Software and Services Agreement
This Software and Services Agreement (the “Agreement”) between Aegis Systems, Inc. d/b/a Actuate AI, a Delaware Corporation having a principal place of business at 1216 Broadway, 3rd Floor, New York, New York 10001 (“Vendor,” “us” or “we”) and your company (“Company” or “you”) entered into on [Effective Date], governs your licenses and subscriptions to software and services provided by us (“Vendor Software and Services”). Vendor and Company may be referred to herein collectively as the “Parties” or individually as a “Party.”
We may revise the terms of the Agreement, which will be effective as of the date a new version of the Agreement is posted on https://actuate.ai/ProgramAgreement (the “Website”) at a location accessible by you. The current version of the Software and Services Agreement may be viewed at https://actuate.ai/ProgramAgreement.
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1. Participant Rights and Licenses. As a subscriber, we will grant you a non-exclusive, non-transferable, royalty-free right and limited license during the Term of your subscription for Vendor Software and Services to access and use Vendor Software and Services on your cameras as described in this Agreement.
You acknowledge that Vendor Software and Services are intended and licensed only for integrated use with your Authorized Cameras during the Term of your Subscription. As such, you are licensed, and we will install Vendor software only on cameras that have data communication with Vendor computer equipment enabled and operational at all times, and as set forth in your Membership attached hereto.
2. Ensure Access. You shall notify us in writing of each person within your Company that you have authorized to access our services and to receive any information or alerts from us (“Authorized User”). You will take reasonable steps to ensure all user names and passwords to your security cameras are kept confidential from any third parties, and you will be responsible for all activities, damages and losses that occur or are caused in significant part, even if access or use of such cameras is not known to us or authorized by you. If you suspect there is any loss or disclosure of any password or unauthorized use by an Authorized User, you will immediately change your passwords for such cameras and immediately notify Vendor by contacting privacy@actuate.ai.
3. Subscription and Other Fees; Quarterly True-Up; Taxes.
3.1. We will invoice you for software and services subscription (the “Subscription”) and other fees, expenses and other amounts which are payable for Vendor Software and Services that you have licensed and/or subscribed to, together with applicable taxes as described below. For one year or longer licenses or subscriptions, we will invoice you initially and in succeeding years for the amount due for the following twelve (12) months or the remaining Subscription Term, whichever is longer. Except as we may otherwise expressly permit in writing, you must remit payment to us of all invoiced amounts and taxes due by wire transfer in United States dollars within thirty (30) days from the invoice date. We may limit access and/or use of new or additional Vendor Software and Services until the corresponding fees and taxes have been paid. Upon our request, you agree promptly to arrange payment to us by automatic clearing house (ACH) transfer for fees and applicable taxes as they become due for Vendor Software and Services that you have licensed and/or subscribed to.
3.2. If at any time the total number of Authorized Cameras you use is more than the total number of Authorized Cameras set forth in your Subscription, we will invoice you for each additional camera following the end of the relevant calendar quarter. The fee for each additional camera will be equivalent to the allocated per-camera fee for licensed software and/or subscribed services, but prorated based on the number of months remaining in the term(s) for such software and/or services.
3.3. You agree to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one (1) year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. We may, at our own expense, on reasonable prior notice, periodically inspect and audit your records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that you have underpaid us with respect to any amounts due and payable during the Term, You shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 3.5. You shall pay for the costs of the audit if the audit determines that you underpayment equals or exceeds five percent (5%) for any term. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement.
3.4. We may charge and collect from you sales, use, value-added, property and other taxes that we determine should be collected and remitted by us to government authorities for software and services licensed or subscribed by you under the Agreement. Except for taxes that we charge and collect from you, you will be solely responsible to report and remit payment of all applicable taxes to the relevant government authorities for software and services licensed or subscribed by you under the Agreement. If a government authority notifies us that additional taxes (other than income taxes) should collected from you and/or remitted by us for Vendor Software and Services ordered by you, we may invoice you, and you will immediately remit payment to us, for all additional taxes claimed by the government authority, so that the net amount retained by us after paying the additional taxes will be equal to the amount that we would have been entitled to receive from you if the additional taxes had not been claimed or applicable to the Vendor Software and Services ordered by you.
3.5. Late payments shall be subject to an additional charge which will accrue at the greater of (i) one percent (1.0%) per month, or (ii) the maximum rate permitted by applicable law, if any.
