This Cloud Solutions Agreement between you and NTT DATA, governs your use of and access to the Solution. The term “Agreement” refers collectively to these terms and conditions and, as applicable, (i) the Solution Description for the applicable Solution; (ii) if you purchased directly from NTT DATA, any order form referencing or incorporating the Solution Description (an “Order Form”); (iii) the Cloud Solutions Agreement Acceptable Use Policy (“AUP”); and (iv) any applicable Regional Addendum that will govern the use of and access to the Solution by Clients and End Users outside of the United States (“U.S.”).
This Agreement is effective upon your (a) execution of a Solution Description or an Order Form; (b) acceptance of these terms pursuant to an online or offline process; (c) accessing or using the Solution; or (d) acceptance of terms between you and a reseller that reference this Agreement. “You,” “your” or “Client” means the end-user entity which you represent, and which may be further identified in the applicable Solution Description, Order Form, End User Acknowledgment Form or online order process, and includes any of your Affiliates that expressly agree to, or are otherwise legally bound by, this Agreement. “NTT DATA,” “us,” “we” or “our” means NTT DATA Services, LLC, a Delaware limited liability company, and its suppliers and licensors, or the NTT DATA Affiliate identified on your Solution Description or Order Form. Your purchase of the Solution is solely for your internal business use and may not be resold.
“Activation Instructions” means any instructions, user IDs, software license keys or passwords that NTT DATA or the applicable Cloud Partner provides you to enable you to activate or access a specific Solution.
“Affiliate” means, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity. For NTT DATA, this will be limited to NTT Data International L.L.C., NTT DATA Services International Holdings B.V. or any entity Controlled by either of them. For the purposes of each Order Form only, the applicable NTT DATA Affiliate alone shall be considered NTT DATA as that term is used throughout this Agreement and the applicable Client Affiliate alone shall be considered the Client as that term is used throughout this Agreement. NTT DATA, Client and their respective other Affiliates will have no liability with respect to such Order Form.
“Change” means any change or modification in the Services, the schedule for performing the Services, or the cost or budget for performing the Services including any material changes in the Software or Equipment. For the sake of clarity, a Solution Description or Order Form may set forth specific parameters of the Services (such as addition or removal of users or addition or removal of equipment) that may be modified by written agreement of the parties without undergoing the Change Control Process, and such modifications shall not constitute “Changes” for purposes of this Agreement or be subject to the Change Control Process.
“Change Control Procedures” or “Change Control Process” means the process set forth in the appendices to this Agreement.
“Client Content” means any information or data provided by you or your End Users in connection with your or your End Users’ use of the Solution, including any text, software, music, sound, photographs, graphics, video, messages, files, attachments or other materials transmitted to us or stored or used on the Solution.
“Confidential Information” means (i) data you transmit to us or store as part of the Solution or information provided to us on an Order Form; (ii) NTT DATA pricing and other Solution terms, Activation Instructions, marketing and sales information, know-how, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), or other proprietary information or technology provided to you (including Software); (iii) Trade Secrets or any information designated as Confidential. Information developed without reference to another party’s Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party without a violation of confidentiality, will not be Confidential Information; and (iv) information of NTT DATA that should reasonable be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
“Control” and its derivatives means with regard to any entity, the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the capital stock (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights.
“End User” means each individual or entity that Client has authorized to access and use a Solution, including any individual or entity that purchases a Client Solution.
“Intellectual Property” means all patents, applications for patents, copyrights, moral rights, author’s rights, rights of publicity, mask works, Trade Secrets, know-how, contract rights, licensing rights and/or any other intellectual or proprietary rights recognized by any jurisdiction, whether now existing or hereafter arising. Intellectual Property also includes corporate names, trade names, trademarks, service marks or other proprietary designations.
“Services” means any and all services performed by us, a Cloud Partner, or a combination thereof as described in one or more Solution Descriptions.
