Act Security - Product Terms of Use

This Terms of Use and License Agreement (the “Agreement”) is a legally binding agreement between Act Security Inc., on its own behalf and on behalf of its affiliates (collectively, “Act”), and the entity that executes or accepts this Agreement, whether by an order form, quote, purchase order, statement of work, or similar ordering document (each, an “Order”) referencing this Agreement, or by clicking “Accept” (or a similar button or mechanism) to accept this Agreement (in each case, the “Customer” or “you”). The “Effective Date” means the date specified in the applicable Order.

This Agreement governs Customer’s access to and use of Act’s cloud security platform, including any related software made available by Act as part of the Service (the “Software”), and its interfaces, dashboards, APIs, agents or connectors (if any), and Related Documentation (collectively, the “Service”). “Related Documentation” means Act’s then-current technical documentation for the Service (e.g., user guides, configuration instructions, API documentation, and release notes). By clicking “Accept” (or a similar button or mechanism), or by accessing or using the Service, you acknowledge that you have read and understood this Agreement and agree to be bound by its terms. If you are accepting this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind that entity, and references to “Customer” and “you” will refer to that entity. If you do not agree to this Agreement, do not click “Accept” and do not access or use the Service.

1. License. Act hereby grants you a limited, non-transferable, non-exclusive, non-sublicensable, revocable, and temporary license during the Term to access and use the Service solely for Customer's internal business purposes, or as otherwise specified in the applicable Order (the “License”). The License is granted solely to Customer and its Authorized Users. “Authorized Users” means Customer’s employees, and consultants and contractors (excluding direct competitors of Act) who require access to the Service for the benefit of Customer, provided that such consultants and contractors are bound by confidentiality obligations at least as protective as those set forth herein. Customer is responsible for ensuring that all Authorized Users comply with the terms of this Agreement and shall be liable for any breach of this Agreement by its Authorized Users. Except for the limited rights expressly granted, Act reserves all rights, title, and interest in and to the Service and all related intellectual property.

2. Restrictions. Customer shall not, and shall not encourage or permit any Authorized User or third party to: (a) alter, merge, adapt, modify, translate, reverse engineer, decompile, disassemble, or otherwise derive, or attempt to derive, the source code of the Service or any Software made available through or in connection with the Service; (b) modify, translate, adapt, or create derivative works of the Service; (c) access or use the Service to build, benchmark, develop, or support any competing or substantially similar product or service; (d) copy, sell, rent, lease, transfer, sublicense, distribute, time-share, or otherwise make the Service available or accessible to any third party other than Authorized Users; (e) bypass, work around, or disable any technical limitations, security features, or access controls, or interfere with the integrity or performance of the Service; (f) remove or alter any proprietary notices or labels; (g) use the Service for any purpose other than as expressly permitted under this Agreement; or (h) use the Service in violation of any applicable law

3. Customer Data; Service Outputs; Data Processing. As between the parties, you retain all rights, title, and interest in and to the data you submit to the Service or that the Service processes on your behalf in connection with your use of the Service (“Customer Data”). Act may process Customer Data solely to provide, secure, support, maintain, and improve the Service and as otherwise necessary to perform its obligations under this Agreement, and shall not use Customer Data for any other purpose except as permitted by applicable law. Notwithstanding the foregoing, Act retains all rights, title, and interest in and to any telemetry, technical logs, configuration data, device and security signals, and other usage information and derived data, including metadata that is generated, collected, or derived by or through the Service, and any recommendations, suggested campaigns, and proposed policy enforcement actions generated by or through the Service (collectively, “Service Outputs”). Act may collect, use, host, store, transmit, disclose (to Act's service providers acting on Act's behalf), and otherwise process Service Outputs for any lawful purpose, including to provide, secure, support, maintain, and improve the Service, for analytics, benchmarking, product development, and for the proper management and administration of Act’s business. Where required by applicable law, Act will handle personal data in accordance with applicable law and as described in Act’s Privacy Policy at https://act.security/privacy-policy. Please advise if a Data Processing Agreement (“DPA”) is required with respect to this engagement and with respect to the provision of Services, in which case the Parties shall execute Act’s Data Processing Agreement (“DPA”), which will be incorporated herein by reference.

4. Feedback. If you provide ideas, suggestions, or feedback regarding the Service (“Feedback”), any such Feedback, and all improvements, enhancements, modifications, developments, and derivative works based on, derived from, or incorporating Feedback, are and shall be Act’s sole intellectual property, and Act will own all right, title, and interest therein. To the extent any rights in any Feedback vest in you, you hereby irrevocably assign (and agree to assign) to Act all right, title, and interest in and to such Feedback and related rights, without additional consideration.

