Terms and Conditions

These Terms and Conditions (“Terms and Conditions”) shall govern all Ordering Documents.

1. Definitions.  

“Account(s)” means each formal banking relationship uniquely identified by an account number, whether inactive and active, with data uploaded for use with the Software or Cloud Services. 

“Actimize” means the Actimize entity executing an Ordering Document.

“Affiliate(s)” means, when used with respect to a party, any legal entity controlled by, controlling, or under common control with that party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity. 

“Agreement” means, collectively, these Terms and Conditions, the applicable: Terms of Use (Cloud and or On-Prem), the Invoicing Policy, the Cloud Security Policy and the Ordering Documents. 

“Alert” means the information generated by the Cloud Services and made accessible to Customer when a transaction meets the parameters for the relevant analytic models, and all case notes, case management files, and other data which Customer attaches to the applicable case. 

“Applicable Privacy Laws” means all data privacy laws and regulations of the relevant jurisdictions that apply under the applicable Order, 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.

“Claim” means a claim, demand, suit or proceeding brought against a party by a third party.

“Cloud Services” means a subscription-based software-as-a-service offering in a hosted environment, including Support, as described in an Ordering Document.

“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.

“Confidential Information” means non-public information that one party (or their Affiliate) (the “Disclosing Party”) discloses to the other Party under this Agreement (the “Receiving Party”) and which is either marked as confidential (or words of similar import) or would reasonably under the circumstances be considered confidential. It does not include information that after the date of disclosure becomes public through no fault of the Receiving Party, was already known by the Receiving Party prior to its disclosure by the Disclosing Party, was rightfully disclosed to the Receiving Party by a third party without breach of an obligation of confidentiality owed to the Disclosing Party, or is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Actimize’s Confidential Information also includes materials or information related to requests for proposals, quotes, and Actimize’s Services, Software and Documentation.  Notwithstanding the foregoing, if the parties entered into a non-disclosure agreement prior to the Effective Date, the information disclosed under such agreement shall be deemed to be Confidential Information hereunder. 

“Content” means the Customer data uploaded for use with the Cloud Services.

“Customer” means the Customer entity executing an Ordering Document.

"Customer Subscription Data” means Third-Party Data accessed through the Services using Customer’s subscription to a Third-Party Solution.

“Documentation” means the applicable specifications, user manuals, and self-help guides accompanying Services or Software. 

“Entity(ies)”means an (active or inactive) individual, beneficiary owner or company to which Customer assigns a distinct identification key, which may also be referred to as “Parties”. 

“Invoicing Policy” means Actimize’s invoicing policy located at www.niceactimize.com/terms-and-conditions/invoicing-policy.

“Losses” means losses, liabilities, damages, and reasonable attorneys’ fees and costs.

“Named User(s)” means a single individual assigned a unique login ID to access and use the Software or Cloud Services.

“Market” means an exchange or other venue for the trading or posting of transactions or indications of interest of securities or other financial product.

“Order” means an ordering document executed by the parties subject to these Terms and Conditions, which details the Services or Software, including the commercial details for such purchase. Orders do not include any preprinted terms on a Customer’s purchase order or other terms that are additional to, or inconsistent with, the terms of these Terms and Conditions. For Professional Services, the term ‘Order’ may mean a SOW. 

“Personal Data”meansany non-public personal information or personal data as such terms are defined under Applicable Privacy Law. 

“Production” means an operational environment deployed for commercial use (excluding, but not limited to, any test, development, staging, or lab environment).

“Ordering Document(s)” means, collectively, Orders, Statements of Work, and Customer purchase orders issued pursuant to these Terms and Conditions. 

“Professional Service(s)” means consulting, installation, implementation, and training services to be provided by Actimize pursuant to an Ordering Document.

“Regulatory Requirements” meansall laws, regulations and other legal or regulatory requirements applicable to Customer.

“Resulting Information” means data and information created by, or resulting from, operation, use or improvement of the Services or Software, including insights, analyses, usage data, statistics, reports, and other information that is aggregated anonymized or de-identified, all of which are Actimize Confidential Information. Resulting Information does not identify Customer or a natural person.

“Scope of Use” the metrics for Customer’s permitted use of the Software or Cloud Services, as applicable, as specified in an Order.

“Service(s)” means the Cloud Services, Professional Services, Support, or other services to be provided by Actimize pursuant to an Ordering Document.

“Software” means software licensed to Customer to be installed on hardware owned or controlled by Customer pursuant to an Ordering Document, and all Updates (defined in the On-Prem Terms of Use) thereto. All references in these Terms and Conditions to purchases of Software are intended by the parties to mean purchases of licenses to Software.

