These Porter Terms of Service (the "Agreement") are entered into by and between Rare Circles Inc. dba Porter ("Porter", "we" or "us") and the entity identified as the client in an Order Form that references this Agreement ("Client" or "you"). If you accept this Agreement on behalf of a company, you represent that you are authorized to bind that company, and all references to "you" or "Client" mean that company.
The "Effective Date" of this Agreement is the earlier of: (a) the effective date of the first Order Form referencing this Agreement, or (b) Client's initial access to any Services.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING ANY SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS CONTAINED OR REFERENCED IN THIS AGREEMENT. IF CLIENT DOES NOT AGREE, CLIENT MUST NOT USE THE SERVICES.
1. STRUCTURE AND DEFINITIONS
1.1 Agreement Components
This Agreement includes: (a) these terms and conditions; (b) any exhibit, schedule, data processing addendum, or policy expressly incorporated by reference; (c) the Porter Privacy Policy, available at [porter.so/privacy-policy], which is incorporated into and made part of this Agreement; and (d) each Order Form. Each Order Form is incorporated into this Agreement, and the applicable portions of this Agreement are incorporated into each Order Form. In the event of a conflict, the following order of precedence applies unless an Order Form expressly and specifically provides otherwise: (i) the applicable Order Form, solely with respect to the subject matter addressed in that Order Form; (ii) these terms and conditions; and (iii) any incorporated exhibit, schedule, or policy.
1.2 Definitions
"Affiliate" means any entity that controls, is controlled by, or is under common control with a party, where "control" means the power to direct the management and policies of an entity, whether through ownership of voting securities, contract, or otherwise.
"AI" means artificial intelligence, machine learning, or similar technology.
"AI Output" means any transcript, summary, score, rating, evaluation, insight, answer, report, or other result generated by the Services from Client Data, including results returned by the Porter query and analytics features.
"Beta Offerings" means pre-release services, features, or functions identified as alpha, beta, preview, or early access.
"Biometric Identifier" means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry, and any information based on such an identifier used to identify a specific individual, in each case as those terms are defined under applicable biometric privacy Laws.
"Carrier" means any mobile network operator, wireless carrier, messaging aggregator, or messaging platform provider that transmits, routes, filters, or delivers messages sent through a Messaging Program.
"Claim" means any civil, criminal, administrative, regulatory, or investigative action or proceeding commenced or threatened by a person or entity other than Client or Porter or their respective Affiliates, including by any governmental authority or regulatory agency.
"Client Data" means all data, content, and materials submitted to or collected through the Services by or on behalf of Client, including Recordings, transcripts, Client Materials, account information, and AI Output.
"Client Materials" means any scoring rubric, evaluation criteria, sales script, playbook, training content, brand guideline, or similar material provided by Client to Porter or uploaded to the Services.
"Credits" means the prepaid units of consumption included with a subscription as stated in the applicable Order Form, comprising AI Credits and Telephony Credits.
"Forwarding Number" means a telephone number provisioned by Porter and made available to Client for the purpose of capturing Recordings where Client does not connect the Services directly to its own telephony provider.
"Documentation" means the technical user documentation Porter makes available for the Services.
"Feedback" means comments, ideas, questions, suggestions, or other feedback relating to any Porter product or service. Feedback does not include Client Data.
"Intellectual Property Rights" means all patents, trademarks, copyrights, trade secrets, moral rights, publicity rights, privacy rights, and other proprietary rights now existing or hereafter arising, together with all applications, renewals, and extensions, in any jurisdiction.
"Laws" means all applicable local, state, provincial, federal, and international laws, regulations, and conventions, including those relating to privacy, data protection, biometric information, electronic surveillance, wiretapping, call and conversation recording, employment, and employee monitoring.
"Messaging Program" has the meaning given in Section 14.1, and the terms of the Porter Messaging Program are set out in Section 17.
"Messaging Rules" means all Law and all industry, Carrier, and platform requirements applicable to application-to-person messaging, including the Telephone Consumer Protection Act and its implementing regulations, applicable state telemarketing and telephone consumer protection statutes, the CTIA Messaging Principles and Best Practices, applicable RCS Business Messaging policies and agent verification requirements, and the published codes of conduct, acceptable use policies, and brand, campaign, sender, and agent registration requirements of each applicable Carrier, in each case as amended from time to time.
"Order Form" means any order form, subscription document, statement of work, purchase document, online order flow, or other ordering record that references this Agreement.
"Permitted User" means an individual employee or contractor of Client or its Affiliate who is authorized by Client to access the Services under a licensed seat.
"Professional Services" means coaching, sales training, rubric development, implementation, enablement, or other advisory or consulting services described in an Order Form or statement of work.
"Recording" means any audio or audiovisual recording of a sales conversation captured, uploaded to, or processed by the Services, whether the conversation occurs by telephone, by video, or in person.
"Recorded Individual" means any individual whose voice or image is captured in a Recording, including Client's personnel and any other participant in or bystander to the recorded conversation.
"Sensitive Personal Information" means: (i) payment card data subject to PCI DSS; (ii) patient, medical, or other protected health information regulated by HIPAA and not covered by a duly executed business associate agreement with Porter; (iii) government-issued identification numbers; (iv) Biometric Identifiers; or (v) any personal data in a "special category" as defined under the EU General Data Protection Regulation or any successor regulation.
"Services" means Porter's proprietary sales conversation recording, transcription, scoring, coaching, and analytics platform, together with any Professional Services, in each case as described in the applicable Order Form.
"Subscription Term" means the initial term and each renewal term for a subscription as set out in the applicable Order Form.
"Taxes" means any sales, use, GST, HST, value-added, withholding, or similar taxes or levies, other than taxes based on Porter's net income, property, or employees.
"Third-Party Platform" means any software, service, or data source not provided by Porter that is integrated with or accessible through the Services.
2. THE SERVICES
2.1 Services Overview
The Services enable Client to record, transcribe, review, score, and analyze sales conversations conducted by Client's personnel; to apply Client Materials as scoring criteria; to deliver summaries, evaluations, and coaching feedback to Client's personnel; and to query aggregated results across Client's account. The Services are an internal sales enablement and coaching tool.
For clarity, the Services do not include and Porter does not provide outbound calling or messaging to Client's customers or prospects, inbound answering of Client's calls or messages, or any communication by Porter with any customer, prospect, or other third party on Client's behalf. Porter's own notifications to Permitted Users are governed by Sections 14 and 17.