“Software” means any software, library, utility, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us in connection with a Solution. Software includes software locally installed on your systems and software accessed through the Internet or by other remote means including websites, portals and cloud-based solutions to utilize a Solution in accordance with this Agreement.
“Solution” means the combination of the Services performed and Software provided by us or our Cloud Partner to you pursuant to a Solution Description. Solutions include any Partner Solutions.
“Solution Description” means (i) a statement of work, service description, solution description or other agreement that references this Agreement or Cloud Partner Terms or (ii) a specification sheet or online description referenced in an Order Form.
“Third-Party Products” means any non-NTT DATA or non-Cloud Partner software or services provided, made available or otherwise used in connection with the Solution, including any Client Solution or any other Client or third-party provided software, hardware or services.
“Trade Secret” means any NTT DATA or Cloud Partner information not commonly known or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
There are other terms defined throughout this Agreement in the various sections so that the above is not an exhaustive listing of Definitions.
If you purchased a Solution through a reseller, the terms and conditions of sale (including pricing) for the purchase will be as agreed between you and the reseller. This Section 2 applies to direct sales only.
We will charge amounts for Solutions as set forth in the applicable Solution Description or Order Form or, if not specified, the current list pricing provided on our website or a separate pricing sheet provided to you. Quoted prices will remain in effect only until the expiration date of the quote. All orders are subject to our acceptance. The number of systems, units (e.g., mailboxes, recipients, minutes, etc.) and End Users for which you have purchased Solution(s) is indicated on the Order Form. Usage in excess of these numbers or for a period of time longer than the Term will result in additional costs. The additional costs per billing period will be determined by multiplying the excess usage by the contracted fee per system, unit or End User in the original Order Form. Payment must be made by credit card, wire transfer or other prearranged payment method unless we agree in writing to credit terms. Solutions are invoiced in accordance with the applicable Solution Description or Order Form beginning on the Activation Date. We, or our local Affiliate(s), will invoice you locally, per the billing address(es) you provide, in the applicable currency. Invoices are due and payable within 30 days from the invoice date. We reserve the right to charge interest at the rate of 1.5% per month against overdue amounts or the maximum rate permitted by law, whichever is less. Late payment fees are recalculated every 30 days based on your current outstanding balance, which may include any previously accrued and unpaid late payment fees. Client will pay all reasonable legal fees (including reasonable attorney’s fees) and costs associated with collection of overdue amounts.
The charges stated in any Order Form or invoice will include all duties, levies or any similar charges and will exclude VAT or equivalent sales or use tax. You are responsible, on behalf of yourself and your Affiliates, for the payment of all taxes and fees assessed or imposed on the Solution in any geography in which you or an End User receives the benefit of the Solution, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. Should any payments become subject to withholding tax, you or your Affiliates will deduct these taxes from the amount owed and pay the taxes to the appropriate tax authority in accordance with applicable tax laws. You will promptly provide us with receipts or documents evidencing these tax payments. We are not liable for any withholding tax, penalty or interest due as a result of your failure to withhold any applicable tax.
The charges stated in each Solution Description or Order Form are subject annually to a cost of living adjustment (“COLA”), effective on the anniversary date of the effective date of such Solution Description or Order Form. For the United States, the COLA adjustment shall be determined by the Consumer Price Index for all Urban Consumers (CPI-U) with the base years of 1982-1984=100, as published by the United States Bureau of Labor Statistics (http://www.bls.gov/cpi/#tables). The rate will be based on the selected local area of Dallas as measured annually from December of the previous year to December of the current year. For countries other than the United States, the parties will mutually agree as to the index to be used. NTT DATA shall apply the percentage changes to the COLA index specified above, beginning with the anniversary of the effective date of the Solution Description or Order Form, and shall adjust the pricing and invoicing accordingly.
With respect to certain Solutions, after our receipt and acceptance of an order (whether placed directly with NTT DATA or through a reseller), you will receive Activation Instructions. The date Activation Instructions are transmitted or, in the event Activation Instructions are not required, the effective date of the applicable Solution Description or the date an online order is executed is the “Activation Date.” You are required to provide, maintain and monitor one dedicated email address for the receipt of notices and other communications related to the Solution.