“Statement of Work”or “SOW” means a document executed by the parties pursuant to these Terms and Conditions, which describes the Professional Services to be provided by Actimize.  

“Subscription Term” means collectively the initial term and renewals thereof as described in an Order.

“Support” means the technical support and maintenance services offered by Actimize.

"Territory” the jurisdiction(s) where Customer may install and use the Software or access the Cloud Services, as applicable.

“Third-Party Alert” means Alerts generated in the Software or Cloud Services, as applicable, from the use of Third-Party Data.

“Third-Party Data”means data from third-party sources.

“Third-Party Licensor(s)” means the third-party licensors and providers of Third-Party Data and Third-Party Solutions.

“Third-Party Solution(s)” means the right of access to and use of Third-Party Data and third-party software or software-as-a-service. 

“Transaction(s)” means the monetary or non-monetary (e.g., messaging) activities, as applicable, as further described in the relevant Scope of Use in an Order.

2. Ordering Procedure. Customer or its Affiliates may purchase Services and Software pursuant to these Terms and Conditions by entering into Ordering Documents with Actimize or its Affiliates.  Each Affiliate of a party that enters into an Ordering Document agrees that it is bound by the terms of these Terms and Conditions as if it were either, as applicable, “Customer” or “Actimize” with respect to such Ordering Document. Customer or a Customer Affiliate, will make payments to the Actimize entity set forth in the Ordering Document. Each Ordering Document will be deemed a separate contract between Customer, or the relevant Customer Affiliate, and Actimize, or the relevant Actimize Affiliate, which is a party to such Ordering Document. Any disputes in relation to an Ordering Document shall be settled by the parties to such Ordering Document, and only the parties to such Ordering Document shall be responsible and liable to each other in relation to such Ordering Document.

3. License; Restrictions. 

3.1 Rights Granted. Upon execution of an Ordering Document, Actimize will grant Customer a non-exclusive, non-transferable, non-sublicensable right to use the Services or Software (including the Documentation) described in such Ordering Document, for the Scope of Use and up to the number of Named Users specified therein, for Customer’s internal business purposes in the Territory. Customer may make a reasonable number of copies of the Documentation, provided such reproductions include any copyright or proprietary labels, legends, or notices included in the Documentation. Term licenses for on-premise based Software or for access to Cloud Services shall be for the Subscription Term set forth in the applicable Order. The rights granted herein are granted to Customer only and shall not be considered granted to or for the benefit of any Affiliate of Customer unless stated in the applicable Order.

3.2 Trials, Betas, and Evaluations. Actimize may provide Customer with access to Services or Software for trial or evaluation purposes, for testing as a preview, beta or pre-release version, or for testing and development. Such Services and Software may have limited features, functions, or other technical limitations, including limits on duration, quantity, capacity, or restrictions on use in certain environments (e.g., non-production). Notwithstanding anything to the contrary contained in these Terms and Conditions, and except as expressly set forth in an Ordering Document, Actimize does not provide Support, warranties, service level agreements, or indemnification for any such test and development, trial, evaluation, free, or beta Services or Software, which are provided to Customer “AS IS”.

3.3 Actimize Obligations. Actimize will provide the Services or Software in accordance with its Corporate Security Terms,  Cloud Security Policy (including the Data Processing Agreement), each as applicable.

3.4 Third-Party Data. The Services may include the right for Customer to access or use Third-Party Data, subject to the applicable terms in this Section 3.4. 

a) Customer Subscription Data. 

i) Customer Subscription Data requires: A) Customer maintain its subscription from the Third-Party Licensor for the duration of the Subscription Term; and B) any Professional Services necessary to configure the Software or Cloud Services, as applicable, to send, connect, or receive Customer Subscription Data from such Third-Party Licensor.

ii) Customer Subscription Data is subject to the terms of Customer’s contract with the applicable Third-Party Licensor including its license, use, warranty, and security policies. Customer is responsible for obtaining or providing any consent necessary for Actimize to send Content or to receive the Customer Subscription Data, or to combine the Customer Subscription Data with Content as necessary to provide the Services using the Customer Subscription Data.

b) Third-Party Solutions. Third-Party Solutions can be: (i) resold by Actimize as identified in an Order for Software or Cloud Services, or (ii) provided from publicly available information (e.g., Google or OFAC). Third-Party Solutions are subject to the standard terms of the Third-Party Licensors as detailed in the respective Third-Party Licensor’s terms of use. Except as otherwise provided for in the Third-Party Licensor’s terms, Actimize’s standard terms of use shall apply. If any of the terms of the Agreement or Order conflict with the Third-Party Solutions’ terms of use, then the terms of use of such Third-Party Solutions shall control.

