Actimize Cloud Master Terms

Last updated: February 8, 2022

These Actimize Cloud Master Terms, as referenced in or incorporated into an Exhibit, and the applicable Exhibit contain the terms and conditions that govern your access to and use of the Software Services. Each Agreement is between the entity you represent (Client) and (i) Actimize, Inc., a Delaware corporation, if Client is organized in the United States, or (ii) the Actimize entity notified to Client in the Exhibit or other notice (such Client counterparty, Actimize).

Actimize may in its discretion provide Client access to certain Software Services free of charge pursuant to a trial subscription (Trial Subscription). Unless otherwise stated in an Exhibit, the Term of each Trial Subscription shall be the duration for which Actimize provides Client with access, and Actimize may revoke access to a Trial Subscription at any time. Notwithstanding anything to the contrary, the following provisions of this Agreement shall not apply to the Trial Subscription: Section 4 (Fees and Payment) to the extent no fees are applicable pursuant to the Trial Subscription, Client’s right to audit Actimize in Section 8.1 (Audit) and Schedule A (Service Levels).

For Trial Subscriptions for Xceed 360, the Service Location shall be the United States and the number of Named Users is limited to the individual granted the Trial Subscription.

1. DEFINITIONS

1.1 Definitions. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Actimize Data: any data, text, analytics or graphics, which are produced by or derived from the use of the Software Services, but excludes (for the avoidance of doubt) the Client Data.

Affiliate: an entity which is controlling, controlled by or under common control with a party, and for purposes of this definition, “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise.

Agreement: an Exhibit as governed by these Actimize Cloud Master Terms.

Alert: the information generated by the Software Services and made accessible to Client when a transaction, based on the Client Data, meets the parameters for the relevant analytic models, and all case notes, case management files, and other data which Client attaches to the applicable case.

Business Day: any day which is not a Saturday or Sunday and which is not a national holiday in the Service Location.

Client Data: any data which is uploaded into the Software Services by Client (including Client’s contractors or consultants) or by Actimize on Client’s behalf as an input to generate Alerts.

Client Materials: any information or other content supplied by Client to Actimize for use in connection with the Services, including but not limited to the Client Data.

Confidential Information: all information (in any form) concerning the business or affairs, including but not limited to technical data, trade secrets, customer and supplier lists, plans for products or services, software, source code, documentation, training materials, data, inventions, processes, technology, methods and designs of a party or its clients which is described as confidential by the party providing the information or which, by its nature, should be assumed to be confidential.

Configuration Services: the configuration and related work performed by Actimize to enable Client to access the Software Services, and any other Configuration Services described in an Exhibit.

Data Incident: any incident that has, or is reasonably believed to have, resulted in any unauthorized access to any Client Data in the possession or custody of Actimize or any third party acting on behalf of Actimize.
Documentation: Actimize’s standard reference guides specifically relating to the use of the Software Services as made available or delivered by Actimize to Client from time to time, including but not limited to reference manuals and administrative guides. Documentation shall not include marketing materials.

Effective Date: the Effective Date specified in each applicable Exhibit. If the Effective Date is not specified, then the earlier of (A) (i) for online agreements, the date Client clicks a button or checks a box expressing consent to the Agreement, or (ii) for Client purchase orders, the date accepted in writing by Actimize, or (B) when Client accesses any of the Software Services.

Error: a failure of the Software Services to operate materially in compliance with the Documentation.

Exhibit: a document executed between the parties, an order form or clickthrough agreement provided by Actimize, or a Client purchase order accepted in writing by Actimize which incorporates the Actimize Cloud Master Terms.

Fees: all fees charged by Actimize under this Agreement, as detailed in an Exhibit.

Initial Term: the initial duration for which Client contracts for the Software Services as stated in an Exhibit.

Intellectual Property Rights: all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (in each case whether registered or unregistered) and all applications for the same, anywhere in the world subsisting now or in the future.

Market: an exchange or other venue for the trading or posting of transactions or indications of interest of securities or other financial products.

Named User: a single individual assigned a unique login ID.

Professional Services: the work or services Actimize will perform and the deliverables, if any, which Actimize will deliver as specified in a Statement of Work, including any Configuration Services.

Renewal Term: the duration after the Initial Term for which Client automatically contracts for the Software Services as stated in an Exhibit, unless either party provides the other party with written notice of its intention not to renew at least 90 days prior to the expiration of the Initial Term or the then current Renewal Term (as applicable).

Scope of Use: the scope of Client’s permitted use of the Software Services authorized under this Agreement as specified in the Exhibit.

Service Hours: 9:00 AM to 5:00 PM local time at the Service Location on each Business Day.

Service Levels: the service levels applicable to the Software Services detailed in Schedule A to these Actimize Cloud Master Terms.

Service Location: the location of the servers at which Actimize or its third-party provider(s) hosts the Software Services.

Services: the Professional Services and Software Services.

Software Services: the remote provision to Client of one or more software solutions on a service basis as detailed in an Exhibit.
SOW or Statement of Work: one or more statements of work executed by Actimize and Client which specify the Professional Services to be provided by Actimize.

Term: The Initial Term and, if applicable, each Renewal Term.

Territory: the jurisdiction(s) where Client may utilize the Software Services and where Client’s operations may be supported by the Software Services.

Third Party Data: data from third-party sources, including but not limited to market data.

Third Party Licensors: the third-party licensors and providers of Third Party Data and Third Party Solutions.

Third Party Terms: additional terms imposed by Third Party Licensors.

Third Party Solutions: third-party software or software-as-a-service solutions which are not sold with an Actimize product or service name, and products and services sold as part of the Actimize marketplace (designated with “-MP-“ in the SKU).