2.2 Provision of Services
Each Service is provided on a subscription basis for the Subscription Term set out in the Order Form. Porter will (a) make the Services available in accordance with this Agreement, the applicable Order Form, and the Documentation; (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned maintenance and any unavailability caused by circumstances beyond Porter's reasonable control; and (c) provide the Services in compliance with the Laws applicable to Porter's provision of the Services to its clients generally, without regard to Client's particular use.
Porter has no obligation to provide any Services until an Order Form has been executed or otherwise accepted by authorized representatives of the parties. The existence of this Agreement does not obligate Porter to agree to any Order Form.
2.3 Access and Seats
The Services are licensed on a per-seat basis. Client may access and use the Services solely for its own internal business purposes and only to the extent subscribed for under an Order Form.
A seat is occupied by one Permitted User at a time and may not be used concurrently by more than one individual. Client may reassign a seat to a different Permitted User at any time, including where an individual leaves Client's employment or changes role. Client will not reassign seats for the purpose of extending access to more individuals than the number of seats licensed.
Client is responsible for all activity occurring under its account and for maintaining the confidentiality of all credentials. Credentials are issued to named individuals and may not be shared. If a Permitted User ceases to be an employee or contractor of Client, Client will promptly deactivate that user's access.
Client controls all role assignments and permission levels within its account, including which Permitted Users may access Recordings, transcripts, AI Output, and analytics relating to other Permitted Users. Porter is not responsible for Client's internal access decisions.
2.4 Changes to Seat Count
Adding seats. Client may add seats at any time. Additional seats are charged in advance on a pro-rata basis for the remainder of the then-current Subscription Term at the per-seat rate in the applicable Order Form, and access is provided once payment is received.
Reductions during a term. Client may not reduce its licensed seat count during a Subscription Term. No credit, refund, or fee reduction is available for seats that go unused or for personnel who leave Client's employment during a term.
Adjustments at renewal. Client may increase or decrease its licensed seat count effective as of the start of a renewal term by giving Porter written notice at least sixty (60) days before the end of the then-current term, being the same notice period that applies to non-renewal under Section 8.2. A reduction may not bring the licensed seat count below three (3) seats. Absent timely notice, the Order Form renews at the seat count then in effect.
2.5 Mobile Applications
Where the Services include a mobile application, Porter grants Client a limited, non-exclusive, non-transferable, non-sublicensable licence for Permitted Users to install and use that application on devices they own or control, solely to access the Services during the Subscription Term. The application may require access to device permissions including the microphone, storage, and, where enabled by Client, location. Client is responsible for ensuring its Permitted Users are informed of and consent to such device access, and for compliance with the terms of any applicable application marketplace.
2.6 General Restrictions
Client will not, and will not permit any third party to: (a) use the Services to create any software or documentation similar to the Services, or to build a competing product or service; (b) disassemble, decompile, reverse engineer, or use any other means to attempt to discover the source code or underlying ideas, algorithms, or organization of the Services, except to the extent expressly permitted by applicable Law and then only on advance written notice to Porter; (c) encumber, sublicense, transfer, rent, lease, or distribute any aspect of the Services, or use the Services to provide any product or service to a third party; (d) copy, create derivative works of, or otherwise modify the Services or Documentation; or (e) permit any third party to do any of the foregoing. Use of Forwarding Numbers. Where Client uses a Forwarding Number, Client will not, and will not permit any Permitted User or third party to: (i) place or route calls to emergency, medical, utility, or other lifeline services; (ii) use a Forwarding Number to obtain a verification or authentication code, or to circumvent any telephone-based verification system; (iii) use a Forwarding Number for unsolicited marketing calls, bulk or broadcast messaging, or ringless voicemail; (iv) use Forwarding Numbers in a manner that occupies two or more lines of a multi-line business simultaneously; or (v) use a Forwarding Number in any manner that violates applicable telecommunications Law or the acceptable use policy of any underlying carrier. Porter may suspend or reclaim any Forwarding Number immediately, without liability, on direction from a carrier or where Porter reasonably believes this paragraph has been breached.
Client will not remove or obscure any proprietary notice contained in the Services or in any report or data generated by the Services, publicly disseminate benchmarking or performance information regarding the Services without Porter's prior written consent, or use the Services in violation of any Law. Client will promptly notify Porter in writing of any unauthorized use, reproduction, or distribution of the Services.
2.7 Beta Offerings
Client may elect to use Beta Offerings in its sole discretion. Beta Offerings may be modified or discontinued at any time without notice, may not become generally available, and are provided for Client's internal evaluation only. Porter disclaims all warranties, indemnities, support obligations, and service level commitments with respect to Beta Offerings. CLIENT USES BETA OFFERINGS "AS IS" AND AT ITS OWN RISK.
3. RECORDING, CONSENT, AND COMPLIANCE
This Section 3 is fundamental to this Agreement. Client's compliance with this Section is a condition of Client's right to use the Services.
3.1 Client Controls All Recording
Recording is an act performed by Client, using the tools Porter provides. Porter does not decide who is recorded, when a Recording begins or ends, where a Recording takes place, or who else is present. Porter is not a participant in any recorded conversation.
Client acknowledges that recording a conversation is regulated in most jurisdictions, that the governing standard differs between them, and that some jurisdictions require the agreement of every participant rather than only one. Because Porter has no visibility into the circumstances of any individual Recording, Porter cannot and does not verify whether a required consent was sought, whether it was given, or who was within range of the recording device.
Determining which rules apply to a given Recording, and satisfying them before that Recording begins, is Client's responsibility alone.
3.2 In-Person and Field Recording
Client acknowledges that in-person recording presents distinct risks. A Recording made in a residence, place of business, or other physical location may capture the voice or image of individuals who are not parties to the sales conversation, including household members, occupants, minors, employees of the customer, and bystanders, and may capture conversations occurring in areas where individuals have a reasonable expectation of privacy.
Client will ensure that its personnel: (i) obtain any required consent from all individuals whose voices or images may reasonably be captured before beginning a Recording; (ii) do not record in any area where recording is prohibited by Law or by the property owner or occupant; (iii) cease recording immediately upon request by any participant or upon entering any location where recording would be inappropriate or unlawful; and (iv) do not record any conversation in which Sensitive Personal Information is reasonably likely to be discussed.
