Master Services Agreement

This Master Services Agreement (“MSA”), together with any applicable order form or ordering document referencing this MSA (each, an “Order”), and any policies or documents incorporated herein by reference, including Port’s Privacy Policy (collectively, the "Agreement"), governs Customer’s access to and use of the Services and the Port Platform. This Agreement constitutes a binding and enforceable legal contract between the Port entity identified in the applicable Order (“Port”) and the customer identified in such Order (“Customer”). This Agreement becomes effective as of the date of the applicable Order (the “Effective Date”). If you enter into this Agreement on behalf of an entity, you represent that you have the authority to bind that entity and its affiliates to this Agreement, in which case the term “Customer” refers to such entity and its affiliates. Each of Port and Customer may be referred to as a “Party”, and together, the “Parties”.

Whereas, Port is the owner and provider of proprietary development tools management software (”Services“) delivered through its proprietary technology hosted on a third party cloud service (the ”Port Platform“); Whereas, Customer desires to obtain, and Port agrees to grant, a right to access and use the Port Platform, subject to the terms and conditions of this Agreement.

Now therefore, the Parties agree as follows:

1. Services; License.

1. During the Term, and subject to Customer's compliance with the terms and conditions of this Agreement, including payment of all Fees when due, Port shall provide Customer with the Services through the Port Platform.
2. In connection with providing the Services, Port grants Customer a non-exclusive, non-transferable, non-sublicenseable, limited, revocable right for Customer employees, agents, representatives and contractors who are permitted access to the Services by Port (“Authorized Users“) to access and use the Port Platform solely for Customer's internal business purposes, within the scope set forth in the Order. The above right to access and use the Port Platform is granted according to any documentation provided or made available by Port (“Documentation”).
3. To the extent that Customer utilizes Port’s artificial intelligence features, the terms available at https://www.port.io/legal/ai-terms (“AI Terms”) shall apply. In the event of any conflict between the terms of this Agreement and the AI Terms with respect to AI-specific functionality, the AI Terms shall prevail to the extent of such conflict; provided that all general commercial terms in this MSA continue to apply.

2. Account

Customer will be required to create an account to access and use the Port Platform (“Account”). Customer shall not allow anyone other than its Authorized Users to access and use its Account. Customer shall ensure that any workspaces (including organizations and environments) and integrations created or accessed by its Authorized Users through the Port Platform are associated with Customer’s Account, which serves as the primary unit for administration, usage measurement, access control, and billing. Customer agrees to provide and maintain accurate, current, and complete Account information. Customer agrees: (i) to keep all Account login details and passwords secure at all times; (ii) that it shall be liable for the activity that occurs on or through its Account, and (iii) to promptly notify Port if it becomes aware of any unauthorized access or use of its Account.

3. Beta Services

Port may, from time to time, make available certain features, tools, or services that are identified as alpha, beta, preview, experimental, early access, or similar designation (“Beta Services”). Beta Services are optional and provided solely for evaluation and testing purposes and are not intended for production use. Customer acknowledges and agrees that Beta Services: (i) may contain defects, errors, or inaccuracies; (ii) may be modified, suspended, or discontinued at any time without notice; and (iii) are provided on an “AS IS” and “AS AVAILABLE” basis, without any warranties, representations, service levels, support obligations, or indemnities of any kind. Port shall have no liability arising out of or in connection with Customer’s use of Beta Services, to the maximum extent permitted by law. Customer’s use of Beta Services is at its sole risk. Any feedback, suggestions, or input provided by Customer regarding Beta Services shall be treated as Feedback under this Agreement.

4. Support

During the Term, Port will provide maintenance and support (the “Support Services”) to Customer as described in Port’s then-current Service Level Agreement, available at https://www.port.io/legal/sla (“SLA”), which Port may modify from time to time in its discretion.

5. Fees

Prior to commencement of any rights granted and Port’s obligations under this MSA, the Parties shall execute one or more Order(s) setting forth the applicable subscription term, fees to be paid by Customer (“Fees”), and any usage-based limitations and/or thresholds applicable to Customer’s use of the Port Platform. Customer’s use of the Port Platform shall be measured, and accordingly invoiced, by Port using its standard usage tracking systems, which shall be deemed accurate. Fees shall be payable within 30 days of issuance of the applicable invoice, unless otherwise expressly stated in an Order. All fees paid are non-refundable except as expressly provided in this Agreement. Any amounts not paid when due, shall accrue interest on a daily basis until paid in full, at the rate of 1.5% per month compounded annually. Payment of Fees shall be made by wire transfer to the account designated by Port. Unless otherwise expressly stated in the Order, all payments shall be made in United States Dollars. The Fees are net fees and are exclusive of VAT, sales tax, and all other taxes, duties, levies, deductions or similar governmental charges which shall be borne solely by the Customer to the extent applicable. In the event that Customer is required by law to deduct and/or withhold any amounts from any payments due hereunder, it shall gross-up and increase the amounts to be paid to Port so that Port received the full amount it would have received absent such deduction or withholding.