2. SERVICES.

In consideration of the Fees, Actimize shall provide the Services as follows:

2.1 Software Services. Actimize shall make the Software Services available to Named Users during the Term in accordance with this Agreement and the Service Levels. Actimize will deploy and maintain hardware and network infrastructure for one production instance of the Software Services unless otherwise stated in the applicable Exhibit. Actimize may incorporate updates or upgrades into the Software Services if and when available from time to time. Client may only use the Software Services for Client’s internal business purposes. The rights granted herein are granted to Client only, and shall not be considered granted to or for the benefit of any Affiliate of Client unless stated in the applicable Exhibit.

2.2 Professional Services. Each of the parties shall perform the Professional Services responsibilities designated to such party set out in the Exhibit or statement of work.

2.3 Limited License. Actimize grants Client a non-exclusive, non-sublicensable, non-assignable and non-transferable license for internal use to access and use (i) the Documentation and any other material subject to Actimize and its licensors’ Intellectual Property Rights which is provided by Actimize to Client in relation to the Software Services during the Term, in each case solely for use with the Software Services and subject to the restrictions on use and the Client undertakings set out in this Agreement, and (ii) the Actimize Data in the Alerts solely in relation to such Alerts for so long as is reasonably required for Client’s regulatory purposes. Within 10 Business Days after expiration or termination of this Agreement, Client shall (at Actimize’s option) return to Actimize or destroy any proprietary materials of Actimize provided pursuant to the applicable Exhibit which are in Client’s possession or control, except to the extent that Client is required to retain such materials under applicable law or pursuant to any document retention policies made known to Actimize.

2.4 Cookies. Actimize may place “cookies” on Client’s systems to effectuate more efficient delivery of the Software Services and for security purposes.

3. RESTRICTIONS ON USE

3.1 Named Users. Client’s access to the Services shall be limited to the number of individual Named Users specified in the Exhibit. Client shall (i) maintain appropriate security procedures including electronic, physical, and organizational controls to prevent malicious interference with the Software Services; (ii) limit use of the Services to Named Users who have a business reason to access the Services; (iii) ensure that any Named Users who are not direct employees of Client are contractors engaged by Client and authorized to act on Client’s behalf, or regulators and auditors, who are subject to binding obligations of confidentiality protecting Actimize’s Confidential Information equal to or greater than those in this Agreement (iv) ensure that each Named User keeps a secure password for his or her use of the Services, that such password is changed on a regular basis, and that each Named User keeps his password confidential; (v) not reassign or share Named User credentials so frequently as to permit a single Named User credential to be reasonably deemed to be shared between more than one individual; (vi) remain solely responsible for administration of creating new Named User credentials and password resets; (vii) use commercially reasonable efforts to prevent any unauthorized access to, or use of, the Services and notify Actimize promptly of any such unauthorized access or use; (viii) not knowingly upload, store, distribute or transmit any viruses, or any material through the Services that is (A) unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (B) facilitates illegal activity, (C) depicts sexually explicit images, or (D) promotes unlawful violence, discrimination based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activities; and (ix) restrict access to the Services by any Competitor of Actimize. “Competitor” means any third party which is, or is affiliated with, a competitor software development business in a competing market to Actimize, which currently includes the financial crime, risk, compliance and case management solutions markets. Such competitors include but are not limited to Accuity (FircoSoft), ACI, Arachnys, Ayasdi, Banker’s Toolbox, BAE (Detica, Norkom, Digital Harbor), Bottomline Technologies (Intellinx), Digital Reasoning, Fair Isaac (FICO, Tonbeller), Fenergo, Fircosoft, FIS (Fidelity Information Services, SunGard, Synapse), Feedzai, Featurespace, Fiserv, Global Vision (Patriot Officer), NASDAQ OMX (SMARTS), Oracle Financial Services (Mantas, i-flex), Palantir, PegaSystems, Quantexa, RSA, SAS Institute, Software AG (Apama), Thetaray and Verafin. Actimize reserves the right to update the list of Competitors by written notice to Client.

3.2 Modifications, Reverse-Engineering. Client shall not (and shall not permit any third party to) (i) copy or modify any Software Service (other than configurations made pursuant to the Documentation); (ii) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software Services; (iii) distribute, disclose, market, rent, lease, sublicense, or transfer to any third party the Software Services except as permitted hereunder or use the Software Services in any service bureau arrangement.

4. FEES AND PAYMENT.

4.1 Fees Payable. In consideration of the obligations undertaken by Actimize hereunder, Client shall pay to Actimize the Fees set out in the applicable Exhibit. Client’s failure to use a Service or to fully utilize a Scope of Use shall not release Client of any payment obligations. To the extent travel is required by Client, Client agrees to pay all pre-approved travel, subsistence and other related expenses in respect of Actimize staff who perform the Services at a Client-designated location.

4.2 Payment Terms. Unless otherwise agreed in an applicable Exhibit, (i) Fees are annual, (ii) Fees for the initial annual period of the Initial Term will be invoiced 100% on the Effective Date, and (iii) Fees for the subsequent annual periods of the Initial Term and for each Renewal Term are payable annually in advance on the anniversary of the Effective Date. If travel is requested by Client, Actimize will submit invoices on a monthly basis for all travel-related expenses. Client shall pay the amount specified in each invoice within 30 days Client’s receipt. In the event Client disputes an invoiced amount in good faith, Client shall notify Actimize of such dispute in writing, providing sufficient detail of the basis of the dispute, within 20 days of the date of invoice, and the parties shall work together promptly and in good faith to resolve such dispute. All outstanding amounts shall accrue interest at the lower of the highest rate available under applicable law or 1.5% per month. Actimize may suspend access to the Software Services without liability or waiver of Actimize’s rights until any overdue amounts which are not subject to a good faith payment dispute are paid in full. Client shall be liable for any reasonable costs associated with the collection of any late payments by Actimize including, without limitation, legal costs, expert fees, court costs and collection agency fees.