The “Term” for any Solution begins on the Activation Date and extends for the period indicated in the Solution Description or Order Form (or, if you purchased through a reseller, the applicable period in your order with the reseller). If you purchased directly from NTT DATA, unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term or unless auto-renewal is explicitly disclaimed in a Solution Description or an Order Form, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, we may renew this Agreement and the related Solution(s) in our discretion for a successive Term at our then-current list price. If you purchased through a reseller, the terms and conditions of renewal for the purchase will be as agreed between you and the reseller.
Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within ninety (90) days of receipt of written notice describing the nature of the breach. If you terminate this Agreement or any Solution hereunder for any reason other than such an uncured breach you shall not be entitled to any refund and you shall pay NTT DATA, on the date of termination, the total amounts due under any applicable Order Form(s). If you purchased multiple Solutions, termination of an individual Solution will not terminate this Agreement unless the circumstances giving rise to termination generally affect all purchased Solutions. Notwithstanding the foregoing, we may terminate this Agreement or the affected Solutions upon written notice to you, and without further liability if (i) you are delinquent on your payment obligations for 30 days or more; (ii) you violate the AUP or the Cloud Partner’s AUP; (iii) a change in our relationship with a third-party Software or technology provider or Cloud Partner has had a material adverse effect on our ability to provide the Solution; (iv) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets; (v) you are or you are controlled by a direct competitor of NTT DATA, or (vi) you purchased through a reseller and as applicable: the agreement between you and such reseller expires or is terminated, the agreement between NTT DATA and such reseller expires or is terminated or your reseller is delinquent on its payment obligations to NTT DATA. If we terminate the Agreement for any of the reasons (i), (ii), (iv), or you purchased through a reseller and the agreement between you and such reseller is terminated, or because you materially breached the Agreement and failed to timely cure the breach, then on the date of termination, you shall pay NTT DATA the total amounts remaining unpaid for the Services ordered under any applicable Order Form(s) plus related taxes and expenses. The payments described in this section are Client payment obligations under this Agreement and thus are not subject to the limitations of Section 17.1 herein.
Upon expiration of the Term for all Solutions purchased pursuant to this Agreement, either party may terminate this Agreement by providing 30 days’ written notice. 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.
You may not assign this Agreement or any respective rights or obligations to a third-party without our prior written consent. We may assign, sell or otherwise transfer our rights under this Agreement upon our sale of a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of Control will be deemed an assignment.
Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the Intellectual Property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors or our Cloud Partners, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable Trade Secrets and proprietary rights of NTT DATA and/or our licensors or Cloud Partners and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any Intellectual Property developed by us during the performance of the Solution will belong solely and exclusively to us and/or our licensors or Cloud Partners.
Should you purchase a Solution from NTT DATA that is performed by a member of NTT DATA’s cloud partner program (a “Cloud Partner”) your Solution (a “Partner Solution”) may be governed by additional terms and conditions that will be presented on your Order Form or during the online order process (“Cloud Partner Terms”).
If you provide End Users any non-NTT DATA hardware, software or services (including management services) with, through or using the Solution (a “Client Solution”), you must provide your End Users with this Agreement and your End Users must agree that their use of the Client Solution is subject to the terms and conditions of this Agreement. You are responsible for any Client Solution, including (i) controlling the access to, and use and security of, the Client Solution and the data residing in or processed via the Client Solution, including the use of appropriate encryption; (ii) maintaining the security of the passwords and other measures used to protect access to any end-user account; (iii) properly configuring the Solution to work with the Client Solution and taking your own steps to maintain appropriate back-up of the Client Solution, including the use of appropriate archiving; and (iv) properly handling and processing notices claiming that the Client Solution violates a person’s rights. Client agrees to indemnify and hold NTT DATA harmless from and against any claims by End Users using the Client Solution against NTT DATA relating to the Client Solution.
