ORCA Evaluation and Access License Agreement
BY CLICKING "I AGREE" OR BY ACCESSING THE ORCA MATERIALS, LICENSEE CONFIRMS THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT, AND THAT THE INDIVIDUAL ACCEPTING HAS AUTHORITY TO BIND LICENSEE.
This ORCA Evaluation and Access License Agreement (this “Agreement”) is entered into by and between PortX, Inc., a Delaware corporation (“PortX”), and the individual or entity that accepts this Agreement by clicking “I Agree” or by accessing the ORCA Materials (“Licensee”). The “Effective Date” of this Agreement shall be the earlier of: (a) the date on which Licensee clicks “I Agree” or otherwise affirmatively accepts this Agreement; or (b) the date on which Licensee first accesses any ORCA Materials (as defined below). By clicking “I Agree” or accessing the ORCA Materials, Licensee agrees to be bound by the terms of this Agreement as of the Effective Date. If Licensee is accessing the ORCA Materials on behalf of an organization, the individual accepting this Agreement represents and warrants that they have authority to bind that organization.
1. Definitions
1.1 “ORCA Framework” means PortX’s proprietary Open and Reusable Core API framework, including its architecture, design patterns, data models, integration logic, and underlying methodology.
1.2 “ORCA Specification” means the technical specification documents, API definitions, schemas, data models, interface descriptions, and related documentation describing the ORCA Framework, as made available by PortX to Licensee under this Agreement.
1.3 “ORCA Code” means any source code, object code, sample code, libraries, or software components made available by PortX to Licensee under this Agreement in connection with the ORCA Framework.
1.4 “ORCA Materials” means, collectively, the ORCA Specification, ORCA Code, and any other documentation, materials, or information provided by PortX to Licensee under this Agreement, including sandbox or demonstration environment access.
1.5 “PortX Hosted Solution” means the proprietary software platform owned by PortX for core banking connectivity, API integration, and related financial technology services, whether operated by PortX directly or by a third party under an express written license from PortX.
1.6 “Developed Work” means any connector, integration, API, workflow, data mapping, configuration, software component, or other work product that: (a) is developed using, derived from, or informed by the ORCA Materials; (b) implements or is compatible with the ORCA Specification; or (c) would not have been created in its current form but for Licensee’s access to the ORCA Materials.
1.7 “Confidential Information” means the ORCA Materials and all other non-public technical, business, financial, or operational information disclosed by PortX to Licensee under this Agreement, whether or not marked as confidential, including the existence and terms of this Agreement.
1.8 “AI System” means any artificial intelligence, machine learning, deep learning, large language model, neural network, or other automated system capable of generating, predicting, classifying, or otherwise processing information based on patterns derived from training data.
1.9 “Feedback” means any suggestions, ideas, enhancement requests, evaluations, assessments, recommendations, or other feedback provided by Licensee to PortX relating to the ORCA Materials or the PortX Hosted Solution.
1.10 “Sandbox Environment” means a non-production, isolated instance of the PortX Hosted Solution made available by PortX to Licensee solely for evaluation purposes pursuant to Section 2.8, which may contain synthetic or fictitious data and does not reflect the full functionality, performance, or security standards of the production PortX Hosted Solution.
2. License
2.1 License Grant. Subject to the terms and conditions of this Agreement, PortX hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to access, review, and use the ORCA Materials and to create Developed Works, solely for the purpose of evaluating the ORCA Framework, and, if access to a Sandbox Environment is granted pursuant to Section 2.8, to access and use the Sandbox Environment solely in accordance with that Section.
2.2 Scope of Access. The specific ORCA Materials made available to Licensee shall be as determined by PortX in its sole discretion. PortX may provide access to ORCA Materials in stages or tiers, and nothing in this Agreement obligates PortX to provide access to any particular component of the ORCA Materials.
