TERM & TERMINATION
The Term of this Agreement (the “Term”) shall begin on the Effective Date and shall continue in effect on a continuous basis for a period as designated in the Service Agreement, and said Term shall be known as the “Initial Term.” At the end of the Initial Term, this Agreement shall renew automatically for successive 1-year periods, until either party terminates this Agreement by providing a written termination notice at least thirty (30) days prior to the end of the then current Term or Term Extension, time is of the essence. Failure to provide termination notification shall not be considered grounds for non-payment. The termination/cancellation of the party’s Agreement shall take effect on the thirtieth (30th) day following receipt of the notice or such later date, as Client shall advise Provider in writing. At any time, Provider may terminate this Agreement immediately if Client violates any of the Maintenance/Service Hosting Policies or if Client becomes insolvent, delinquent or unable to pay its debts. If Provider terminates this Agreement due to Client’s delinquency or failure to abide by Provider’s Hosting policies, Client shall pay all fees as outlined in the Service Agreement. Upon termination of this Agreement, assuming that the Initial Term has been satisfactorily completed, Provider will refund a pro-rata portion of any prepaid monthly fee based on the standard pricing matrix (for purposes of computing the refund, Client shall be charged for the portion of the month prior to the termination).
If Client terminates this Membership Agreement before the completion of the Initial Term (or if Client at any time during the Initial Term becomes thirty (30) days delinquent on its payments), as liquidated damages for such cancellation, the Client agrees to provide payment to Provider for an amount equal to ninety (90) percent of the remaining months of the Initial Term still outstanding. If the liquidated damages amount is not paid within seven (7) days of cancellation (or upon notice of delinquency), the Client will be responsible for payment of all the remaining monthly service fees which shall be due and payable immediately, time is of the essence. In addition, if Client terminates this Agreement prior to completion of the Initial Term or if Client’s account at any time becomes delinquent (defined as thirty days overdue), Provider shall have the right to terminate all licenses and services provided to Client under this Agreement (including disabling Client’s Custom Website(s) if applicable) and Provider will be entitled to collect all sums due immediately.
If Client elects to purchase a portal and/or additional products, modules, tools or services to be added to Client’s portal, at any time during the Term of this Agreement, the Term for that product, module, tool or service shall be coterminous with this Agreement. If a Client’s portal is disabled due to nonpayment, Client will pay a reactivation fee of $100 before the portal is reactivated.
CANCELLATION OF SERVICES – Custom Portal
Upon Provider’s cancellation of Network services to Client or upon the termination of this Agreement, Provider shall: (i) replace the home page of the Custom Portal with a standard error message at no charge to Client or (ii) redirect the Client URL to another site for the duration of the current domain registration if registration is maintained by Electronic Financing Inc.
CONTENT OWNERSHIP
Client will own a nontransferable, non-exclusive user license for the eActivated suite (applicable QuickPacks), based on the Service Agreement, for the duration of the Agreement. Electronic Financing Inc. retains complete ownership of the eActivated Portal Framework, including all graphics, non-custom text, scripts, object or source code, patents, trademarks or other intellectual property rights for the Provider's products/modules/tools developed or modified for Client by Provider or used with Client’s portal and any database/programming code furnished or used by Provider in connection with the Website.
CLIENT COVENANTS
During the period that Provider provides PortalMonster Network Membership or Custom Website service/maintenance, Client shall not distribute in the portal any Content that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses or other computer programming routines that are intended to damage or detrimentally interfere with any system, data or personal information.
PROVIDER’S INTELLECTUAL PROPERTY
Provider grants Client a non-exclusive, revocable, worldwide, non-transferable license during the Term to use Provider’s product, tools and modules incorporated into the PortalMonster Website. All Intellectual Property shall remain on the Provider’s servers. All such licenses shall terminate at the end of the Term, the cancellation of the license or upon the Provider’s cancellation of the Network Services to Client, whichever occurs first.
Client shall not, under any circumstances resell, distribute or allow any other company, entity or person to use any of Providers products, modules, tools, scripts, graphics, text, database/programming code and object/source code or Interest/Loan Rate Advisory data attained by or through Provider without Provider’s written consent.