4. Collected Information.
4.1. You acknowledge and agree that Vendor may access, collect, store and use the following information (“Collected Information”) in connection with your use of the Website and Vendor Software and Services:
• Website and Vendor Software and Services access and activity data (“Website Services Data”),
• Personal and non-personal information about Authorized Users and other Company representatives which is included in account registrations for Company and its Authorized Users, and
• Inventory and usage information about your cameras and software (“Inventory/Usage Information”) that you have collected and stored in Active Directory, which includes limited personal and non-personal information about Company personnel and other users of Company’s cameras.
4.2. You further agree that:
(a) We may store any Collected Information on computer equipment used by Vendor to operate the Website and provide Vendor Software and Services,
(b) We may collect and use personal and non-personal Collected Information for the following reasons:
• to contact you about your rights, obligations, updates, feedback, or performance under this Software and Services Agreement,
• to perform Vendor Software and Services, and to verify Authorized Users and devices in connection with your software licenses and subscribed services,
• to meet regulatory requirements, and
• to notify you through Company representatives about other Vendor products or services,
(c) We may use any Collected Information to develop, analyze, market manage and deliver products and services of benefit to customers, including performance analysis, benchmarking, product improvement, marketing and other legitimate business purposes, so long as personal identities are not disclosed and are not readily discernible, and,
(d) We may disclose any Collected Information in accordance with applicable law as may be required by the United States or other national governments and their respective instrumentalities, including federal, state and local courts, law enforcement and regulatory agencies.
4.3. We are accountable for the protection of personal information under our control as described in our Privacy Policy. The current Privacy Policy may be viewed at https://actuate.ai/privacypolicy. All questions, complaints and inquiries concerning our Privacy Policy should be directed to your Actuate contact.
5. Restrictions. Company may not attempt to override or circumvent any measures we may use to prevent access to or restrict usage of certain Vendor Software and Services. Company shall not use the Vendor Software and Services for any purposes beyond the scope of the access granted in this Agreement. Company shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Vendor Software and Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Vendor Software and Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Vendor Software and Services, in whole or in part; (iv) remove any proprietary notices from the Vendor Software and Services; or (v) use the Vendor Software and Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Company also agree to not take any action that imposes an unreasonable load on our infrastructure or interferes with the operation, delivery or performance of Vendor Software and Services.
6. Representations and Indemnifications.
6.1. We represent and warrant that (i) we are a corporation organized under the laws of the State of Delaware, (ii) we have the right, power and authority necessary to enter into and perform this Agreement in accordance with its terms.
6.2. You represent and warrant that (i) any individual who accepts and/or executes this Agreement is authorized to act on your behalf, (ii) that you and any individual acting on your behalf have the right, power and authority necessary to enter into and perform this Agreement in accordance with its terms, including without limitation, to authorize us to access, transfer, store and use any Collected Information as described in Section 6, and (iii) Authorized Users and all, owners, agents, affiliates, employees and other Company representatives will comply with the terms of this Agreement.
6.3. You agree to indemnify and hold us and our respective directors, officers, representatives, agents, suppliers, contractors, employees, and advisors, harmless from and against any loss, liability, claim, demand, damages, costs and expenses (including reasonable attorneys’ fees) which are due to or arising out of, in whole or significant part, the violation of any provision of this Agreement by you, Authorized Users and others for whose actions you may be legally responsible.
7. Warranty Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS AGREEMENT, YOUR ACCESS AND USE OF THE WEBSITE, VENDOR SOFTWARE AND SERVICES AND/OR ANY RELATED SOFTWARE, SERVICES, COLLATERAL MATERIALS OR OTHER CONTENT PROVIDED BY US IN CONNECTION WITH THIS AGREEMENT ARE ENTIRELY AT YOUR OWN RISK, AND THE WEBSITE, VENDOR SOFTWARE AND SERVICES AND ALL SOFTWARE, SERVICES, COLLATERAL MATERIALS AND OTHER CONTENT AVAILABLE FROM OR IN CONNECTION WITH THE WEBSITE OR VENDOR SOFTWARE AND SERVICES OR UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” TO THE GREATEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ALSO ACKNOWLEDGE AND AGREE THAT IF WE DEPEND ON INFORMATION AND FUNCTIONALITIES PROVIDED BY THIRD PARTY PRODUCTS AND SERVICES WE ARE NOT RESPONSIBLE TO VERIFY THE ACCURACY, COMPLETENESS, RELIABILITY, CURRENCY, TIMELINESS OR QUALITY OF SUCH INFORMATION OR FUNCTIONALITIES. WE DO NOT REPRESENT OR WARRANT THAT SOFTWARE OR CONTENT PROVIDED IN CONNECTION WITH VENDOR SOFTWARE AND SERVICES IS ACCURATE, COMPLETE, OR RELIABLE.