2.3 Restrictions. Licensee shall not, directly or indirectly:
- use the ORCA Materials for any purpose other than as expressly permitted under Section 2.1;
- copy, reproduce, distribute, publish, or disclose the ORCA Materials to any third party without PortX’s prior written consent;
- reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code, architecture, or underlying ideas of any component of the ORCA Materials, except to the minimum extent permitted by applicable law;
- modify, adapt, translate, or create derivative works based on the ORCA Materials, except as expressly permitted under Section 3 (Intellectual Property Ownership);
- sublicense, sell, rent, lease, transfer, or otherwise make the ORCA Materials available to any third party;
- remove, alter, or obscure any proprietary notices, labels, or markings on or in the ORCA Materials;
- use the ORCA Materials in any production environment without entering into a separate executed commercial agreement with PortX; or
- file or assist any third party in filing any patent application that claims or incorporates any invention, concept, or methodology derived from or informed by the ORCA Materials.
The restrictions in this Section 2.3 apply in addition to, and do not limit, the AI Training Prohibition set forth in Section 2.4.
2.4 AI Training Prohibition. Licensee shall not use the ORCA Materials, directly or indirectly, to train, fine-tune, develop, or improve any AI System, or incorporate the ORCA Materials or any portion thereof into any training, validation, or evaluation dataset for any AI System. Licensee shall not use outputs, summaries, abstractions, or derivatives of the ORCA Materials as training or fine-tuning data for any AI System, or use the ORCA Materials as a benchmark, evaluation dataset, or scoring mechanism for any AI System. Licensee shall not otherwise cause or permit the ORCA Materials to be ingested, processed, or utilized by any AI System in a manner that could result in the ORCA Materials or their functional equivalent being reproduced, generated, or approximated by such AI System. This prohibition applies regardless of whether such use is intentional or incidental, and regardless of whether the ORCA Materials constitute the primary or ancillary input to such AI System.
2.5 No Production Use; Platform Dependency. The license granted under this Agreement does not permit production use of any Developed Work or the ORCA Materials. Any production deployment requires Licensee to enter into a separate executed commercial agreement with PortX. Any such production deployment shall be permitted only in connection with the PortX Hosted Solution. For the avoidance of doubt, no platform that replicates, substitutes for, or is intended to displace the PortX Hosted Solution without an express written license from PortX shall qualify as a PortX Hosted Solution for purposes of this restriction.
2.6 Mutual Client Restriction. If Licensee’s access to the ORCA Materials arises in connection with a mutual client of PortX and Licensee, then: (a) the existence of such mutual client relationship creates no additional rights under this Agreement; (b) PortX’s obligations run solely to Licensee under this Agreement and separately to such mutual client under such client’s own agreement with PortX; and (c) Licensee shall not embed, incorporate, or otherwise include any confidential information or data of such mutual client in any Developed Work or Feedback submitted to PortX.
2.7 No Obligation to Provide Access. Nothing in this Agreement obligates PortX to make any particular ORCA Materials available to Licensee or to continue providing access once granted.
2.8 Sandbox Access. This Section applies only if Licensee requests access to a Sandbox Environment and PortX grants such access. The Sandbox Environment is provided as-is, on an as-available basis, solely for evaluation purposes, with no uptime commitment, performance guarantee, or support obligation, and PortX may modify, reset, or terminate it at any time without notice. Licensee shall use only synthetic, anonymized, or fictitious data in the Sandbox Environment and shall not input any real, personal, regulated, or third-party confidential data. Access credentials are personal to designated Licensee users, non-transferable, and may not be shared. Licensee shall not conduct any testing, scanning, or automated extraction on the Sandbox Environment. PortX may terminate Sandbox Environment access at any time, and termination of this Agreement automatically terminates such access.
3. Intellectual Property Ownership
3.1 ORCA Materials and Framework. As between the parties, PortX owns and shall retain all right, title, and interest in and to: (a) the ORCA Materials; (b) the ORCA Framework; (c) the PortX Hosted Solution; (d) the Sandbox Environment, if applicable; and (e) all intellectual property rights in each of the foregoing. Nothing in this Agreement transfers or conveys any ownership interest in the ORCA Materials, the ORCA Framework, the PortX Hosted Solution, or the Sandbox Environment to Licensee.
3.2 Developed Works.
3.2.1 Ownership. All Developed Works constitute derivative works of the ORCA Materials and works made within the scope of this Agreement. As between the parties, PortX owns and shall retain all right, title, and interest in and to all Developed Works, including all intellectual property rights therein, immediately upon creation, by virtue of: (a) PortX’s ownership of the ORCA Materials from which all Developed Works are derived; and (b) the terms of this Agreement.
