution in accordance with this agreement as set out on the Order Document to otherwise agreed din writing between the parties from time to time.
  • Billing Period: the frequency on which the Recurring Platform Fee becomes due and payable as set out in the Order Document.
  • Business Day: a day other than a Saturday, Sunday or public holiday in Illinois when banks in Illinois are open for business.
  • Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
  • Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5 or clause 13.6.
  • Client: an Enterprise Client and/or a Service Provider Client.
  • Client Data: the data inputted by the Client, Authorised Named Users, or iPortalis on the Client’s behalf for the purpose of using or facilitating the Client’s use of the Solution.
  • Documentation: the documents made available to the Client by iPortalis: (i) online via iportalis.com (or such other web address notified by iPortalis to the Client); (ii) through a dedicated Microsoft Teams channel which may be made available from time to time to the Client; or (iii) through another electronic distribution format in iPortalis’ discretion; which sets out a description of the iPortalis Software and the user instructions for the Solution and includes the Operations Manual.
  • Effective Date: the date specified in an Order Document.
  • End Customer: means in the case of a Service Provider Client, its customer(s) to whom it is providing a consultancy service for the Managed Vendor Component using the Solution.
  • End User: a licensed user of the Managed Vendor Component who is usually an employee, officer, contractor or representative of the Client.
  • Enterprise Client: a company, partnership or other organisation who licences the Solution for its internal deployment of Managed Vendor Component. The identity of whom and whether or not a such entity is an Enterprise Client will be set out on the Order Document.
  • Fees: collectivelythe Upfront Fee and the Recurring Platform Fee.
  • iAnalyse360: the software as a service analytics tool which provides insights into license utilisation by End Users of Managed Vendor Components;
  • iCP: the iPortalis Control Portal which unifies in a singular self-service platform the management of Managed Vendor Components including procurement and provisioning;
  • Initial Term: the initial term of this agreement as set out in Section B of the Order Document.
  • iPortalis Software: the software applications provided by iPortalis as detailed and deployed in accordance with the provisions of the Order Document including without limited iAnalyse360 and iCP.
  • Managed Vendor Component: the enterprise software which the Solution may be used to administer, manage and monitor as set out in the Order Document.
  • Maximum End User Count: the maximum number of End Users who are licensed to access or use the Managed Vendor Component from time to time by the Client as set out on the Order Document.
  • Normal Business Hours: 8.00 am to 6.00 pm EST, each Business Day.
  • Operations Manual: iPortalis’ guide(s) relating to access and use of support services as part of the Services, as made available to the Client from time to time.
  • Order Document: the document containing the particulars to which these Terms and Conditions relate signed between the parties.
  • Personal Data: means either: (i)any information which by itself or in connection with other information that a party may obtain could identify a living individual; or (ii) as defined under the Applicable Laws.
  • Recurring Platform Fee: the fee due in the amount and frequency as stated on the Order Document or otherwise agreed between the parties in writing.
  • Renewal Period: the period of time as set out in Section B of the Order Document.
  • Renewal Date: the date as set out in Section B of the Order Document.
  • Service Level Agreement: the statement of intent issued from time to time by iPortalis regarding response times and service levels for its Services;
  • Service Provider Client: an organisation who will be using the Solution to provide a service to End Customers. The identity of whom and whether or not a such entity is a Service Provider Client will be identified on the Order Document.
  • Statement of Work: a breakdown of mutually agreed Services which may be provided by iPortalis to the Client from time to time in accordance with this agreement;
  • Subscription Term: collectively the Initial Term together with any subsequent Renewal Periods
  • Services: the services provided by iPortalis to the Client under this agreement to support the iPortalis Software which may include hosting or technical support services, as more particularly described in the Documentation, Operations Manual and Order Document.
  • Solution: collectively the iPortalis Software, Services and Documentation.
  • Subprocessor: any person (including any third party, but excluding an employee of iPortalis or an employee of any of its sub-contractors) appointed by or on behalf of iPortalis which is engaged in the Processing of Personal Data in connection with this agreement;
  • Upfront Fee: the one-off payment due from the Client to iPortalis the amount of which is stated on the Order Document.
  • Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
  • Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