5. Title. Act retains all rights, title, and interest in and to the Service, Software, and any related materials and documentation, Service Outputs, and Act’s Confidential Information, including all intellectual property rights therein. Without limiting the foregoing, Act owns all derivatives, fixes, improvements, modifications, results, Feedback, and suggestions to or in connection with the Service, Software, or any related materials, made during, after, in connection with, or as a result of this Agreement. Nothing in this Agreement constitutes a waiver of Act’s intellectual property rights under any law.

6. Confidentiality. “Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally, in writing, or in any other form that is designated as confidential or that the Receiving Party should reasonably understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes: (i) with respect to Act, the Service, Software, and any related materials, Related Documentation, pricing, security reports, and technical information; (ii) with respect to Customer, Customer Data; and (iii) with respect to either party, business plans, financial information, customer lists, and proprietary technology. The Receiving Party shall: (a) hold the Disclosing Party’s Confidential Information in confidence using at least the same degree of care as it uses for its own confidential information, but in no event less than reasonable care; (b) not disclose the Confidential Information to any third party, except on a need-to-know basis to the Receiving Party’s employees and contractors who are bound by confidentiality obligations at least as protective as those set forth herein; and (c) use the Confidential Information solely for the purposes of this Agreement. The obligations under this Section 6 shall not apply to information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was lawfully in the Receiving Party’s possession prior to disclosure without restriction on disclosure; or (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by law or court order, provided that the Receiving Party gives the Disclosing Party prompt written notice (to the extent legally permitted) and reasonable assistance to contest or limit such disclosure.

7. Payment. Unless otherwise specified in an Order, the fees for the Service will be as set forth in the applicable Order. The fees may be subject to a retrospective true-up mechanism, to be reviewed on a quarterly basis. Following each quarterly review, the fees will be adjusted upward as necessary to reflect the applicable pricing and any additional amounts due for the relevant period. Fees are exclusive of all applicable taxes (including sales, use, VAT, GST, and similar transaction taxes), which Customer will pay. If Customer is required to withhold any taxes from payments to Act, Customer will gross up the payment so Act receives the full invoiced amount and will provide documentation of the withholding. Overdue amounts will accrue interest at 1.5% per month (or the maximum rate permitted by law, if lower) from the due date until paid.

8. Support and Maintenance. During the Term, Act shall provide support and maintenance services for the Service as set forth in the applicable Order or, if not specified, in accordance with Act’s then-current standard support and maintenance services terms (the “SLA”). Act reserves the right to update the SLA from time to time.

9. Term and Termination. The term of this Agreement shall commence as of the Effective Date and continue for the period specified in the applicable Order (the “Term”). Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice thereof. Either party may terminate this Agreement immediately upon written notice in the event of the other party’s insolvency, making an assignment for the benefit of creditors, filing of a petition in bankruptcy, appointment of a receiver for all or any portion of the other party’s assets, or ceasing to do business. Upon termination or expiration of this Agreement: (a) all rights and licenses granted to Customer hereunder shall immediately terminate; (b) Customer shall immediately cease all access to and use of the Service; (c) Customer shall destroy all copies of the Software, Related Documentation, and Act’s Confidential Information in its possession or control, and shall delete or uninstall any Software, including all related components, and upon Act’s request, certify such destruction in writing; and (d) each party shall return or destroy, at the Disclosing Party’s election, all Confidential Information of the other party in its possession. Customer shall not be entitled to any refund, except to the extent expressly provided in an applicable Order. The following provisions shall survive termination or expiration of this Agreement: Section 2 (Restrictions), Section 3 (Customer Data; Service Outputs; Data Processing), Section 4 (Feedback), Section 5 (Title), Section 6 (Confidentiality), Section 9 (Term and Termination), Section 11 (Limitation of Liability), Section 12 (Indemnification), Section 13 (Open Source), Section 15 (Governing Law), and Section 18 (Entire Agreement; Miscellaneous).

10. Representations and Warranties, Exclusions and Disclaimers.

10.1 Act Representations. Act represents that: (i) it has the full right, power and authority to grant the rights and licenses granted herein; (ii) it implements industry standard measures designed to prevent inclusion of any viruses, harmful components, illicit code, time-bombs, worms, Trojan horses, protect codes, data destruct keys, or other programming devices or code that might, or might be used to, access, modify, delete, damage, deactivate or disable the Software or any other software, computer hardware, or data; and (iii) for so long as Customer has purchased support and maintenance services from Act, the Service shall perform in substantial conformance with the Related Documentation, provided the Service is used in accordance with the Related Documentation and the terms of this Agreement, and Act shall repair any such nonconformity at Act’s expense.