3.2.2 Assignment. To the extent that any right, title, or interest in or to any Developed Work does not vest in PortX automatically by operation of law or the terms of this Agreement, Licensee hereby irrevocably assigns to PortX all such right, title, and interest, including all intellectual property rights therein, effective immediately upon creation. Licensee agrees to execute any documents and take any actions reasonably requested by PortX to evidence, perfect, or enforce PortX’s ownership of Developed Works. If Licensee is unable for any reason to execute such documents, Licensee hereby appoints PortX as its attorney-in-fact for the limited purpose of executing such documents on Licensee’s behalf.
3.2.3 Delivery of Developed Works. PortX may, at any time and in its sole discretion, request that Licensee deliver any or all Developed Works to PortX in such format and through such means as PortX may designate. Licensee shall comply with any such request promptly and in no event later than fifteen (15) days after receipt. PortX shall have sole and absolute discretion over whether to incorporate, modify, enhance, or otherwise use any Developed Work, and shall have no obligation to use, deploy, acknowledge, or provide any compensation for any Developed Work.
3.2.4 Derivation. Any connector, integration, or other work product developed by Licensee that is functionally compatible with or implements the ORCA Specification shall be evidence that such work may constitute a Developed Work subject to this Agreement.
3.3 Feedback. Licensee hereby irrevocably assigns to PortX all right, title, and interest in and to all Feedback. PortX may use Feedback for any purpose without restriction, compensation, or attribution to Licensee. Licensee waives any moral rights or similar rights in Feedback to the maximum extent permitted by applicable law.
3.4 Licensee IP Warranties and Indemnification.
3.4.1 Warranties. Licensee represents and warrants that, to the best of Licensee’s knowledge: (a) any Developed Work delivered to PortX will be Licensee’s original work or Licensee will have all rights necessary to make the assignment in Section 3.2.2; (b) no Developed Work will incorporate any third-party intellectual property without PortX’s prior written consent; and (c) no Developed Work will incorporate any confidential information of any third party, including any mutual client of PortX and Licensee.
3.4.2 Indemnification. Licensee shall defend, indemnify, and hold harmless PortX and its officers, directors, employees, agents, successors, and assigns from and against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any claim that a Developed Work infringes or misappropriates any third party’s intellectual property rights; (b) any claim arising from the inclusion of any third party’s confidential information in a Developed Work, regardless in each case of whether Licensee had knowledge thereof at the time of delivery; or (c) if Sandbox Environment access has been granted pursuant to Section 2.8, any claim arising from data Licensee inputs into the Sandbox Environment, including any claim arising from the exposure, loss, or unauthorized access to such data, regardless of whether PortX was aware of the nature of the data input by Licensee. PortX shall promptly notify Licensee of any such claim, grant Licensee sole control of the defense and settlement (provided no settlement may impose any obligation or admission of fault on PortX without its prior written consent), and provide reasonable cooperation at Licensee’s expense. These indemnification obligations are uncapped and in addition to all other remedies available to PortX.
4. Confidentiality
4.1 Confidentiality Obligations. Licensee shall: (a) hold all Confidential Information in strict confidence; (b) not disclose or make available any Confidential Information to any third party without PortX’s prior written consent; (c) use Confidential Information solely as permitted under this Agreement; and (d) protect Confidential Information using at least the same degree of care Licensee uses to protect its own confidential information of similar sensitivity, but in no event less than reasonable care.
4.2 Permitted Disclosure. Licensee may disclose Confidential Information only to its employees and contractors who: (a) have a genuine need to know such information for purposes of Licensee’s permitted activities under this Agreement; and (b) are bound by confidentiality obligations no less restrictive than those set forth in this Section. Licensee shall be responsible for any breach of this Section by its employees or contractors. If Licensee’s access to the ORCA Materials arises in connection with a mutual client of PortX and Licensee, then Licensee may disclose to such mutual client only the minimum Confidential Information reasonably necessary to obtain access to such mutual client’s systems for purposes of the evaluation, provided that: (a) such mutual client is bound by confidentiality obligations no less restrictive than those set forth in this Section; (b) Licensee does not disclose any evaluation results, assessments, or conclusions regarding the ORCA Materials without PortX’s prior written consent; and (c) Licensee notifies PortX of any such disclosure promptly and in advance where practicable.