4.3 Taxes. Client shall, in addition to the other amounts payable under this Agreement, bear and pay all applicable taxes, including but not limited to sales, use, digital, excise, VAT or similar taxes and all other charges such as duties, levies, tariffs, imposts, and government-imposed surcharges, however designated, that are levied or imposed by reason of the transactions contemplated, other than taxes based on net income, property, or employees of Actimize. If Actimize is legally obliged to pay or collect taxes for which Client is responsible under this Section, Actimize will invoice Client and Client will pay that amount unless Client provides Actimize with a valid tax exemption certificate authorized by the appropriate taxing authority. Without limiting the foregoing, if any such taxes are imposed upon and paid by Actimize, Client shall reimburse Actimize within 30 days of receipt of an invoice from Actimize for such amount. Notwithstanding the foregoing, if Client is required by law to deduct or withhold tax at source from any amounts payable under this Agreement, Client shall increase the amount payable as necessary so that, after making all required deductions and withholdings, Actimize receives and retains (free from any liability for taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Payment shall be made without any deductions, offset or deferment for whatever reason. Client shall remit amounts withheld to the respective tax authority and provide Actimize with certificates evidencing payments of such amounts, within the period specified by the relevant legislation or standard practice of the relevant tax authority, and when no period is specified by legislation, no later than 60 days from the date of withholding. In the absence of the receipt of such withholding tax certificate, the amount shall remain due and payable to Actimize. In the event a future tax legislation would assess any additional taxes, charges, levies, duties or surcharges on Actimize, Client shall bear and be responsible for the assessment and payment of such taxes and related additional costs, so that after payment, amounts payable to Actimize will not be reduced. If permitted by law, Client will be obligated to self-assess for any taxes, charges, levies, duties or surcharges (excluding taxes based on income, property, or employees of Actimize). If Client is prohibited by law to self-assess, so that Actimize will be obligated to assess and pay such taxes, Actimize reserves the right to charge Client for, and Client shall reimburse Actimize within 30 days of receipt of an invoice from Actimize for such taxes, charges, levies, duties or surcharges and any additional related costs.

4.4 Currency. If “$” or “dollars” are referenced, such references shall mean the lawful currency of the United States of America unless another currency is specified.

4.5 Renewal Term Fees. Actimize may modify the Fees applicable to an automatic Renewal Term by providing written notice to Client at least 90 days prior to the expiration of the then-current Term of any Exhibit; provided that notwithstanding any other right to terminate, Client shall have the right to terminate the applicable Service within 30 days of such notice. In addition, unless otherwise agreed in the Exhibit, Actimize may without further notice increase the Software Services Fees for each automatic Renewal Term by the greater of (i) the annual percentage increase in the monthly (A) for fees other than in GBP, the Consumer Price Index for All Urban Consumers (CPI-U): US City Average for “All Items” published by the US Bureau of Labor Statistics (“CPI”), (B) for fees in GBP, the Retail Prices Index, published by the United Kingdom Office for National Statistics (“RPI”), or any comparable index substituted for CPI or RPI, during the applicable Initial Term or Renewal Term preceding such increase, and (ii) 5%.

5. CLIENT UNDERTAKINGS

5.1 Client Materials. Client shall provide Actimize with any Client Materials (including but not limited to the Client Data) reasonably required for the performance by Actimize of the Services and its other obligations under this Agreement promptly after the relevant Effective Date in such format as Actimize shall reasonably require, such format not to be changed without Actimize’s consent, and in a timely manner. Client grants to Actimize a worldwide, non-exclusive, royalty-free license to use and copy the Client Materials (including but not limited to the Client Data) to the extent necessary for performing the Services, to perform support services for the Services and to improve the Services to create in Actimize’s discretion roadmap improvements, updates or upgrades to the Services. Client shall, at its own cost and expense and before supplying any Client Materials to Actimize, obtain all necessary approvals, authorizations, consents, licenses and waivers necessary for use by Actimize and Actimize’s subcontractors of such Client Materials in accordance with this Agreement.

5.2 Client Systems and Equipment. Client shall be responsible for supplying and maintaining all computer hardware, software, equipment, data, power and communication lines required for the Named Users to access the Services, and shall comply with any specific responsibilities set out in the Exhibit.

6. CLIENT DATA

6.1 Client Data. Client shall own all rights, title and interest in and to all of the Client Data and Client Data existing in the Alerts, and all case notes, case management files, and other data which Client attaches to the applicable case. Client is solely responsible for the accuracy and legality of Client Data. The Software Services are intended to hold secondary copies of Client Data. In the event Client Data contained in the Services are destroyed or damaged during the applicable term, or the earlier retention period if stated in the applicable Exhibit, Actimize’s sole responsibility will be to use commercially reasonable efforts to assist Client with the restoration or retrieval of such destroyed or damaged Client Data from the latest archived or backed-up version maintained by Client.

6.2 Personal Data. If the Client Data contains any non-public personal information (as such term is defined under Applicable Privacy Law (defined hereinafter) (Personal Data)): (i) each party shall comply with all data privacy laws and regulations of the relevant jurisdictions that apply to its respective performance of obligations under this Agreement, including, as applicable, the EU General Data Protection Regulation, Gramm-Leach-Bliley Act, the California Consumer Privacy Act and other relevant data privacy laws and their related implementing regulations (collectively, Applicable Privacy Law); (ii) Client warrants that it has complied with Applicable Privacy Law in its provision of Personal Data to Actimize, has received all necessary consents for Actimize to process such data and shall ensure that it is entitled to transfer the relevant Personal Data to Actimize, so that Actimize may lawfully process the Personal Data in accordance with this Agreement on Client’s behalf; (iii) Actimize shall not retain, use or disclose the Personal Data for any other purpose than for the sole and specific purpose of performing the Services expressly specified in this Agreement or as otherwise permitted by applicable law; and (iv) each party shall take appropriate technical and organizational measures against the unauthorized or unlawful processing of the Personal Data or its accidental loss, destruction or damage, and shall promptly notify the other party in the event that it becomes aware of any unauthorized access to such personal data. Client acknowledges that Actimize may transfer Personal Data to Actimize’s Affiliates and subcontractors, provided that such transfer shall be solely as needed to perform the Services hereunder. Actimize shall be responsible for ensuring its Affiliates and subcontractors process Personal Data in accordance with the terms of this Agreement.

