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PortControl End User License Agreement

PortControl End User License Agreement

This End User License Agreement (“Agreement”) is entered into between ATL Communications Inc., an Oregon corporation (“ATL”), and you, the party executing this Agreement (“you” or “Licensee”). ATL and you may also be referred to herein individually as a “party,” or collectively as the “parties.”

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.

2.1. PortControl shall deploy access to the Number Portability Administration Center (“NPAC”), by Service Provider ID (“SPID”). PortControl’s obligation to deploy Licensee with NPAC access is subject to receipt of any required Letter of Authorization (“LOA”), NPAC User Profile, and NPAC End User Registration Form, as designated by the NPAC and shall be subject to their terms of use. Licensee represents and warrants that to the extent that the receipt of any product or service depends on data from or access to a NPAC, Licensee has executed for each applicable service area the relevant NPAC/SMS User Agreements, and that each such NPAC/SMS User Agreement is and shall remain in full force and effect during the Term, and that Licensee’s use of data from the NPAC, or data derived, translated or transformed from such data, that may be provided as part of any product or service shall strictly comply with the Licensee’s NPAC/SMS User Agreement, including that such Licensee’s use is limited to the routing, rating or billing of calls or the performance of network maintenance as defined by the NPAC User Agreement (as may be further limited by this Agreement, any ATL Quote, or other similar agreement). Notwithstanding anything herein to the contrary, nothing in this Agreement shall be interpreted as modifying or amending any NPAC/SMS User Agreement in any way.
2.2 As a condition of ATL’s provisioning of the Porting Services and Licensed Software, License is expressly prohibited from, and agrees not to do, all of the following:
2.2.1. Use the Licensed Software to transmit any unlawful, harmful, threatening, harassing, abusive, libelous, vulgar, obscene, profane, hateful, or otherwise objectionable information of any kind, including but not limited to, encouraging conduct that would constitute a criminal offense, infringing upon third party rights, giving rise to civil liability, or otherwise violating any local, state, national or other law;
2.2.2. Use the Licensed Software to upload, post, reproduce, or distribute in any way, any information, software, or other material protected by copyright or any other intellectual property right without first obtaining the permission of such right by the holder;
2.2.3. Use the Licensed Software in any way that would interfere with or impact ATL’s network or services to other customers;

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);

