Terms Of Service

In accordance with the terms and conditions of this agreement (this "Agreement"), PortPro Technologies, Inc. ("PortPro Technologies") agrees to provide you (“User”) with the Software as a Service identified, described, and available online at https://www.Portpro.io, on a “Software as a Service” basis. As amended from time to time, these Terms of Service, along with any other terms and policies referenced herein, constitute a legally binding contract between PortPro and User.

2.1. A non-exclusive, non-transferable, limited license from PortPro Technologies is granted to User, subject to the terms and conditions of this Agreement, to access the Software as a Service through the Internet and to use the Software as a Service solely for business purposes, in accordance with these terms.

2.2. It is prohibited for the user, directly or indirectly, to: attempt to reverse engineer, decompile, disassemble or otherwise discover the source code or underlying technologies, ideas, or algorithms; alter, translate, or create derivative works based on Software as a Service; transfer rights to Software as a Service to anyone else, whether through rent, lease, distribution, sale, resale, assignment, or otherwise; remove proprietary notices from the SaaS; or distribute any evaluations of Software as a Service without PortPro Technologies’ prior written permission.

3.1. In accordance with the terms of this Agreement and the applicable contract document, User must pay all fees, all of which are non-cancelable and non-refundable, due to PortPro Technologies. PortPro Technologies reserves the right to restrict access to the Software as a Service and support services without notice, using reasonable discretion.

3.2. From time to time, we may change our fees. You will be notified at least 30 days in advance before we apply any fee changes to your Services subscriptions. Unless otherwise set forth in a contract document, such changes will not affect the prices for Services during the then-current subscription term and will become effective upon your next renewal term that commences at least 30 days after our notification of the fee change.

3.3. By entering into this Agreement, User acknowledges that Software as a Service meets User’s current requirements and any future discovery of new requirements do not constitute a breach of this Agreement allowing for early termination and obligation to pay all fees due in accordance with the applicable contract document. In the event that the User’s requirements require creating software outside of the scope of the Software as a Service, the User may request in writing, a contract from PortPro Technologies that describes the changes to be made and applicable fees associated with adding these requirements to the Software as a Service , or make a request using the support ticketing system (using the feature request process) describing the desired enhancement to be made free of charge. In either case, these requests may or may not be implemented at a time and discretion of PortPro Technologies, Inc.).

4.1. User acknowledges that PortPro Technologies owns all the copyright and intellectual property rights, titles and interests in and to the Software as a Service and PortPro Technologies’ website. PortPro Technologies shall exclusively own all rights, titles, and interests, including all related intellectual property rights, in and to any changes, modifications, alterations, and additions to the Software as a Service.

PortPro Technologies does not permit the use of third-party software in conjunction with the Software as a Service (unless explicitly described in our products guide or requested in writing by User to PortPro Technologies). The price of the Software as a Service does not include third-party products unless otherwise specified. In the event third-party software is approved and integrated in use by User, ensuring performance of such integrated software use is the responsibility of User and such other software provider; in such case, User acknowledges that PortPro Technologies shall not be responsible or held liable for the performance of the integrated software or any resulting impact on User’s business.

6.1. The following agreements are made between PortPro Technologies and Users:

6.2 By using our Software as a Service Products, you agree to allow your business to be listed in the drayOS app store, which is accessible to carriers in our network of customers. This may enable carriers to discover and access your business information, which could potentially lead to business opportunities for you.

6.3 By using our Software as a Service Product, you agree to allow your business to be used in promotional and marketing related communications and materials, including but not limited to your various PortPro Technologies websites, blog posts, social media, etc.

7.1. User owns all data sent or transmitted to PortPro Technologies, entered into Software as a Service, or assigned to User by PortPro Technologies (“User Data”). User Data will not be edited, deleted, or disclosed by PortPro Technologies except as permitted in accordance with this Agreement, or if PortPro Technologies is required to do so by law, or finds it necessary to do so to protect and defend any of its rights or property.

7.2. PortPro Technologies will maintain and enforce an information security procedures for the protection of User Data, including commercially reasonable administrative, physical, and technical measures designed to

1. Protect the confidentiality, availability and integrity of User Data,
2. Restore the availability of User Data in a timely manner in the event of a physical or technical incident, and
3. Ensure the proper disposal and destruction of User Data.