6.3 Return and Destruction. After receipt of a written request by Client to be received no later than 10 Business Days subsequent to expiration or termination of this Agreement, Actimize shall return to Client any Alerts and Actimize shall thereafter destroy Alerts in Actimize’s possession in accordance with the Destruction Measures (defined below). Other Client Data (which is only a secondary copy of data that Client should retain in a separate system of record) shall immediately be destroyed in accordance with the Destruction Measures, except to the extent that Actimize is required to retain such materials under applicable law or pursuant to any document retention policies made known to Client.

7. THIRD PARTY DATA AND THIRD PARTY SOLUTIONS

7.1 The Services may include access to or utilize Actimize data, Third Party Data (e.g., market data used in Actimize trade compliance Software Services) and Third Party Solutions, including those sold as part of the Actimize “Marketplace.” Third Party Data and Third Party Solutions shall be subject to additional terms imposed by the Third Party Licensors as detailed in the Documentation or in Client’s direct agreement with the applicable Third Party Licensor. Unless Client has a contract with the applicable Third Party Licensor which provides otherwise, in which case such terms are solely in the name of such Third Party Licensor, then data and Third Party Solutions (i) and any data derived from Third Party Data (other than the Client Data) or intellectual property derived from the Third Party Solutions are proprietary to, and title remains vested in, the applicable Third Party Licensors, (ii) are provided “as is” and “as available” and Actimize and the Third Party Licensors make no representations, express or implied, as to accuracy, completeness or reliability, and disclaim all express or implied warranties including but not limited to merchantability, fitness for a particular purpose, title and non-infringement. Further, in regard to the Third Party Data and Third Party Solutions, (i) Actimize shall not be liable for, or have any responsibility in connection with, Client’s use thereof or Client Data processed or used by such Third Party Solutions or which Client allows to be shared or transferred via the Software Services or directly to such Third Party Solutions, (ii) Client’s rights thereto (in addition to Actimize’s termination and suspension rights herein) may be terminated by Actimize if Client is in material breach of its obligations imposed by the Third Party Licensors, (iii) if Client has a contract with the Third Party Licensor, Client shall seek support and maintenance services directly from the applicable Third Party Licensor and shall refrain from reporting support issues to Actimize, (iv) the Services shall not include professional services for such Third Party Solutions unless explicitly stated in the relevant SOW, (v) expiration or termination of Client’s contract with the Third Party Licensor shall not result in any refund, credit or set-off for the Software Services, and (vi) Client shall indemnify and defend Actimize for any claims by a third party that Client breached the terms of, or infringed intellectual property rights therein. Actimize shall not be responsible, nor indemnify or hold harmless any party, for claims that the Third Party Data or Third Party Solutions infringe intellectual property rights. Each of the Third Party Licensors shall, to the extent required by their applicable licenses, constitute third party beneficiaries hereunder.

7.2 Third Party Data shall not, unless specified in the applicable Exhibit, include any data feeds which are not applicable to the Service or Territory specified, or any supplemental feeds which Actimize provides at an additional cost to the Service, unless specified in the Exhibit. Analytics available in the Service may not be effective if they require data that has not been listed in the applicable Exhibit.

7.3 Client’s use of links to websites made available via the Software Services or within Third Party Data, and the data and information therein (External Content) is also subject to any terms of use or service and privacy policy contained within such External Content. If any of the terms and conditions contained in this Agreement conflict with the terms of use or policy contained within such External Content, then those External Content specific terms and conditions shall control the use and information and data of that External Content; however, no External Content terms shall in any way change the terms of this Agreement as to rights and obligations between Actimize and Client. Any warranty that is provided in connection with any External Content is provided solely by the owner or provider of that External Content or service and not by Actimize.

7.4 If Client purchases or requests access to Third Party Data or Third Party Solution via the Software Services, then (i) Actimize may provide the applicable Third Party Licensors with the names, email addresses, Client name and other identifying information of Client and its users of the Software Services as reasonably necessary for permissioning Third Party Data and Third Party Solution access and billing, and (ii) Actimize may provide the applicable Third Party Licensor with access to such Client Data as required for the operation of the Third Party Solution.

8. AUDIT

8.1 Audit Right. Each party, and in the case of Client, its regulator, shall have the right to audit the other party to determine compliance with this Agreement, to inspect Actimize’s records with respect to the Software Services, and any of the audited party’s security, or information management policies or practices relevant to compliance with this Agreement, and any applicable laws. Unless such audit is performed by Client’s regulator, any such audit shall: (i) not be more than one time in each calendar year during the Term and require reasonable advance written notice of not less than 30 days; (ii) be performed at a mutually agreed upon time and in the presence of a designated representative of the audited party at all times, (iii) present no unreasonable interference to the business operations of the audited party or its affiliates; (iv) be at no cost to the audited party; and (v) at all times be subject to the audited party’s reasonable data security and other company policies. Each party agrees and acknowledges that any and all information that an auditing party may have access to in the course of performing the audits shall be subject to the confidentiality obligations in this Agreement.

9. TERM AND TERMINATION.

9.1 Term. This Agreement shall commence on the Effective Date and shall continue for the Term. he Software Services are non-cancelable by Client other than pursuant to a permitted termination pursuant to this Section. If Client elects to cease using the Software Services during the Term for any reason other a permitted termination, Client shall: (a) continue to be liable for all amounts payable under the applicable Exhibit for the remainder of the Term; and (b) not be entitled to any refunds.

