Commercial Terms of Sale - United Kingdom
These terms (“CTS”) govern the purchase of IT, consulting, or other services (“Services”) from NTT DATA Services UK Limited or one of its affiliates (collectively, “NTT DATA”) by the customer identified (“Client”) as described in a mutually agreed Statement of Work (“SOW”). This CTS and the SOW form the “Agreement”. In the event of a conflict or inconsistency between the terms of this CTS and a SOW, the terms of the SOW shall prevail but only with regard to such SOW.
Payment. Client agrees to pay all invoiced amounts within 30 days of the date of NTT DATA’s invoice and to reimburse NTT DATA for all applicable taxes. Prices are exclusive of taxes, duties and fees unless otherwise quoted. NTT DATA may charge interest on overdue amounts at the lesser of (a) 4% above the Bank of England base rate calculated on a daily basis and (b) the maximum rate permitted by law.
Performance Warranty. NTT DATA warrants it will perform Services in a good and workmanlike manner. NTT DATA will re-perform any Service that fails to meet this standard if Client provides written notice within 30 days. NTT DATA warrants Deliverables will conform materially to their written specifications for 30 days following delivery. If Client notifies NTT DATA of a non-conformity during such 30-day period, NTT DATA will either promptly remedy the impacted Deliverables or refund to Client the amounts paid for those Deliverables after Client’s return of such Deliverables. NTT DATA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Third Party Hardware and Software. NTT DATA resells other manufacturer’s hardware and licensed software under the terms and conditions of the applicable manufacturers as found on their respective websites. NTT DATA accepts no liability or warranty obligations for those products.
Software. NTT DATA’s proprietary software is subject to, and Client is bound by, the applicable Software Agreement. “Software Agreement” means (i) the software license agreements included with the software media packaging or presented to Client during the installation or use of such software, or (ii) if no license terms accompany such software or are not otherwise made available to Client by NTT DATA, the NTT DATA End User Agreement found at NTT DATA Services End User Agreement | NTT DATA.
Intellectual Property. Except as otherwise expressly provided within this Agreement, no transfer of or license to any intellectual property rights (“IPR”) will occur under this Agreement. The creation by NTT DATA of tangible work product as specifically identified in the SOW (“Deliverables”) shall be regarded as a new copyrightable work (“New Copyright Work”) to which NTT DATA shall transfer ownership to Client upon full receiving full payment for such Deliverable, except that any NTT DATA template, intellectual property, or know-how (collectively, “NTT DATA IP”) used to create such New Copyright Work shall remain vested in NTT DATA. If NTT DATA IP is embedded into any Deliverable, NTT DATA grants Client a non-exclusive, royalty-free license to use any such NTT DATA IP, as necessary for Client to enjoy the benefit of the Deliverable provided that Client may not decouple the NTT DATA IP from the Deliverable. Client grants NTT DATA a non-exclusive, worldwide, royalty-free right and license to any Client-owned or licensed IPR that is necessary for NTT DATA and its designees to perform Services. NTT DATA will indemnify and defend any claims against Client alleging that Services or Deliverables supplied under this Agreement infringe the IPR of a third party, excepting claims arising from unauthorised use, combination or modification of Services or Deliverables. Client will indemnify and defend any claims against NTT DATA alleging that NTT DATA’s use of or access to any Client-furnished items/materials infringe the IPR of a third party. The party seeking indemnification will promptly notify the other party of the claim and grant such other party sole authority to defend and settle the claim and will reasonably cooperate with the other party’s defence of the claim.
Confidentiality. Information exchanged under this Agreement will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement, and shared with employees, agents or contractors with a need to know such information to support that purpose. Confidential information will be protected using a reasonable degree of care to prevent unauthorised use or disclosure for 3 years from the date of receipt; provided however, for any information which constitutes a trade secret, the obligations and restrictions in this Agreement shall continue in effect for so long as the information remains a trade secret. These obligations do not cover information that: (i) was known or becomes known to the receiving party without obligation of confidentiality; (ii) is independently developed by the receiving party; or (iii) where disclosure is required by law or a governmental agency.
Compliance. The Parties will comply in all material respects with all laws that are applicable to each party’s respective business, including any applicable data protection legislation, and will secure and obtain, at each party’s sole expense, any and all permits, licenses and consents as may be required by such laws, as well as bear the costs of any changes in these laws. The Parties will comply with their respective responsibilities as exporters and importers under laws and regulations applicable to exports, imports and other transfers of data or software stored, used, or processed using Services or related infrastructure. NTT DATA may suspend performance if: (1) Client violates any applicable trade control or sanctions law or regulation; and (2) to the extent necessary to assure compliance under U.S., U.K., E.U or other applicable trade control or sanctions laws or regulations.