8. Limitation of Liability. IN NO EVENT WILL VENDOR OR ANY OF OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR ECONOMIC LOSS OR DAMAGES (E.G., DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF ACCOUNT INFORMATION OR PERSONAL INFORMATION OF REGISTRANTS, ETC.) OR ANY SPECIAL, EXEMPLARY OR PUNITIVE DAMAGE ARISING FROM OR RELATING TO THE WEBSITE OR VENDOR SOFTWARE AND SERVICES, INCLUDING WITHOUT LIMITATION, YOUR ABILITY OR INABILITY TO ACCESS OR USE THE WEBSITE OR VENDOR SOFTWARE AND SERVICES, EVEN IF WE ARE AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. FURTHER, IN NO EVENT WILL OUR TOTAL CUMULATIVE LIABILITY TO YOU AND ALL THIRD PARTIES ARISING FROM OR RELATING TO THE WEBSITE OR VENDOR SOFTWARE AND SERVICES EXCEED THE AMOUNT WE HAVE ACTUALLY RECEIVED FOR YOUR ACCESS OR USE OF THE WEBSITE OR PERFORMANCE OF VENDOR SOFTWARE AND SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
THIS SECTION 8 SETS FORTH COMPANY’S SOLE REMEDIES AND VENDOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH EVENT; SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Term, Automatic Renewal; Suspension, Termination, Survival. This Agreement shall commence as of the date the Effective Date and shall continue until the end of your Subscription Term for Vendor Software and Services.
Unless either Party notifies the other Party not less than thirty (30) days before the end of the applicable Term, your Subscription for the Vendor Software and Services shall automatically be renewed for the same duration as the Subscription, for which you will be charged fees at the then-applicable rate for the appropriate number of cameras then in use by your Company, as depicted in your Membership attached hereto (and any revisions thereafter).
We may suspend, limit or terminate your account or Vendor Software and Services at any time if you are in default of this Agreement for any reason.
Upon termination of this Agreement, all of your rights under this Agreement shall terminate, and your ability to access or use the Vendor Software and Services shall be limited or blocked. Except as otherwise authorized by us, you must return or destroy all materials that contain our Confidential Information provided or that have been disclosed by us in connection with this Agreement or Vendor Software and Services.
The following sections shall survive the termination of this Agreement: 2 (Accounts), 3 (Subscription Fees), 4 (Collected Information), 6.2 and 6.3 (Company Representations and Indemnifications), 7 (Warranty Disclaimers), 8 (Limitation of Liability), 10 (Governing Law, Dispute Resolution, Injunctive Relief), 11 (Confidential Information), 12 (Intellectual Property), 13 (Notices), 14 (Feedback), and 15 (Miscellaneous).
10. Governing Law, Dispute Resolution, Injunctive Relief. The Parties acknowledge and agree this Agreement is made within the United States, and is governed and will be construed solely in accordance with the laws of the State of New York without regard to its conflicts of law provisions.
The Parties also agree and submit to the exclusive jurisdiction of any federal or state court located in New York City over any dispute arising out of or relating to this Agreement. The Parties also agree that a court judgment in any such dispute may be enforced in other jurisdictions by any other manner provided by law.
Nothing in this Agreement is intended to restrict us from applying to any court with competent jurisdiction to seek injunctive relief to prevent wrongful disclosure of Confidential Information or to otherwise protect our intellectual property rights or trade secrets.
11. Confidential Information.
11.1. Except as otherwise authorized by the relevant Party in writing, Vendor and Company will keep confidential other non-public information reasonably disclosed by or on behalf of, and belonging to, the other arty in connection with transactions contemplated by this Agreement, provided however, Vendor is permitted to use and disclose Collected Information to the extent permitted by Section 4 (Collected Information). Without limiting the generality of the preceding sentence, Company agrees to keep confidential all benchmarking, analysis and recommendations, except as Vendor may otherwise authorize in writing.