7.3. PortPro Technologies may utilize and publish aggregate statistics about users of the Software as a Service, but agrees to not utilize or publish personally identifiable information, such as usage patterns or traffic patterns, to third parties.

7.4. During a service or technical problem, PortPro Technologies may access User Data. User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all User Data. PortPro Technologies will not be held liable in the event any User Data is deleted, corrected, destroyed, lost, infringed upon, or fails to be stored through the Software as a Service, unless PortPro Technologies has acted willfully to cause the resulting failure or acted in grossly negligent manner.

7.5. User shall be responsible for compliance with all obligations imposed by all applicable privacy laws, including any relevant legislation that may be enacted from time to time. User shall indemnify, defend and hold PortPro Technologies harmless from and against any third party claims against PortPro Technologies resulting from the use and disclosure by PortPro Technologies of User Data consistent with the terms of this Agreement.

7.6. PortPro Technologies is not obligated to retain User Data after the term of this Agreement has expired. PortPro Technologies may retain Historical User Data in retrievable form for a maximum of three-hundred sixty five (365) days during the term of this Agreement or after expiration or termination of this Agreement. User may request, in writing, for PortPro Technologies to retain Historical Data beyond three-hundred sixty five (365) days for a mutually agreed upon fee and on the basis of discretion.

7.7 PortPro Technologies may retain User Data in retrievable form for a maximum of thirty (30) days during the term of this Agreement or after expiration or termination of this Agreement, after which time PortPro Technologies shall delete or destroy all User Data in its possession. User may request PortPro Technologies to retain User Data beyond the thirty (30) day period, subject to payment of an additional fee to be mutually agreed upon by the parties.

7.8. PortPro Technologies may collect data resulting from Users’ use of the Software as a Service, such as metadata, performance metrics, and usage trends or volume (“Usage Data”). PortPro Technologies may use User Data for product research, development and innovation.

8.1. PortPro Technologies warrants that the Software as a Service will perform in accordance with its functional specification under normal use and circumstances for the Software as a Service provided in accordance with this Agreement. If there is a material breach of the above warranty, PortPro Technologies’ entire liability and User’s exclusive remedy shall be, at PortPro Technologies’ sole discretion, to adapt the Software as a Service to meet User’s functional requirements and/or provide a reasonable workaround to substantially meet User’s functional requirements.

8.2. The Software as a Service is provided “As Is”, “As Available”. Regardless of whether they are express or implied, PortPro Technologies disclaims all warranties, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and warranties.

8.3. As User is responsible for the input of User Data and the level of risk assigned to such User Data in order to create the filters using the Software as a Service, PortPro Technologies makes no warranty as to the results that may be obtained from use of the Software as a Service or as to the accuracy or reliability of any content or information or payment transaction obtained or made by the Software as a Service.

8.4. PortPro Technologies also makes no warranty that the Software as a Service will be uninterrupted, timely, secure or error-free, or that defects in the services will be corrected in situations outside of PortPro Technologies’ control including, but not limited to, a force majeure as described in Subsection 16.6 of this Agreement. User agrees that it shall be solely responsible to provide an alternate backup or failover content filtering system that is suitable to User’s needs and which can be promptly activated in the event that the availability of the Software as a Service is disrupted for any reason. Without limiting the terms of this Section 8, Sections 14 and 15, or Subsection 16.6 of this Agreement, in the event that the availability of the Software as a Service is disrupted for longer than one (1) hour as the direct result of a cause that is within the reasonable control of PortPro Technologies, then User may, within thirty (30) days of such disruption, provide a written request to PortPro Technologies for a credit against the amounts due under this Agreement. Upon receipt by PortPro Technologies of such a written credit request, PortPro Technologies shall, for User’s next billing cycle, provide a credit to User of the equivalent of one (1) day of use of the Software as a Service for each day that the availability of the Software as a Service was disrupted for longer than one (1) hour as the direct result of a cause that was within the reasonable control of PortPro Technologies.

9.1. PortPro Technologies will provide support services. For the Services in use by User during the term of the Agreement, PortPro Technologies shall provide User with Support Services as outlined and limited by the below, and as updated from time to time in the below description.