4.3 Exceptions. The obligations in Section 4.1 shall not apply to information that Licensee can demonstrate: (a) was rightfully known to Licensee prior to receipt from PortX, without restriction; (b) is or becomes publicly available through no act or omission of Licensee; (c) is rightfully received by Licensee from a third party without confidentiality restriction; or (d) is independently developed by Licensee without use of or reference to the Confidential Information. Disclosure required by law or court order is permitted provided Licensee gives PortX prompt prior written notice (to the extent legally permitted) and discloses only the minimum amount required.
5. No Warranty
THE ORCA MATERIALS AND, WHERE APPLICABLE, THE SANDBOX ENVIRONMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. PORTX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PORTX MAKES NO REPRESENTATION THAT THE ORCA MATERIALS OR SANDBOX ENVIRONMENT ARE COMPLETE, ACCURATE, CURRENT, OR SUITABLE FOR LICENSEE’S PURPOSES, OR THAT ACCESS WILL BE UNINTERRUPTED OR ERROR-FREE. LICENSEE ACKNOWLEDGES THAT THE ORCA MATERIALS MAY REPRESENT WORK IN PROGRESS AND MAY BE MODIFIED, UPDATED, OR WITHDRAWN BY PORTX AT ANY TIME WITHOUT NOTICE OR OBLIGATION. THE SANDBOX ENVIRONMENT IS NOT BUILT TO PRODUCTION SECURITY STANDARDS AND IS PROVIDED ENTIRELY AT LICENSEE’S RISK.
6. Limitation of Liability
6.1 PortX Liability. IN NO EVENT SHALL PORTX BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR LICENSEE’S USE OF OR INABILITY TO USE THE ORCA MATERIALS OR THE SANDBOX ENVIRONMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF PORTX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PORTX’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000), REGARDLESS OF THE NATURE OR NUMBER OF CLAIMS.
6.2 Licensee Liability. In recognition of the proprietary nature of the ORCA Materials and the potential harm to PortX arising from misuse thereof, PortX shall be entitled to seek and recover all damages available at law or in equity arising from Licensee’s breach of Sections 2.3, 2.4, 2.5, 3, or 4, including actual damages, lost profits and lost revenue (including revenue PortX would have earned through a commercial relationship with Licensee or any third party), disgorgement of all profits and benefits derived by Licensee from any unauthorized use of the ORCA Materials or any Developed Work, a reasonable royalty for any unauthorized use, damages for unjust enrichment, damages arising from Licensee’s development or operation of any product or service that competes with the ORCA Framework or the PortX Hosted Solution, and consequential, indirect, special, and exemplary damages to the fullest extent permitted by applicable law.
6.3 Basis of Bargain. LICENSEE ACKNOWLEDGES THAT THE ASYMMETRIC LIABILITY STRUCTURE SET FORTH IN THIS SECTION 6 REFLECTS A FUNDAMENTAL TERM OF THIS AGREEMENT, THAT PORTX WOULD NOT HAVE PROVIDED ACCESS TO THE ORCA MATERIALS WITHOUT THIS ALLOCATION OF RISK, AND THAT THIS ALLOCATION IS REASONABLE IN LIGHT OF THE PROPRIETARY NATURE OF THE ORCA MATERIALS AND THE POTENTIAL FOR COMPETITIVE HARM TO PORTX FROM LICENSEE’S MISUSE THEREOF.
7. Term and Termination
7.1 Term. This Agreement commences on the Effective Date and continues for ninety (90) days unless earlier terminated in accordance with this Section (the “Term”). The Term may be extended by PortX in its sole discretion upon written notice to Licensee.
7.2 Termination for Convenience. Either party may terminate this Agreement for any reason upon ten (10) days’ written notice to the other party.