2.2.5. Harvest or otherwise collect information about others, including email addresses, without their consent;
2.2.6. Create a false identity or forged email address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
2.2.7. Transmit any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs; and
2.2.8. Attempt to gain unauthorized access to the Licensed Software, other accounts, or computer systems or networks connected to the Services through password mining or any other means.
2.2.9. Grant third party access to the Licensed Software for the purposes of reselling any/all of the data or information contained within the Licensed Software
2.3 ATL will not disclose customer information to third parties unless it has a good faith belief that such disclosure is necessary to comply with a court order, search warrant, Federal Communications Commission (“FCC”) regulations, or other legal process served upon Licensed Software.
2.4 Licensee agrees that ATL shall not be responsible or liable in any way for deactivation or deletion of accounts, or for loss of emails, voice mails, communications, postings, or any data or information as a result of, or arising out of, administration of the Licensed Software, regardless of whether Licensee is given prior notice thereof. As determined by ATL in its sole discretion, ATL may: (i) delete accounts that are inactive for an extended period of time; and (ii) delete pending accounts that have not yet been validated by Licensee after a commercially reasonable period of time. ATL shall not be liable to the Licensee or any third party for any reason if ATL modifies or terminates the Licensed Software, in whole or in part. Licensee is responsible for creating a back-up copy of any important or critical information. ATL shall not be responsible or liable in any way for any information or data loss in connection with the Licensed Software.
3. Scope of License. The license granted in Article 2 allows each individual authorized user to access and use the applicable Licensed Software, provided that no authorized user may share his or her login credentials.
4. Limitations on License. Upon notice to Licensee that it is using the Licensed Software in a manner prohibited herein, Licensee shall immediately cease such activities. If Licensee fails to immediately stop using the Licensed Software in the prohibited manner specified in this Agreement or in any notice, ATL may immediately terminate Licensee’s access to and use of the Licensed Software. Licensee may use the Licensed Software solely for its internal business use by its own employees in the manner and scope described in this Agreement.
5. License Fees. In consideration for, and as a continuing condition of, the licenses granted in Section 2 above, Licensee has paid or shall pay ATL the monthly license fees set forth in the ATL Quote. The license fees shall be exclusive of any sales, use, excise or similar tax liability arising from this Agreement, if any, all of which shall be the obligation of Licensee. If Licensee has authorized ATL to charge Licensee’s bank account or credit card, ATL shall charge the applicable fees set forth in the ATL Quote to Licensee’s bank account or credit card. All past due balances of such fees shall accrue interest at a rate equal to the lesser of (i) 1.5 percent per month; or (ii) the highest rate of interest allowed by law in the applicable jurisdiction. All invoices shall be paid in U.S. dollars. Licensee shall compensate ATL for all sums expended in its efforts to collect Licensee past due sums owing hereunder. If ATL asserts any claim (whether by arbitration, mediation, or court action) to collect any amounts owing, and prevails, Licensee shall pay ATL’s reasonable attorney’s fees, court costs and other collection expenses. Licensee will be considered in material breach of the Agreement for failure to pay monthly license fees set forth in the ATL Quote. If Licensee fails to make any payments owed to ATL under this Agreement or any ancillary exhibit, ATL, at its sole discretion, may suspend access to the Licensed Software to Licensee until payment is made. ATL Licensee shall, upon request by ATL, provide a letter of credit or deposit as a condition to the provisioning of the Licensed Software. ATL may discontinue any portion of the Licensed Software at any time upon ninety (90) days prior written notice where such discontinuance applies to all or substantially all of ATL’s customers of such Licensed Software.
6. Maintenance and Updates. ATL may automatically update the Licensed Software, from time to time in its sole discretion, including any of the services, software or databases contained therein, with any updates prepared for commercial release. Licensee hereby authorizes ATL to update, maintain, and modify the Licensed Software. Without limiting the generality of the foregoing, ATL may, from time to time, establish or change various practices, limitations, and restrictions for administering such Licensed Software.
7. Ownership and Copyrights; Announcements. ATL is the sole owner of all rights, title and interest in the PortControl Services and all ATL software provided thereunder, including the software and services and all customized and derivative works based upon them, and including all copies thereof and all copyright, patent, trademark, trade secret rights and other intellectual property rights embodied therein (individually and collectively, the “Intellectual Property”), and Licensee acknowledges that it has no proprietary interest in the Intellectual Property. No licenses will be deemed to have been granted by ATL to the Licensee regarding any of the Intellectual Property except as expressly authorized herein. Licensee agrees not to, and not to allow others to, modify, copy, or reverse engineer the Services or any of the underlying software. The Third-Party Vendors are the sole owners of their respective Third-Party Software, including all customized and derivative works based upon them, and including all copies thereof and all copyright, patent, trademark, trade secret rights and other intellectual property rights embodied therein. All rights not specifically granted in this Agreement are reserved by ATL and, as applicable, by its Third-Party Vendors. No implied rights are granted. Upon Licensee’s written consent (including by email), Licensee shall participate in either or both a press release and case study with ATL announcing Licensee’s use of the Licensed Software (“Press Release” and “Case Study”, respectively).
8. Licensee’s Obligations to Protect the Licensed Software. As a continuing condition of the licenses granted herein, Licensee covenants to use the Licensed Software only for the purposes set forth in this Agreement and for no other purpose, and shall use commercially reasonable efforts to protect the Licensed Software from unauthorized use, reproduction, publication or distribution.
9. Lawful Use. Licensee (by and through itself and its authorized users) shall at all times use the Licensed Software in full compliance with all laws and regulations and shall not use the Licensed Software in any manner that ATL would reasonably find inconsistent with its good business reputation.
10. Responsibility for Internet Security. Licensee shall be solely responsible for obtaining and using its own anti-virus, anti-Trojan, anti-malware and internet security software and appliances. ATL does not warrant that the Licensed Software or the applicable host server(s), or any data viewed from or downloaded from the Licensed Software, will be safe or free of viruses, worms, Trojan programs or other malware or destructive mechanisms. Licensee is solely responsible for using appropriate internet and network security devices and/or software to ensure that no third parties (e.g. hackers) take advantage of the fact that Licensee’s computers are connected to the internet or are accessing Licensed Software through the internet.
11. User Accounts and Security. Licensee shall promptly provide ATL or applicable Third Party Vendors with complete and accurate information required to establish a logon identity and password for Licensee’s authorized individual users so they may access the Licensed Software. Licensee is solely responsible for maintaining the confidentiality of the user IDs and passwords of its authorized users, and for logging out of Licensee’s account at the end of each session. Neither ATL nor its Third Party Vendors will be responsible for any losses or damages incurred as a result of an unauthorized use of Licensee’s account. Licensee shall notify ATL immediately of any unauthorized use of Licensee’s logon identities or passwords so that ATL may take appropriate actions.

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.