10.1. PortPro Technologies and User hereby agree to the following:

11.1. User shall pay all fees or charges to its account in accordance with the applicable contract document and billing terms in effect at the time a fee or charge is due and payable. User hereby agrees to a minimum of a one (1) year contract with PortPro Technologies. To be paid in accordance with the payment terms set forth in the contract document. User must let PortPro Technologies know they will not be renewing their contract thirty (30) days in advance of the end of the term by emailing sales@portpro.io & accounting@portpro.io. If proper notice is not given, User will have agreed to another contract term of service in accordance with the original contract document. PortPro Technologies and User hereby agree to the following:

12.1. PortPro Technologies and User hereby agree to the following:

13.1. User and PortPro Technologies agree to the following:

PortPro Technologies may offer User’s the ability to participate in a Beta program and subscribe to a Software as a Service that is designated in Beta status. A Beta status indicates that the Software as a Service is still under development, is not intended to be fully functional, and is subject to errors that may render the Software as a Service unusable. The User accepts the following conditions for participating in the Beta program. All Software as a Service products designated as ‘beta’ will be subject to the terms outlined in this section 14.

IN NO EVENT WILL PORTPRO TECHNOLOGIES OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM USER’S USE OF THE SOFTWARE AS A SERVICE, EVEN IF PORTPRO TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PORTPRO TECHNOLOGIES’ LIABILITY TO USER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY USER TO PORTPRO TECHNOLOGIES DURING THE THREE (3) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING.

Subject to the exceptions set out elsewhere herein this Agreement, PortPro Technologies warrants that it will provide Software as a Service and perform support services using reasonable care and skill. Subject to the foregoing, all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the support services and any additional services are hereby excluded to the greatest extent permissible by applicable law.

17.1. Publicity.
PortPro Technologies may use User’s name as part of a general list of User’s and may refer to User as a user of the Software as a Services in its general advertising and marketing materials. Each party shall obtain the other party’s permission prior to using the other party’s name for any other marketing or promotional purposes. The parties agree that any press release or other public comments issued by either party relating to this Agreement, any dispute under this Agreement, or User’s subscription to or use of the Software as a Service, will be prepared jointly between PortPro Technologies and User and will be issued upon mutual agreement of the parties.

17.2. Notices.
All notices to PortPro Technologies shall be in writing and emailed to toni@portpro.io and shall be deemed to have been duly upon confirmation of receipt.

17.3. Assignment.
This Agreement shall be binding on and shall insure to the benefit of the parties hereto and their respective successors and permitted assigns. Except with respect to wholly owned affiliates, User may not assign this Agreement without PortPro Technologies’ prior written consent, not to be unreasonably withheld. PortPro Technologies may assign this Agreement to any parent, subsidiary or affiliate or to any successor to its business, and PortPro Technologies may subcontract any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.

17.4. Governing Law.
The Software as a Service is governed by and constructed in accordance with the laws of the State of New Jersey applicable to agreements made and to be entirely performed within the State of New Jersey, without regard to its conflict of law principles. Any claim arising out of or related to this Agreement must be brought within one (1) year from the cause of action; otherwise, User agrees to be barred from bringing such claim.

17.5. No Waiver.
It is not intended that any waiver of any default, condition, or breach of this Agreement implies or constitutes a waiver of any other default, condition, or breach.

17.6. Force Majeure.
Either party shall not be considered to be in default or breach of this Agreement, and shall be excused from performance or liability for damages to the other Party, if and to the extent it shall be delayed in or prevented from performing or carrying out any of the provisions of this Agreement, arising out of or from any act, omission, or circumstance by or in consequence of any act of God, labor disturbance, sabotage, failure of contractors or suppliers of materials, act of the public enemy, war, invasion, insurrection, riot, fire, storm, flood, ice, earthquake, explosion, epidemic, breakage or accident to machinery, hacker attacks or equipment or any other cause or causes beyond such Party’s reasonable control, including any curtailment, order, regulation, or restriction imposed by governmental, military or lawfully established civilian authorities.

17.7. Payment.
You agree to pay all charges or fees at the prices then in effect for your subscription, and you authorize us to charge your chosen payment provider for any such amounts upon subscribing to the Software as a Service. All contracts are non-refundable. If your subscription is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. Your cancellation will take effect at the end of the current contract term. If you are unsatisfied with our services, please email us at support@portpro.io. Your contract will automatically renew unless canceled 30 days prior to the end of the contract term.