3.3 Client Representations, Warranties, and Covenants
Client represents, warrants, and covenants that:
(a) Training. Every individual who uses the recording features of the Services has been trained, before first use, to obtain consent in the manner required by the Law applicable to that individual's location and to the location of the other participants.
(b) Multi-jurisdiction diligence. Client has determined which jurisdictions its Recordings are subject to, has identified those requiring the agreement of every participant, and has adjusted its practices in each accordingly. Client acknowledges that a single conversation may be subject to the Law of more than one jurisdiction, including where participants are in different states.
(c) Rights and consents. Client has obtained all rights, authorizations, and consents required to make each Recording, to provide all Client Data to Porter, and for Porter to process that Client Data as contemplated by this Agreement.
(d) No infringement. Porter's use of Client Data in accordance with this Agreement will not infringe, misappropriate, or otherwise violate the rights of any Recorded Individual or other third party.
(e) Written policy. Client maintains a written policy governing the use of the recording features of the Services, and has distributed it to all personnel who use those features.
(f) Records. Client creates and retains records sufficient to demonstrate that the consents and acknowledgments required under this Section were obtained, including records of employee acknowledgment of Client's recording policy. Client will retain those records for the longer of the applicable limitations period and three (3) years, and will make them available to Porter on written request where relevant to a Claim or to a regulatory inquiry.
(g) No unlawful uploads. Client will not upload to the Services any recording made in violation of applicable Law, or any recording made outside the Services where the required consents were not obtained.
(h) Notification. Client will notify Porter promptly, and in any event within five (5) business days, of any Claim, complaint, demand, or regulatory or law enforcement inquiry received by Client that relates to a Recording, to Client's recording practices, or to the monitoring or evaluation of Client's personnel through the Services.
Client acknowledges that Porter relies on each of the foregoing representations, warranties, and covenants in agreeing to provide the Services, and that Porter would not provide the Services in their absence.
3.4 Employee Notice and Monitoring
Client acknowledges that the Services monitor, evaluate, and score the performance of Client's personnel. As between the parties, Client is solely responsible for:
(a) providing all notices to and obtaining all consents from its personnel required under applicable employment, labour, privacy, and electronic monitoring Laws, including any written electronic monitoring policy required in Client's jurisdictions of operation;
(b) compliance with any applicable collective bargaining agreement or works council requirement; and
(c) responding, in the first instance, to any request, complaint, or rights request from any of its personnel relating to Recordings, transcripts, scores, or evaluations.
3.5 Consent Capture Features
Porter may make available features intended to assist Client in obtaining or evidencing consent, including in-product disclosure prompts, recorded or logged consent steps, and consent records associated with individual Recordings. Porter may require the use of any such feature as a condition of continued access to the recording features of the Services, on reasonable prior notice to Client.
Any such feature is provided as an aid only. Availability of a consent capture feature does not transfer responsibility for obtaining consent to Porter, does not constitute legal advice, and does not diminish Client's obligations under this Section 3.
3.6 Suspension for Unlawful or Non-Compliant Recording
Porter may suspend Client's access to the recording features of the Services, in whole or in part, immediately and without liability, where Porter reasonably believes that: (i) Recordings are being made in violation of applicable Law; (ii) Client is in breach of this Section 3; or (iii) continued recording presents a material legal or regulatory risk to Porter.
Porter will notify Client of any suspension and, where practicable, will provide Client an opportunity to remedy the circumstances giving rise to it. Suspension under this Section does not relieve Client of its obligation to pay Fees, does not entitle Client to any credit or refund, and is not a breach or default by Porter. Porter will restore access once it is reasonably satisfied that the circumstances giving rise to the suspension have been resolved.
3.7 Client Insurance
Client will obtain and maintain, throughout the term of this Agreement and for a period of two (2) years following its expiration or termination, insurance coverage adequate to meet its obligations under this Agreement, including commercial general liability coverage and coverage responsive to claims arising from the recording of conversations, the handling of personal information, and privacy-related statutory claims, in each case at limits customary for businesses of Client's size and industry. Client will provide a certificate of insurance on Porter's written request.
3.8 No Sensitive Personal Information
Client will not use the Services to collect, store, process, or transmit Sensitive Personal Information. Porter is not a payment card processor, the Services are not PCI DSS compliant, and Porter is not subject to any obligation that would otherwise apply to Sensitive Personal Information submitted in contravention of this Section.
3.9 Biometric Identifiers
The Services distinguish between speakers within an individual Recording in order to attribute segments of a conversation, and attribute identity based on account, seat, device, or conversation metadata supplied by Client. The Services do not create, capture, store, or use persistent voiceprints or other Biometric Identifiers, and do not match voice data from one Recording against voice data from any other Recording for the purpose of identifying an individual.
Client will not use the Services to collect or generate Biometric Identifiers. If Porter introduces any feature that would collect, capture, or store a Biometric Identifier, Porter will provide advance written notice to Client, that feature will be made available only on an opt-in basis, and Porter will implement the separate notice, written consent, retention, and destruction requirements applicable under biometric privacy Laws before that feature is enabled.
3.10 Client Indemnity
Client will indemnify, defend, and hold harmless Porter and its Affiliates and their respective officers, directors, employees, and agents from and against any and all Claims, losses, liabilities, damages, expenses, and costs, including reasonable legal fees and court costs, arising out of or relating to: (a) any Recording; (b) any Client Data or Client Materials; (c) any breach by Client of this Section 3 or of Section 14; (d) any claim by any Recorded Individual or by any of Client's personnel relating to recording, monitoring, evaluation, or any employment action; (e) Client's use of any Third-Party Platform or any Forwarding Number; or (f) Client's gross negligence or wilful misconduct.
Porter will provide Client with prompt written notice of any Claim and give sole control of the defence and settlement to Client, and will cooperate with Client, its insurance company, and its legal counsel in the defence of such Claim; provided that Client will not, without Porter's prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed), (a) settle or compromise any Claim in a manner that imposes any liability or obligation on Porter, (b) admit liability or fault on behalf of Porter, or (c) consent to any relief or undertaking that would impose any material obligation, restriction, or burden on Porter.
4. AI OUTPUT AND SCORING
4.1 Nature of AI Output
The Services use AI, including large language models provided by third parties, to generate transcripts, summaries, scores, evaluations, insights, and answers to queries. Client acknowledges that AI Output is probabilistic and generated automatically. AI Output may contain material inaccuracies, may misattribute statements, may misinterpret context, tone, or intent, and may not reflect correct, current, or complete information.
