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TERMS OF SERVICE

EFFECTIVE:  NOVEMBER 1, 2014

THESE TERMS OF SERVICE ("TERMS") CONSTITUTE A CONTRACT BETWEEN YOU AND PORTADI AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.

By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an "Entity"), You are agreeing to these Terms for that Entity and representing to Portadi that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms "Subscriber," "You," "Your" or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.

1. DEFINITIONS

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

Account: means all Portadi accounts created by or on behalf of Subscriber within the Service.

Confidential Information: means all information disclosed by You to Portadi or by Portadi to You which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’’s Confidential Information.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by Portadi to You or End-Users through the Site or otherwise.

End-User: means any person or entity other than Subscriber with whom Subscriber interact using the Service.

Form: means any Portadi generated service order form executed or approved by You with respect to Your subscription to the Service, which form may detail, among other things, the number of End-Users authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.

Other Services: means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your Portadi Service.

Personal Data: means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.

Processing/To Process: means any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

Service: means the on-demand Portadi service solution and tools provided by Portadi, including, individually and collectively, Software, the API and any Documentation. Any new or modified features added to or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service ("Updates") are also subject to these Terms and Portadi reserves the right to deploy Updates at any time.

Service Plan: means the service plan and the functionality and services associated therewith (as detailed on the Site) for which You subscribe.

Site: means www.portadi.com and other websites that Portadi operates

Software: means software provided by Portadi (either by download or access through the Internet) that allows You or End User to use any functionality in connection with the Service.

Subscription Term: means the period during which You have agreed to subscribe to the Service.

Your Data: means all electronic data, text, messages or other materials submitted to the Service by You and End-Users in connection with Your use of the Service, including, without limitation, Personal Data.

Portadi: means Portadi, Inc., a Delaware corporation or any of its successors or assignees. In these Terms, Portadi may also be referred to through the use of "We" or "Our."

Portadi Group: means Portadi together with all other entities that control, are controlled by or under common control with Portadi.

2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE

2.1 During the Subscription Term and subject to compliance by You and End Users with these Terms, You have the limited right to access and use the Service consistent with the Service Plan You subscribe to for Your internal business purposes.

2.2 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (b) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (c) falsely imply any sponsorship or association with Portadi, (d) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (g) use the Service to knowingly link to any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (h) use the Service to knowingly link to any viruses, malware, Trojan horses, time bombs, or any other similar harmful software ("Malicious Software"); or (i) try to use, or use the Service in violation of these Terms.

2.3 You are responsible for compliance with the provisions of these Terms by End Users and for any and all activities that occur under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service is accurate or sufficient for Your purposes. You are responsible for maintaining the confidentiality of all Login information for Your Account.

2.4 Portadi reserves the right, in Portadi’’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which Portadi will use commercially reasonable efforts to notify You in advance) ("Planned Downtime"); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You or End Users. We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific time zone) and other off-peak hours.

3. DATA PRIVACY AND SECURITY; CONFIDENTIALITY

3.1 Subject to the express permissions of these Terms, You and Portadi will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between You and Portadi entered prior to these Terms that would purport to address the confidentiality of Your Data and such agreement shall have no further force or effect with respect to Your Data.

3.2 Portadi will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data.

3.3 You agree that Portadi and the service providers We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests.

Portadi may also access or disclose information about You, Your Account, or End Users, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Portadi’s or its customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.

3.4 We collect certain information about You and End Users as well as Your and their respective devices, computers and use of the Service. We use, disclose, and protect this information as described in Our Privacy Policy, the then-current version of which is available at www.portadi.com/privacy and is incorporated into the Terms.

Your Data is currently hosted by Portadi or its authorized service partners in data centers located in the United States.

4. INTELLECTUAL PROPERTY RIGHTS

Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to You and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Portadi. Portadi shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You or End Users. Portadi®, and Portadi’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Portadi (collectively, "Marks"), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Portadi, its services or products.

5. THIRD PARTY SERVICES

If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against Portadi with respect to such Other Services. Portadi is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting Portadi to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.

6. Not used.

7. BILLING, PLAN MODIFICATIONS AND PAYMENTS

7.1 Unless otherwise indicated on a Form referencing these Terms and subject to Section 7.2, all charges associated with Your access to and use of the Service ("Subscription Charges") are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You and End Users.

7.2 If You choose to upgrade Your Service Plan during Your Subscription Term (a "Subscription Upgrade"), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.

7.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Portadi does not accept any liability for such loss. Portadi reserves the right to contact You about special pricing if You put excessive stress on the Service.

7.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes except those assessable against Portadi based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

7.5 If You pay by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Portadi, or they may obtain a receipt from within the Service to track subscription status. You hereby authorize Portadi to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan until you terminate your Subscription, and you further agree to pay any Subscription Charges so incurred. Portadi uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for Portadi.

8. CANCELLATION AND TERMINATION

8.1 Either You or Portadi may elect to terminate Your Account and subscription to the Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences.

8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.

9. DISCLAIMER OF WARRANTIES

THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PORTADI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT PORTADI DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM PORTADI OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

10. LIMITATION OF LIABILITY

10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, PORTADI’’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PORTADI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PORTADI HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.

10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, PORTADI’’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

11. INDEMNIFICATION

11.1 Portadi will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party’’s valid patent, copyright, trademark or trade secret (an "IP Claim"). Portadi shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Portadi for such defense, provided that (a) You promptly notify Portadi of the threat or notice of such IP Claim, (b) Portadi will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim, and (c) You fully cooperate with Portadi in connection therewith. If use of the Service by You or End Users has become, or in Portadi’’s opinion is likely to become, the subject of any such IP Claim, Portadi may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Portadi, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to Portadi for the corresponding unused portion of Your Subscription Term. Portadi will have no liability or obligation under this Section 11.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Portadi; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.

The provisions of this Section 11.1 state the sole, exclusive and entire liability of Portadi to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You or End Users.

11.2 You will indemnify and hold Portadi harmless against any claim brought by a third party against Portadi arising from or related to use of the Service by You or End Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that Portadi promptly notifies You of the threat or notice of such a claim.

12. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Portadi’’s prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the Portadi Group or in connection with any merger or change of control of Portadi or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

12.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Portadi with regard to the subject matter hereof. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which you represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof.

12.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Portadi as Your consent to any such amendment. Portadi’’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

13. SEVERABILITY

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

14. EXPORT COMPLIANCE AND USE RESTRICTIONS

The Service and other Software or components of the Service which Portadi may provide or make available to You or End Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, Software or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You and End Users are located.

15. RELATIONSHIP OF THE PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

16. SURVIVAL

Sections 1, 3, 4 and 9-17 shall survive any termination of our agreement with respect to use of the Service by You or End Users. Termination of such agreement shall not limit Your or Portadi’’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

17. GOVERNING LAW

These Terms shall be governed by the laws of the State of California without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, Santa Clara County, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by You or End Users.