Last Updated: March 31, 2023
The following Terms and Conditions (the “PL Terms”) set forth the provisions applicable to the use by a Client (defined below) of the supply chain customization and integration technology software solution services (the “PorterLogic Services”) provided by PorterLogic, Inc., a Georgia corporation (“PorterLogic”), made available by an authorized reseller of PorterLogic providing other related software or services to Client (the “Reseller”). For purposes of these PL Terms, the “Client” is a person or entity that has contracted with a Reseller for the Reseller’s provision of certain other related software or services and who has subscribed for access to the PL Services in connection with such Reseller software or services, pursuant to the terms of an agreement between Client and Reseller (the “Reseller Contract”). In the event of any conflict between the terms of the Resell Contract and these PL Terms, these PL Terms will govern and apply with respect to the PL Services. All Clients are required to acknowledge their agreement to these PL Terms, in writing or electronically (which may be included in the Reseller Contract or may be a separate acknowledgment).
1. Provision of PL Services.
a. Subject to the terms and conditions of these PL Terms, during the applicable term of Client’s order with the Reseller for the PL Services (the “Order”), PorterLogic (i) will provide the PL Services set forth in the Order to the Client; and (ii) grants to Client a limited, nontransferable, nonexclusive license for Client’s authorized personnel (“End Users”) with appropriate access authority (as assigned by Client or Reseller, as applicable) (x) to access over the Internet and use the PL Services solely for Client’s own account; and (y) to use the user documentation and any other operating, training and reference manuals (including, without limitation, any modifications or derivative works thereof) supplied to Client (the “Documentation”) as reasonably necessary for Client’s internal use related to the licenses granted under this Section 1(a). If set forth in the Order or otherwise in the configuration of the PL Services, such licenses are granted solely in connection with Client’s authorized use of the third party software with which the PL Services are intended to exchange Client Data (the “Covered Software”).
b. Client and its End Users will not, directly or indirectly, (i) license, sell, redistribute, lease or otherwise transfer or assign any of the PL Services or Documentation; (ii) alter or permit a third party to alter any part of the PL Services or Documentation; (iii) permit any third party other than an End User with appropriate access authority, to access or the use the PL Services or Documentation; (iv) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the PL Services or Documentation; (v) access or use the PL Services on equipment that does not possess the System Requirements (defined below); or (vi) use the PL Services for any unlawful purpose. Client will ensure that the End Users adhere to the terms of these PL Terms, including without limitation the terms of Section 1 of these PL Terms, and will be liable for its’ End Users’ breach of these PL Terms.
2. Configuration of Services.
a. From time to time, PorterLogic may make enhancements or customizations to the PL Services. Any intellectual property created in the course of implementing and providing the PL Services, whether by PorterLogic alone or jointly with Client, will be and remain the exclusive property of PorterLogic, and Client assigns any of its rights, interest or title in or to the same to PorterLogic.
b. PorterLogic may from time to time update the functionality, features, user interface, user documentation, training and educational information, and any other aspects of or relating to the PL Services in its sole discretion, provided that such changes do not materially adversely affect the functionality of the PL Services. PorterLogic does not make any guarantee as or warranty as to the quality of transmission of data over telephone, digital subscriber lines or any other method of Internet delivery, including, without limitation, server downtimes or other network related problems.
c. PorterLogic may establish, from time to time, minimum computer system, browser and equipment (including, without limitation, mobile device operating system) requirements (the "System Requirements"), for the equipment from which and with which the PL Services should be accessed so that all licensed functionalities are operational; the System Requirements are set forth at www.porterlogic.com/resources/system-requirements, or such other URL as PorterLogic may select from time to time. Client may be required to purchase software, hardware or services (such as Internet access services) in order to utilize the PL Services or satisfy the System Requirements, as may be amended by PorterLogic from time to time. Client will be solely responsible for all such software, hardware and services.