 

  1. Interpretation
    • The following rules of interpretation apply in this Agreement:
  • Headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this
  • Unless the context otherwise requires:
    • words in the singular shall include the plural and vice versa;
    • a reference to any statute, statutory provision, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by or under any subsequent statute, statutory provision, enactment, order, regulation or instrument or as contained in any subsequent re-enactment; and
    • references to clauses are to clauses of this
  • Words of a technical nature which are not defined in this Agreement shall be construed in accordance with the relevant general usage in the computer software industry in the United Kingdom.
  • References to this agreement are to this agreement, as amended, supplemented, substituted, novated or assigned.
  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted
  • Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  • The term “Client” shall, where the context so requires, include any employee or agent of the Client authorised to act on the Client’s behalf under this Agreement but for the avoidance of doubt, no such individual shall be liable under this Agreement in any

 

  1. Licence Grant
    • In consideration of the Fees and subject to the restrictions set out in this clause 3 and the other terms and conditions of this agreement, iPortalis hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit in object code form the Authorised Named Users to use the Solution to analyse the Managed Vendor Component during the Subscription Term.
    • The Solution may only be used to analyse all and not part only of the End Users of the Managed Vendor Component and, accordingly, the Client warrants that the Maximum End User Count is accurate. If at any time during the term of the agreement the Client increases its Maximum End User Count for whatever reason it shall promptly notify iPortalis and acknowledges that additional Fees may be due from the date the increase of End Users was made with the Managed Vendor Component. iPortalis may request and the Client will promptly provide evidence of licensing metrics and End User counts for each Managed Vendor Component to ensure compliance with this clause. If an inspection reveals that the Maximum End User Count iPortalis has licenced the Client for is less than the actual End Users of the Managed Vendor Component it may raise an invoice for the difference in Fees calculated at its then current list price for the full period of under-licensing which shall be payable within fourteen (14) days of the date of invoice by the Client. If the Client decreases its Managed End User Count during the term of this agreement, there will be no reduction in Fees unless agreed in advance with iPortalis. If an Order Document notes an initial Maximum End User Count and a target reduction to be achieved by a specific date, if the reduction is not achieved by the agreed date by the Client iPortalis may charge for the actual number of End Users that are continuing to use the Managed Vendor Component calculated at its then current list price and that number will be the Client’s Maximum End User Count for the remainder of the agreement.
    • Enterprise Clients may use the Solution solely for its internal business operations and the Managed Vendor Component it licenses. Service Provider Clients may use the Solution to analyse its End Customers internal usage of the Managed Vendor Component.
    • The Client shall not except to the extent expressly permitted under this agreement:
      • except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
        • attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Solution in any form or media or by any means; or
        • attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the iPortalis Software;
      • access all or any part of the Solution in order to build a product or service which competes with the any part of element of the Solution;
      • use the Solution to provide services to third parties;
      • subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Solution available to any third party except the Authorised Named Users or End Customers;
      • attempt to obtain, or assist third parties in obtaining, access to any part or element of the Solution, other than as provided under this clause 3; or
      • introduce or permit the introduction of, any Virus or Vulnerability into iPortalis’ network and information systems.
    • The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Solution that:
      • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      • facilitates illegal activity;
      • depicts sexually explicit images;
      • promotes unlawful violence;
      • is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      • is otherwise illegal or causes damage or injury to any person or property;

and iPortalis reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

  • The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Solution and, in the event of any such unauthorised access or use, promptly notify iPortalis.
  • The rights provided under this clause 3 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client unless otherwise expressly agreed between the parties in writing.