17.7.1 Cancellation.
To cancel your service, you must submit a written request via email to success@portpro.io. This request must be received at least 30 days before the start of the next contract renewal. If we do not receive your cancellation request at least 30 days before the renewal date, you agree that the service will be automatically renewed for the same period of time as the initial term specified in the contract documents. Contracts may not be canceled or terminated early, as specified in section 3 of these PortPro Technologies Terms of Service.

17.8. Entire Agreement; Severability.
Entire Agreement; Severability. This Agreement, together with any applicable contract document, contains the entire agreement of the parties and supersedes any and all previous agreements with respect to the subject matter hereof, whether orally or in writing. Except as otherwise explicitly specified, this Agreement supersedes any terms printed on User’s purchase order or other applicable contract documents. In the event that any one or more of the provisions of this Agreement are invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

In accordance with the terms and conditions of any PortPro Technologies agreement (an “Agreement”), PortPro Technologies, Inc. (“PortPro”) agrees to provide you (“User”) (together referenced as the “Parties”) with the Professional Services (“Services”) identified, described, and available in the contract documents (the “Agreement”). These Services are contracted either under a Statement of Work (“SOW”) or as a packaged set of deliverables (“Standardized Professional Services Offering”). As amended from time to time, these Terms of Service, along with any other terms and policies referenced herein, constitute a legally binding contract between PortPro and User.

1.1. Service Description.
PortPro hereby agree to use commercially reasonable efforts to perform the services described

1. In each Statement of Work, which is to be mutually executed by the Parties; or
2. In each Standardized Professional Services Offering referenced in contract documents accepted, completed and/or executed by the User. The Parties may enter into multiple Services engagements from time to time during the term of any Agreement and each Services engagement will be confirmed in a separate SOW if not covered by one of PortPro Technologies, Inc. Standardized Professional Services Offerings.

1.2 Change Orders.
User may, at any time, request a modification to the Services to be performed under a SOW by delivering a written request to PortPro signed by your authorized representative, specifying the desired modifications (a “Change Request”). We will, within a reasonable time following receipt of a signed Change Request, submit to you a written:

• Detailed description of the requested modifications agreed to by PortPro;
• Estimate of the fees (as applicable) for the requested modifications agreed to by PortPro; and
• Revised estimate of the time for performance of the Services (collectively, a “Change Order”). No Change Order will become effective, and we will not have any obligation to perform the Services as modified by the Change Order, until mutually agreed to by Parties.

1.3 Independent Contractor Status; No Agency.
PortPro, at all times, will be an independent contractor providing Services to you pursuant to this Agreement. Those performing Services on behalf of PortPro hereunder, will be employees or subcontractors of PortPro or our Affiliates. Our “Affiliates” are any corporation, firm, partnership or other entity that directly or indirectly controls, is controlled by, or is under common control with PortPro. Nothing in this Agreement will give User control over the manner in which PortPro, our Affiliates or any employee or subcontractor of PortPro or our Affiliate, provides such Services. Notwithstanding the foregoing, User agrees to provide PortPro or our Affiliates a safe and satisfactory work environment for our personnel, as well as other services or materials such personnel may reasonably request in order to perform the Services, including but not limited to, office space, internet access, internal documents, and data.

1.4 Personnel Suitability.
PortPro or our Affiliates will assign employees or subcontractors and may replace or change employees and subcontractors at PortPro’s sole discretion with other suitably qualified employees or subcontractors. Should User be reasonably dissatisfied with the performance of one of PortPro’s or our Affiliate’s employees or subcontractors, User may request, in writing, the replacement of that person; provided, however, before we will be required to remove such individual, we will have the reasonable opportunity to remedy such situation to the reasonable satisfaction of both Parties.

2.1 Fees and Expenses for Services Performed.
User will pay fees for the Services rendered as set forth in a Statement of Work or Contract Documents. If Standardized Professional Services Offerings are purchased for implementation purposes, fees are due immediately upon Agreement signature. Parties mutually agree upon all expenses for which User will reimburse PortPro, including travel expenses, living expenses, and any other expenses agreed upon.