d. Client is responsible for determining and assigning access levels and authority to the PL Services to its End Users and for maintaining the confidentiality of all usernames, passwords and related information (collectively, "Access Credentials") assigned to or connected with its account. Client will not permit the sharing of Access Credentials and related information by the End Users. If an End User leaves the employ of Client or transfers to an unrelated position in Client's employ, Client may designate a replacement End User without charge. Client acknowledges that, from and after completion of implementation, Client is solely responsible for maintaining its configuration of the PL Services and users, including, without limitation, adding/deleting workflows or changing access, user groups, roles and permissions, except as otherwise may be agreed to by PorterLogic pursuant to an Order with respect to the same.
e. From time to time, Client may provide PorterLogic with feedback, both positive and negative, regarding Client's and its End User's use of the PL Services, including, without limitation, details regarding ease of use, functionality, errors or problems accessing or using the PL Services, possible enhancements or modifications to the PL Services and other similar information (collectively, the "Feedback"). All of such Feedback will be owned by PorterLogic and be and be deemed to be proprietary and confidential information of PorterLogic, and Client will not use or disclose such Feedback to any third party.
3. Client Responsibilities.
a. In connection with the PL Services, Client will provide PorterLogic with certain data and information reasonably necessary for PorterLogic to perform the PL Services, including, without limitation, all Client Data. As used herein, the term “Client Data” means (i) information or data created or otherwise owned by Client, or licensed by Client from third parties (including, without limitation, any Client patients or clients) used in conjunction with the PL Services, including, without limitation, all access credentials necessary to enable the PL Services to access the Client’s systems or Client’s instance of the Covered Software and submit and retrieve Client Data from the Covered Software (“Covered Software Credentials”); or (ii) information or data output generated by the PL Services that is based on information or data supplied by the Client and is specific to Client.
b. Client hereby (i) grants PorterLogic and its third party providers and licensees the right to use, copy, modify, manipulate and create derivative works of such Client Data as necessary in order to perform the PL Services and as otherwise permitted by these PL Terms; and (ii) agrees to secure rights in the Client Data necessary for PorterLogic to provide the PL Services without violating the rights of any third party, violating the terms of Client’s license or subscription to the Covered Software, or otherwise obligating PorterLogic to Client or any third party (except as otherwise set out in these PL Terms). Client will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to its Client Data and all legally protectable elements or derivative works thereof. Client will use commercially reasonable efforts to prevent the transmission of any Trojan horse, malicious code, or other computer software code, routines or device designed to disable, damage, impair, erase or deactivate any data via the Client’s network or system to PorterLogic’s networks or systems.
c. PorterLogic may establish, from time to time, specifications (including file format, layout, file size and other specifications) applicable to Client Data submissions. When making submissions to PorterLogic, Client shall (i) electronically submit all Client Data in a format that strictly complies with such specifications; (ii) supply Client Data that is complete and accurate; and (iii) not include any personally identifiable information in the Client Data, except to the extent otherwise expressly agreed to by PorterLogic in writing. As between the parties, Client is solely responsible for the accuracy and completeness of the Client Data. In connection with the PL Services, PorterLogic may provide Client with automated tools to assist migrating Client Data identified and selected by Client from Client’s systems or software to the PL Services. Such tools are provided “as is” and without any warranty of any kind. Without limiting the generality of the terms of this Section 3(c) or the disclaimers in Section 4, it is the responsibility of Client and End Users to review, audit and confirm Client Data as uploaded, input or otherwise maintained in the PL Services to ensure that all such Client Data is accurate. Client, on its own behalf and on behalf of its End Users, agrees to hold PorterLogic harmless for any and all claims, errors or other damages resulting from inaccurate Client Data as submitted by Client to the PL Services.