Porter makes no representation or warranty and provides no indemnity with respect to the accuracy, completeness, reliability, or fitness for any purpose of any AI Output.
4.2 Scoring Is Based on Client's Own Criteria
Scores and evaluations are generated by applying Client Materials supplied by Client. Client is solely responsible for the content, design, fairness, accuracy, and legality of its Client Materials, including the selection and weighting of any criterion. Porter does not review, validate, or approve Client Materials and does not represent that any rubric or evaluation criterion is fair, accurate, non-discriminatory, or compliant with any Law.
4.3 Decision Support Only
AI Output is provided for informational and coaching purposes only and is intended solely as decision support. AI Output does not constitute a recommendation, determination, or assessment of any individual's suitability for employment, continued employment, promotion, or compensation.
Client agrees that it will not use AI Output as the sole or primary basis for any hiring, termination, discipline, demotion, compensation, promotion, or other consequential employment decision. Client will ensure that any such decision is subject to meaningful human review by a qualified person who considers information beyond the AI Output.
Client is solely responsible for all employment decisions affecting its personnel and for compliance with all Laws governing the use of automated or AI-assisted tools in employment decisions, including any applicable notice, consent, impact assessment, bias audit, or disclosure requirement. Client acknowledges that such Laws vary by jurisdiction and are subject to change, and that determining their application to Client's use of the Services is Client's responsibility.
4.4 Human-Generated Content
Client will not represent AI Output as having been generated by a human where doing so would be misleading or would violate any Law.
5. CLIENT DATA AND PRIVACY
5.1 Ownership
As between the parties, Client owns and retains ownership in the Client Data and Client Materials.
5.2 Licence to Porter
Client grants Porter a non-exclusive, worldwide, royalty-free right and licence to access, use, host, store, reproduce, process, transmit, display, and create derivative works of Client Data and Client Materials in order to: (a) provide, maintain, secure, support, and improve the Services; (b) configure and operate scoring, evaluation, transcription, analytics, and query features; (c) develop, train, test, and improve Porter's models, algorithms, and Services; and (d) create aggregated and de-identified data as described in Section 5.3.
Client agrees that Porter is free to use and disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) acquired during provision of the Services under this Agreement.
5.3 Aggregated and De-Identified Data
Porter may create aggregated, de-identified, or anonymized data derived from Client Data, including by removing information that makes the data personally identifiable to a particular individual ("Aggregated Data"). Porter may use and disclose Aggregated Data for its lawful business purposes during and after the term of this Agreement, including to analyze, build, and improve the Services and promote its business, provided that Porter will not disclose Aggregated Data in a manner that could identify Client or any individual. This includes the production and publication of industry benchmarks, research, and reports.
5.4 Third-Party AI Providers
Porter may send Recordings, transcripts, and related usage data to third-party AI and transcription services that process this information on Porter's behalf so that Porter may deliver the Services, including generating summaries, insights, scores, and quality metrics. Porter requires each such provider to protect that data and to use it only to provide services to Porter. Porter contractually restricts such providers from using Client Data to train or otherwise improve their own general-purpose models or services.
5.5 Privacy and Data Processing
Porter processes personal information contained in Client Data as a service provider and processor acting on Client's documented instructions. As between the parties, Client is the controller of such personal information and is responsible for ensuring that it is collected in compliance with applicable Law, including by providing any required notices and obtaining informed consent where necessary, and for responding to data subject requests in the first instance. Porter's processing is further described in the Porter Privacy Policy and, where applicable, in a data processing addendum executed by the parties.
5.6 Security
Porter will maintain commercially reasonable technical, organizational, and administrative safeguards designed to protect Client Data against unauthorized access, use, alteration, disclosure, or destruction, including encryption of Recordings in transit and at rest and role-based access controls. No method of transmitting or storing data is completely secure, and Porter does not warrant that its safeguards will be sufficient in all circumstances.
5.7 Retention and Deletion
Porter will retain Client Data for the duration of the Subscription Term. Porter does not provide an archiving or data escrow service.
Porter has no obligation to retain, store, return, or make available any Client Data following expiration or termination of the applicable Subscription Term, and may delete Client Data at any time thereafter without further notice. Client is responsible for retrieving, downloading, or otherwise preserving any Client Data it wishes to retain before the Subscription Term expires or terminates. Where Client requests a copy of Client Data following termination, Porter may, in its discretion and without obligation, provide one, subject to Client's account being in good standing and to Porter's then-current fees for that work.
Porter may retain Aggregated Data and may retain Client Data to the extent required to comply with Law or to establish or defend a legal claim.
Client is responsible for deleting individual Recordings from the Services where required to do so by Law or by any consent it has obtained.
6. PROFESSIONAL SERVICES
6.1 Scope
Where an Order Form or statement of work provides for Professional Services, Porter will perform those services by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. Professional Services may include coaching sessions, sales training, assistance developing or refining Client Materials, implementation, and enablement, in each case as scoped in the applicable Order Form or statement of work.
Professional Services are limited to the scope, quantity, and delivery period stated. Unused sessions, hours, or deliverables do not carry over beyond the applicable Subscription Term and are not refundable or exchangeable.
6.2 No Guarantee of Results
Porter makes no representation, warranty, or guarantee of any kind regarding the results Client may obtain from Professional Services, including any guarantee of increased revenue, close rate, average ticket, conversion rate, retention, or individual or team performance. Client acknowledges that outcomes depend on factors outside Porter's control, including Client's market, personnel, pricing, lead quality, and execution.
6.3 Advisory Only
Porter is not Client's employment adviser, legal adviser, or human resources consultant. Any recommendation Porter provides regarding evaluation criteria, coaching practices, performance management, compensation structure, or personnel is advisory only. Client is solely responsible for evaluating and implementing any recommendation and for its compliance with applicable Law.
6.4 Ownership of Deliverables
This is not a work-for-hire agreement. Porter retains all right, title, and interest in and to its methodologies, frameworks, templates, training materials, know-how, and any tools or materials developed or used by Porter in performing Professional Services, together with all improvements thereto. Subject to payment in full, Porter grants Client a non-exclusive, non-transferable, worldwide licence to use the deliverables provided to Client for Client's internal business purposes during and after the Subscription Term.
Client Materials supplied by Client remain the property of Client. Where a deliverable incorporates Client Materials, Client retains ownership of those Client Materials.