9.2 Termination for Breach. Either party may (without prejudice to its other rights and remedies) terminate an Exhibit and the applicable Actimize Cloud Master Terms in regard to a specific Service (and/or require payment of any amounts due under this Agreement at the date of termination) with immediate effect by written notice to the other party, if the other party commits a material breach of any provision of this Agreement or the applicable Exhibit in relation to such Service, and in the case of a remediable breach, fails to remedy it within 30 days of the date of notice from the other party specifying the breach and requiring it to be remedied or, if such breach is not possible to remedy within 30 days, such party fails to commence to remedy such breach within such 30 day period or fails to diligently prosecute such remedy to conclusion.

9.3 Termination for Insolvency. Either party may terminate this Agreement by written notice with immediate effect if the other party becomes unable to pay its debts, enters into liquidation (except for the purposes of a solvent reorganization), makes an assignment for the benefit of its creditors, becomes subject to an administration order or a receiver, trustee in bankruptcy, administrative receiver or the like is appointed over all or any of its assets or takes or suffers to be taken any similar action in consequence of a debt, ceases or threatens to cease its operations or is dissolved, or any other equivalent procedure in any other jurisdiction with respect to that party (including but not limited to proceedings under Chapter 7, 11 or 13 of Title 11 of the United States Code).

9.4 Effect of Termination. Upon termination or expiration of this Agreement, all Exhibits shall automatically terminate. Termination of an individual Exhibit shall not affect any other Exhibits then in effect, or the Term of this Agreement. Upon termination or expiration of this Agreement for any reason, all rights of access or licenses granted by Actimize under this Agreement (or any Exhibit) shall cease, and Client shall immediately cease all access to and use of the Services.

9.5 Remedies Cumulative. The termination or expiration of this Agreement or an Exhibit shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law. In particular, the termination or expiration of this Agreement or an Exhibit shall not prejudice the right of Actimize to recover any unpaid and outstanding Fees or other amounts otherwise due (including but not limited to any interest due) at the time of termination or expiration.

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Actimize and Actimize’s licensors reserve all right, title and interest in and to the Services, Documentation, Actimize Data and the Third Party Data (together the Actimize Materials), including but not limited to all of related Intellectual Property Rights. No rights are granted to Client hereunder other than as expressly set forth herein. Client further acknowledges that the Actimize Materials embody valuable confidential and trade secret information of Actimize and its licensors, the development of which required the expenditure of considerable time and money by Actimize. Client shall not sublicense, rent or lease the Actimize Materials and shall not obscure, alter or attempt to hide any copyright, trademark or other proprietary notice, disclaimer or identifying information displayed on or provided in connection with the Services.

10.2 Actimize IP Undertaking. Actimize undertakes at its own expense to defend and indemnify Client or, at Actimize’s option, settle any third-party claim or action brought against Client alleging that the access and use of the Services (or any part thereof) by Client in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party (Infringement Claim). Actimize shall be responsible for any reasonable and direct losses, damages, costs (including but not limited to reasonable legal fees and expenses) incurred by or awarded against Client as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, the indemnity in this Section shall not apply where the Infringement Claim in question is attributable to (i) the possession, use, development, modification or maintenance of the relevant Services (or any part thereof) by or on behalf of Client other than in accordance with the terms of this Agreement, or in a manner for which the Services was neither designed or authorized by Actimize; or (ii) the possession, use, development, modification or maintenance of the relevant Services (or any part thereof) by or on behalf of Client in combination with non-Actimize apparatus, hardware, software or services, if such Infringement Claim would have been avoided by exclusive use of the relevant Services alone. The indemnity granted in this Section is conditional on: (i) Client notifying Actimize within 10 days of any Infringement Claim of which it has notice; (ii) Client not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of Actimize; and (iii) Actimize having, at its own expense, sole control of the defense and any related settlement negotiations arising from any Infringement Claim and Client giving Actimize all reasonable assistance in connection with those negotiations and such defense at Actimize’s request. If any Infringement Claim is made, or in Actimize’s reasonable opinion is likely to be made, against Client, Actimize may suspend access to the Services for a reasonable period during its investigation of the Infringement Claim, and may at its sole option and expense: (i) procure for Client the right to continue accessing or using the Services (or any part thereof) in accordance with the terms of this Agreement; (ii) modify the relevant components of the Services so that they cease to be infringing; (iii) replace the relevant components of the Services with non-infringing components; or (iv) terminate this Agreement, either in whole or with regards only to the relevant components of the Services, immediately by notice in writing to Client. Any modified or replacement Service components provided to Client in substitution for the infringing item shall be incorporated into and form part of the Services under this Agreement. Client’s sole and exclusive remedy, and Actimize’s entire liability, for Infringement Claims are as set forth in this Actimize IP Undertaking Section.

10.3 Ownership of Client Materials. Actimize acknowledges that the Intellectual Property Rights in the Client Materials are and shall remain the property of Client or its licensors and that Actimize shall not obtain any rights in Client Materials other than expressly granted to it under this Agreement.

10.4 Client IP Undertaking. Client undertakes at its own expense to defend and indemnify Actimize or, at Client’s option, settle any claim or action brought against Actimize alleging that the possession or use of the Client Materials (or any part thereof) in accordance with the terms of this Agreement infringes the Intellectual Property Rights of a third party, and the above provisions of this Intellectual Property Rights Section above shall apply to any such claim, with the necessary changes having been made.

11. CONFIDENTIALITY.

11.1 Restrictions. Subject to the remainder of this Confidentiality Section, each party shall keep strictly confidential all Confidential Information received directly or indirectly from the other party. Such Confidential Information shall not be disclosed to any third party other than the employees and authorized subcontractors of the receiving party and the receiving party shall not use any such Confidential Information for any purpose other than the performance of this Agreement.