We may deactivate all or part of the Solution or your access to or use of data stored in the cloud (i) if you (or the reseller, from which you purchased) are delinquent on payment obligations for 15 days or more; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject NTT DATA to liability. We will use commercially reasonable efforts to give you at least 12 hours’ notice of a deactivation unless we (or the Cloud Partner) determine in our commercially reasonable judgment that a deactivation on shorter or contemporaneous notice is necessary to protect us, the Cloud Partner or our clients.
For clients purchasing a NTT DATA-delivered Solution, we may delete your Client Content (a) 60 days following any termination by us pursuant to Section 5 of this Agreement, or (b) if you (or the reseller, from which you purchased) fail to renew an applicable Solution Description within 60 days of expiration. For clients purchasing a Partner Solution, the retention and deletion of Client Content will be governed by the applicable Cloud Partner Terms.
If we are providing the Solution in connection with a trial program such as a demo, evaluation, pilot or proof of concept (a “Trial”), immediately following the conclusion of the Trial we may delete Client Content stored in the cloud without any obligation to return Client Content to you. If, however, immediately following the conclusion of the Trial you renew the Solution for the standard term, we will keep Client Content in the cloud in accordance with this Agreement.
We or the Cloud Partner may modify the functionality or features of the Solution at any time, provided that the modification does not materially denigrate the functionality of the Solution (as described in the applicable Solution Description) during the Term. We or the Cloud Partner will not be liable to you or any third-party for any such modification. From time to time, we or the Cloud Partner may change the location where the Solution is provided; provided, however, we or the Cloud Partner will remain responsible for the delivery of the Solution.
It may be necessary for us or the Cloud Partner to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software, which may temporarily degrade the quality of the Solution or result in a partial or complete outage of the Solution. Although we cannot guarantee that you will receive advance notice of repairs or maintenance, we will endeavor to provide at least 7 days’ notice of scheduled updates and patches or such notice as is set forth in the applicable Cloud Partner Terms.
To the extent Software is provided as a part of the Cloud Solution, such Software is provided subject to the license agreement that accompanies the Software or, if no license terms accompany the Software or are not otherwise made available to you by NTT DATA, the End User License Agreement – A Version, located at: us.nttdata.com/en/contracts/ntt-data-services-end-user-agreement. Client shall be liable for any breach of this Agreement by any End User.
You are responsible for keeping your account permissions, billing and other account information current. If you purchased directly from NTT DATA, you must pay when due the amounts for the Solution stated in the applicable Solution Description or other agreement between you and NTT DATA. If you purchased from a reseller, you must pay when due the amounts for each Solution stated in the applicable agreement between you and the reseller. Certain Solutions may contain features designed to interoperate with Third-Party Products or Cloud Partner services. If the Third-Party Product or Cloud Partner services are no longer made available by the applicable provider, we may stop providing the related Solution feature and you will not be entitled to any refund, credit or other compensation. In our performance of the Solution, we may obtain information related to your use of the Solution. You agree that we may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Solution or in support of generic marketing activities related to the Solution.
You represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any Client data or End User data within and outside of the country in which you are located in connection with our (or our Cloud Partners’) performance of the Service or your use of the Software (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, contractors and End Users). You are responsible for the data and software you use or store in the cloud, including its maintenance, operation and compatibility in and with the cloud, and any third-party claims regarding the same. You understand and agree that neither NTT DATA nor the Cloud Partners have control over the content of the data processed and that NTT DATA (or the Cloud Partner, as applicable) performs the Services on your behalf. If you or an End User transmits data to a third-party website or other provider that is linked to or made accessible by the Solution, you and the End User consent to our or the Cloud Partners, as applicable, enabling such transmission, but such transmission and any related interaction is solely between you and the third-party website or provider and may be subject to additional terms and conditions provided by the third-party website or provider. Neither NTT DATA nor the Cloud Partners will be responsible for any disclosures, modifications or deletions of your data resulting from any such transmission. Neither NTT DATA nor the Cloud Partners make any warranties about, or will have any liability for, such third-party websites or providers.