6.5 Scheduling and Delivery
Sessions cancelled or rescheduled by Client with less than [48] hours' notice, and sessions for which Client's personnel fail to attend, are deemed delivered and are chargeable. Where Professional Services are delivered on-site, Client will reimburse Porter's reasonable pre-approved travel and accommodation expenses.
7. FEES AND PAYMENT
7.1 Fees
Client will pay all fees set out in the applicable Order Form (the "Fees"). The Fees include all seat-based fees, all fees for Professional Services, and any overage charges incurred as a result of Client's use of the Services in excess of the allotments, limits, or thresholds specified in the Order Form.
Except as otherwise set out in an Order Form, all Fees are due and payable in U.S. dollars on the first day of the applicable Subscription Term, and Fees are billed in advance, in a single up-front payment for the initial term and for each renewal term. Porter may issue invoices up to thirty (30) days prior to the start of the applicable term. Client has no right of offset or withholding under this Agreement.
7.2 Non-Refundable
ALL FEES ARE NON-REFUNDABLE AND ARE NOT SUBJECT TO CREDIT, PRORATION, OR OFFSET FOR ANY REASON, INCLUDING CLIENT'S NON-USE OF THE SERVICES, REDUCTION IN CLIENT'S HEADCOUNT, OR TERMINATION OF THIS AGREEMENT BY CLIENT. The sole exception is the remedy expressly stated in Section 12 (Porter Indemnification).
7.3 Renewal Pricing
All Fees and per-seat pricing increase by five percent (5%) at each renewal of the applicable Subscription Term. This adjustment applies automatically as of the start of each renewal term, compounds at each subsequent renewal, and is reflected in the first invoice issued for each renewal term.
This adjustment is independent of any other pricing change agreed by the parties in writing. Porter may otherwise adjust pricing to its then-current list price upon renewal on sixty (60) days' written notice given prior to the start of the renewal term.
7.4 Credits, Overage, and Carrier Costs
(a) Allotment. Each subscription includes an allotment of Credits as stated in the applicable Order Form. Credits are consumed in two ways: AI Credits, consumed by queries submitted to Porter's analytics and query features and by any other feature identified as credit-consuming in the Documentation; and Telephony Credits, consumed on a per-minute basis for calls captured through a Forwarding Number. Credits are allotted per account, not per seat, and may be consumed by any Permitted User.
(b) Direct integrations. Where Client connects the Services directly to its own telephony provider, no Telephony Credits are consumed for calls captured through that integration. Telephony Credits are consumed only where Client elects to use a Forwarding Number provided by Porter.
(c) No rollover; no refund. Unused Credits expire at the end of each allotment period, do not roll over, and are not refundable or exchangeable for cash or fee credits.
(d) Overage. Where Client's consumption exceeds its allotment, the Services continue to operate and the excess is billed in arrears at the overage rates stated in the applicable Order Form. Porter is under no obligation to notify Client in advance of, or upon, exhaustion of an allotment, and Client is responsible for monitoring its own consumption. Client's designated administrator may view current consumption within the account at any time.
(e) Throttling and suspension. Notwithstanding subsection (d), Porter may throttle, pause, or suspend credit-consuming features where consumption materially exceeds normal usage patterns, where it threatens platform performance or availability, or where accrued overage charges remain unpaid. Porter will give notice where practicable.
(f) Carrier and third-party costs. Certain telecommunications costs are imposed on Porter by underlying carriers and are not within Porter's control, including number provisioning and porting charges, surcharges applicable to particular geographies or number types, and carrier access or messaging fees. Porter may pass these costs through to Client, and Client agrees to pay them.
(g) Fair use. Credit-consuming features are intended for interactive use by human users. Client will not submit queries by automated, scripted, or programmatic means, or resell or provide third-party access to those features.
(h) Measurement. Porter's records of Credit consumption and call minutes are determinative absent manifest error.
7.5 Recording Volume Fair Use
Seat-based Fees assume recording and processing volumes consistent with ordinary use of the Services by an individual in a selling role. Where an Order Form states a recording or processing allotment, that allotment applies. Where it does not, Client's usage is expected to remain broadly consistent with normal usage patterns across Porter's client base for comparable roles.
Where Client's recording or processing volume materially and persistently exceeds those levels, Porter will notify Client and the parties will discuss in good faith either a reduction in volume or an adjustment to Fees reflecting actual processing costs. Porter may throttle or suspend processing that threatens platform performance or availability, on notice where practicable.
7.6 Taxes
All Fees are exclusive of, and Client is responsible for, all Taxes assessed in connection with this Agreement. If Porter is required to collect or pay any such Taxes, the amounts will be invoiced to and paid by Client unless Client provides Porter with a valid tax exemption certificate acceptable to the relevant taxing authority. If Client is required by Law to withhold any amount, the Fees payable will be increased so that Porter receives and retains the amount it would have received had no withholding been made.
7.7 Late Payment and Suspension
Any amounts not paid by Client when due are subject to interest charges, from the date due until paid, at the rate of two percent (2%) per month or the highest rate allowable by Law, whichever is less, with such interest accruing daily.
If any invoice remains unpaid more than thirty (30) days after its date, Porter may, at its option and without further notice, suspend or deactivate Client's account and access to the Services, in whole or in part, until all past-due amounts together with all accrued interest have been paid in full. Any such suspension does not relieve Client of its obligation to pay all Fees and other amounts due, and is not a breach or default of any of Porter's obligations. If any invoice remains unpaid more than sixty (60) days after its date, Porter may terminate the affected account, the applicable Order Form, or this Agreement on written notice, and all unpaid Fees and other amounts then outstanding, together with accrued interest, become immediately due and payable.
Amounts disputed by Client in good faith and in writing will not constitute a monetary breach so long as Client timely pays all undisputed amounts.
7.8 Collection Expenses
If Porter incurs any costs, expenses, or fees, including reasonable legal fees and professional collection service fees, in connection with the collection of any amounts due to it under this Agreement, Client will reimburse Porter for all such costs, expenses, and fees.
8. TERM AND TERMINATION
8.1 Term
This Agreement is effective on the Effective Date and continues until the expiration or termination of all Order Forms.
8.2 Subscription Term and Renewal
The initial Subscription Term for each Order Form is as stated in that Order Form. Unless the Order Form expressly provides otherwise, each Subscription Term is one (1) year and renews automatically for successive one-year terms, at the seat count then in effect, unless either party gives the other written notice of non-renewal at least sixty (60) days before the end of the then-current term.