11.2. The receiving Party will protect the other Party’s confidential information with the same degree of care as it uses to protect its own confidential information, and may share the confidential information with its advisors and consultants who are bound by confidentiality obligations consistent with the receiving Party’s obligations. If the receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the other Party’s confidential information, the receiving Party will promptly notify the other Party and provide reasonable assistance to maintain the confidentiality of such information. The receiving Party will not be subject to confidentiality obligations for confidential information that (a) at the time of receipt was already known to it without confidentiality obligations; (b) becomes publicly known through no wrongful act of the receiving Party; (c) was received from a third party without confidentiality obligations or knowledge that the information was subject to confidentiality obligations; (d) was disclosed to third parties by the other Party without confidentiality obligations; (e) is independently developed by the receiving Party without use of the confidential information of the other Party, or (f) was released pursuant to prior written authorization by the other Party.
12. Intellectual Property. The Subscription and licenses granted herein are limited to the specific rights and duration listed in this Agreement. We reserve all rights not expressly granted.
You may not disassemble, decompile or otherwise reverse engineer or attempt to reconstruct or discover any source code, or underlying ideas or algorithms for Vendor Software and Services or associated software, You also may not (i) reverse engineer, decompile, disassemble, or reconfigure any software used or made available in connection with the Vendor Software and Services, or (ii) use such software to provide functionality or data for use by third party software or services, except as expressly authorized by applicable law which cannot be waived by this provision or as expressly authorized in writing by Vendor.
Vendor Software and Services and all content that appears on or in connection with the Website are copyrighted works of Vendor and/or our suppliers, and may not be used, copied, stored or distributed in any manner in whole or significant part except as provided by this Agreement or with prior written permission of Vendor.
This Agreement, and all related licenses, Software and Services Agreements, policies and guidelines, if any, are copyrighted works of Vendor and may not be used, copied, stored, or distributed in any manner in whole or significant part except with the prior written permission of the applicable copyright holder(s). You may not use or display Vendor trademarks without our prior written permission.
13. Notices. Notices to Vendor may be sent in written form to following address:
Aegis Systems Inc. (Trade Name: Actuate)
1216 Broadway, 3rd Floor
New York, New York 10001
Or by email to: support@actuate.ai, or by web form provided on the Website.
Notices to you may be sent to the physical or email address indicated in the primary account registration for you.
Properly addressed notices will be deemed to have been delivered to the intended recipient (i) five (5) business days after depositing into the U.S. mail for international delivery, (ii) three (3) business days after being sent by express courier for international delivery or deposited into the U.S. mail for domestic delivery, and (iii) one (1) business day after being sent by express courier for domestic delivery or after being sent by electronic means for international or domestic delivery.
14. Feedback. Your feedback is important to us. We highly encourage you to provide comments, suggestions, proposed technology solutions and other feedback about our Vendor Software and Services or anything related to your experience in using the these services by contacting feedback@actuate.ai. If Company or any of its owners, agents, affiliates, employees or other Company representatives sends or transmits any communications or materials to Vendor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Vendor Software and Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Vendor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Company hereby assigns to Vendor on Company’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Vendor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Vendor is not required to use any Feedback.
15. Miscellaneous.
15.1. You may not assign or delegate your rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, to any other person or entity, except with our prior written permission. Any attempted assignment or delegation otherwise by you is void.
15.2. The terms of this Agreement do not create a partnership, joint venture, agency or franchise relationship between us and you.
15.3. Vendor Software and Services and related licensed software provided to you under this Agreement may be subject to United States export control restrictions. You agree to not transfer, export or re-export software, services or other technology delivered in connection with Vendor Software and Services to any country, person, entity or individual in violation of United States export control restrictions. Without limiting the generality of the previous sentence, you may not transfer, export, re-export or permit access to software, services or other technology to a country which is embargoed by the United States, to a national or resident of an embargoed country, or to any person or entity designated by the United States government as restricted or prohibited from engaging in United States export transactions.
15.4. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
15.5. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or later breach, and no waiver will be effective unless made in a writing signed by an authorized representative of the waiving Party.
15.6. Neither Vendor nor Company shall be held responsible for any performance delay or nonperformance due to unforeseen circumstances or causes beyond our or your reasonable control.
15.7. This Agreement, which may include referenced agreements, policies and guidelines, constitutes the entire Agreement between Vendor and Company and for your access and use of the Website and Vendor Software and Services.
15.8. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.