c) Disclaimers Regarding Third-Party Offerings. With respect to Customer’s use of Third-Party Data and Third-Party Solutions (collectively, “Third-Party Offerings”), the following terms apply: (i) use of Third-Party Data is at Customer’s sole risk and are provided “as-is” and “as available” and Actimize shall not be liable for Customer’s use of the Third-Party Data, including providing Support; (ii) use of Third-Party Solutions shall be subject to the Third-Party Licensor’s terms of use; (iii) except as otherwise provided for in a SOW, Professional Services are excluded from Third-Party Offerings; (iv) an expiration or termination of Customer’s subscription to the Third-Party Offering shall not modify the Subscription Term for Services or Software under an Order nor shall Customer be entitled to any refund, credit or set-offs for the Fees under an Order or SOW; and (v) modification of or termination of any contract between Actimize and a Third-Party Licensor may modify or terminate Customer’s right to continue to use the Third-Party Offerings on the date Actimize’s right to provide such Third-Party Offerings is modified or ceases. Actimize shall provide Customer with written notice of any such occurrence and, if any, workarounds or recommended alternatives.

d) Required Disclosures. If Customer purchases or requests access to Third-Party Offerings via the Software or Cloud Services, then, Customer consents that: (i) Actimize may provide such Third-Party Licensors with the Customer information as reasonably necessary for access and billing information (including name, email, of Customer and its users); and (ii) Actimize may provide Customer data to the applicable Third-Party Licensor  as required for the operation of the Third-Party Solution. 

e) External Content. Customer’s use of links to websites made available via the Software, Cloud Services, or within Third-Party Data, and the data and information therein (“External Content”) is subject to any terms of use or service and privacy policy applicable to such External Content.  If any of the terms and conditions contained in this Agreement conflict with the terms of use or policy applicable to such External Content, then those terms shall control the use of that External Content. No External Content specific terms apply to this Agreement.  

3.5 Restrictions. Customer agrees it will not, directly or indirectly: (a) publish, disclose, copy, lease, modify, translate, loan, distribute, resell, transfer, assign, alter or create derivative works based on the Services or Software or any part thereof; (b) reverse engineer (except to the extent specifically permitted by statutory law), decompile, adapt, disassemble or otherwise attempt to discover source code or underlying algorithms, ideas, features or functions of the Services or Software; (c) attempt to defeat, disable, or circumvent any protection mechanism related to the Services or Software, including those intended to prevent, limit or control use, copying or access to the Services or Software; (d) test the vulnerability of a Cloud Service , including scanning or penetration testing, nor attempt to breach any security or authentication mechanisms used by the Cloud Service or Software; or (e) access or use the Services or Software: (i) on or to service the systems, networks or devices of a third party; (ii) for benchmarking, development, or competitive purposes; (iii) in violation of the rights of any third party, or any applicable law or regulation (including intellectual property and data privacy laws); or (iv) for any purpose other than as expressly provided in this Section 3.

3.6 Artificial Intelligence. Customer acknowledges and agrees that it will not, either directly or indirectly, use, permit, or enable, whether by itself or in conjunction with a third party, any generative artificial intelligence or any other machine-based learning application (each or collectively, “AI”) to model, replicate, or emulate the functionality, design, or any other aspect of the Services or Software provided under this Agreement. For the avoidance of doubt, and without limiting its rights under Section 4 (Ownership and Intellectual Property Rights), Actimize reserves all rights, and Customer has no rights, to reproduce, replicate, or otherwise use the Services or Software in any manner for purposes of training AI technologies or to generate similar applications or services, including technologies that are capable of generating software in the same style, functionality, or genre as the Services or Software. 

3.7 For U.S. Government Customers only. If Customer is a unit or agency of the United States or any of its instrumentalities  (“Government”), or when the Services or Software are used for the benefit of a unit or an agency of the Government, the following applies: The Services and Software are deemed “commercial computer software” pursuant to DFARS Section 227.7202 and FAR Section 12.212 (and any successor sections).  The use of the Services and Software by the Government is governed by the Agreement.  Under no circumstances shall Actimize be obligated to comply with any Government requirements regarding cost or pricing data or cost accounting requirements.  If Customer’s use of the Services or Software would otherwise require compliance by Actimize with such Government requirements, or in any manner affect Actimize’s rights in the Services or Software, Customer must notify Actimize of such Government requirement and obtain a waiver or exemption from such requirements for the benefit of Actimize prior to the Government accessing the Services or Software

3.8 Any violation of this Section 3 (License; Restrictions) by Customer, its Affiliates or its or their employees, agents or subcontractors will be deemed a material breach of this Agreement, and Actimize will have the right to either suspend delivery, access, or performance of the Services or Software or terminate these Terms and Conditions or any Ordering Document hereunder immediately, without any liability to Customer, and to seek all remedies available at law or in equity.