2.2

2.3 Taxes.
You will pay, or reimburse, PortPro for all taxes, other than taxes based on our net income, that are due in connection with the Services, including sales and use taxes, GST, and/or VAT, if applicable.

2.4 Payment.
Payment for Standardized Professional Service Offerings are due at contract signing. Unless otherwise agreed upon, payment of an invoice related to SOW work, will be due within thirty (30) days from the invoice date. Without limiting or foregoing any other rights or remedies available for your delinquency in payment of amounts owed by you hereunder, you will pay a default interest rate of eighteen percent (18%) per annum, or as permitted by applicable law, for any fee not paid by the due date, and all reasonable expenses incurred by us in enforcing this Agreement, including but not limited to, all collection costs and all expenses of any legal proceeding related thereto and all related attorneys’ fees incurred in connection therewith.

3.1 Except as stipulated otherwise in the SOW or contract documents, all inventions (whether or not patentable), discoveries, improvements, trade secrets, know-how, designs, formulas, processes, techniques, algorithms, information, ideas, software, object code, source code, computer programs, interfaces and/or other copyrightable subject matter developed pursuant to the SOW and created for User by PortPro (“Work Product”) will be owned by PortPro. User will have the right to use the Work Product for internal purposes only unless otherwise agreed to in writing between the Parties.

3.2 Work Product will not include any enhancement, customization, error correction, or other modification to any of PortPro commercially available products licensed to User under a separate product license agreement.

3.3 “Client Materials” for the purpose of this Agreement means any and all software and/or other works of authorship, independently developed by User or a third party outside of the Services, whether owned by User or said third party, and delivered or otherwise provided by User to PortPro as required to facilitate our performance of the Services. User will be responsible for, and assume the risk of, any problems resulting from, the content, accuracy, completeness, consistency, facilitation, or provision of all such Client Materials supplied to PortPro by User. User retain ownership of all right, title and interest in the Client Materials, and all intellectual property rights therein. All rights in the Client Materials not expressly granted to PortPro in this Agreement or SOW are reserved to User or your licensors, and except as expressly granted by User under this Agreement, no licenses in the Client Materials are granted to PortPro. User grant, and warrant that you have the right to grant, to PortPro a temporary, royalty-free, non-exclusive license or sublicense to use, reproduce and modify Client Materials in the performance of Services and for no other purpose.

3.4 PortPro will have a perpetual, non transferable, paid-up, worldwide right and license to use, copy, modify, and prepare derivative works based on the Work Product (“Derivative Works”) provided by PortPro to User hereunder as specified in the SOW or contract documents. User agree that PortPro will be the sole owner of any intellectual property rights to such Derivative Works.

3.5 This Agreement will not preclude PortPro from developing materials outside of this Agreement, including but not limited to Derivative Works that are competitive, irrespective of their similarity to materials that may be delivered to you pursuant to this Agreement. Nothing in this Agreement will be construed as precluding or limiting in any way PortPro’s right to provide consulting, development, or other services of any kind or nature whatsoever to any individual or entity as PortPro in our sole discretion deems appropriate.

4.1 Standardized Professional Service Offerings are non-cancelable and non-refundable. Termination of the Professional Service Offerings occur when the list of defined deliverables outlined in a project plan have been completed. Early termination of the Services deliverables may occur under conditions described in 4.2 and 4.3 below.

4.2 Standardized Professional Services Offerings are designed to be delivered and completed in 60 or less days. At the initiation of the Service a PortPro Account Manager will review with User a project plan outlining a list of deliverables that both User and Portpro will be responsible for and the amount of time allocated for each deliverable. Both parties will mutually agree to a set and specific calendar for the individual deliverables to be started and completed. Maintaining the agreed to calendar is critical to the success of the Service delivery to insure both parties have the necessary resources available. Rescheduling of various deliverables will be accommodated with a minimum of 7 day advance written notice. Failure to provide such notice 5 or more times may result in an early termination of Service delivery and forfeiture of pre-paid funds at the discretion of PortPro, if determined that User are unreasonably delaying Service delivery.

4.3 Unless otherwise agreed to by PortPro, the total calendar duration of the project plan will not exceed 60 days. All undelivered services will be forfeited or may, at the discretion of PortPro, be completed for additional agreed to fees and schedule.