You must use reasonable security precautions in connection with your use of the Solution and comply with the AUP and laws and regulations applicable to your use of the Solution. You must cooperate with our reasonable investigation of Service outages, security issues and any suspected breach of this Agreement. In our sole discretion, we may revise the AUP to add or modify restrictions on use of the Solutions, provided that the changes are commercially reasonable, consistent with industry norms and apply to all clients.
You will be deemed to have taken any action that you permit, enable or facilitate any person or entity to take related to this Agreement or any use of any Solution. You are responsible for the use of the Solutions by any End User and any person who gains access to your or any End User’s data or the Solution as a result of your failure to use reasonable security precautions, even if the use was not authorized by you. You will ensure that End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement and are legally enforceable. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to the Solution.
You are responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Solution and for ensuring that the equipment is compatible with the Solution. You are responsible for properly configuring and using the Solution and taking your own steps to maintain appropriate security, protection and back-up of your data and software, including the use of appropriate encryption, back-up and archiving. You acknowledge that the Solutions are not intended to replace and do not replace the need for you to maintain regular data back-ups or redundant data archives. You are responsible for maintaining back-up copies of your data that may be stored or processed by us in the course of our provision of Solutions. You understand and agree that we are not responsible for any loss or corruption of your data or software. You remain responsible for properly handling and processing notices claiming that your data or software violates a person’s rights.
In connection with certain Solutions, we may provide you with hardware, software, equipment or other property (“Equipment”). The Equipment is our sole property and we may immediately take possession of the Equipment following the termination or expiration of this Agreement. You will (a) keep the Equipment free and clear of any lien and not pledge as security or otherwise encumber the Equipment; (b) use the Equipment only to access the Solution and comply with our reasonable Equipment use instructions; (c) not remove, relocate or move the Equipment from the specific location where it was first installed without our prior written approval; (d) provide adequate, secure and proper space at your facility to install Equipment, it being agreed that we are not obligated to install Equipment in poorly ventilated, air conditioned or inadequately maintained room(s); (e) be responsible for risk of loss and damage to the Equipment equal to the present value of the Equipment’s fair market value; (f) not remove, cover or alter plates, labels or other markings on the Equipment; and (g) provide a secure link such as a static IP address for the Equipment.
Client grants to NTT DATA (and the Cloud Partners, if applicable) the necessary rights to operate any Client-provided software, including a non-exclusive, royalty-free license (which shall terminate upon termination of the applicable Solution) to install, deploy, use, execute, reproduce, display, perform and run such software (including, without limitation, guest operating systems and application programs), as are reasonable or necessary for NTT DATA or the Cloud Partner, if applicable, to perform or provide the Solution. As between you and NTT DATA or you and the Cloud Partner, you are responsible for providing, updating, uploading and maintaining any Client-provided software and paying all fees associated therewith, including any software license and maintenance fees. If, in order to provide the Solution, we or our Cloud Partner, as applicable, are required to install, patch, manage or otherwise use or access software that you license from a third-party software vendor, then you represent and warrant that you have obtained a written license agreement with the vendor that permits us to perform these activities.
Client grants to NTT DATA or NTT DATA’s Cloud Partner, as applicable, a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Client and End User data as is reasonable or necessary for NTT DATA or NTT DATA’s Cloud Partner to perform or provide the Solution. It is Client’s responsibility to obtain, at its own expense, all licenses, consents and approvals required to grant to NTT DATA (or NTT DATA’s Cloud Partner) the rights and licenses in this Agreement.
The Solutions may not be used in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the Solutions could lead directly to death, personal injury or environmental or property damage (collectively, “High-Risk Activities”).