 

  1. Authorised Named Users
    • In relation to the Authorised Named Users, the Client:
      • undertakes that the maximum number of Authorised Named Users that it authorises to access and use the Solution shall not exceed the Authorised Named User Count;
      • in respect of the iAnalyse part of the Solution, acknowledges that its Authorised Named Users will be manually created by iPortalis and a ticket must be logged with its helpdesk to change an Authorised Named User;
      • in respect of the iCP part of the Solution, the Authorised Named Users will be automatically assigned based upon permissions in the Active Directory of the Client.
    • The Client may request additional Authorised Named Users at any time and subject to payment of the relevant additional Fees will be activated promptly by iPortalis. If you reduce the number of Authorised Named Users you will not be entitled to a refund or reduction in Fees.

 

  1. iPortalis Software
    • Client Deployments (iCP)
      • The Client shall deploy the iCP element of the Solution on its servers.
      • If the Client wishes to utilise a third-party hosting provider for the deployment of iCP it must seek prior written approval from iPortalis.
      • On request, iPortalis must be granted access to the Client’s technology system onto which iCP is deployed to ensure the Client’s compliance with the provision of this agreement.
      • In some circumstances iPortalis may by prior written agreement be able to provide iCP to it as a software-as-a-service solution in which case the provisions of clause 2 shall also apply to iCP.
    • Software-As-A-Service Deployments (iAnalyse360)
      • iPortalis shall use commercially reasonable endeavours to make iAnalyse360 (and iCP if the Client elects for this to be made available to it as software-as-a-service) available twenty-four (24) hours a day, seven (7) days a week, except for:
        • scheduled maintenance – being any maintenance performed during iPortalis’ then-current standard maintenance windows and any other maintenance of which Client is given at least forty-eight (48) hours advance notice;
        • unavailability related to the Managed Vendor Component or other Client applications, Client Data, or the Client’s equipment, or the acts or omissions of any End User or Authorised Named User;
        • downtime of iAnalyse360 due to the application of urgent patches or fixes, or other urgent maintenance, recommended by iPortalis’ vendors,
        • any unavailability caused by circumstances beyond iPortalis’ reasonable control, including without limitation, Force Majeure Events; and
        • Internet service provider failures or delays.
      • The Client acknowledges that iPortalis does not control the transfer of data over telecommunications facilities, including the Internet. iPortalis does not warrant secure operation of iAnalyse360 or that it will be able to prevent third party disruptions of iAnalyse360. Client acknowledges further that iAnalyse360 (and iCP if the Client elects for this to be made available to it as software-as-a-service) may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications.  iPortalis is not responsible for any delays, delivery failures, or other damage resulting from such problems.

 

  1. Services
    • iPortalis will, as part of the Services provide the Client with iPortalis’ standard customer support services during Normal Business Hours in accordance with iPortalis’ Operations Manual in effect at the time that the Services are provided. iPortalis may amend the Operations Manual in its sole and absolute discretion from time to time
    • The Client may purchase enhanced support services separately at iPortalis’ then current rates.
    • iPortalis uses its best efforts to meet its current published Service Level Agreement but these are indicative only and shall not be contractually binding on either parties. If iPortalis were to fail to meet any service level or timescale within the Service Level Agreement the parties expressly agree and acknowledge that this is not and cannot be construed as being a breach of contract nor give rise to grounds for termination of this agreement. Additional Client-specific services may be agreed from time to time and set out in a Statement of Work. Each Statement of work when signed by the authorised representatives of the parties shall become a part of this agreement.
    • iPortalis undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    • The undertaking at clause 4 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to iPortalis’ instructions, or modification or alteration of the Services by any party other than iPortalis or iPortalis’ duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, iPortalis will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.4.