5.1 Unless otherwise specified in the SOW, Parties will have the right to terminate any SOW, with or without cause, at any time prior to the completion of the Services set forth in such SOW by giving the other party thirty (30) days prior written notice of such termination (“Early Termination”).

5.2

5.3 User agrees to return to PortPro, as soon as reasonably possible upon the termination of this Agreement, any property of PortPro that is in User possession, including any program definitions, code, documentation, and other such material, in which PortPro did not specifically license or grant an ownership interest to User pursuant to Section 3 of this Agreement. PortPro agrees to return to User, as soon as reasonably possible upon the termination of this Agreement, any Client Materials then in PortPro’s possession.

Parties agree that PortPro and User respective employees and subcontractors are a valuable asset to Parties respective organizations and are difficult to replace. Accordingly, during the term of the Agreement and for a period of seven hundred thirty (730) days following the termination of this Agreement, neither Party will solicit, whether directly or indirectly, the employment of any of the other party’s employees or subcontractors who are, or who were engaged or employed in the provision or receipt of the Services or in the performance of the Agreement without the prior written consent of the other party. If either party violates this Section 6, Parties agree that the violating party of this covenant will pay to the other party an amount equal to one (1) year of annual compensation for such employee or subcontractor, which amount will be payable at the time such action occurs.

7.1 Confidential Information. As used herein, "Confidential Information" will mean any and all data and information of any type or form relating to the business of either party which is or has been disclosed or otherwise becomes or has become known to the other party hereto as a result of the contractual relationship of the parties and which is not generally known to the public, including, but not limited to:

• Customer files;
• Customer lists;
• Research plans;
• The Work Product;
• Service Provider Intellectual Property;
• Service Provider Commercial Product Modifications;
• Methods of design, procurement, manufacture, and distribution;
• Personnel files;
• Financial records;
• Compensation arrangements with employees and subcontractors; and
• Contracts with customers, suppliers, and other third parties.

7.2 Confidentiality Obligations.Parties agree that the party to whom Confidential Information has been disclosed (the “Receiving Party”) by the other party (the “Disclosing Party”) or of which the Receiving Party has become aware by reason of the contractual relationship between the parties, will not, while the Services remains in effect and for a period ending on the earlier of five (5) years following the:

• Completion of the Services;
• Termination of the SOW;
• Time when the Confidential Information becomes a part of the public domain through no act or omission by the ReceivingParty; or
• Time when the Confidential Information is subsequently received by the Receiving Party from a third party free of any obligation of non-disclosure imposed on or by the third party, directly or indirectly, disclose to any person, firm, partnership, proprietorship, corporation, association, or other entity, use, or otherwise exploit for the Receiving Party’s benefit or for the benefit of any other person or entity (except as may be necessary in the performance of the Receiving Party’s duties or exercise of any license rights expressly granted to it hereunder), any Confidential Information. The Receiving Party may disclose the confidential information of the Disclosing Party as required by governmental or judicial order, provided the Receiving Party gives the Disclosing Party prompt written notice prior to such disclosure (unless such prior notice is not permitted by applicable law) and complies with any protective order (or equivalent) imposed on such disclosure. The confidentiality obligations set forth in this Section 6 will not apply to any data or information independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

7.3 Return of Confidential Information.
Parties further agree that upon

• Completion of the Services;
• The termination of the SOW; or
• The request of the Disclosing Party, the Receiving Party will not retain, without the prior written consent from the Disclosing Party, and will promptly deliver to the Disclosing Party, all Confidential Information and all originals and copies of all papers, data, files, and other documents or materials of any kind whatsoever that contain or are based upon any Confidential Information of the Disclosing Party, except that you may retain and continue to use any Service Provider Intellectual Property and/or Service Provider Commercial Product Modifications licensed to you pursuant to Section 3 subject to and in accordance with the terms and conditions hereof.

PortPro warrants that our or our Affiliate’s employees or subcontractors will perform the Services in a professional and workmanlike manner in accordance with professional industry standards and practices. As User sole remedy and PortPro’s sole liability for any breach of the limited warranty set forth herein, PortPro will not perform any nonconforming Services without additional charge.