6. Restrictions

Customer shall not, and shall not allow any third party to: (i) resell, lease, sublicense, disclose, publish, assign, market, transfer, distribute or otherwise make available any portion of the Port Platform to any third party; (ii) circumvent, disable, interfere with, or disrupt the security, authentication, or access controls of the Port Platform; (iii) use any robot, spider, or other automated means to access the Port Platform for any purpose; (iv) take any action that imposes or may impose (at Port's sole discretion) a disproportionately large load on Port’s or its third party service providers’ infrastructure; (v) use the Port Platform to engage in fraudulent, misleading, or deceptive activities, or to transmit harmful, offensive, or unlawful content, including but not limited to (a) malware, viruses, or other malicious code; (b) content that infringes the rights of third parties; or (c) content that is obscene, defamatory, violent, or promotes discrimination, harassment, or illegal activities, or any content that negatively impacts the reputation or goodwill of Port (all of the foregoing to be determined in Port’s reasonable discretion); and/or (vi) use the Port Platform in any unlawful manner (including without limitation violation of any data protection or privacy legislation) or in breach of this Agreement, the applicable Order and/or the Documentation. Customer shall indemnify, defend and hold harmless Port from any third-party claims arising from Customer's violation of these restrictions.

7. Intellectual Property Rights.

1. All right, title, or interest, including all intellectual property rights, in and to the Port Platform, the Documentation, Services, and the Trademarks, and all additional modifications, improvements to, all derivative works based upon the foregoing or any portion thereof, shall remain the sole and exclusive property of Port. “Trademarks” means the word “Port” and all trademarks, service marks, logos, branding, trade dress, and package designs, used by Port or in connection with the Port Platform, Documentation and Services and all goodwill and reputation associated with the foregoing.
2. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, disassemble, or otherwise analyze the Port Platform, Services, or any part thereof for any purpose, nor use it to build or develop a competing service or product; (ii) not represent that it possesses any proprietary interest in the Port Platform, Services, Documentation, Trademarks, or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest Port's intellectual property rights, infringe them in any way, or take actions such as copying features, functions, or graphics of the Port Platform; (iv) not copy, modify, translate, change, or create any derivative works based upon the Port Platform, or any part thereof, reports, or documentation, except as specifically permitted for Customer’s own internal business purposes; and (v) not remove, deface, obscure, or alter any copyright, trademark, logos, hyperlinks, or other proprietary material affixed to or provided as part of the Port Platform, Services, or Documentation.
3. The Customer acknowledges that any feedback, ideas, suggestions, or recommendations provided to Port regarding the Port Platform, Services or Documentation or any component thereof (collectively, “Feedback”) shall be the sole and exclusive property of Port. Customer hereby assigns all rights, title, and interest in and to such Feedback to Port, and agrees that Port shall have the unrestricted right to use, modify, and incorporate such Feedback into its services or products without any obligation of payment, attribution, or other duty to the Customer.

8. Customer Data.

1. Customer hereby grants to Port a non-exclusive, non-sublicensable, revocable, non-transferable, royalty-free, worldwide license during the Term to use, reproduce, and prepare derivative works of all content, materials, Input or other information and data provided to Port by Customer in connection with this Agreement (“Customer Data”), solely to (i) allow Port to perform the Services to Customer as set forth in this Agreement (including to share such data with Port’s sub-processors to the extent necessary to perform the Services, while requiring that such sub-processors comply with applicable Data Protection Laws, and to measure, monitor, and calculate usage of the Services for billing, invoicing, and account management purposes); and (ii) analyze Customer Data in an anonymized and aggregated format (the “Anonymized Data”) for purposes of Port providing Customer with reporting and analytics, and to develop, improve, support, secure and operate the Services. As between Customer and Port, all Customer Data (excluding Anonymized Data) shall remain owned solely and exclusively by Customer and its licensors.
2. During the Term, Port will maintain commercially reasonable administrative, physical, and technical safeguards consistent with industry standards for similar SaaS platforms designed to protect Customer Data stored by Port against unauthorized access, use or disclosure.  If Customer's use of the Services requires Port to process Personal Data falling within the scope of: (a) EU Regulation 2016/679 (the “GDPR”), (b) the GDPR as it forms part of UK law by virtue of section 3 of the UK European Union (Withdrawal) Act 2018 and the UK Data Protection Act 2018; or (c) other relevant US data protection laws that may be applicable ((a), (b), and (c), collectively, “Data Protection Laws”), the Data Processing Addendum set out at https://www.port.io/legal/dpa (“DPA”) shall apply. Customer agrees that it will only transfer Personal Data to the Port Platform to the extent necessary for Customer to access and make use of the Services and to the extent permitted by Data Protection Laws given the nature of the Personal Data and the specifics of the Services and the terms of this Agreement. The DPA shall hereby be incorporated into this Agreement by reference. In the event of any conflict between the terms of the DPA and this Agreement as they relate to Customer Data, the DPA shall prevail to the extent of such conflict.
3. Customer represents and warrants that: (i) it owns or has obtained the rights to all of the intellectual property rights subsisting in the Customer Data and has the right to grant Port the foregoing licenses; and (ii) the Customer Data, the use thereof by Customer or Port, or otherwise in connection with the Port Platform or Services does not infringe or violate any intellectual property rights or other rights of any third party or any applicable law.
4. Customer acknowledges and agrees that the Port Platform is not intended to function as an archive or file storage service and Port retains Customer Data according to its data retention policy applicable to the Services.