THE SOLUTION, TOGETHER WITH ALL THIRD-PARTY PRODUCTS AND OPEN SOURCE SOFTWARE PROVIDED BY NTT DATA, IS PROVIDED “AS IS.” NTT DATA (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS LICENSORS, CLOUD PARTNERS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH NTT DATA, THE “NTT DATA PARTIES”), MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOLUTION OR ANY OF THE SOFTWARE OR SERVICES INCLUDED THEREIN, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THE PERFORMANCE OF SOFTWARE (INCLUDING WHETHER THE SOFTWARE IS OR WILL BE SECURE, ACCURATE, COMPLETE, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS, OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED) OR OUR PERFORMANCE OF THE SERVICES (INCLUDING WHETHER THE SERVICES ARE OR WILL BE UNINTERRUPTED, TIMELY OR WITHOUT ERROR) OR THE SECURITY OF THE SOLUTION OR WHETHER THE SOLUTION IS SUITABLE FOR HIGH-RISK ACTIVITIES; (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOLUTION (INCLUDING THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SOFTWARE) OR THE RESULTS OF ANY RECOMMENDATION BY US; OR (4) ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER OR ORIGINAL MANUFACTURER, WHETHER OR NOT SUCH THIRD-PARTY PRODUCT IS DESIGNATED BY US AS “CERTIFIED,” “APPROVED” OR OTHERWISE. IN THE EVENT WE ARE PROVIDING THE SOLUTION IN CONNECTION WITH A TRIAL, THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES.
WITH RESPECT TO YOUR OR END USER’S USE OF THE SOFTWARE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH PROBLEMS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOLUTIONS, INCLUDING TELEPHONE, COMPUTER NETWORKS AND THE INTERNET, OR FOR TRANSMITTING INFORMATION CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOLUTIONS. WE WILL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR OR END USER’S ACCESS TO OR USE OF THE SOLUTIONS OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON OUR ABILITY TO PERFORM THE SOLUTIONS.
17.1 Limitation on Types of Recoverable Damages
IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR THE FOLLOWING TYPES OF LOSS OR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES IN ADVANCE:
17.1.1. INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES;
17.1.2. EXEMPLARY OR PUNITIVE DAMAGES; OR
17.1.3. WHETHER DIRECT OR INDIRECT, LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR SHARE VALUE, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK(S), OR THE RECOVERY OF SUCH, OR LOSS OF GOODWILL OR REPUTATION.
This Section 17.1 shall not apply to Client’s payment obligations under this Agreement.
17.2 Limitation on Amount of Damages
The liability of each party and its Affiliates to the other party and its Affiliates for any and all causes of action, whether in contract in tort (including breach of warranty, negligence and strict liability in tort) arising out of or in connection with this Agreement, shall not exceed, in the aggregate, the amount of the charges actually paid to NTT DATA and its Affiliates in the twelve (12) month period immediately preceding the date that the last claim giving rise to such liability arose.
The limitations set forth in Section 17.2 will not apply with respect to (i) amounts payable by a party pursuant to Section 19, (ii) damages attributed to fraud or willful misconduct of a party, (iii) damages attributed to bodily injury, including death, caused by the negligence or willful misconduct of a party.
17.4 Independent Limitations
The limitations set forth in Sections 17.1 and 17.2 are independent and in the event that either shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of such provisions, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
Confidential Information may not be disclosed except to Affiliates, employees, agents and subcontractors who “need-to-know” it and who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other party before making the disclosure.
We will defend and indemnify you from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action that the Solution (excluding Third-Party Products and open source software) infringes or misappropriates that third-party’s Intellectual Property rights enforceable in the country in which the Solution is sold to you. In addition, if we receive prompt notice of a claim that, in our reasonable opinion, is likely to result in an adverse ruling, then we will, at our option, (i) obtain a right for you to continue using the Software or that allow us to continue performing the Services; (ii) modify the Software or Services to make them non-infringing; or (iii) replace the Software or Services with a non-infringing equivalent. Notwithstanding the foregoing, we will have no obligation under this Section 19 for any claim resulting or arising from (1) modifications of the Software or Services that were not performed by or on behalf of us; (2) the combination, operation or use of the Software or Services in connection with a Third-Party Product (the combination of which causes the claimed infringement); or (3) our compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. This Section 19 states Client’s exclusive remedies for any third-party Intellectual Property claim or action, and nothing in this Agreement or elsewhere will obligate us to provide any greater indemnity to Client. This paragraph of Section 19 will not apply in the case of a Trial.