Notice of non-renewal takes effect at the end of the then-current Subscription Term. It does not terminate this Agreement or any Order Form early, does not suspend Client's obligation to pay Fees for the remainder of that term, and does not entitle Client to any refund or credit. Client retains access to the Services for the balance of the term for which it has paid.
Notice of non-renewal must be in writing. Email to the address designated in Section 16.5 is acceptable.
8.3 Termination for Cause
Either party may terminate this Agreement or an applicable Order Form in the event of a breach by the other party of a material covenant, commitment, or obligation that remains uncured: (i) in the case of a monetary breach, ten (10) calendar days following written notice (provided that non-payment is first subject to Section 7.7, and amounts disputed in good faith and in writing do not constitute a monetary breach so long as all undisputed amounts are timely paid); and (ii) in the case of a non-monetary breach, thirty (30) days following written notice. Such termination is effective automatically upon expiry of the applicable notice period, and is in addition to any other remedies available to the non-breaching party.
Either party may terminate this Agreement immediately on written notice if the other party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding relating to its liquidation or solvency that is not dismissed within ninety (90) days of filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors.
8.4 Effect of Termination
Termination of this Agreement for any reason does not discharge either party's liability for obligations incurred and amounts unpaid at the time of termination. If Client terminates this Agreement or any Order Form for any reason other than a material breach by Porter, or attempts to do so prior to the end of the then-current Subscription Term, Client remains liable for the full amount of Fees due for the remainder of the applicable term of the Order Form, and all unpaid Fees become immediately due and payable upon such termination.
Upon expiration or termination, Client will immediately cease all use of the Services and will delete or, at Porter's request, return all Documentation, credentials, and other Porter Confidential Information in its possession. Client Data is handled in accordance with Section 5.7.
8.5 Survival
Sections 2.6, 3.3, 3.7, 3.8, 3.9, 3.10, 4, 5.1, 5.2, 5.3, 5.7, 6.2, 6.3, 6.4, 7, 8.4, 8.5, 9, 10.2, 11, 13, 16, and 17 survive any expiration or termination of this Agreement. In addition, each term and provision of this Agreement that should by its sense and context survive any termination or expiration will so survive, regardless of the cause and even if resulting from the material breach of either party.
9. INTELLECTUAL PROPERTY
Porter owns and retains all right, title, and interest in and to the Services, including all software, interfaces, and technology contained therein, all improvements, enhancements, modifications, and derivatives thereof, all Intellectual Property Rights therein, and any machine learning models and algorithms developed as part of the Services. Except for the limited rights expressly granted in this Agreement, no right, title, or interest in the Services is granted to Client.
If Client shares Feedback with Porter, Client agrees that Porter is free to use such Feedback without any restriction or compensation to Client.
10. WARRANTY AND DISCLAIMER
10.1 Limited Warranty
Porter represents and warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. Porter's sole liability and Client's sole and exclusive remedy for breach of this warranty is for Porter to use commercially reasonable efforts to re-perform or correct the non-conforming Services at no additional charge, provided Client notifies Porter in writing within thirty (30) days of first noticing the non-conformity.
This warranty does not apply where the non-conformity results from misuse, unauthorized modification, Client Data, Client Materials, or any Third-Party Platform, and does not apply to Beta Offerings or Services provided on a no-charge, trial, or evaluation basis.
10.2 Disclaimer
THE WARRANTY SET FORTH IN SECTION 10.1 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT, OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. PORTER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, PORTER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT ANY RECORDING WILL BE SUCCESSFULLY CAPTURED, TRANSMITTED, PROCESSED, OR RETAINED; THAT ANY TRANSCRIPT WILL BE ACCURATE OR COMPLETE; OR THAT ANY SCORE, EVALUATION, SUMMARY, INSIGHT, OR OTHER AI OUTPUT WILL BE ACCURATE, CONSISTENT, RELIABLE, FAIR, OR SUITABLE FOR ANY PURPOSE. PORTER IS NOT LIABLE FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT IN RELIANCE ON ANY AI OUTPUT.
PORTER MAKES NO WARRANTY REGARDING THE DELIVERY, TIMING, ROUTING, OR RENDERING OF ANY MESSAGE SENT THROUGH A MESSAGING PROGRAM, OR THE AVAILABILITY OF ANY RCS CAPABILITY OR SMS FALLBACK, AND CARRIERS ARE NOT LIABLE FOR ANY DELAYED OR UNDELIVERED MESSAGES.
PORTER IS NOT LIABLE FOR DELAYS, INTERRUPTIONS, OR FAILURES INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, MOBILE NETWORKS, DEVICES, OR THIRD-PARTY PLATFORMS OUTSIDE PORTER'S REASONABLE CONTROL.
11. LIMITATION OF LIABILITY
EXCEPT FOR EITHER PARTY'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, CLIENT'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 3.10, PORTER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, EITHER PARTY'S BREACH OF SECTION 13, CLIENT'S BREACH OF SECTION 2.6, SECTION 3, OR SECTION 14, OR CLIENT'S PAYMENT OBLIGATIONS UNDER SECTION 7 (collectively, "Excluded Claims"), IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, LOST DATA, FAILURE OF SECURITY MECHANISMS, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND EXCEPT FOR EXCLUDED CLAIMS, PORTER'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO PORTER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
NO ACTION MAY BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
The limitations in this Section apply regardless of the form of action and survive and apply even if any limited remedy in this Agreement is found to have failed of its essential purpose. They do not apply to the extent liability cannot be limited under applicable Law.
12. PORTER INDEMNIFICATION
Porter will defend Client against any third-party Claim alleging that the Services infringe that third party's Intellectual Property Rights, and will indemnify Client against damages and costs finally awarded or agreed in settlement by Porter, provided that Porter receives prompt written notice of the Claim, sole control of the investigation, defence, and settlement, and Client's reasonable cooperation.
If Client's use of the Services is or is likely to be enjoined, Porter may, at its option: (a) substitute functionally equivalent services; (b) procure the right for Client to continue using the Services; or, if neither is commercially reasonable, (c) terminate this Agreement and refund the prepaid Fees attributable to the unexpired portion of the Subscription Term.
This indemnity does not apply to any Claim arising from: (1) modification of the Services by anyone other than Porter; (2) combination of the Services with products or processes not provided by Porter; (3) unauthorized use of the Services; (4) Client Data, Client Materials, or any Recording; (5) features common to any similar product or service rather than Porter's particular implementation; (6) any Third-Party Platform; or (7) Client's settlement of or admission regarding a Claim without Porter's prior written consent.