9. Confidentiality.

1. The receiving Party agrees (i) not to disclose the disclosing Party's Confidential Information to any third parties other than to its directors, employees, advisors, consultants or third-party service or tools providers (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the disclosing Party's Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the disclosing Party's Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving Party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing Party's Confidential Information, then prior to such disclosure, if legally allowed, receiving Party will give prompt notice to the disclosing Party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire five years from the date of termination or expiration of this Agreement (and with respect to trade secrets- in perpetuity) and shall supersede any previous confidentiality undertakings between the Parties.
2. For the purposes hereof, “Confidential Information” means any proprietary or trade secret information disclosed by one Party to the other which can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving Party; (ii) the receiving Party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing Party; (iii) the receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving Party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information.
3. Each Party acknowledges and agrees that in the event of a breach or threatened breach of its obligations under Section 7.2, or this Section 9, the disclosing Party may suffer irreparable harm or damage, which may not be readily assessable and which the payment of money cannot repair. Accordingly, each Party shall be entitled to injunctive or equitable relief to enforce the provisions of Section 7.2, or this Section 9 or otherwise prevent, restrain, mitigate or remedy an unauthorized use or disclosure or failure to safeguard, its Confidential Information or, in the case of Port, the Port Platform, without providing damages or posting bond of any kind.

10. Warranties; Disclaimer; Limitation of Liability.

1. Each Party represents and warrants that it (a) is duly organized and validly existing under the laws of its jurisdiction of formation and has the full power and authority to enter into this Agreement; and (b) is not bound by any agreement, obligation or restriction that would interfere with its obligations under this Agreement.
2. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, PORT PROVIDES THE PORT PLATFORM, SERVICES, DOCUMENTATION AND OUTPUT TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, TERM OR CONDITION OF ANY KIND, AND PORT EXPRESSLY DISCLAIMS ALL WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY. PORT FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PORT PLATFORM OR ANY RELATED SERVICES OR THE AI FEATURES WILL BE UNINTERRUPTED OR ERROR-FREE.
3. Customer acknowledges that the quality and accuracy of the Services are dependent on the accuracy and completeness of the Customer Data provided. CUSTOMER ACKNOWLEDGES THAT PORT SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY FOR FAULTS, ERRORS OR ERRONEOUS RECOMMENDATIONS PROVIDED ON THE BASIS OF UNTIMELY, INCOMPLETE, INACCURATE, FALSE OR MISLEADING CUSTOMER DATA PROVIDED INTENTIONALLY BY CUSTOMER OR THE AUTHORIZED USERS.
4. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD OR BREACH OF CONFIDENTIALITY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PORT DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS, USE, BUSINESS, REVENUES OR SAVINGS, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGE OR LOSSES TO GOODWILL, REPUTATION, OR BUSINESS OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Port shall defend, indemnify and hold harmless Customer, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys' fees) arising directly out of any third party claim that the Port Platform and/or Services infringes any third party intellectual property right. Indemnification hereunder shall be conditioned upon: (a) Customer notifying Port of the claim immediately upon becoming aware thereof, (b) Customer allowing Port to assume full control of the defense and settlement of such claim, and (c) Customer reasonably cooperating with Port in the defense and settlement of the claim. In any event, Customer shall not admit liability or compromise the defense of the claim, without the prior written consent of Port.
6. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Port Platform, Services and/or Documentation in violation of this Agreement or applicable law, (b) use of the Port Platform, Services and/or Documentation after Port notifies the Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services not sourced or approved by Port under this Agreement, (d) modifications to the Port Platform, Services and/or Documentation made other than by Port or not under the direction of Port (where the claim would not have arisen but for such modification), or (e) the combination, operation, or use of the Port Platform, Services and/or Documentation with software or equipment which was not provided or designated for use with the Port Platform, Services and/or Documentation by Port, to the extent that the Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use. If the Port Platform, Services and/or Documentation is held to infringe, Port may, at its own expense, in its sole discretion either: (a) procure a license that will protect the Customer against such claim; (b) to replace the Port Platform with non-infringing services or a product of the same quality in functionality; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order.