12.2. ATL may terminate this Agreement and the licenses granted herein immediately in the event Licensee breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days following its receipt of written notice thereof. For purposes of this provision, ATL may provide written notice by sending notice to Licensee at the email address set forth in the ATL Quote. Either Party may immediately terminate the Agreement upon written notice if the other Party: (a) becomes or is declared insolvent or bankrupt pursuant to Section 23 herein; (b) is the subject of any proceeding related to voluntarily or involuntarily liquidation or insolvency which is not dismissed within ninety (90) Days; or (c) makes an assignment for the benefit of creditors. Additionally, ATL may, without refund, at its sole discretion, terminate or suspend rights to the Licensed Software, effective immediately, due to Licensee’s violation of any state or federal laws, regulations or statutory codes, or Licensee’s falsification of personal or company information, including, but not limited to, name, email address, mailing address, phone number, etc. If the licenses granted under this Agreement expire or terminate, Licensee shall immediately cease using the applicable Licensed Software, shall destroy all copies of the Licensed Software within Licensee’s possession, custody or control, and shall promptly certify in writing to ATL that it has destroyed all copies of them, in any and all forms and media, within its possession, custody or control. Licensee acknowledges and agrees that in the event a license expires or terminates, ATL may remotely disable or otherwise remove the applicable Licensed Software from Licensee’s use without further notice or approval.
12.3. Specifically, as it relates to any ATL Services or Licensed Software, upon termination of the Agreement by Licensee, additional fees may result from said termination depending on the nature and scope of the ATL Services provided under this Agreement and the ATL Quote.
13. Remedies. In the event Licensee breaches or defaults upon any covenant, warranty, term or condition of this Agreement, ATL may pursue any legal or equitable remedies available to it under the laws of the state of Oregon or the applicable laws of the United States. The parties agree that in the event of a breach of any of the covenants pertaining to ATL’s Intellectual Property rights or Confidential Information, such a breach will result in irreparable and continuing damage in an amount which is not readily ascertainable and for which there will be no adequate remedy at law. In the event of any breach of such covenants, ATL shall be entitled to injunctive relief and such other and further relief, including damages, as may be provided by law.
14. Notice of Claims. You must notify ATL in writing of any claim you have against ATL within ninety (90) days following your knowledge of such claim or the claim shall be barred, and you will have waived any right to proceed against ATL on such claim. Nothing herein shall limit or preclude any statutory limitations on the assertion of claims.
15. Survival of Terms Upon Termination. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration (in whole or in part) shall survive any such termination or expiration and continue in full force and effect, including but not limited to Sections 7, 13.3, 15, 16, 17, 20, 21, 22 and 25.4-25.12.
16. Confidential Information. The Licensed Software and all other information ATL may disclose to Licensee in connection with the Licensed Software, shall be considered ATL’s Confidential Information, which ATL discloses only subject to a license agreement. Licensee agrees that it and its employees, agents and representatives shall: (i) keep ATL’s Confidential Information strictly confidential, and shall not disclose such information to any other person or entity without the express written consent of ATL; (ii) limit internal disclosure of the Confidential Information solely to its employees, agents and representatives who must be apprised of the Confidential Information to advance the purposes of this Agreement, and only to the extent that they must be apprised for those purposes; (iii) contractually bind all such persons to honor the confidentiality and use restrictions imposed upon the Licensee; (iv) use the Confidential Information solely for the purpose of using the Licensed Software as licensed by ATL in this Agreement; and (v) upon demand, immediately surrender to ATL the Confidential Information and all notes, records, documentation, models, software, databases and other items or materials containing such Confidential Information. Confidential Information shall not include: (i) information that is in, or enters into, general public access without breach of this Agreement through no fault of Licensee; (ii) information Licensee was demonstrably in possession of prior to receiving it from ATL; (iii) information Licensee can demonstrate was developed by Licensee independently of, and with neither use of nor reference to, ATL’s Confidential Information; and (iv) information Licensee receives from a third party without restriction on disclosure and without breach by such third party of a nondisclosure obligation. The obligations set forth herein shall survive the expiration or termination of this Agreement and the ATL Quote for the shorter of a period of three (3) years or such longer period as required by law, regulation, or court order; or the time at which the Confidential Information ceases to be confidential or proprietary, provided, however, that the data comprising the Licensed Software shall remain subject to confidentiality obligations stated herein indefinitely. The recipient any Confidential Information shall return or destroy the Confidential Information upon request of the disclosing party, provided that it shall not be obligated to destroy copies held in electronic archives or backup systems until such time as such copies would be destroyed in the normal course of business and provided that all such copies shall continue to be treated under the terms of this Agreement.

17. Warranty of Original Development. ATL warrants that any PortControl software is, and will be, of original development by ATL.

18. Independent Contractors. Each party is an independent contractor under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto. Neither party shall have the authority to enter into agreements of any kind on behalf of the other party and shall not have the power or authority to bind or obligate the other party in any manner to any third party.
19. Limitation of Warranties. Other than the warranties expressly set forth in this Agreement, ATL makes no other warranties, express or implied, and the Licensed Software shall be provided on an “as is” and “as available” basis. ATL specifically disclaims, to the fullest extent allowed by law, all implied warranties, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose and any warranties under the Uniform Computer Informational Transactions Act, as may be adopted by any jurisdiction from time to time. ALL SUCH WARRANTIES BEING EXPRESSLY EXCLUDED. WITHOUT LIMITING THE FOREGOING, ATL, ITS AFFILIATES, AND ITS THIRD-PARTY VENDORS MAKE NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY SERVICES INCLUDING THE ATLAS SERVICES AND PORT CONTROL SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE DEFECT OR ERROR FREE OR THAT SOFTWARE DEFECTS WILL BE CORRECTED. NO EMPLOYEE OR AGENT OF ATL IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT.

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).


24.8. 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.