4. Ownership and Intellectual Property Rights. 

4.1 Content. Customer has sole ownership of its Content, including all intellectual property rights related thereto. 

4.2 Services and Software. Actimize has sole right to, and ownership of, all intellectual property rights in and to: (a) the Services, Software, and Documentation, and all modifications, enhancements, improvements, adaptations, and translations thereto; (b) the trademarks, service marks, and trade names associated with the Services or Software; (c) Resulting Information; and (d) all other Actimize supplied material developed for use in connection with the Services or Software generally, exclusive of the Content. Although not required, if Customer provides feedback, ideas, or other suggestions (“Feedback”) about the Services or Software, then Actimize and its Affiliates will own and may use and exploit such Feedback without restriction or obligation to Customer. All rights not expressly granted to Customer herein are reserved to Actimize. No title or ownership of the Services or Software will be transferred to Customer by way of these Terms and Conditions or an Ordering Document.  

5. Customer Responsibilities. Customer will: (a) have sole responsibility for the accuracy, quality, and legality of all Content; and (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service or Software, and will immediately notify Actimize if it becomes aware or has reason to believe that the Services are being used in an unauthorized manner. Customer is responsible for: (i) implementing any security features and options made available by Actimize in connection with a Cloud Service; and (ii) maintaining the primary copy of all Content. Customer is solely responsible for: (A) determining the appropriate course of action when suspicious or anomalous activity has been flagged by the Software or Services; (B) ensuring that the Software or Services are fit for use in Customer's business and that Customer complies with all Regulatory Requirements; and (C) 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. Without waiving any rights or remedies Actimize may have under the Agreement, at law or in equity, Actimize reserves the right to suspend delivery, access, or performance of the Services or Software if Customer breaches this Section 5.

6. Invoicing, Payment.  Actimize will invoice Customer in accordance with the Invoicing Policy and Customer will pay all fees, expenses, or other costs as agreed upon an Ordering Document (“Fees”) to Actimize within thirty (30) days from the invoice date. If Customer does not pay the Fees within such time, Actimize may apply interest to the Fees owed at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment. Without waiving any of its rights or remedies under the Agreement or at law, Actimize reserves the right to suspend delivery, access, or performance of the Services or Software until any amounts that are outstanding and past due are paid in full by Customer. Customer must notify Actimize in writing of any bona fide dispute regarding any invoice within thirty (30) days of the invoice date, or Customer shall be deemed to have irrevocably waived its right to dispute such invoice.  Ordering Documents are non-cancellable and non-refundable. If Customer decides to cease using the Services or Software during the Subscription Term, Customer will continue to be liable for all amounts payable under the Ordering Document for such Services or Software for the remainder of the Subscription Term, including all amounts that are subject to a minimum commitment, and Customer shall not be entitled to any refunds. 

7. Taxes.  Fees do not include taxes.  Customer shall, in addition to the other amounts payable under this Agreement, bear and pay all applicable taxes, including sales, use, excise, V.A.T. or similar taxes and all other charges such as duties, levies, tariffs, imposts, and government-imposed surcharges, however designated, now or in the future, that are levied or imposed by reason of the transactions contemplated hereunder, except for taxes based on Actimize’s net income.  If Actimize has a legal obligation to pay or collect taxes for which Customer is responsible under this Section, Actimize will invoice Customer and Customer will pay that amount unless Customer 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, Customer shall reimburse Actimize within thirty (30) days of receipt of an invoice from Actimize for such amount. Notwithstanding the foregoing, in the event that Customer is required by law to deduct or withhold tax at source from any amounts payable under this Agreement, Customer shall remit such amounts withheld with 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 sixty (60) days (or ninety (90) days for India) from the date of withholding.  For the avoidance of doubt, in the absence of the receipt of such withholding tax certificate, the amount shall remain due and payable to Actimize and 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.

8. Compliance. 

8.1 Ethics, Compliance, and Anti-Corruption. Actimize is committed to acting ethically and in compliance with applicable laws and regulations and has policies and guidelines in place to provide awareness of and compliance with such laws and regulations. Actimize is conscientious in its efforts to operate in accordance with the highest global ethical standards, as described in the Actimize Code of Ethics and Business Conduct. Actimize implements and maintains programs for its compliance with applicable anti-corruption and anti-bribery laws and has a zero-tolerance approach to bribery and corruption. Actimize’s Anti-bribery and Corruption Policy prohibits the offering or soliciting of any illegal or improper bribe, kickback, payment, gift, or anything of value to or from any Customer, its employees, agents, or any government official on its behalf. 

