Commercial Terms of Sale - United Kingdom
These terms together with the Service Documents and Software Agreement (together, the “Agreement”), made between you (“you”) and NTT DATA Services UK Limited (“NTT DATA”), govern your purchase and use of Products and Services from NTT DATA. In the event of a conflict between these agreements the following priority order will apply: (1) the applicable Service Document or Software Agreement; and (2) these Commercial Terms of Sale.
The Products and Services are solely for your internal use. If you wish to resell NTT DATA Products and Services, alternative reseller terms of sale, will apply.
“Affiliate” means a legal entity that is controlled by, controls, or is under common control with NTT DATA or you respectively. For NTT DATA this will be limited to NTT DATA Corporation and its subsidiaries. Control means more than 50% of the voting power or ownership interests.
“Hardware” means computer hardware including all components embedded before shipping.
“Order Confirmation” means the written order confirmation issued by NTT DATA when NTT DATA accepts your order for Products and/or Services.
“Products” means Hardware, Software, or both.
“Services” means any and all services provided by (or on behalf of) NTT DATA.
“Service Document” means (i) the service descriptions found here or (ii) any statement of work describing specific Services.
“Software” means any software, or other computer or program code that NTT DATA make available to you for use, as well as the related media and documentation, including copies.
“Software Agreement” means the license agreement included in writing with the software packaging or presented to you during installation or use of the Software; or (ii) if no license terms have been provided in writing or online, the applicable End User License Agreement, found here.
3. Duration of the Agreement
This Agreement will continue until all Services have expired. Each Service will continue for the term stated in the Order Confirmation or, if no term is stated, the term, if any, stated in the Service Document. Any use beyond that term will be subject to the then-current Service Document.
You may place an order for Products and/or Services directly with NTT DATA. A contract between you and NTT DATA is formed only when NTT DATA issues you with an Order Confirmation or otherwise accepts a purchase order issued by you on the basis of this Agreement.
5. Prices, Payment and Taxes
A. Prices. Prices for Products and/or Services shall be set out in the Order Confirmation or Service Document.
B. Payment. Invoices shall be paid within 30 days of the invoice date in the currency identified on the invoice. You must advise NTT DATA in writing of a material error in the invoice within 14 days of the invoice date. In that event, (i) payment of amounts corrected by NTT DATA shall be due within 30 days of correction, and (ii) all other amounts shall be paid by the invoice due date.
C. Taxes. All amounts due under the Agreement are exclusive of VAT. NTT DATA will provide a valid VAT invoice. You are responsible to pay the VAT.
6. Products, Services and Software
A. Performance. NTT DATA shall provide (i) the Hardware in accordance with the Order Confirmation and (ii) the Services in accordance with the applicable Service Document.
B. Title and Risk. Title and risk to the Hardware passes from NTT DATA to you upon delivery.
C. Suspension. NTT DATA may suspend all or part of its obligations under this Agreement:-
(i) if required to do so under applicable law;
(ii) if NTT DATA believes that you are involved in any fraudulent or illegal activities; or
(iii) if you are in breach of your payment obligations or other terms set out in this Agreement.
D. Software. The terms upon which NTT DATA shall provide the Software to you are set out in the applicable Software Agreement.
7. Your Obligations
A. Your Authorisation for Provision of Services. You will ensure that NTT DATA’s performance of the Services will not affect any third party manufacturer’s warranties. You authorise, and will have obtained all necessary permissions or consents to allow NTT DATA to use or access any and all software, hardware, systems and data that you provide to us, or that you request NTT DATA to use, or which may be necessary to perform the Services.
B. Co-operation. You will provide all co-operation necessary for NTT DATA and/or its agents to perform the Agreement including co-operating with any instructions provided by NTT DATA.
C. On-site Obligations. Where Services are provided on-site, you will provide NTT DATA with free, safe and sufficient access to your facilities and environment, including working space, electricity, safety equipment, access to a computer and a local telephone line.
D. Data back-up. You are solely responsible for completing regular back-ups of all data, software and programs on your systems, prior to and during the delivery of the Services.
8. Intellectual Property and Confidentiality
A. Intellectual Property: All right, title, and interest in the intellectual property in the Hardware, and the methods and processes by which the Services are performed belong solely and exclusively to NTT DATA, its suppliers or licensors. NTT DATA grants you a non-exclusive, non-transferable, free of charge right to use the Services solely (i) in the country or countries in which you do business, (ii) for your internal use, and (iii) for you to enjoy the benefit of the Services as stated in this Agreement.
B. Confidentiality: Information that is not generally known to the public, whether or not it is described as confidential or which, due to the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential (“Confidential Information”), may only be disclosed to the receiving party on a “need-to-know” basis. The receiving party shall keep the Confidential Information confidential and may not disclose it to any third party. The receiving party shall be liable to the disclosing party for disclosures by its personnel or advisors.
9. Quality of Products
A. NTT DATA will provide the Services with reasonable care and skill (the “Services Warranty”).
B. All other warranties and other terms implied by law are, to the fullest extent permitted by law, excluded from the Agreement.
C. NTT DATA shall re-perform those Services which do not comply with the Services Warranty.
D. The above warranties do not apply to:
(i) damage caused by alteration, repair, adjustment or installation by someone other than NTT DATA;
(ii) damage caused due to accident, misuse or abuse;
(iii) damage caused due to NTT DATA’s compliance with your written instructions;
(iv) damage caused due to normal wear and tear;
(v) damage caused due to use of parts and components not supplied or intended for use with the Products; or
(vi) products, software or services made, created or performed by a party other than NTT DATA;
together the “Excluded Events”.
