TERMS OF SERVICE

1.1 During the Term, the Company shall grant to you, a limited, non-exclusive, non-transferable and royalty-free access to the Software and use of the Services, in accordance with the Order Form and this Agreement. The Software will be deployed to your cloud infrastructure. In the event of any unauthorized access to the Software and Services, you shall ensure that such access and use is restricted and immediately reported to the Company. The Company may, at its sole discretion, restrict access to the Software and Services till such time as the Company and you are jointly able to verify that such restrictions are no longer required. You shall be liable to indemnify the Company for any claims incurred as a result of such unauthorized access or use attributable to your actions or inactions.

1.2 You shall provide all relevant data, including personal information necessary for providing the Services, and shall ensure, at your sole liability and obligation, the accuracy, quality, integrity, reliability, completeness and the right without encumbrance to use such data and personal information, including without limitation ownership and/or adequate right and title to any Intellectual Property to be provided by you.

1.3 You shall not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or any Software, documentation or data related to the Services or the Software; (b) modify, translate, or create derivative works based on the Services or the Software (except to the extent expressly permitted by Company or authorized as a part of the Services); (c) use the Services or the Software for time sharing or service bureau purposes or otherwise for the benefit of a third-party; (d) remove any proprietary notices or labels; or (e) distribute or make available to any third party, all or any part of the Software and Services.

2.1 The Company does not retain any data of the Client and its end customers / users and no data is transferred from the Client's cloud infrastructure to the Company. All data concerns are addressed at https://docs.akto.io/getting-started/faqs-on-data-concerns, which may be amended from time to time.

2.2 The Company shall ensure that any and all data and/or personal information of the Client or the end customers / users shall be used solely to provide the Services hereunder, and shall not be shared with any third party or used to train any artificial intelligence or learning models without the Client's prior written consent in each instance, and the Company shall indemnify you against any breach of this Clause that is solely attributable to the Company.

2.3 You agree and understand that Company is responsible for ensuring compliance with any and all regulations and laws relating to the collection and usage of the personal information of your end customers / users, and any other individuals, as may be applicable, including without limitation any requirements relating to consent, purpose, usage, transfers (including cross-border transfers), and any other requirements as may be applicable. You shall, upon request from the Company, furnish evidence of such compliance no later than 10 (ten) days from the date of such request, or such shorter period as may be required under applicable law. As long as Company's activities are aligned with this Agreement and applicable law, it shall not be liable for any claims, actions, or other similar consequences arising from processing of any personal information under this Agreement. Notwithstanding anything elsewhere, personal information processed by Company shall be in accordance with Company's privacy policy and processes, and the Client acknowledges that it has reviewed the contents thereof, which it finds reasonable and adequate for ensuring data protection as per applicable law.

3.1 Unpaid amounts shall be subject to interest at 1.5% (one and a half percent) per month on any outstanding balance, or the maximum permitted by applicable law, whichever is lower. Without prejudice to the foregoing, delay in payments may result in immediate suspension and/or termination of Services, if upon prior notice of 7 (seven) days, the outstanding dues are not cleared.

3.2 The Subscription Fees are exclusive of applicable taxes, and each Party shall be responsible for the payment, deduction and/or withholding of the same, as prescribed under applicable law.

3.3 If you intend to raise a dispute in respect of any invoice and/or any part of the Subscription Fees, you shall issue a written notice setting out the details and reasoning for such dispute, no later than 3 (three) days from the date of the invoice by which the disputed Service Fees were raised.

3.4 The Client shall be solely responsible for and shall bear and pay any and all taxes relating to the performance of this Agreement and the use of the Services. The Client shall pay and bear any and all applicable sales, use, value-added, or similar taxes or levies, whether federal, state, or local, other than taxes based on the income of the Company. If the Client is legally required to deduct or withhold any tax, the Client will pay the amount deducted or withheld as required by law.

3.5 The Company reserves the right to change the Service Fees and institute new charges and Service Fees effective from the end of the current Term, by providing written notice to Client no later than 30 (thirty) days prior to the completion of such current Term.

4.1 For the purpose of this Agreement, "Intellectual Property" shall mean shall include collectively or individually, the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent disclosures, patent rights, know-how, including any and all divisions, re-issues, re-examinations, utility, model and design patents/ rights or any extensions thereof; (ii) Software codes, internet domain names, trademarks, service marks, trade names, logos and corporate names; (iii) rights associated with works of authorships, including without limitation, copyrights, moral rights, copyright applications, copyright registrations; (iv) rights relating to the protection of trade secrets and confidential information; (v) all other intellectual property rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained; (vi) goodwill symbolized by or associated with any of the foregoing rights; and (vii) proprietary information, proprietary processes, software, technical information, data, databases (including but not limited to customer data, sales data, etc.), process technology, plans, formulae, algorithms and blue prints.

4.2 The Company shall retain all right, title and interest in and to the Software and the Service, including but not limited to all the documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the Software and the Service, including without limitation, the Company's name, logos, and trademarks.

4.3 The information and reports derived out of the analysis shall be the Intellectual Property of the Client, and the Client shall have sole and exclusive ownership over such information and reports, subject to the rights granted to the Client in respect thereof in terms of this Agreement.

4.4 Notwithstanding anything contained in the foregoing, each Party shall retain all right, title and interest in its respective Intellectual Property, whether existing before, during or after this Agreement, and unless expressly stated under this Agreement, nothing under this Agreement shall be deemed as a transfer of any rights by one Party to the other Party, including rights to any Intellectual Property.