8.2 Export. The Services and Software may be subject to export laws and regulations of the United States and other jurisdictions (“Export Laws”). Each party represents that it is not on any United States government denied-party list, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Actimize will comply with all Export Laws appliable to its provision of the Services or Software to Customer. Customer will comply with all applicable Export Laws and will not export, re-export, ship, transfer, permit access to, or otherwise use the Services or Software in any country subject to an embargo or other sanction by the United States, including the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria, or for any purpose in violation of Export Laws.

8.3 Applicable Laws. Each party shall comply with all applicable laws and regulatory requirements, compliance with which is applicable to such party, in performing its obligations under this Agreement.

9. Warranties.

9.1 Actimize Warranty for Professional Services. Actimize warrants that Professional Services will be performed in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices. Customer’s sole and exclusive remedy, and Actimize’s sole obligation, for Actimize’s non-compliance with the warranty in this Section is Actimize’s reperformance of the non-conforming Professional Services, provided that Customer notifies Actimize of a non-conformity with the warranty set forth in this Section during the thirty (30) day period following Actimize’s completion of the applicable Professional Services.

9.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY ACTIMIZE TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, NOR DOES ACTIMIZE WARRANT THAT THE OPERATION OF THE SERVICES, SOFTWARE, EXTERNAL CONTENT OR THIRD-PARTY OFFERINGS WILL BE FREE FROM UNAUTHORIZED ACCESS OR HACKING ATTEMPTS, UNINTERRUPTED OR ERROR-FREE. 

9.3 Customer Warranties. Customer warrants that: (a) Customer is the owner or authorized licensee of the Content, and has secured all necessary licenses, consents, authorizations, and waivers for the use of the Content; (b) the Content and Customer’s use of the Services or Software at all times complies with the terms of the Agreement; (c) Customer will only provide to Actimize the minimum Content necessary to utilize the Services and Software under these Terms and Conditions; and (d) Customer will not use the Services or Software to conduct any illegal activity or engage in any other activity, which infringes upon the rights of Actimize or any third party. Without waiving any rights or remedies Actimize may have under the Agreement, at law or in equity, Actimize reserves the right to suspend delivery, access, or performance of the Services or Software if Customer breaches this Section 9.3.

10. Confidential Information.  

10.1 The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information using at least the same standard of care as the Receiving Party employs for its own confidential information of a similar nature, but in any event no less than a reasonable standard of care. The Receiving Party will not use the Disclosing Party’s Confidential Information, except as permitted by these Terms and Conditions.  The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any other person except to its Affiliates and its and their respective officers, directors, employees, consultants, auditors, subcontractors and professional advisors (collectively, the “Representatives”) who have a need to know, and who are subject to a confidentiality obligation regarding such Confidential Information. Notwithstanding the foregoing, Customer will not disclose Actimize Confidential Information to a Competitor of Actimize. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.  The Receiving Party is responsible for its Representatives’ compliance with the confidentiality obligations set forth herein.  

10.2 Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party if required by applicable law, regulation, order, or legal process, provided that: (a) to the extent permitted under applicable law, the Receiving Party gives the Disclosing Party prompt written notice of such requirement so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such order; (b) the Receiving Party provides the Disclosing Party with reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or legally required, subject to any protective order or confidential treatment obtained by the Disclosing Party.

11. Term and Termination.

11.1 Term. These Terms and Conditions shall apply to Ordering Documents until the expiration or termination of such Ordering Documents in accordance with this Section 11 (“Term”). 

11.2 Subscription Term. The initial Subscription Term (as set forth in the Ordering Document) will renew for additional twelve (12) month periods after the then-currently expiring Subscription Term (each a “Renewal Term”), unless the Services or Software is subject to end-of-life or is no longer made generally available by Actimize. If Customer is not purchasing the same volume or combinations of Software or Services for each Renewal Term,  the Fees for each such Renewal Term may be increased by the greater of: (a) five percent (5%); or (b) the most recent annual increase in the Consumer Price Index for all Urban Consumers (CPI-U). Notwithstanding the foregoing and unless otherwise stated on the Order, at least ninety (90) days prior to the conclusion of the then-current Subscription Term: (i) either party may advise the other party in writing that it does not wish to renew the Subscription Term (a “Non-Renewal Notice”); or (ii) Customer may advise Actimize that it desires to renew the Subscription Term for a different length of time. A Non-Renewal Notice from Customer for any Software or  Service must be sent to Actimize-Contract-Unsubscribe@niceactimize.com; notice sent by any other method shall not constitute a valid Non-Renewal Notice of Customer. Customer understands that, if Customer fails to provide a Non-Renewal Notice to Actimize, Customer will be responsible for payment in full for the Fees associated with the next Renewal Term regardless of whether Customer has issued a purchase order. 