THIS SECTION 12 SETS OUT PORTER'S SOLE LIABILITY AND CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
13. CONFIDENTIAL INFORMATION
Each party, as receiving party, agrees that all code, inventions, know-how, and business, technical, and financial information it obtains from the other party constitutes the confidential property of the disclosing party ("Confidential Information"), provided it is identified as confidential at the time of disclosure or should reasonably be understood as confidential given its nature and the circumstances of disclosure. Porter's technology, performance information relating to the Services, and the terms of this Agreement are deemed Porter's Confidential Information without further designation. Client Data and Client Materials are deemed Client's Confidential Information without further designation.
The receiving party will hold Confidential Information in confidence, will not disclose it to third parties, and will not use it for any purpose other than exercising its rights and performing its obligations under this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors, and subprocessors having a legitimate need to know, provided they are bound by confidentiality obligations no less protective than this Section and the receiving party remains responsible for their compliance.
These obligations do not apply to information the receiving party can document: (i) was in its possession or known to it before receipt; (ii) is or becomes public through no fault of the receiving party; (iii) is rightfully obtained from a third party without breach of any confidentiality obligation; or (iv) is independently developed without access to the Confidential Information.
The receiving party may disclose Confidential Information to the extent required by Law or court order, provided it gives advance notice where permitted and cooperates in any effort to obtain confidential treatment.
Each party acknowledges that unauthorized disclosure would cause harm for which damages alone would be an insufficient remedy, and that the disclosing party is entitled to seek equitable relief in addition to any other remedy.
14. MESSAGING PROGRAMS; ALLOCATION OF RESPONSIBILITY
14.1 Porter-Operated Programs
Porter may operate one or more application-to-person ("A2P") messaging programs delivered by SMS, MMS, or RCS Business Messaging (each, a "Messaging Program") through which Porter sends product and service notifications to individuals who have opted in. For each Porter-operated Messaging Program, Porter is the sender of record and is responsible, as between the parties, for compliance with the Messaging Rules with respect to that program. The terms of each Messaging Program are set out in Section 17.
14.2 Contact Information Provided by Client
Client will not provide, upload, or otherwise make available to Porter the mobile telephone number of any individual unless Client has the authority to do so and has informed that individual that his or her contact information may be used by Porter to send product and service notifications. Client represents and warrants that it has obtained all rights, authorizations, and consents necessary under the Messaging Rules for Porter to contact each such individual at the number provided. Client acknowledges that Client cannot grant consent on any individual's behalf, and that Porter will obtain each individual's own opt-in consent before enrolling that individual in a Messaging Program.
Client will keep its user records within the Services accurate and current, including by deactivating any individual who ceases to be a Permitted User and by correcting or removing any mobile telephone number that is no longer valid or no longer associated with that individual.
14.3 No Interference with Enrollment or Opt-Out
Client will not require, direct, or pressure any individual to enroll in or remain enrolled in a Messaging Program, and will not represent to any individual that enrollment is a condition of accessing or using the Services. An individual's decision to decline enrollment or to opt out of a Messaging Program does not constitute a breach of this Agreement by Client.
Porter will make equivalent notifications available within the Services to all Permitted Users regardless of whether they enroll in a Messaging Program.
15. PUBLICITY
Client grants Porter the right to include Client's name and logo in its marketing materials, customer lists, and on Porter's website, provided that such use is truthful and does not misrepresent Client's relationship with Porter. Client may revoke this consent at any time upon written notice to Porter.
16. GENERAL TERMS
16.1 Governing Law; Venue; Waivers
(a) Direct resolution. In the event of any dispute arising from or relating to this Agreement, the parties will first use good faith efforts to resolve it directly. If the parties cannot reach a resolution within thirty (30) days of written notice of the dispute, either party may proceed as set out below.
(b) Governing law and venue. This Agreement is governed by and interpreted in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without giving effect to conflict of laws principles. Subject to subsections (c) and (d), Client submits to the exclusive personal jurisdiction and venue of the provincial and federal courts located in Calgary, Alberta.
(c) Collection actions. Notwithstanding subsection (b), Porter may bring an action to collect unpaid Fees or other amounts due under this Agreement in any court of competent jurisdiction, including in any jurisdiction where Client is located, maintains assets, or conducts business. Client agrees that any such court has personal jurisdiction over Client for those purposes and waives any objection based on personal jurisdiction, venue, or forum non conveniens.
(d) Interim and equitable relief. Notwithstanding subsection (b), either party may seek temporary, preliminary, or permanent injunctive relief, specific performance, or other equitable relief in any court of competent jurisdiction to protect its Intellectual Property Rights, Confidential Information, or other proprietary rights.
(e) Waiver of jury trial; class actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS REPRESENTATIVE, OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING.
(f) Legal fees. The prevailing party in any proceeding permitted under this Section is entitled to recover its reasonable legal fees, expert fees, and costs from the non-prevailing party, in addition to any other relief awarded.
16.2 Assignment
Neither party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned, or delayed; provided that either party may, without the other party's consent, assign this Agreement in its entirety to (a) an Affiliate, or (b) a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided the assignee agrees in writing to be bound by this Agreement. Any purported assignment in violation of this Section is null and void.
16.3 Severability
If any provision or portion of this Agreement is rendered by applicable Law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions remain in full force and effect. If the class action waiver in Section 16.1(e) is found unenforceable as to any claim, that claim will be severed and stayed pending resolution of the remaining claims.
16.4 Headings; Construction
The headings appearing in this Agreement have been inserted for convenience and ready reference and do not define, limit, or extend the scope or intent of the provisions to which they relate. This Agreement is the result of negotiations between the parties. Accordingly, this Agreement will not be construed more strongly against either party regardless of which party is more responsible for its preparation, and any ambiguity will not be construed against the drafting party.
16.5 Notices
All notices required under this Agreement must be in writing and are deemed effective when received and made by (i) hand delivery, (ii) registered mail, (iii) certified mail return receipt requested, (iv) overnight mail, or (v) email, addressed to the party to be notified at the address or contact information set out in the applicable Order Form or to such other address as that party specifies by like notice. Notices to Porter may be sent to [legal@porter.so] or to Rare Circles Inc. dba Porter, ATTN: Porter, 708-454 de la Gauchetiere Ouest, Montreal, QC, Canada, H2Z 1E3.
