PortControl End User License Agreement
PortControl End User License Agreement
You have selected for purchase a license to use the ATL PortControl software solution (“Porting Services”) and related services, based upon the quote you received form ATL (your “ATL Quote”). You are not authorized to access or use the Porting Services unless you agree to the terms and conditions contained in this Agreement, and pay the fee described in your ATL Quote. The Porting Services are delivered via redundant cloud-based hosting application operated by Microsoft (“AZURE”), which utilizes third party software (“Third Party Software”) developed by Microsoft and other third parties (“Third Party Vendors”). ATL is the legal and beneficial owner of the Licensed Software and shall license the Licensed Software to Licensee pursuant only to the terms and conditions of this Agreement, and the terms contained in the ATL Quote. Each of the Agreement, and the ATL Quote, shall be considered an inseparable whole.
1. General. ATL shall bundle the Porting Services with applicable Third-Party Software (collectively, the “Licensed Software”). ATL agrees to license to you the Licensed Software in accordance with the license term(s) (the “License Term” indicated on the ATL Quote) pursuant to your ATL Quote. The definitions and specifications related to the Licensed Software, License Scope and License Term are set forth in this Agreement. Terms that are not defined herein or in your ATL Quote shall be defined in the context in which they are used. By clicking on the “Sign” button embedded in your ATL Quote, you: (i) verify your purchase of a license as set forth in your ATL Quote; and (ii) agree to all of the terms, conditions, warranties and covenants contained in this Agreement and in the ATL Quote.
2. Grant of PortControl License. Subject to the terms and conditions below, ATL grants to you a limited, nontransferable, nonexclusive, non-resalable license for the duration of the License Term, to access and use through the internet the Licensed Software specified in your ATL Quote for the sole purpose of utilizing ATL’s local number portability services (and API’s if applicable) for any and all of Licensee’s authorized users. Your license includes a trading partner profile (TPP) information system and access to both toll-free and local numbering data. YOU ACKNOWLEDGE AND AGREE THAT THE CALL MANAGEMENT SERVICES AVAILABLE UNDER THIS AGREEMENT DO NOT PROVIDE EMERGENCY 911 CALLING.
2.2.4. Use the Licensed Software in connection with chain letters, junk email, voice mail, faxes, spamming or any duplicative or unsolicited messages (commercial or otherwise);
12. Term and Termination.
12.1. This Agreement shall become effective upon Licensee’s electronic acceptance of the ATL Quote, as set forth below. Subject to the termination provisions below, the license rights granted herein shall continue in full force and effect for the term stated in the ATL Quote (the “License Term” shall be indicated in the ATL Quote) beginning the first full calendar month following acceptance (as that term is defined below) of all services. Thereafter, the Term is extended by one-year (each a “Renewal Term”) unless either Party gives the other written notice of its intention for the Agreement not to renew automatically, which notice shall be given no later than thirty (30) days prior to the expiration of the then-applicable Term.
17. Warranty of Original Development. ATL warrants that any PortControl software is, and will be, of original development by ATL.
21. Indemnification. Each Party (the “Indemnifying Party”) will indemnify and defend any action by a third party brought against the other Party, its affiliates, directors, shareholders, officers, or employees (individually and cumulatively, the “Indemnified Party”) (i) as set forth in this Agreement or the ATL Quote, or (ii) arising in connection with infringement, misappropriation or violation, (a) related to materials or data provided by Licensee to ATL, in the case of Licensee; or (b) as a direct result of ATL providing the Licensed Software, in the case of ATL, of any United States copyright, trade secret or trademark, except to the extent that such claim is based on use of a Licensed Software in a manner that is not authorized under this Agreement or ATL Quote.
In addition to the foregoing indemnification obligations, if all or any part of a Licensed Software is, or in the reasonable opinion of ATL may become, the subject of a claim of infringement, misappropriation or violation of a third party’s intellectual property rights, ATL may, at its sole discretion and expense, either (a) procure for Licensee the right to continue receiving and using the Licensed Software; or (b) replace or modify the allegedly infringing aspect of the Licensed Software to make it non-infringing, without altering its functionality; or (c) terminate this Agreement and reimburse Licensee for any fees paid in advance for the Licensed Software that will not be delivered due to such termination.