11.2 Exceptions. Either party may disclose information which would otherwise be Confidential Information if and to the extent that:
11.2.1 that party is required to do so by: (i) any court order, (ii) lawful requirement of a governmental agency or regulator, or (iii) other operation of law (including but not limited to disclosures pursuant to any applicable securities laws and regulations), provided that the party disclosing the information shall notify the other party as soon as reasonable of its intention to disclose the information to the extent lawfully permitted;
11.2.2 it is information which has come into the public domain through no fault of the receiving party;
11.2.3 it is reasonably required to be disclosed to employees or subcontractors of such party in order to perform its obligations under this Agreement, or to its attorneys, accountants, and other similar advisors, subject to each such party being under obligations of confidentiality no less onerous than as set out in this Section;
11.2.4 that party is permitted by the other party to do so in writing in advance;
11.2.5 it is information in the possession of the receiving party prior to disclosure under this Agreement or is disclosed to the receiving party by a third party without breach of any obligation of confidentiality owed to the disclosing party; or
11.2.6 it is information that is independently developed by personnel of the receiving party having no access to the other party’s Confidential Information as shown by contemporaneous written records.

11.3 Notice. Each party shall notify the other party promptly upon becoming aware of any unauthorized use or access to the Confidential Information of the other party.

11.4 Survival. The provisions of this Confidentiality Section shall remain in full force and effect notwithstanding any termination or expiration of this Agreement.

12. ACTIMIZE WARRANTIES.

12.1 Actimize Warranty. Actimize warrants that during the Term the Software Services will perform in all material respects in conformance with the Documentation when operated in accordance with the Documentation. Actimize shall use reasonable skill and care in the provision of Professional Services.

12.2 No Representations. Other than as otherwise provided for in this Agreement, no representation or warranty is made or given by Actimize (i) in respect of Client’s usage of the Services (or the results arising from such usage), (ii) that the functionality of the Services will meet Client’s requirements or identify every instance of such suspicious, anomalous or potentially fraudulent activity, or (iii) that the use of the Services will be uninterrupted or error-free. Because certain data and components used as part of the Services are provided to Actimize by third parties, Actimize cannot be an insurer or guarantor of the accuracy, completeness, or reliability of such third-party data or components.

12.3 Disclaimer. Actimize and all of its licensors, including but not limited to Third Party Licensors, of associated software and other components hereby disclaim all warranties other than those provided in this Section, whether express, implied or statutory, including but not limited to implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, or that the Services are free from defects or errors, or that the Services will be accessible without interruption. No oral or written advice or information provided by Actimize or anyone on its behalf will create a warranty or in any way increase the scope of any warranties provided herein, and Client is not entitled to rely on such advice or information and has not relied on such advice or information in entering into this Agreement.

13. LIMITATION OF LIABILITY

13.1 Limitations. The following provisions set out the entire financial liability of Actimize and its licensors (including but not limited to any liability for the acts or omissions of its employees, agents and sub-contractors) to Client in respect of any breach of this Agreement, any indemnity granted by Actimize under this Agreement; any representation, statement or tortious act or omission (including but not limited to negligence) arising under or in connection with this Agreement; and breach of any statutory duty.

13.2 Excluded Liabilities. Nothing in this Agreement excludes or limits the liability of either party for death or personal injury, willful breach of payment obligations, for fraud or intentional misrepresentation by such party’s officers, employees, contractors or agents, or for any other liability which may not be excluded by applicable law. Subject to the above limitation, notwithstanding anything else to the contrary, under no circumstances will (i) Actimize’s licensors be liable to Client in any way, (ii) Actimize be liable for any loss (including but not limited to any action, award, claim, costs (including legal costs), direct or indirect damage, demand, expense, liability, interest, fine, penalty or taxation) resulting from or related to Client’s regulatory requirements, or (iii) Actimize be liable for any indirect, incidental, consequential, punitive, special or exemplary damages (including without limitation, loss of revenue or goodwill, loss of savings, loss of data, loss of business or business opportunity, loss of reputation or loss of anticipated profits) arising out of or relating to this Agreement, whether alleged as breach of contract, warranty claim, tort or otherwise, and in each case regardless of whether Client has been advised or is otherwise aware of the possibility of such loss. In no event will Actimize be liable for any claim brought by Client more than one year after the cause of action arose or reasonably should have been discovered.

13.3 Total Liability. Subject to the Excluded Liabilities Section directly above, neither party’s total liability under or connected with this Agreement shall exceed an amount equal to the total Fees actually received by Actimize under this Agreement in the 12 months prior to the event giving rise to such liability.

13.4 Acknowledgement. The parties acknowledge that the exclusions and limitations set out in this Agreement are fair and reasonable in all the circumstances. This Agreement (including any Exhibit, Statement of Work, or any other amendment hereto) shall not be construed against the drafter thereof, and any rule of contract construction requiring a contract to be construed against the drafter thereof is expressly waived by both parties.

14. CLIENT RESPONSIBILITIES

14.1 Client is solely responsible for (i) determining the appropriate course of action when suspicious or anomalous activity has been flagged by the Services (ii) ensuring that the Services (and any results arising from such usage) are fit for use in Client’s business and comply with all laws, regulations and other legal or regulatory requirements (Regulatory Requirements) applicable to Client; and (iii) except as may be otherwise agreed herein, responding to and cooperating with any requests for information, directions or investigations arising in connection with the enforcement of Regulatory Requirements by a competent authority.