5.1 For the purpose of this Agreement, "Confidential Information" shall mean information including, without limitation, all data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked 'confidential', or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include any related source or object codes, technical data, data output of the Services and/or the Software. Confidential Information does not include information which (a) is or becomes generally available to the public (except as a result of an act or omission of the Receiving Party); (b) was in its possession or demonstrably known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction or breach of any other agreement by a third-party; (d) was independently developed without use or reference to the Confidential Information of the Disclosing Party; or (e) is required to be disclosed by law.

5.2 Each Party (the "Receiving Party", including its personnel and representatives) understands that the other Party (the "Disclosing Party") has disclosed or may disclose Confidential Information relating to the Disclosing Party's business and operations, including business, technical, non-technical or financial information relating to the Services, Software, the Order Form or this Agreement. During the Term and for a period of 5 (five) years thereafter, the Receiving Party shall keep confidential and not reveal or disclose to any third party any part or all of the Confidential Information and/or the terms of this Agreement, the Order Form, the Services, and the Software. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.

5.3 The Company may collect and use technical information gathered pursuant to this Agreement for research purposes in an aggregated, anonymized and pseudonymized form as it deems fit, to improve, market, support and operate the Services and for any legitimate business purpose.

6.1 The Parties hereby represent and warrant the following: (i) the Parties are competent and authorised to enter into and perform this Agreement, including the Order Form, and the same would not result in a breach or violation of laws or any agreements, rights or obligations existing between them and any third-party, (ii) the Parties shall not, in relation to this Agreement, the Order Form, the Services or Software, act or fail to act in a manner that is prohibited by or in violation of any law or regulation, will infringe upon any third-party Intellectual Property rights, may result in any adverse impact whatsoever on the Company, Services and/or Software including any viruses, malware, etc., would result in the inability of either Party to perform this Agreement or the Order Form, or result in a breach of this Agreement or the Order Form.

7.1 The Company shall use reasonable efforts to maintain the Services and Software in a manner that minimizes errors and interruptions. HOWEVER, THE SERVICES AND SOFTWARE ARE INHERENTLY PRONE TO POTENTIAL ERRORS AND INTERRUPTIONS, AND THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND/OR SOFTWARE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND SOFTWARE ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8.1 Each Party ("Indemnifying Party") shall defend, indemnify and hold harmless the other Party and its affiliates, members, directors, officers, employees and agents (collectively, the "Indemnifying Party") from and against any and all direct third-party claims, liabilities, losses and expenses (including reasonable attorneys' fees), directly or indirectly, wholly or partially arising out of (a) any infringement or misappropriation by the Indemnifying Party of any Intellectual Property or other rights of the Indemnified Party or any third party, (b) breach or inaccuracy of any representations, warranties or obligations hereunder, including payment obligations, (c) unauthorized access or use of the Software or the Services attributable to the Client's actions or inactions, in case of the Client, (d) any non-compliance of laws by the Indemnifying Party, including laws relating to privacy and/or data protection, and (g) breach by the Indemnifying Party of its confidentiality obligations under this Agreement.

8.2 Except with respect to a Party's willful misconduct, infringement of Intellectual Property rights, breach of payment obligations, breach of confidentiality obligations, or breach of applicable laws, in no event shall either Party's total liability for any claim arising out of or in relation to this Agreement exceed in the aggregate, the total Subscription Fees paid or payable by the Client during the 12 (twelve) months immediately preceding the date of the event giving rise to the claim.

8.3 In no event shall either Party be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits, failure of security mechanism arising hereunder or from the provision of Services, even if the other Party is advised of the possibility of such damages.

9.1 This Agreement is valid for the Initial Subscription Term (as set out in the Order Form) commencing on the Start Date, and shall continue to be in force unless terminated in accordance with this Clause. This Agreement may be renewed by the Parties mutually in writing by the Parties 30 (thirty) days prior to the end of the Initial Subscription Term (collectively, the "Term").

9.2 Either Party shall be entitled to terminate this Agreement on the happening of any of the following events (i) if the other Party fails to cure any material breach or default of this Agreement (including a failure to pay Subscription Fees), by providing 30 (thirty) days' prior written notice to the Party in breach; (ii) if the other Party becomes incapable of performing its obligations under this Agreement or the Order Form; or (iii) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding.

9.3 Effect of Termination. All rights granted to each Party herein shall forthwith revert to the other Party, including without limitation the right to use and/or access the Services and/or Software; any amounts payable in terms of this Agreement and any SOW, including without limitation the Subscription Fees, accrued but not paid will become immediately due and payable; and all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, dispute resolution and limitations of liability.

10.1 This Agreement shall be governed by and construed in accordance with the laws of Delaware and the courts of Delaware shall have the exclusive jurisdiction.

10.2 The Company shall be entitled to use your logos and/or testimonials on the Company website and other marketing materials and case studies.

10.3 This Agreement contains the entire understanding between the Parties hereto relating to the subject matter hereof. No amendment or modification shall take place under this Agreement until and unless mutually agreed between the Parties by the way of an Addendum signed thereof. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. Neither Party may assign this Agreement to any third party without the prior written consent of the other. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the Parties.

10.4 Neither Party shall be responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, terrorist acts, acts or omissions of third-party technology providers, riots, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party.

10.5 The Parties are entering into this Agreement on a principal-to-principal basis, and are not employees, agents, partners or joint ventures of each other. Neither Party shall have the right to enter into any agreement on behalf of the other.