  1. Timescales
    • Any dates provided by iPortalis to the Client for provision or execution of the Solution (or any element of the Solution) whether before or after the Effective Date including on an Order Document, Service Level Agreement or Statement of Work are estimates only. iPortalis will use its reasonable endeavours to meet any agreed dates but the Client expressly acknowledges that delivery dates are not solely within the control of iPortalis and iPortalis shall not be liable for any delay or failure to meet such dates. Where iPortalis anticipates that any timescales or dates need to be changed it will discuss this with the Client and seek to agree mutually acceptable revised timescales/dates. Time for performance by iPortalis shall not be of the essence of this agreement.
    • Any discussions, negotiations, demonstrations and/or other communications between the parties relating to iPortalis’ product roadmap whether before or after the Effective Date shall not be binding upon iPortalis and iPortalis reserves the right to make any changes to its product roadmap as it may require.

 

  1. iPortalis’ obligations
    • iPortalis warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
    • iPortalis:
      • does not warrant that:
        • the Client’s use of the Solution will be uninterrupted or error-free;
        • that the Solution and/or the information obtained by the Client through the Solution will meet the Client’s requirements or produce particular outcomes or results (irrespective of whether the Client has informed iPortalis of how it intends to use the Solution at the point of purchase). The Client shall retain sole responsibility and accountability for: the management, conduct and operation of its business and affairs; deciding its use of (or choosing to what extent Client wishes to rely on, or implement) advice or recommendations of the Solution; making any decision relating to the Managed Vendor Component; and the delivery, achievement or realization of any benefits directly or indirectly related to the Managed Vendor Component; or
        • the Solution will be free from Vulnerabilities or Viruses.
      • is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Solution may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    • This agreement shall not prevent iPortalis from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

 

  1. Client’s obligations
    • The Client shall:
      • provide iPortalis with:
        • all necessary co-operation in relation to this agreement; and
        • all necessary access to such information as may be required by iPortalis;

in order to provide the Solution, including but not limited to Client Data, security access information and configuration services;

  • without affecting its other obligations under this agreement, comply with all Applicable Laws and regulations with respect to its activities under this agreement;
  • carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, iPortalis may adjust any agreed timetable or delivery schedule as reasonably necessary;
  • ensure that the Authorised Named Users use the Solution in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised Named User’s breach of this agreement;
  • obtain and shall maintain all necessary licences, consents, and permissions necessary for iPortalis, its contractors and agents to perform their obligations under this agreement;
  • ensure that its network and systems comply with the relevant specifications provided by iPortalis from time to time; and
  • be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Solution, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
  • The Client shall own all rights, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.

 

  1. Charges and payment
    • The Client shall pay the Fees to iPortalis as set out in the Order Document or otherwise increased in accordance with this agreement. Unless otherwise agreed in writing:
      • the Upfront Fee will be invoiced by iPortalis on or around the date of signature of the Order Document by the Client; and
      • the first Recurring Platform Fee will be invoiced on or around the date of signature of the Order Document by the Client;
      • the Recurring Platform Fee will be invoiced thereafter on the first day of each Billing Period during the term of this agreement; and
      • fees for increases to the Maximum End User Count or Authorised Named User Account on or around the date such increase comes into effect or became known to iPortalis in accordance with the provisions of this agreement.
    • Save as otherwise provided in this Agreement, all invoices are due for payment within thirty (30) days of the date of an invoice.
    • If the Client provides direct debit or credit card details to iPortalis, the Client hereby authorises iPortalis to bill such credit card or request payment via direct debit on the dates agreed between the parties for payment of the Fees as set out in this agreement and the Order Document or otherwise in writing. The Client must ensure such payment information is kept up to date with iPortalis for the term of this agreement. If the Client makes an unjustified chargeback where payment is collected through a credit card or direct debit, the Client shall be liable to pay to iPortalis within seven (7) days following a written request:
      • An amount equal to the chargeable
      • All third party expenses incurred by iPortalis in relation to the chargeback (including charges made by iPortalis bank or collection company);
      • a reasonable administration fee; and
      • all iPortalis reasonable costs, losses and expenses incurred in recovering the amounts subject to the chargeback (including legal fees and debt collection fees).
    • If iPortalis has not received payment of any invoice on its due date for payment, and without prejudice to any other rights and remedies of iPortalis:
      • iPortalis may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and iPortalis shall be under no obligation to provide any or all of the Solution while the invoice(s) concerned remain unpaid; and
      • interest shall accrue on such due amounts at the lesser of 1.5% per month or the highest rate allowed by law commencing on the due date and continuing until fully paid, whether before or after judgment.
    • All amounts and fees stated or referred to in this agreement:
      • shall be payable in US Dollars, unless otherwise stated on an Order Document;
      • are, subject to clause 4, non-cancellable and non-refundable;
      • are exclusive of taxes, which shall be added to iPortalis’ invoice(s) at the appropriate rate.
    • iPortalis shall be entitled to increase the Fees at the start of each Renewal Period upon ninety (90) days’ prior notice to the Client.