15. SECURITY

15.1 Security. Actimize shall use, or enforce to the extent third-party providers are utilized, safety and physical and computer system security procedures that are: (a) at least equal to prevailing industry standards for such types of service locations; (b) designed to ensure the security and confidentiality of Client Materials, (c) designed to protect against anticipated threats or hazards to the security or integrity of Client Materials, including but not limited to unauthorized intrusion, disclosure, misuse, alteration, destruction or other compromise of such information, and (d) as rigorous as those procedures in effect at the Service Location as of the Effective Date.

15.2 Access Controls. Actimize shall have an effective process to control and secure access to the Software Services and Client Materials based on the principle of least privilege through secure authentication, authorization mechanisms, and access control rules that reflect the risk associated with the particular information system and the type of information stored therein. Safeguards should be in place which would prevent unauthorized individuals access to the Client Materials through fraud or error. User access management to the Software Services must include effective processes for user registration and de-registration, user access provisioning, management of privileged access rights to information, information systems, utility programs, and program source code, management of secret authentication information, review of user access rights and removal or adjustment of access rights. Actimize shall maintain designated user accounts to ensure accountability for personnel.

15.3 Encryption. Actimize shall employ encryption to address information security objectives for Personal Data to mitigate the risk of unauthorized disclosure or alteration of Personal Data while in transit or in storage on networks or information systems. Cryptographic keys must be protected against unauthorized access, disclosure, modification, and loss.

15.4 Vulnerability Management. The following software development controls are in place for the Software Services being provided to Client hereunder: (i) static code analysis during development (secure code review of the entire code base) using Fortify or a generally-recognized alternative; and (ii) open source scanning and vulnerability detection using Black Duck or a generally-recognized alternative. If Actimize is unable to substantiate that the software is free of material security defects (i.e., no critical or high-risk defects) through the above controls, Actimize will use commercially reasonable sustained efforts to remediate those vulnerabilities, prioritizing based on the severity level assigned to such vulnerabilities, which prioritization shall be in Actimize’s sole reasonable discretion.

15.5 Business Continuity and Disaster Recovery. Actimize shall endeavor to maintain continuity of operations through business continuity and recovery plans, redundancy, adequate staffing of incident response personnel, and timely recovery of critical Actimize processes and systems. Actimize shall test its business continuity plans on an annual basis.

15.6 Disposal. Actimize shall use appropriate measures to properly dispose of Client Materials (the Destruction Measures). The Destruction Measures shall include (i) destruction of Client Materials in a manner that precludes recovery or recreation of the Client Materials, electronically or otherwise, and (ii) effective removal from Actimize equipment and media using disk sanitizing processes appropriate for the classification of information contained therein and storage media type.

15.7 Validation. Actimize shall engage a third party to perform annual audits of its data security measures for the Software Services. Such third-party audits shall be in the form of a SOC 2 Type II or equivalent, or any successor thereto. Actimize shall provide Client with a copy of the report for such audit on an annual basis upon request. Actimize shall provide Client with a copy of the executive summary of its annual penetration testing results of infrastructure and applications applicable to Software Services upon request. Such penetration tests should at a minimum include a detailed assessment of attempts to identify vulnerabilities and attack vectors that can be used to exploit the Software Services.

15.8 Data Incidents: If Actimize becomes aware of an actual or reasonably suspected Data Incident, then Actimize will: (i) as a priority before any other response actions, immediately take all lawful measures necessary to contain the Data Incident and to ensure that the same or similar Data Incident does not recur, and (ii) immediately investigate the Data Incident and, upon determination of facts which are reasonably determined by Actimize to be capable of use by Client to comply with any legal, contractual, reporting or disclosure obligation related to the Data Incident or which can be used by Client to mitigate the adverse consequences of the Data Incident, promptly email Client’s contact for Data Incidents as notified to Actimize (“InfoSec Contact”) to provide Client with a summary regarding the Data Incident as it relates to Client and, if Client Data has been compromised, full and complete details regarding the Data Incident as it relates to Client.

16. GENERAL

16.1 Assignment. Client shall not assign, sublicense, transfer, lease, outsource, grant a security interest in or transfer any interest in any of its rights or obligations under this Agreement without the express prior written consent of Actimize. Any unauthorized transfer or assignment shall be null and void and shall constitute a material breach of this Agreement.

16.2 Independent Contractor Status; No Agency or Partnership. The relationship of the parties established under this Agreement is that of independent contractors. Nothing in this Agreement shall constitute or be deemed to constitute a partnership, agency or joint venture between the parties hereto or constitute or be deemed to constitute either party the agent of the other for any purpose whatsoever and neither party shall have any authority or power to bind the other or to contract in the name of or create a liability against the other.

16.3 Exports. Client shall not directly or indirectly use the Services, or allow the transfer, transmission, export or re-export of all or any part of the Services (or any component thereof), in violation of any export control laws or regulations of any jurisdiction relevant to the Services, including but not limited to the United States.

16.4 Notices. With respect to notices permitted or required under this Agreement related to the following matters, such notices shall be sent by email to the other party’s regular contact, as well as by certified mail with return receipt requested, or a nationally recognized express delivery service: (a) notices of breach; (b) notices of termination for Exhibits which are not Trial Subscriptions; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given: (i) on the date of delivery when delivered personally, (ii) one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service, and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in subsections (a) through (c) above may also be delivered by email, and will be deemed given upon personal reply acknowledging receipt. Notices to Client will be sent to the address provided in the Exhibit, and notices to Actimize must be sent to Attn: General Counsel, 221 River St, 10th Floor, Hoboken NJ 07030.

16.5 Force Majeure. Neither party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement civil or military authority, interruptions in telecommunications or internet or network service providers, problems due to Client-owned equipment, power outages, act of God, act or omission of carriers or other similar causes beyond its control. The delayed party shall resume performance once the condition ceases and the period of performance shall be extended for the length of time the condition endured.