11.3 Termination. Either party may terminate an Ordering Document: (a) for cause upon written notice to the other party, if the other party fails to cure a material breach of these Terms and Conditions or the Ordering Document, respectively, within thirty (30) days after receiving such notice; (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation for the settlement of debts or an assignment for the benefit of creditors; or (c) upon the dissolution of the other party.

11.4 Effect of Termination. Upon termination or expiration of an Ordering Document: (a) Customer will: (i) cease access and use of the applicable Services and Software; (ii) return or destroy all copies of any Software and Documentation in its possession or control; and (iii) certify in writing to the completion of such return or destruction upon Actimize’s request; and (b) each party will cease using the other party’s Confidential Information, except to the extent that there are other Ordering Documents in effect that necessitate the exchange of Confidential Information.  Notwithstanding the foregoing, either party may retain such information as may be required by law or for compliance purposes, and the confidentiality obligations of these Terms and Conditions will continue to apply for as long as the Confidential Information is retained by such party. Termination of an Ordering Document will not relieve Customer of its obligations to pay: (A) any Fees accrued or due and payable to Actimize through the effective date of termination; and (B) all future amounts due under all Ordering Documents. Unless otherwise provided herein or in the Ordering Documents, the termination of an Ordering Document will not serve to terminate any other Ordering Document, and the terms of this Agreement will continue to govern such Ordering Document until completion or their earlier termination in accordance with this Agreement.

12. Indemnification.  

12.1 Actimize Indemnification.  Actimize will defend Customer from and against any Claim made or brought against Customer to the extent such Claim alleges that the Services or Software used in accordance with the Agreement, infringes or misappropriates such third party’s: for the United States Territory, United States patent, copyright, trademark, or trade secret, otherwise, a patent, copyright, trademark, or trade secret and will indemnify Customer against Losses awarded against Customer as a result thereof. The foregoing defense and indemnity obligations will not apply if: (a) the allegation does not state with specificity that the Services or Software are the basis of the Claim; or (b) if a Claim arises from: (i) specifications, technology, applications, or designs furnished by Customer or a third party on Customer’s behalf; (ii) the use or combination of the Services or Software or any part thereof with any product or service,  data, or processes not provided by Actimize, if the Services or Software or use thereof would not infringe without such combination; (iii) the modification of the Services or Software not provided by Actimize’s authorized personnel; (iv) Services or Software under an Ordering Document for which there is no charge; (v) Customer’s failure to use the Services or Software in accordance with the Documentation; or (vi) the Content.    

12.2 If Customer is enjoined from using the Services or Software, or Actimize reasonably believes Customer will be so enjoined, Actimize will have the right, at its sole option and expense to: (a) procure for Customer the right to continue using the affected Services or Software in accordance with the Agreement; (b) replace or modify the Services or Software so that they are no longer claimed to infringe or misappropriate, provided their functionality after modification is substantially equivalent pursuant to the Documentation; or, if neither (a) or (b) are feasible using commercially reasonable efforts, then: (c) terminate Customer’s subscriptions or license for the affected Services or Software upon thirty (30) days’ written notice and, as applicable, refund to Customer any prepaid Fees for the affected Services for the unexpired Subscription Term, or the prepaid Fees for the affected licensed Software, pro-rated on a three (3) year straight line basis, beginning on the delivery date. The collective obligations of Actimize pursuant to Sections 12.1 and 12.2 state the sole and exclusive liability of Actimize, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.    

12.3 Customer Indemnification.  Customer will defend Actimize and its Affiliates from and against any Claim made or brought against Actimize to the extent such Claim: (a) alleges that any Content or any service, product, or technology provided by or on behalf of Customer hereunder, infringes or misappropriates such third party’s patent, copyright, trademark, or trade secret, or violates another other right of such third party; (b) arises from any Content or Personal Data provided to Actimize by or on behalf of Customer;  or (c) arises from Customer’s use of Content, the Services, or Software in an unlawful manner or in breach of any Third-Party Licensor terms. Customer will indemnify Actimize and its Affiliates from and against Losses awarded against Actimize as a result of any Claim described in this Section.