Upon receiving notice of any claim covered by the indemnity obligations set forth in this Agreement, the Indemnified Party shall promptly notify the Indemnifying Party in writing of the claim. The Indemnifying Party may assume sole control of the defense of any such claim. The Indemnified Party may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation and defense. The Indemnified Party shall provide the Indemnifying Party reasonable assistance regarding such claim at the Indemnifying Party’s expense. Unless a settlement is solely for monetary damages for which the Indemnified Party is fully indemnified hereunder, the Indemnifying Party shall not settle any claim without the Indemnified Party’s prior, written consent, which shall not be unreasonably withheld or delayed.
22. Amendments and Waivers. No waiver of any provision of this Agreement, and no consent to any default under this Agreement, shall be effective unless and until the same shall be reduced to writing and signed by a duly authorized representative of the party against whom such waiver or consent is claimed.
23. Force Majeure Events. A party shall be excused from any delay or failure in performance of their obligations hereunder to the extent caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, acts of terrorism, civil disorder, war, labor strikes, national or local emergency, acts of government, pandemics including but not limited to COVID 19 and the like, compliance with any statutory obligation or governmental requirements, fire, flood, or weather of exceptional severity (“Force Majeure Events”). Neither party shall be liable for any delays, losses or damages resulting from Force Majeure Event, provided that such party uses all commercially reasonable efforts to avoid or remove such causes of nonperformance. In the event of a Force Majeure Event, the parties will cooperate with each other in order to mutually agree upon a time for performance to resume or be completed, and such Force Majeure Event will not result in termination of this Agreement.
24. Miscellaneous
24.1. California Licensees. Under California Civil Code Section 1789.3, California users of the Licensed Software receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
24.2. Severability. If any term, provision, covenant, or restriction of this Agreement is held by an arbitrator, or court of competent jurisdiction, to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, or restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
24.3. Subject Headings. The headings in this Agreement are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Agreement nor the meaning of any of its provisions.
24.4. Governing Law. This Agreement is made under and shall be construed in accordance with the laws of the State of Oregon, without regard to its conflict of law principles. The Parties hereby expressly opt-out of applicability of any State’s version of the Uniform Computer Information Transactions Act (UCITA).
24.5. Arbitration. Any dispute or claim that arises out of or that relates to this Agreement, or to the interpretation or breach thereof, or to the existence, validity, or scope of this Agreement or this arbitration clause, shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties acknowledge that mediation helps parties settle their dispute and any party may propose mediation whenever appropriate through Arbitration Service of Portland or any mediator selected by the parties.
24.6. Attorney Fees. In the event suit or action is brought, or an arbitration proceeding is initiated, to enforce or interpret any of the provisions of this Agreement, or that arise out of or relate to this Agreement, the prevailing party shall be entitled to reasonable attorney fees in connection therewith. The determination of who is the prevailing party and the amount of reasonable attorney fees to be paid to the prevailing party shall be decided by the arbitrator(s) (with respect to attorney fees incurred prior to and during the arbitration proceedings) and by the court or courts, including any appellate court, in which such matter is tried, heard, or decided, including a court that hears a request to compel or enjoin arbitration or to stay litigation or that hears any exceptions or objections to, or requests to modify, correct or vacate, an arbitration award submitted to it for confirmation as a judgment (with respect to attorney fees incurred in such court proceedings).
24.7. Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
24.8. Construction. This Agreement shall be given a fair and reasonable construction in accordance with the intention of the Parties and without regard to the identity of its drafter.
24.9. Further Assurances. Each party agrees that it shall execute and deliver such other documents and take such other actions as may be requested to affect the transactions contemplated hereunder.
24.10. Entire Agreement. This Agreement along with the ATL Quote constitutes the entire agreement between the parties, and supersedes all prior agreements, whether written or oral, with respect to the subject matter contained therein.
24.11. Notices. Except as otherwise expressly provided herein, all notices or demands required by this Agreement shall be given in writing by delivering the same by mail, facsimile, or by e-mail, depositing the same in the United States mail, certified mail, postage prepaid and addressed to the party concerned at its last known address1
25. Electronic Execution. By clicking “Sign” in the ATL Quote, you warrant (on behalf of Licensee) that any and all information you provide to ATL is accurate and complete, that you are authorized to execute the ATL Quote and this Agreement, and that you will comply with all applicable laws, and with the terms and conditions of this Agreement, and the ATL Quote, each of which are incorporated by this reference.