As between Client and Provider, the parties agree that Provider shall own and retain all intellectual property rights, copyrights, patents and all rights, title and interest in and to all of the products, modules tools, scripts, graphics, text, database/programming code and object or source codes, provided or supplied by Provider that are displayed on Client’s portal or used in the development or the maintenance of Client’s portal, aside from those items which client will own as noted above. Client further acknowledges and agrees that all of Providers Products, whether confidential or not, are subject to the copyright and trademark laws of the United States, and Client agrees not to infringe on any of those rights.
INDEMNITY
Client shall indemnify, defend, and hold Provider, its officers, directors, agents, affiliates and employees harmless against any third party claim, action, suit or proceeding (i) alleging any breach of the covenants contained in this Agreement, the Terms of Use or the Service Agreement, or (ii) arising from errors or inaccuracies in the Content of the Client’s portal, or (iii) any third party interception and misappropriation of Consumers loan data or other Consumer or Client confidential information that is transferred by email, where Client has chosen not to use a secure system for the transfer of such data. Client shall indemnify Provider, its officers, directors, employees or its affiliates for all losses, damages, liabilities and all reasonable expenses and costs (including all legal costs) incurred by Provider as a result of a judgment entered against Provider in any such claim, action, suit or proceeding. Client's obligations under this Section are conditioned upon Provider: (a) giving the Client prompt written notice of any claim, action, suit or proceeding for which Provider is seeking indemnity; (b); and reasonably cooperating with Client at Client's expense.
DISCLAIMER OF WARRANTIES:
THE SERVICES PROVIDED BY PROVIDER UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SERVICES IS AT ITS OWN RISK. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY:
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY STATED OR IMPLIED HEREIN, IN NO EVENT AND UNDER NO THEORY OF LIABILITY SHALL PROVIDER, ITS OFFICERS, DIRECTORS, OR EMPLOYEES OR ANY AFFILIATE OF PROVIDER THEREOF BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF TECHNOLOGY, LOSS OF DATA, LOSS OF USE OF SERVICE OR EQUIPMENT, LOSS DUE TO COMPUTER VIRUS, OR LOSS OF ANTICIPATED PROFITS OR LOST BUSINESS. IN NO EVENT AND UNDER NO LEGAL THEORY WILL PROVIDER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CLIENT TO PROVIDER DURING THE LAST SIX MONTHS.
GOVERNING LAW
This Agreement will be governed, construed and enforced in accordance with the laws of the State of Arizona without giving effect to principles of conflict of laws. Both parties agree to submit to exclusive jurisdiction in Arizona with respect to this Agreement and further agree that any cause of action relating to this Agreement shall be brought and maintained in a court in Maricopa County, Arizona.
FORCE MAJEURE
Except for the obligations to make payments, neither party shall be liable to the other or any third person for any delay or default in performing its obligations hereunder if such delay or default is caused by force majeure, such as wars or insurrections, riots, acts of government, strikes, work stoppages, labor troubles, fire, explosion, earthquake, flood, embargoes and/or inability to obtain materials, acts of God or other cause outside the reasonable control of the Party.
SEVERABILITY AND WAIVER
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
ASSIGNMENT
Client may not assign this Agreement without the written consent of Provider. Provider’s rights and obligations will bind and inure to the benefit of its respective successors and assigns.
INDEPENDENT CONTRACTORS
The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Provider shall work exclusively for Provider and shall not, for any purpose, be considered employees or agents of Client. Provider assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
NOTICE
Aside from any specific notice procedures as outlined above or in the PortalMonster Terms of Use, all other notices required or permitted hereunder shall be given to the appropriate party at the address specified above or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
COUNTERPARTS/FACSIMILE/ELECTRONIC ACCEPTANCE
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. A facsimile or electronic copy (issued from Provider) of this Agreement shall constitute a valid original for purposes of this Agreement.
TERMS OF USE/SERVICE AGREEMENT
By execution of this Agreement, Client acknowledges that Client has reviewed the PortalMonster Terms of Use that can be found at www.PortalMonster.com and the Service Agreement and Client agrees to all terms and conditions as outlined therein without exception.
ENTIRE AGREEMENT
This Agreement, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Only a writing signed by both parties may change it. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. Where there is a conflict between this Agreement and the Terms of Use and/or the Pricing/Product Agreement, this Agreement shall be controlling.