7.3 Termination for Cause. PortX may terminate this Agreement immediately upon written notice if Licensee breaches any provision of Sections 2.3, 2.4, 2.5, 3, or 4, or if Licensee becomes insolvent or makes an assignment for the benefit of creditors.
7.4 Effect of Termination. Upon expiration or termination of this Agreement: (a) all licenses granted hereunder shall immediately terminate; (b) Licensee shall immediately cease all use of the ORCA Materials; (c) Licensee shall promptly destroy or return all ORCA Materials and all copies thereof, and certify such destruction or return in writing to PortX upon PortX’s request; (d) Licensee shall immediately deliver to PortX all Developed Works, including any works in progress, drafts, or partial implementations, whether or not previously delivered, in such format as PortX may reasonably request; and (e) all assignments and licenses granted by Licensee to PortX under Section 3 shall survive and remain in full force.
7.5 Survival. Sections 1, 2.4, 2.5, 3, 4, 5, 6, 7.4, 7.5, and 8 shall survive any expiration or termination of this Agreement. The confidentiality obligations in Section 4 shall survive indefinitely, including with respect to Confidential Information constituting trade secrets under applicable law, including the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.
8. General Provisions
8.1 Export Compliance. Licensee shall comply with all applicable U.S. export control laws and regulations, including the Export Administration Regulations administered by the U.S. Department of Commerce. Licensee represents that it is not located in, under the control of, or a national or resident of any country subject to U.S. embargo, and is not on any U.S. government restricted party list.
8.2 Governing Law. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions, and without regard to the United Nations Convention on the International Sale of Goods or UCITA.
8.3 Dispute Resolution. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Delaware for resolution of any dispute arising out of or relating to this Agreement, and waives any objection to venue in such courts.
8.4 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
8.5 Audit Rights. Following expiration or termination of this Agreement, PortX shall have the right, upon reasonable notice, to audit Licensee’s records and systems to verify compliance with the AI training prohibition in Section 2.4 and the IP assignment obligations in Section 3.2.
8.6 Equitable Relief. Licensee acknowledges that any breach of Sections 2.3, 2.4, 2.5, 3, or 4 — including unauthorized use or disclosure of Confidential Information, violation of the no production use restriction, violation of the AI training prohibition, or misappropriation of PortX’s intellectual property — would cause irreparable harm to PortX for which monetary damages would be an insufficient remedy. Accordingly, PortX shall be entitled to seek immediate injunctive and other equitable relief, without the requirement of posting bond, proving actual damages, or exhausting arbitration or other dispute resolution procedures, in addition to all other remedies available at law or in equity.
8.7 Amendment. This Agreement may not be amended except by a written instrument signed by authorized representatives of both parties. PortX reserves the right to update the terms of this Agreement for future access grants, and will provide notice of material changes.
8.8 Severability. If any provision of this Agreement is found to be unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remainder of this Agreement shall continue in full force.
8.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, and communications relating thereto. No purchase order or other business form shall modify this Agreement.
8.10 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing. No failure or delay in exercising any right shall constitute a waiver of that right.
8.11 Independent Contractors. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, franchise, or employment relationship between the parties.
8.12 Assignment. Licensee may not assign this Agreement or any rights hereunder without PortX’s prior written consent. PortX may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section is void.
8.13 Notices. Notices under this Agreement shall be in writing and delivered to the addresses set forth on the cover page, and shall be deemed given upon personal delivery, one (1) business day after sending by overnight courier, or three (3) business days after sending by certified mail.
8.14 Electronic Acceptance. This Agreement is entered into by clickthrough acceptance through PortX’s access portal or by Licensee’s first access to the ORCA Materials, whichever occurs first, and no handwritten or ink signature is required. Electronic acceptance shall constitute a valid and binding execution of this Agreement. PortX shall maintain records of all acceptances, including timestamp, IP address, and identity of the accepting individual. The Effective Date shall be determined in accordance with the preamble of this Agreement.
8.15 No Obligation. This Agreement and the access granted hereunder do not constitute a commitment, representation, or obligation by either party to enter into any commercial relationship or further agreement. Any future commercial relationship between the parties shall be subject to separate executed agreements, the form of which shall be determined by the nature of the relationship between the parties.