 

  1. Proprietary Rights
    • The Client acknowledges and agrees that:
      • all Intellectual Property Rights in the Solution belong and shall belong to iPortalis (or the relevant third-party owners as the case may be);
      • all Intellectual Property Rights in any development, enhancements or similar to the Solution whether requested by the Client or otherwise belong absolutely to iPortalis; and
      • the Client shall have no rights in or to the Solution other than the right to use it in accordance with the terms of this agreement;
      • the iPortalis Software is licensed and not sold.

 

  1. Indemnity
    • The Client shall defend, indemnify and hold iPortalis harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Solution provided that:
      • iPortalis give you prompt notice of any such claim;
      • iPortalis provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
      • the Client is given sole authority to defend or settle the claim.
    • iPortalis shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Solution in accordance with this agreement infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall subject to clause 4(a) indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
      • iPortalis is given prompt notice of any such claim;
      • the Client provides reasonable co-operation to iPortalis in the defence and settlement of such claim, at iPortalis’ expense; and
      • iPortalis is given sole authority to defend or settle the claim.
    • In the defence or settlement of any claim, iPortalis may procure the right for the Client to continue using the Solution, replace or modify the Solution so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on two (2) Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
    • In no event shall iPortalis, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
      • a modification of the Solution by anyone other than iPortalis; or
      • the Client’s use of the Solution in a manner contrary to the instructions given to the Client by iPortalis; or
      • the Client’s use of Solution after notice of the alleged or actual infringement from iPortalis or any appropriate authority.
    • The foregoing states the Client’s sole and exclusive rights and remedies, and iPortalis’ (including iPortalis’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
    • Notwithstanding any other provision in this agreement, this clause shall not apply to the extent that any claim or action referred to in this clause arises directly or indirectly through the unauthorised possession or use of any third-party software by the Client including the Managed Vendor Component.

 

  1. Confidentiality
    • Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
      • is or becomes publicly known other than through any act or omission of the receiving party;
      • was in the other party’s lawful possession before the disclosure;
      • is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      • is independently developed by the receiving party, which independent development can be shown by written evidence.
    • Subject to clause 4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
    • Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
    • A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    • The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute iPortalis’ Confidential Information.
    • iPortalis acknowledges that the Client Data is the Confidential Information of the Client.
    • The above provisions of this clause 13 shall survive termination of this agreement, however arising.

 

  1. Data Protection
    • Both parties will comply with all Applicable Laws in respect of the processing of Personal Data under this agreement. This clause 14 is in addition to, and does not relieve, remove or replace, a party’s obligations under any Applicable Law.
    • The Client represents and warrants that before providing Personal Data to iPortalis, it will comply with all Applicable Laws relating to the disclosure of such Personal Data, including providing notices to or obtaining permission from third parties (where relevant) in advance to allow sharing of their personal information with iPortalis under this agreement.
    • If the Client provides Personal Data to iPortalis that is Personal Data of Data Subjects from the United Kingdom, European Union or Canada, then Client:
      • acknowledges that in connection with any aspect of the Solution, iPortalis may transfer/access/store/process personal data outside of the UK, EU and Canada in countries (such as the United States) that under EU laws may not ensure an adequate level of data protection (the “Data Transfer”); and
      • consents to such Data Transfer, and Client shall ensure that it complies with all applicable UK, EU and Canadian laws that apply to Client as the data controller of such personal data in connection with the Data Transfer. iPortalis will take reasonable measures to protect the security of such personal data transferred by Client to iPortalis.