12.4 Indemnification Procedure. The indemnification obligations above are subject to the party seeking indemnification (“Indemnified Party”) hereunder providing the other party (“Indemnifying Party”) prompt written notice of the specific Claim, provided that any delay in providing such notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent the delay prejudices its ability to defend the Claim and provided that the Indemnified Party provides all reasonable assistance to the Indemnifying Party. The Indemnifying Party will have exclusive control of the defense and settlement of such Claim; provided, however, that the Indemnified Party may retain its counsel of its own choosing to monitor the defense of the claim at its own expense. The Indemnifying Party may settle any Claim without the Indemnified Party’s written consent, unless such settlement: (a) does not include a release of all covered claims pending against the Indemnified Party; (b) contains an admission of liability or wrongdoing by the Indemnified Party; or (c) imposes any obligations upon the Indemnified Party other than an obligation to cease using any infringing items. 

13. Limitation of Liability.  

13.1 IN NO EVENT WILL EITHER PARTY, TOGETHER WITH ITS AFFILIATES, HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE), INCLUDING LOST PROFITS, REVENUES, GOODWILL, LOSS OF OR CORRUPTION OF DATA, INTERRUPTED COMMUNICATIONS, OR BUSINESS INTERRUPTION, AND  REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH DAMAGES WERE FORESEEABLE, OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  

13.2 IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH ITS AFFILIATES, ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE OR PAID BY CUSTOMER IN THE PREVIOUS TWELVE (12) MONTHS UNDER THE TRANSACTION DOCUMENT UNDER WHICH SUCH LIABILITY AROSE. HOWEVER, THE FOREGOING LIMITATION WILL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 OR FOR ACTIMIZE TO RECOVER PAYMENT FOR USE OF THE SERVICES OR SOFTWARE IN EXCESS OF THE QUANTITY PURCHASED UNDER A TRANSACTION DOCUMENT.

13.3 The limitations in Section 13.1 and Section 13.2 above will not apply to a party’s liability for its infringement or misappropriation of the other party’s intellectual property rights, its indemnification obligations under Section 12 (Indemnification), or to the extent prohibited by law.

14. Subcontractors. Actimize has existing arrangements with certain third-party technology service providers, which provide Actimize with the ability to supplement its employee workforce providing Services to Actimize’s customers (“Subcontractors”). Notwithstanding anything to the contrary contained in an Ordering Document, Customer acknowledges and agrees that Actimize may use Subcontractors to assist Actimize in the delivery of Services under this Agreement, provided Actimize remains responsible for such Subcontractors’ compliance with the terms of the Agreement. 

15. General Provisions.

15.1 Notices.  With respect to notices permitted or required under the Agreement related to the following matters, such notices must be in writing and delivered by internationally recognized overnight delivery service: (a) notices of breach; (b) notices of termination; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service. Notices other than those described in subsections: (a) through (c) above may be delivered by email, and will be deemed given upon personal reply acknowledging receipt. Notices will be sent to the attention of each party’s Legal Department at their respective addresses provided in the Ordering Document or to such other address as either party may specify in writing. A copy of all notices to Actimize should also be sent to the attention of the Legal Department at legalservices1@niceactimize.com.

15.2 Assignment. Neither party will have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other party.  Notwithstanding the foregoing, Actimize may assign its rights and obligations under this Agreement to an Affiliate, or to any successor by way of merger, acquisition, or sale of all or substantially all of Actimize’s assets.

15.3 Choice of Law, Venue. This Agreement is governed by and construed in accordance with the laws of the applicable Actimize Affiliate that executes an Order, specifically excluding its conflict of law rules. In case of: (a) Actimize Inc., NICE Systems Latin America, Inc., and NICE Technologies Mexico SRL,  such law shall be the laws of the State of New Jersey, United States; (b) Actimize UK Limited, such laws shall be the laws of England, United Kingdom; (c) NICE Netherlands B.V. and NICE Systems GMBH, such laws shall be the laws of Ireland; (d) Actimize Ltd., such laws shall be the laws of Israel; (e) NICE Systems Canada, Ltd., such laws shall be the laws of the Province of Ontario, Canada; (f) NICE Systems Australia Pty Ltd., such laws shall be the laws of the State of New South Wales, Australia; and (g) NICE Systems (Singapore) Pte. Ltd. and NICE Japan Ltd., such laws shall be the laws of Singapore.  Both parties hereby consent and submit to the exclusive jurisdiction of the state and federal courts in the jurisdiction of the laws listed for the applicable Actimize Affiliate for all questions and controversies arising out of this Agreement. Both parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to the Agreement.  To the extent not prohibited by applicable law that cannot be waived, the parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with these Terms and Conditions or any Ordering Document. 