A. Indemnity from NTT DATA. NTT DATA shall indemnify you against any third party claim that the Services (excluding third party Products) supplied by NTT DATA infringe that third party’s intellectual property rights in the country in which NTT DATA delivers the Services (“Indemnified Claims”).
B. Additional Remedies. If NTT DATA receives prompt notice of an Indemnified Claim that, in NTT DATA’s reasonable opinion, is likely to result in an adverse ruling, then NTT DATA shall, at its discretion and as a sole and exclusive remedy, offer a reasonable resolution to the breach such as, but not limited to, obtaining a right for you to continue using such Services. NTT DATA shall have no obligation for any claim resulting or arising from any Excluded Events.
C. Process. NTT DATA’s duty to indemnify is dependent upon:-
(1) NTT DATA receiving prompt written notice of the third party claim;
(2) NTT DATA having sole control of the defence and resolution of such claim, and
(3) your cooperation with NTT DATA in defending and resolving such claim.
D. Indemnity from you. You shall indemnify NTT DATA and its Affiliates against any third party claim arising out of:-
(1) your failure to obtain any appropriate license, rights, or other permissions associated with technology, software or data;
(2) your breach of NTT DATA’s, its Affiliates’ or third parties’ intellectual property rights;
(3) any inaccurate representation regarding the existence of an export license or any allegation made against NTT DATA due to your violation or violation of applicable export laws, regulations, or orders; and
(4) any allegation made against, or loss to, NTT DATA due to your violation or alleged violation of applicable anti-bribery or anti-corruption laws, regulations or orders.
11. Compliance with Laws
A. Each party agrees to comply with all applicable laws and regulations.
B. You acknowledge that the Products and Services provided under this Agreement, which may include technology, authentication and encryption, are subject to the customs and export control laws and regulations of the United States (“U.S.”); may be rendered or performed either in the U.S., in countries outside the U.S., or outside the borders of the country in which you or your systems are located; and may also be subject to the customs and export laws and regulations of the country in which the Products or Services are rendered or received. You also may be subject to import or re-export restrictions in the event you transfer the Products or Services from the country of delivery and you are responsible for complying with applicable restrictions.
A. Either party may terminate this Agreement (i) if the other party commits a material breach which is not cured within 30 days of written notice or (ii) if the other party ceases, or threatens to cease, to carry on business or becomes insolvent.
B. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
13. Limitation of Liability
A. Neither NTT DATA nor you exclude or limit liability for (i) death or personal injury resulting from negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded by law.
B. Neither NTT DATA nor you shall be liable for (i) loss of profit, income or revenue; (ii) loss of use of your systems or networks; (iii) loss of goodwill or reputation; (iv) loss of, corruption of or damage to data, software or media; (v) recovery or reinstallation of data or programs; or (vi) special, indirect or consequential loss or damage.
C. Neither party’s total liability to the other party, however arising out of or in connection with this Agreement, shall exceed 125% of the prices payable by you to NTT DATA under this Agreement.
14. Data Privacy
A. Each party shall comply with all laws and regulations that are applicable to that party in relation to the processing of personal data under this Agreement. In this clause, “personal data” and “processing” have the meaning set out in the Data Protection Act 1998 as amended from time to time.
B. You shall obtain all necessary rights, permissions and consents prior to disclosing any personal data to NTT DATA.
C. To the extent that NTT DATA processes any personal data on your behalf, NTT DATA shall (i) only process the personal data as required to fulfil its rights and obligations under this Agreement and/or in accordance with your written instructions; (ii) implement appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access. You authorise NTT DATA to make worldwide transfers, in the normal course of its business, of personal data to other entities, subcontractors and/or business partners.
D. You agree that NTT DATA can use any customer or transaction related data without restriction for the purposes of providing, assessing and/or improving Products, Services or other offerings and may share such data with its Affiliates, subcontractors and other business partners for such purposes.
15. Additional Terms
A. Assignment and Subcontracting. Neither party may assign or transfer this Agreement without the prior written consent of the other party except that NTT DATA may without your consent (i) assign to its Affiliates and (ii) subcontract any or all of its obligations under this Agreement, including any that involve the processing of personal data, but shall remain liable to you for such obligations.
B. Excused Performance. Neither party shall be liable to the other for any delay or failure to perform any of its obligations caused by events beyond its reasonable control. If the delay lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
C. Governing Law. This Agreement will be governed by English law and the English courts shall have exclusive jurisdiction.
D. Third Party Rights. A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
E. Notices. Notice to NTT DATA under this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including e-mail) as specified in writing, and will be effective upon receipt.
NTT DATA Services UK Limited, C/o Legalinx Limited, 1 Fetter Lane, London EC4A 1BR.
F. Entire Agreement This Agreement is the entire agreement with respect to its subject matter and each party acknowledges that it has not relied on, and shall have no right or remedy in respect of any statement, representation or warranty other than as expressly set out in this Agreement.
G. Changes. Changes to this Agreement will be made only through a written amendment signed by both parties.
H. Severability. If any provision of this Agreement is found to be void or unenforceable, such provision will be removed or modified to the extent necessary to give effect to the commercial intention of the parties and to comply with the law, and the remainder of this Agreement will remain in full force.