16.6 Rights Cumulative
The rights and remedies of the parties provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by Law or equity.
16.7 Waiver
No waiver of any term or right in this Agreement is effective unless in writing and signed by an authorized representative of the waiving party. The failure of either party to enforce any provision is not a waiver or modification of that provision, or an impairment of its right to enforce that provision or any other provision thereafter. No term of any purchase order or other business form issued by Client will supersede or modify this Agreement.
16.8 Entire Agreement; Modification; Updates
This Agreement, together with all Order Forms and incorporated exhibits and policies, is the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communication, whether written, oral, electronic, or otherwise. Each party acknowledges that it is not relying upon any representation or statement made by the other party or its employees, agents, representatives, or attorneys regarding this Agreement, except to the extent expressly set out in this Agreement.
Notwithstanding the foregoing, Porter may modify, update, or revise this Agreement from time to time by posting an updated version at [porter.so] and providing Client notice by email, in-product notice, or other reasonable means. Unless otherwise stated in the notice, the updated Agreement becomes effective on the date specified in the notice. Client's continued access to or use of the Services after that notice and effective date constitutes acceptance of the updated Agreement; provided that any updated Agreement applies prospectively and will not materially diminish Client's rights or materially increase Client's obligations with respect to an Order Form already in effect during its then-current term, except to the extent required by applicable Law or expressly agreed in the applicable Order Form.
Porter may modify the Services from time to time to improve them, provided that no modification will materially reduce the core functionality subscribed for during the then-current Subscription Term.
16.9 Counterparts; Electronic Acceptance
Order Forms may be executed in one or more counterparts, each of which is deemed an original, but all of which together constitute one and the same instrument. An executed signature page delivered by electronic signature or other electronic means is as effective as an original. Acceptance of this Agreement by clickwrap, checkbox, or similar electronic means is a valid and binding acceptance to the same extent as a handwritten signature.
16.10 Force Majeure
Neither party is liable for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labour disputes, terrorism, pandemics, epidemics, public health emergencies, quarantines, or acts of God.
16.11 Independent Contractors
The relationship of the parties is that of independent contractors. Nothing in this Agreement, and no course of dealing between the parties, creates or implies an employment or agency relationship or a partnership or joint venture between the parties. Neither party has authority to bind or contract any obligation in the name of or on account of the other, or to make any statements, representations, warranties, or commitments on behalf of the other.
16.12 Subpoenas
Nothing in this Agreement prevents Porter from disclosing Client Data to the extent required by Law, subpoena, or court order. Porter will use commercially reasonable efforts to notify Client where permitted to do so.
16.13 Export Control and Sanctions
Each party will comply with all applicable export control, economic sanctions, and import Laws, and represents that it is not listed on any government list of prohibited or restricted parties and is not located in or a national of any country subject to a comprehensive embargo or sanctions program.
17. PORTER MESSAGING PROGRAM TERMS (SMS, MMS, AND RCS)
This Section 17 sets out the terms of the Porter messaging program and applies directly to each individual who enrolls in that program, whether or not that individual is a party to the remainder of this Agreement. If you enroll in the program, "you" in this Section 17 means you as an individual subscriber. Nothing in this Section 17 requires you to enroll, and enrollment is not a condition of accessing or using the Services. Notwithstanding the order of precedence set out in Section 1.1, this Section 17 may not be modified, waived, or superseded by any Order Form.
17.1 Program and Brand Name
The program is the Porter messaging program (the "Program"), which is operated and sent by Rare Circles Inc. dba Porter.
17.2 Program Description
Enrolled subscribers receive notifications triggered by activity in their own Porter account. The categories sent are: appointment and conversation recording reminders; processing notifications confirming that a transcript, summary, or score is ready; coaching notifications, including requests to review a conversation, complete a coaching session, or respond to manager feedback; periodic activity and performance summaries; review request and completion notices; and account, login verification, and administrative messages. Marketing and promotional messages are not sent through the Program.
17.3 Message Frequency
Message frequency varies.
17.4 Message and Data Rates
Message and data rates may apply. Porter does not charge you for Program messages, but your wireless carrier may charge you for messages you send and receive according to your plan. Please contact your wireless provider for details about your plan.
17.5 How to Opt Out
Reply STOP to cancel.
You may opt out of the Program at any time by replying STOP to any Program message. You may also reply END, QUIT, CANCEL, or UNSUBSCRIBE. After you opt out, Porter will send a single message confirming that you have been unsubscribed, and you will not receive further Program messages unless you opt in again. You may also opt out by turning off text notifications in your account preferences within the Services, or by contacting [support@porter.so].
17.6 Customer Care and Help
For help, reply HELP to any Program message. Porter will reply with the Program name and how to reach us. You may also contact us at [support@porter.so].
17.7 Privacy
Information collected in connection with the Program is handled in accordance with the Porter Privacy Policy, available at [porter.so/privacy-policy]. This is the same Privacy Policy URL disclosed in the Program opt-in flow. Text messaging originator opt-in data and consent will not be shared with any third parties, excluding aggregators and providers of the text message services.
17.8 Carrier Liability
Carriers are not liable for any delayed or undelivered messages.
17.9 Supported Carriers and Devices
The Program is available on most major wireless carriers in the United States. Carriers are not required to support the Program, and carrier support may change without notice. RCS features, including branded sender information and rich cards, depend on your device, operating system, and carrier; where RCS is unavailable, messages may be delivered as SMS or MMS instead.
17.10 Changes to Your Mobile Number
If you change your mobile number, or stop using the number enrolled in the Program, please update your preferences by contacting Porter at [support@porter.so] or by replying STOP from the enrolled number so that Porter's records remain current. Porter additionally screens enrolled numbers against industry number-change and reassignment data and removes numbers that are no longer held by the enrolled subscriber. Nothing in this Section implies that a subscriber is at fault for changing or giving up a number without first opting out.
17.11 Eligibility
You must be at least 18 years old and the owner or authorized user of the mobile number you enroll. You may not enroll a mobile number that does not belong to you.
17.12 Changes to This Section
Porter may update this Section 17 in accordance with Section 16.8. If Porter makes a material change to the Program, including a change to the types of messages sent or the message frequency, Porter will notify enrolled subscribers and, where required by the Messaging Rules, obtain renewed consent.
End of Terms of Service.