Data Protection. Unless otherwise expressly stated in the SOW, the parties do not intend that NTT DATA will have access to personal data of Client and Client will remain the data controller of personal data at all times. However, to the extent that NTT DATA is provided access to personal data, (1) each party will comply with all laws and regulations applicable to that party in relation to the processing of personal data under the SOW; (2) Client shall obtain all necessary rights, permissions and consents prior to disclosing any personal data to NTT DATA; (3) NTT DATA will only process personal data in accordance with Client’s reasonable and lawful written instructions; (4) NTT DATA will authorise its employees, contractors and subprocessors to access the personal data only as strictly necessary to comply with the instructions and ensure that all persons authorised to process the personal data are under an obligation of confidentiality; (5) taking into account industry standards, the costs of implementation, the nature, scope, context and purposes of the processing, and any risks for the rights and freedoms of data subjects, NTT DATA shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk with respect to any personal data; (6) Client grants to NTT DATA a general authorisation to appoint and use subprocessors to process the personal data where necessary for the provision of the Services; (7) NTT DATA shall reasonably assist Client to respond to requests to exercise data subject rights under the data protection laws; (8) NTT DATA shall notify Client without undue delay upon becoming aware of a personal data breach affecting Client personal data, providing Client with sufficient information to allow Client to meet its obligations to report or inform data subjects of the personal data breach under the data protection laws; (9) NTT DATA shall provide reasonable cooperation and assistance to Client, to the extent necessary and applicable in relation to NTT DATA’s processing of the personal data within the scope of the agreed Services, in connection with any privacy impact assessment which Client is required by data protection laws to carry out in relation to the processing to be undertaken by NTT DATA; (10) upon termination of the Services, NTT DATA shall, as soon as reasonably practicable, delete or return the personal data to the Client; (11) NTT DATA shall allow Client reasonable access to audit and/or inspect its compliance to this section in accordance with NTT DATA’s internal policies; and (12) Client hereby authorises NTT DATA to transfer personal data to NTT DATA’s affiliates and unaffiliated subcontractors that are outside the EEA where such transfer is required under or in connection with the provision of the Services and/or is necessary in the normal course of business provided that such transfer is made: (i) on the basis of an adequacy decision in accordance with Article 45 of the GDPR; or (ii) subject to appropriate safeguards as specified under Article 46 of the GDPR.
Limitation of Liability. Each party’s total liability for all damages and other amounts related to all claims of every kind under the Agreement, whether in contract, in tort, is limited to Client’s actual payments of 12 months of charges. Both parties will use reasonable efforts to mitigate damages for which the other party may be responsible. Neither party may recover lost profits, revenues or goodwill, reputational harm, anticipated savings, business interruption, diminished value of its business, data or special, incidental, indirect, consequential, exemplary, or punitive damages. The foregoing limitations upon liability do not apply to: (i) claims of intentional wrongdoing or other matters for which liability cannot be excluded as a matter of law; (ii) indemnification claims under this Agreement; or (iii) Client’s payment obligations.
Governing Law. This Agreement is governed by the laws of England and Wales and the English courts shall have exclusive jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Each party shall bear its own attorneys’ fees and costs.
Termination. Either party may terminate the Agreement on written notice if the other fails to meet any material obligation and fails to cure the breach within 30 days after receiving written notice. Terms in this Agreement which by their nature extend beyond termination or expiration of this Agreement will remain in effect until fulfilled and apply to successors and permitted assignees.
Excused Delay. A party is excused for a delay in the performance of its obligations under this Agreement (other than Client’s payment obligations) if and to the extent the delay is caused, directly or indirectly, by any act, event, or circumstances beyond its reasonable control, provided that the other party is promptly notified in writing and the delayed party uses reasonable commercial efforts to resume performance.
Personnel. To the extent not prohibited by applicable law, during the term of and for a period of 1 year after termination or expiration of Services under the SOW, neither party shall, without the written consent of the other, solicit or hire, directly or indirectly, an employee or a former employee of the other party who is or was involved with the SOW.
General. This Agreement (together with the SOW) represents the parties’ entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. The parties are independent contractors; neither party is agent for the other nor authorised to bind the other to any agreement with a third party. A person who is not a party to this Agreement (together with the SOW) shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. Notice to NTT DATA under this Agreement or any related SOW must be in writing and sent by registered or certified mail (postage prepaid first-class mail and return receipt requested) to the address below, and will be effective upon receipt: NTT DATA Services UK Limited, Attn: Legal Department, c/o TMF Group, 13th floor, One Angel Court, London EC2R 7HJ. If any provision of this Agreement is found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force. Modifications to this Agreement will be made only through a written amendment signed by both parties.