 

  1. Disclaimer of Warranties

Save as expressly provided in this agreement all other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

  1. Limitation of liability
    • Neither party excludes or limits liability to the other party for:
      • death or personal injury caused by negligence;
      • fraud or fraudulent misrepresentation; or
      • any matter for which it would be unlawful for the parties to exclude
    • Subject to clause 1 iPortalis shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
      • any indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
      • any special damages (even if the parties were aware of the circumstances in which special damages could arise);
      • any direct loss of profits, business, business opportunities, data, anticipated savings, wasted expenditure (including management time), revenue, turnover, reputation or depletion of goodwill;
      • any loss or liability (whether direct or indirect) under or in relation to any other contract including that between the Client and the licensor of the Managed Vendor Component.
    • Clause 2 shall not prevent claims for:
      • direct financial loss that are not excluded under any of the categories set out in clause 2(b) to clause 16.2(d); or
      • tangible property or physical
    • Subject to clause 1 iPortalis’ total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall be limited to:
      • $1,000,000 (one million dollars) for indemnity claims subject to clause 12 of this Agreement; and
      • for all other claims, the amount of the Charges paid by the Client to iPortalis in the twelve (12) calendar months immediately preceding the date on which the action giving rise to the claim arose relating to the element of the Solution to which the claim

 

  1. Term and termination
    • This agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this agreement shall automatically renew without notice for successive Renewal Periods on each Renewal Date, unless:
      • either party notifies the other party of termination, in writing, at least sixty (60) days before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
      • otherwise terminated in accordance with the provisions of this agreement.
    • Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      • the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than fifteen (15) days after being notified in writing to make such payment;
      • the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
      • the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
      • the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
      • the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
      • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
      • any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 2(c) to clause15.2(j) (inclusive);
      • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
      • the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

 

  1. Effect of Termination
    • Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
    • Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or
    • On termination of this agreement for any reason:
      • all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Solution;
      • each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
      • iPortalis may destroy or otherwise dispose of any of the Client Data in its possession unless iPortalis receives, no later than ten (10) days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. iPortalis shall use reasonable commercial endeavours to deliver the back-up to the Client within thirty (30) days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by iPortalis in returning or disposing of Client Data.
    • In the case of bankruptcy of the Client, the parties acknowledge and agree that this agreement is an executory contract as such term is defined in section 365 of the United States Bankruptcy Code (“USBC”). The parties further acknowledge and agree that the agreement does not provide a license of intellectual property as defined in section 101(35) of the USBC and that the provisions of Section 365(n) of the USBC are therefore not applicable. Client acknowledges that iPortalis will be harmed if this agreement was assigned to a competitor, direct or indirect, or any other party whose use of the Solution pursuant to the agreement would be detrimental to the business and rights of iPortalis, and Client hereby grants iPortalis the right to consent to any proposed assignment of this agreement in a bankruptcy and that the rights of consent to the assignment provided in section 365(c)(1) of the USBC shall be applicable to any proposed assignment of this agreement in any bankruptcy case filed by Client.

 

  1. Non-solicitation

The Client will not, for the period beginning on the Effective Date and ending six (6) calendar months after the termination of this Agreement, either directly or indirectly employ or solicit the employment of staff of iPortalis without iPortalis’ prior written consent provided that the Client may employ or engage a member of iPortalis’ staff who has responded directly to a bona fide recruitment drive either through a recruitment agency engaged by the Client or via an advertisement placed publicly by the relevant party (either in the press, social media, online or in trade and industry publications).