11. Term; Termination.

1. This Agreement and, unless otherwise set forth in the Order, the right to access and use the Port Platform and Services, shall commence on the Effective Date and will continue for the term set forth in the Order (the ”Initial Term“); thereafter, the Agreement shall renew for additional successive twelve (12) month periods (each, a ”Renewal Term“; the Initial Term and any applicable Renewal Term together, the ”Term“), unless either Party provides notice of termination in writing at least thirty (30) days prior to the end of the then current Term.
2. Either Party may terminate this Agreement immediately by giving written notice to the other Party if: (i) the other Party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other Party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such Party; or any petition by or on behalf of such Party is filed under any bankruptcy or similar laws that is not dismissed within sixty (60) days.
   Port may suspend Customer's access to the Port Platform if: (a) Customer breaches Section 5; (b) Port reasonably believes Customer's use of the Port Platform poses a security risk; (c) Customer fails to pay undisputed Fees; or (d) required by applicable law. Suspension does not relieve Customer of payment obligations.
3. Upon termination of this Agreement, the License granted shall cease, Customer will immediately cease use of the Port Platform and any Services, each Party shall return to the other Party or destroy (at disclosing Party's option) all of the other Party's Confidential Information in its possession, and any outstanding undisputed Fees shall become due and payable. Sections 5, 6, 7, 9, 10.2-10.4, 11.3, 12, 13 and 15, shall survive any expiration or termination of this Agreement.

12. Notices

All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service which obtains a receipt to evidence delivery, or email transmission with written confirmation of receipt, addressed to the address set forth in the Order or to such other address as any Party hereto may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting.

13. Export Controls and Sanctions Compliance.

1. Customer acknowledges that the Services, Port Platform, and related technology might be subject to export control and sanctions laws of the United States, European Union, and other applicable jurisdictions (“Export Controls”). Customer agrees to comply with all such laws, including those administered by the U.S. Bureau of Industry and Security (“BIS”), the U.S. Office of Foreign Assets Control (“OFAC”), and the European Commission.
2. Customer shall not, directly or indirectly, (i) use, export, re-export, or transfer the Services to any country, entity, or individual subject to comprehensive sanctions or trade restrictions (“Sanctions Target”); (ii) provide access to the Services to any individual or entity listed on sanctions or restricted party lists, including those maintained by BIS, OFAC, the EU, or the UK; or (iii) use the Services for any prohibited end-use, or any other activity restricted under Export Controls.
3. Customer represents and warrants that it is not a Sanctions Target, is not owned or controlled by a Sanctions Target, and is not otherwise restricted from accessing or using the Services under Export Controls.
4. Port may suspend or terminate Customer’s access to the Services if it determines that such access would or might violate Export Controls. Port shall not be liable for any resulting loss or damages.

14. Publicity

Customer agrees that Port may use Customer’s name and logo to identify Customer as a user of the Services, on Port’s website, presentations, marketing materials or otherwise. Port will use Customer’s name and logo in a manner consistent with any brand guidelines provided by Customer, if provided. Additionally, Customer agrees to cooperate with Port in the creation of a case study which may be published on Port’s marketing channels.

15. General

This Agreement and all exhibits attached hereto constitutes the entire agreement between Port and Customer and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. In the event of any contradiction between the MSA and any Order, the provisions of this MSA shall prevail unless the Parties explicitly agree in writing that the contradicting provision of the Order shall prevail. All amendments will be made only in writing executed by both Port and Customer. Customer may not transfer or assign its rights or obligations under this Agreement to any third party without Port's prior written consent. Any purported assignment contrary to this section shall be void. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the Parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a Party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. Neither Party shall be liable for any delay or failure to perform any obligation under these Terms caused by fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state, electrical outages, network failures, cyberattack, strike, lockout or other labor problem, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, mass illness, outbreaks, pandemics, shut-downs, lock-downs, government instructions not open or go to businesses or place of work, any government-declared disaster, emergency or force-majeure or other instances outside of the reasonable control of the non-performing Party. The laws and exclusive jurisdiction applicable to this Agreement will depend on the Port entity signing the Order, as follows: (a) If the Order identifies Port IO Ltd., this Agreement shall be governed by the laws of the State of Israel, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of Tel Aviv, and (b) If the Order identifies Port IO Inc., this Agreement shall be governed by the laws of the State of New York, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the courts of New York.