16.6 Amendments. This Agreement may be amended from time to time only by written agreement of the parties.

16.7 Waiver. No forbearance or delay by either party in enforcing any remedy, right, power or privilege shall prejudice, restrict or operate as a waiver of such remedy, right, power or privilege. Any waiver of any breach of any contractual terms shall be in writing and shall not operate or be deemed to be a waiver of any other right or of any other later breach of the same obligation.

16.8 Severability. If any term of this Agreement is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms hereof shall remain in full force and effect.

16.9 Injunctive Relief. In the event of an actual or threatened breach by either party of its obligations under Sections 3 (Restrictions on Use), 9.4 (Effect of Termination), ‎10 (Intellectual Property Rights) or 11 (Confidentiality), the other party shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such actual or threatened breaches are inadequate and that the non-breaching party would suffer irreparable harm. The rights set forth in this Section are in addition to any other rights that the parties may have at law or in equity.

16.10 Media. Actimize may use the name and logo of Client in its customer lists and on its website, and in any document where such use is required by law or in any regulatory filing. Further, promptly after execution of this Agreement, the parties shall work together in good faith to issue a press release announcing the relationship created hereunder.

16.11 Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.

16.12 Entire Agreement. This Agreement, including the applicable Exhibits and the Schedules attached hereto, contains the entire agreement and understanding of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. No purchase order, other ordering document or any handwritten or typewritten text which purports to modify or supplement the printed text of this Agreement or any SOW by virtue of “standard” or printed terms included thereon, without specific reference to the provisions of this Agreement intended to be so modified or superseded, whether submitted by Actimize or Client, shall add to or vary the terms of this Agreement. This Agreement is binding upon the parties hereto, their successors and permitted assigns. Each party acknowledges that in entering into and performing this Agreement it does not do so on the basis of, and does not rely on any statement or representation (unless made fraudulently) or warranty or understanding other than as expressly contained in this Agreement.

16.13 Counterparts. Each Exhibit may be executed in any number of counterparts (including by means of facsimile or .pdf transmission), each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.

16.14 No Solicitation. During the Term and for a period of 12 months after termination or expiration of this Agreement, Client shall not solicit, other than by means of a general advertising campaign which is not specifically targeted at any of the employees of Actimize, any employees of Actimize that are directly engaged by Actimize in connection with the Services generally, whether or not pursuant to this Agreement.

16.15 No Third Party Beneficiaries. Other than as explicitly stated herein, this Agreement does not create any third-party beneficiaries, including as applicable but not limited to any right under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person who is not party to it. Without limiting the foregoing, Actimize’s obligations under this Agreement are to Client alone, and Actimize shall have no obligation under this Agreement to any other third party.

16.16 Improving the Services. Client grants to Actimize and Actimize’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Actimize software and services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client relating to the operation of the Services. Actimize has the royalty-free right and license to analyze Client’s use of the Software Services to improve the Software Services and to provide value-added services that incorporate the results of such analyses, provided that any results shall be on an anonymous basis and no Personal Data shall be disclosed as a result of any such analysis.

16.17 Governing Law; Jurisdiction; Jury Trial. The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws of the following jurisdiction applicable to contracts made and to be wholly performed within such jurisdiction, without giving effect to any conflict of laws provisions thereof, and the sole and exclusive venue shall be as follows: (i) if the Actimize contracting entity is organized in North America or South America, the State of New York and the federal or state courts of the city, county and state of New York, NY, (ii) if the Actimize contracting entity is organized in Europe, Africa, the Middle East or Asia, the laws of England and Wales and the courts located in London, England. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties hereby expressly consent to such exclusive jurisdiction and venue and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Each party waives the right to trial by jury in any action arising out of or relating to this Agreement.

SCHEDULE A

Service Levels
1.1 The Software Services are expected to be available 99.5% every month, less Excusable Downtime (the “Uptime SLA”). “Excusable Downtime” means, collectively: (a) scheduled maintenance (2:00 AM to 10:00 AM on Sunday in the relevant Service Location and 8 pm to 12 am Pacific Time on Wednesday); (b) emergency maintenance, and any additional maintenance events requested by Client; (c) Client-caused outages or disruptions; (d) outages caused by software or hardware not provided or controlled by Actimize; and (e) outages caused by disruptions attributable to force majeure that could not otherwise be prevented by Actimize’s business continuity plan. Any break in the continuity of Software Services resulting from routine and emergency maintenance will be notified to Client as soon as reasonably practicable.

1.2 Actimize shall provide support to correct Errors in the Software Services. Support does not cover: (i) errors caused by failures in the performance of Client’s hardware or operating systems; (ii) internet connection or power failures; (iii) Client operator error; (iv) provision of incorrect information by Client or failure of Client to provide Client Data that conform to the format Actimize shall reasonably require; or (v) malicious interference by any third party. If Actimize agrees to provide support for any of the exclusions directly above, Actimize shall be entitled to charge additional Fees in accordance with its then-current standard professional services fees, provided that any such charge is agreed to in advance in writing by Client. Client shall report all Errors in the technical support web portal at https://wiser.nice.com, or at such other location as Actimize shall specify from time to time (“Technical Support Portal”). For Critical Impact Errors and High Impact Errors, Client must follow the report in the Technical Support Portal with a report via the support telephone number as Actimize shall specify from time to time. Actimize will acknowledge receipt of notice of any Errors in the Software Services properly notified to it according to the following target response times.

Severity	Description	Response Time
Critical Impact Error	An Error that renders the Software Services or a critical component or function thereof inoperative in production or causes the Software Services to fail catastrophically in production.	Within one hour.
High Impact Error	An Error that significantly degrades performance of the Software Services in production or materially restricts Client’s use of the Software Services in production but does not rise to the level of a Critical Impact Error.	Within two hours.
Medium Impact Error	An Error that does not rise to the level of a Critical Impact Error or High Impact Error.	By the next Business Day.