15.4 Remedies. In addition to any other remedies available at law or in equity, in the event of a breach by either party of any term of this Agreement, including a breach of confidentiality obligations, monetary damages may not be sufficient, and the non-breaching party may seek injunctive or other equitable relief to prevent the continuation or recurrence of such breach, without the need to prove actual damages.  Such relief will be in addition to any damages or other remedies to which the non-breaching party may be entitled.

15.5 Order of Precedence and Interpretation. In the event of any conflict or inconsistency between these Terms and Conditions and any Ordering Document, the terms of these Terms and Conditions shall prevail except where an Ordering Document specifically states that specified terms in the Ordering Document supersede specified terms of the Terms and Conditions. Customer purchase orders shall not supersede any of the terms of these Terms and Conditions. The parties agree that, if a URL contained in the Agreement does not work or has stopped working, it will notify the other party and Actimize will then repair or create a new URL to replace the non-working URL. Words importing the singular include the plural, words importing any gender include every gender, and words importing persons include entities, corporate and otherwise; and (in each case) vice versa.  The section headings are for ease of reference only and are not intended to affect the interpretation or construction of the Terms and Conditions. Whenever the terms “including” or “include” are used in the Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference will be interpreted to be illustrative only, and will not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification. 

15.6 Survival. Any provision of these Terms and Conditions or any Ordering Document that contemplates performance or observance subsequent to the termination thereof, and any other provision that by its nature may reasonably be presumed to survive any termination of these Terms and Conditions or any Ordering Document shall survive its termination.

15.7 Independent Contractors. It is expressly agreed that the parties are acting hereunder as independent contractors and under no circumstances will any of the employees of one party be deemed the employees of the other party for any purpose. These Terms and Conditions will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other party except to the extent and for the purposes expressly provided for and set forth herein. 

15.8 Force Majeure. Neither party will be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either party’s workforce), fires, floods, infectious disease, or act of government (each a “Force Majeure Event”).  Such Force Majeure Event, to the extent it prevents a party’s performance or any other obligation under the Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.

15.9 Waiver and Severability. No provision of this Agreement will be deemed waived and no breach deemed excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.  No consent by either party to, or waiver of, a breach by the other, whether express or implied, will constitute consent to, waiver of, or excuse for any different or subsequent breach. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement will not affect the validity or enforceability of the remaining provisions of this Agreement.

15.10 Publicity. Customer authorizes Actimize and its Affiliates to use Customer’s name and logo during the Term for sales and marketing purposes, including to identify Customer as a customer of the Services or Software.  Customer may withdraw this authorization upon reasonable prior written notice to Actimize. 

15.11 Press Releases and References. Following the Effective Date, Customer agrees that Actimize may issue a mutually agreed upon press release regarding its relationship with Customer (“Press Release”). Customer agrees to contribute a quote from one of its employees involved with the relationship with Actimize to for use in the Press Release or as applicable provide references to other companies.  Actimize will provide a draft of the Press Release to Customer for its review and, within five (5) business days following its receipt of the draft, Customer will provide Actimize with any proposed changes to the Press Release.  

15.12 Non-Solicitation. Except to the extent prohibited by applicable law, during the Term and for a period of twelve (12) months thereafter, each party agrees that it will not, directly or indirectly, solicit for employment any employee of the other party or its Affiliates who, at any time during the Term, performed duties related to the Services acquired by Customer pursuant to this Agreement, nor will such party solicit or encourage any such person to terminate their employment relationship with the other party or its Affiliate. 

15.13 Counterparts. The Agreement may be executed in any number of counterparts, each of which is deemed to be an original and all of which taken together will constitute a single agreement. Additionally, the parties agree that these Terms and Conditions, including any Transactional Document, and any amendments thereto, may be signed using electronic signatures and will have the same effect as original signatures. 

15.14 Entire Agreement. These Terms and Conditions, along with any Ordering Document executed hereunder, and any Actimize policies explicitly incorporated by reference, collectively constitute the entire agreement and understanding between the parties regarding the subject matter hereof and supersede any other written or oral agreement that the parties may have had with respect thereto.  No statement or inducement with respect to the subject matter by either party or by any agent or representative of either party, which is not contained in the Agreement, is valid or binding between the parties. No provision of the Agreement may be modified or amended except by a written instrument duly executed by each of the parties. Any such modification or amendment will not require additional consideration to be effective. Customer purchase orders, if any, are provided for Customer’s administrative purposes only and any preprinted terms on them will not apply or have any effect on the terms of the Agreement.