10.2 Exclusions. The warranties set forth above shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than Act or Act’s authorized third parties; (ii) accident, negligence, abnormal physical or electrical stress, abnormal environmental conditions, abuse or misuse of the Service; (iii) use of the Service other than in accordance with the Related Documentation; or (iv) the combination of the Service with equipment or software not authorized or provided by Act or otherwise approved by Act in the Related Documentation.

10.3 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS AND ACT DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT ACT DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, OR MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD ACT RESPONSIBLE THEREFOR.

11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY, NOR ITS SUPPLIERS, LICENSORS, OR RESELLERS SHALL BE LIABLE WHETHER UNDER CONTRACT, TORT OR OTHERWISE, TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM OR RELATED TO THE SERVICE OR THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL ACT’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE TOTAL PAYMENTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE ANY SUCH CLAIM OR CAUSE OF ACTION AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THE LIMITATIONS IN THIS SECTION 11 SHALL NOT APPLY TO: (I) CUSTOMER’S BREACH OF SECTION 2 (RESTRICTIONS); (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12; (III) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY); OR (IV) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

12. Indemnification. (a) By Customer. Customer agrees to defend, indemnify, and hold harmless Act, its affiliates, and their respective officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to: (i) Customer’s or any Authorized User’s breach of Section 2 (Restrictions); (ii) Customer’s or any Authorized User’s violation of applicable law in connection with the use of the Service; or (iii) any dispute between Customer and a third party arising from Customer’s use of the Service. (b) By Act. Act agrees to defend, indemnify, and hold harmless Customer, its affiliates, and their respective officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to: (i) any claim that the Service, as provided by Act and used in accordance with this Agreement, infringes any third-party intellectual property rights; or (ii) Act’s violation of applicable law in connection with its provision of the Service. (c) Procedures. The indemnified party shall: (i) promptly notify the indemnifying party in writing of any claim for which indemnification is sought (provided that failure to provide prompt notice shall not relieve the indemnifying party of its obligations except to the extent it is materially prejudiced thereby); (ii) give the indemnifying party sole control of the defense and settlement of such claim; and (iii) provide reasonable cooperation to the indemnifying party in the defense of such claim, at the indemnifying party’s expense. The indemnifying party shall not settle any claim in a manner that imposes any obligation or liability on the indemnified party without the indemnified party’s prior written consent.

13. Open Source. The Service may include third party open-source components subject to their applicable license terms, which will be provided upon request. In the event of a conflict, such license terms will prevail with respect to the applicable components.

14. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign this Agreement without consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, so long as the assignee assumes all obligations under this Agreement. Any purported assignment in violation of this Section 14 shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The parties hereby submit to the exclusive jurisdiction of the state and federal courts located in Wilmington, Delaware for any disputes arising out of or relating to this Agreement.

16. Updates; Prevailing Terms. Act may update this Agreement from time to time by posting an updated version online and providing notice (including by email and/or in-product notice). The version posted online will be the binding version from its posting date and will apply to Customer’s continued use of the Service thereafter. In the event of a conflict between an Order and this Agreement, this Agreement will control unless the Order expressly states that it supersedes specific provisions of this Agreement.

17. Publicity. Act may use Customer’s name and logo on its website and in its promotional materials to identify Customer as a user of the Service, provided that Act complies with any trademark usage guidelines provided by Customer. Customer may opt out of such use at any time by providing written notice to Act.

18. Entire Agreement; Miscellaneous. (a) Entire Agreement. This Agreement, together with any applicable Order, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written. (b) Amendment. Except as otherwise provided herein, this Agreement may not be amended or modified except by a written instrument signed by both parties. (c) Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. (d) Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect, and the parties shall negotiate in good faith to replace the invalid provision with a valid provision that most closely approximates the intent of the original. (e) Notices. All notices under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by confirmed email, or sent by recognized overnight courier to the addresses specified in the applicable Order or such other address as a party may designate in writing. (f) Independent Contractors. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties. (g) Force Majeure. Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, including acts of God, natural disasters, war, terrorism, riots, embargoes, acts of governmental authorities, or failures of third-party telecommunications or power supply; provided that the affected party promptly notifies the other party and uses reasonable efforts to mitigate the effect of such event. (h) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

‍