  1. Publicity, Reference Sites and Announcements
    • Unless otherwise agreed in writing between the parties, iPortalis may refer to the Client in its corporate, marketing and sales activities which may be by name or usage of the Client’s trade mark and/or business branding.
    • The Client will act as a reference site for iPortalis when reasonably requested to do so.
    • Save as provided in clause 1 no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the party (such consent not to be unreasonably withheld or delayed but the Client acknowledges consent may be subject to iPortalis obtaining third party approvals), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

 

  1. Force majeure

iPortalis shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of iPortalis or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.

  1. Conflict

Unless otherwise expressly agreed by the parties in writing, if there is an inconsistency or conflict between any of the provisions of the Order Document, The Appendix or these Terms and Conditions, the order of precedence in descending order is: (1) these Terms and Conditions; (2) the Appendix; and (3) the Order Document.

  1. Variation

No variation to these Terms and Conditions or of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  1. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  1. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Severance
    • If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
    • If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

  1. Entire agreement
    • This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
    • Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    • Nothing in this clause shall limit or exclude any liability for fraud.

  1. Assignment
    • This Agreement is personal to the Client and it shall not subcontract, delegate, assign, transfer, mortgage, charge, declare a trust or deal in any other manner with any or all of its rights and obligations under the Agreement without the prior written consent of iPortalis.
    • iPortalis may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

  1. No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Each party confirms it is acting on its own behalf and not for the benefit of any other person.

  1. Third party rights

This agreement does not confer any rights on any person or party other than the parties to this agreement and, where applicable, their successors and permitted assigns.

  1. Export

The Client shall comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that the Solution is not exported, directly or indirectly, in violation of those laws.

  1. Notices
    • Any notice required to be given under this agreement shall be in writing and:
      • delivered by hand, registered post or by the recorded delivery service to: 500 Lake Cook Road, Suite #350, Deerfield, Illinois 600015 in the case of a notice to be served on iPortalis; or the Postal Address for Notices set out in Section A of the Order Document in the case of a notice to be served on the Client; or, such other postal addresses as the parties may notify to each other from time to time during the term of this agreement; and
      • sent by email to: contracts@iportalis.com in the case of a notice to be served on iPortalis or: to the Email Address for Notices specified in Section A of the Order Document in the case of a notice to be served on the Client; or, such other email addresses as the parties may notify to each other from time to time during the term of this
    • Any notice shall be deemed to have been received at the time of transmission of the email provided that the sender does not receive an error message for such transmission.
    • This clause does not apply to the service of any proceedings or other documents in any legal does not apply to the service of any proceedings or other documents in any legal action.

  1. Dispute Resolution
    • If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute), then the parties shall follow the procedure set out in this clause:
      • either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the IT Manager of the Client and the Sales Director of iPortalis shall attempt in good faith to resolve the Dispute;
      • if the IT Manager of the Client and the Sales Director of iPortalis are for any reason unable to resolve the Dispute within fourteen (14) days of service of the Dispute Notice, the Dispute shall be referred to the Commercial Directors (or equivalent) of both parties who shall attempt in good faith to resolve it; and
      • if the Commercial Directors are for any reason unable to resolve the Dispute within fourteen (14) days of it being referred to them, the Dispute shall be referred to the Chief Executive Officers (or equivalent) of both parties who shall attempt in good faith to resolve it.
    • No party may commence any court proceedings in relation to the whole or part of the Dispute until forty (40) days after service of the Dispute notice, provided that the right to issue proceedings is not prejudiced by a delay.

  1. Governing law and Jurisdiction

This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its principles of conflict of laws. Any dispute shall be litigated in the state or federal courts located in the State of Delaware to whose exclusive jurisdiction the Parties hereby consent. For purposes of establishing jurisdiction in Delaware under this agreement, each Party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of such court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any such suit, action or proceeding is brought in an inconvenient forum. Each Party irrevocably waive its rights to trial by jury in any action or proceeding arising out of or relating to this Agreement or the transactions relating to its subject matter. The Parties agree that this contract is not a contract for the sale of goods; therefore, the agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.