PortPro HEREBY DISCLAIM AND EXCLUDE ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

PortPro does not warrant that the Services or any Work Product will be uninterrupted, error-free or secure, or that PortPro will correct all defects. Furthermore, PortPro will not be liable to User hereunder for any software that may be obtained by User from a third party or from PortPro other than the Work Product.

• DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY;
• A PARTY’S FRAUDULENT INTENT OR MISREPRESENTATION; OR
• A PARTY’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS SET FORTH IN SECTION 3 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

• DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY;
• A PARTY’S GROSS NEGLIGENCE, WILLFUL OR RECKLESS MISCONDUCT OR INTENT;
• A PARTY’S FRAUDULENT INTENT OR MISREPRESENTATION; OR
• A PARTY’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS SET FORTH IN SECTION 3 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY FOR DAMAGES WILL IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID AND DUE AND PAYABLE TO US WITH RESPECT TO THE SERVICE(S) THAT IS/ARE THE SUBJECT OF THE CLAIM.

10.1 Parties agree that, in addition to all other remedies provided at law or in equity, each party will be entitled to injunctive relief in the event of a breach or threatened breach by the other party hereto of any covenant contained in this Agreement, and each party hereby waives any requirement that the other party post any bond in connection with obtaining such injunctive relief. Furthermore, in the event of a breach or threatened breach of such covenants, the breaching party agrees to pay all of the other party’s costs, including (but not limited to) reasonable attorneys' fees, of enforcing such covenants. Nothing herein will be construed as prohibiting either party from pursuing any other remedies available to it for such breach, including the recovery of damages.

10.2 Parties agree that the covenants and obligations contained in this Agreement are severable and divisible, that none of such covenants or obligations depend on any other covenant or obligation for their enforceability, that each such covenant and obligation constitutes an enforceable obligation between us and you, that each such covenant and obligation will be construed as an agreement independent of any other provision of this Agreement, and that the existence of any claim or cause of action by one party to this Agreement against the other party to this Agreement, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by any party to this Agreement of any such covenants or obligations.

10.4 Without the prior written consent of the other party hereto, Parties agree not to assign, sell, transfer, or subcontract any right or obligation set forth in this Agreement, although you acknowledge and agree that subcontractors may perform the Services required hereunder on behalf of PortPro. In no event will either party’s consent to any assignment be unreasonably withheld.

10.5 User agree to comply fully with all relevant regulations of the U.S. Department of Commerce and with the U.S. Export Administration Act to assure that the Work Product or Service Provider Commercial Product Modifications is not exported in violation of United States law. User will defend, indemnify and hold PortPro harmless from any breach of this Section 10.5.

10.6 This Agreement and all documents relating thereto, including, without limitation, any consents, waivers and modifications which may hereafter be executed may be reproduced by any photographic, photostatic, or other similar process (including .pdf) and the party reproducing the document may destroy any original document so reproduced. Parties agree and stipulate that any such reproduction will be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business) and that any enlargement, facsimile or further reproduction of such reproduction will likewise be admissible in evidence.

10.7 This Agreement will be governed by, and construed in accordance with, the laws of the country or state in which PortPro are located, notwithstanding that country or state’s conflict of laws provisions, and the exclusive jurisdiction and venue will be the courts of the aforementioned country or state.

10.8 Parties agree that this Agreement, and any terms expressly incorporated herein by reference, will constitute the entire agreement between PortPro and User with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, understandings or agreements, oral or written, signed or unsigned, regarding the subject matter hereof.

10.9 Parties agree that any provisions of this Agreement containing licensing restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any term of this Agreement which, by its nature, is intended to survive termination or expiration, will remain in effect following any termination or expiration if this Agreement, as will User obligation to pay any fees accrued as of termination or expiration.

10.10 Neither User nor PortPro will be liable for any delay or failure to take any action required under this Agreement (except for payment) due to any cause beyond the reasonable control of Parties as the case may be, including, but not limited to unavailability or shortages of labor, materials, or equipment, failure or delay in the delivery of vendors and suppliers, and delays in transportation.

10.11 In the event of any conflict between the body of this Agreement and any SOW or contract documents, the Agreement will be construed as though the SOW or contract documents controls but only with regard to the Services delivered.