d. Client is responsible for extracting or exporting any and all Client Data contained in the PL Services (if any) prior to expiration or termination of the applicable Order relating to such Services. Upon expiration or termination of any Order and unless otherwise agreed to by the parties in writing, PorterLogic will disable all Client accounts relating to the terminated Services and may delete the Client Data contained in those accounts in accordance with its data retention policies and procedures. Client agrees that notwithstanding any other term in these PL Terms, PorterLogic has no obligation to hold or return any Client Data. Client also agrees that PorterLogic has no liability for deletion of any Client Data pursuant to these terms.
f. Client grants PorterLogic the right to collect anonymized data about Client, its End Users and the Client Data ("System Data") by automated means, including, without limitation, data mining, robots, scraping and similar extraction tools. PorterLogic uses the System Data internally to diagnose technical problems, administer the PL Services, and improve its offerings and marketing, and also reserves the right to disclose, license and sell such anonymized and aggregated data to third parties in the course of PorterLogic's business. The System Data may include anonymized, de-identified and aggregated data, but does not include any personally identifiable information related to the user of the PL Services. Notwithstanding any term to the contrary set forth herein, Client agrees and consents to PorterLogic's collection, use and distribution of the System Data as set forth herein, and Client further agree that the System Data is PorterLogic's sole and exclusive property.
4. Disclaimer; Limitations on Liability. THE FULLEST EXTENT PERMISSIBLE BY LAW, THE PL SERVICES, INCLUDING WITHOUT LIMITATION ANY CONTENT OR DATA CONTAINED WITHIN THE PL SERVICES, AND PORTERLOGIC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PORTERLOGIC DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM THE PL SERVICES OR THAT THE PL SERVICES WILL BE ERROR-FREE. IN ADDITION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PORTERLOGIC WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE PL SERVICES OR ANY DATA CONTAINED THEREIN.
5. Indemnification. To the maximum extent permitted by law, Client agrees to indemnify, defend and hold PorterLogic, its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a "PorterLogic Indemnitee") harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and costs) paid or payable to a third party and resulting from any claim, suit, action, or proceeding brought by any third party against a PorterLogic Indemnitee arising out of Client’s material breach of Sections 3(b) or 3(e) of these PL Terms, violation of applicable law, gross negligence or willful misconduct. Client shall not, without the PorterLogic’s prior written consent, enter into any settlement or consent judgment that obligates PorterLogic Indemnitee to take, or refrain from taking, any action other than the payment of damages for which the PorterLogic Indemnitee is indemnified hereunder). Client shall permit PorterLogic to participate in the defense of any action subject to indemnification hereunder.
6. Proprietary Rights. Exclusive of Client Data, PorterLogic and its licensors will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the PL Services and all legally protectable elements or derivative works of the foregoing. Apex may place copyright and/or other proprietary notices, including hypertext links, within the PL Services and the Documentation, and neither Client nor any of its End Users will remove such notices without PL’s written permission.
7. Termination of Reseller Contract; Suspension of Services. In addition to any other rights of termination set forth elsewhere in these PL Terms, the licenses granted hereunder will terminate automatically upon the expiration or termination of the Reseller Contract. Client further acknowledges that PorterLogic has the right to suspend and terminate Client's access to the PL Services in (a) if PorterLogic believes Client’s or its End Users’ use of the PL Services represents a direct or indirect threat to the function or integrity of the PL Services, PorterLogic’s or its service providers’ system or networks, or any third party’s use of the PL Services; (b) if reasonably necessary to prevent unauthorized access to client data (including, without limitation, the Client Data); (c) to the extent necessary to comply with legal requirements; and (d) perform scheduled or emergency maintenance to maintain or modify its network infrastructure or proprietary rights.
8. Governing Law; Third Party Beneficiaries. THESE PL TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, EXCLUSIVE OF ITS CHOICE OF LAW RULES. In the event that any of the provisions of this agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited to the minimum extent necessary so that this agreement shall otherwise remain in full force and effect. PorterLogic is an express third party beneficiary of these PL Terms.