You will defend and indemnify the NTT DATA Parties from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to (a) your failure to obtain or maintain any appropriate license, Intellectual Property rights or other permissions, regulatory certifications or approvals associated with technology or data provided by you, or associated with Software, Third-Party Products or other components directed or requested by you to be installed or integrated as part of the Solution; (b) your breach of this Agreement or violation of any applicable law, regulation or order; (c) any inaccurate representation regarding the existence of an export license or any allegation made against the NTT DATA Parties due to your violation or alleged violation of applicable Control Laws; (d) you providing any Excluded Data to NTT DATA; (e) tax liabilities that are your responsibility pursuant to Section 2; (f) your use of the Solution; (g) the failure of any End Users to comply with your obligations under this Agreement; and (h) your provision of your own services, software, technology or solution.
Each party will defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
The indemnified party will (i) promptly notify the indemnifying party in writing of any claim; (ii) grant the indemnifying party sole control of the defense and resolution of the claim; and (iii) cooperate with the indemnifying party, at the indemnifying party’s expense, in defending and resolving the claim. Failure to provide prompt notice, however, will not affect the indemnifying party’s obligations to the extent the failure does not materially prejudice the indemnifying party’s ability to defend the claim.
In no event will an indemnifying party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified party from all liabilities and obligations with respect to the claim.
In addition, NTT DATA shall not be responsible for any delay or failure to provide Services to the extent caused by: (1) failures by you to perform your responsibilities under this Agreement or any Solution Description or Order Form; (2) materially inaccurate assumptions; (3) a defect, deficiency or failure with respect to your network, systems, software, data or other equipment; or (4) modifications to your network, systems, or other equipment made by a party other than NTT DATA or its representatives. If either party becomes aware of the occurrence of one or more of the foregoing events, they shall notify the other party accordingly. Notwithstanding such occurrence, NTT DATA may, following discussion with you regarding the impact of such incident, continue to provide the Services and shall use commercially reasonable efforts to perform the Service under this Agreement and the applicable Solution Description or Order Form. You shall reimburse NTT DATA for its reasonable additional costs of providing the Services and out of pocket expenses for such efforts and only to the extent attributable to the items defined above.
Supplemental Terms and Conditions:
Additional Terms for Client and/or End Users in EMEA:
For Clients and/or End Users who receive or are given access to the Solution or Client Solution in any of the countries in Europe, the Middle East, or Africa, the provisions of this EMEA Addendum shall apply. Client shall be responsible for ensuring compliance by End Users with the terms of this Agreement including this EMEA Addendum.
Additional Terms for Client and/or End Users in Canada:
This Canadian Addendum to the Agreement applies to Client, where Client is U.S.-based but has End Users who receive or are given access to a Solution or Client Solution in Canada. For greater certainty this Canadian Addendum is not intended to facilitate the sale of Solutions from NTT DATA directly to a Canadian company.
Additional Terms for Client and/or End Users in LatAm:
For Clients and/or End Users who receive or are given access to the Solution or Client Solution in any of the countries in Central and South America (“LatAm”), the provisions of this LatAm Addendum shall apply. Client shall be responsible for ensuring compliance by End Users with the terms of this Agreement including this LatAm Addendum.
Cloud Solutions Agreement Acceptable Use Policy
This Cloud Solutions Agreement Acceptable Use Policy (the “AUP”) sets forth certain limitations and restrictions required in connection with your use and your End Users’ use of (i) the Solutions, and (ii) any online portal, console, dashboard or similar interface used in accessing the Solutions (the “Portal”). We may revise this AUP from time to time to add or modify restrictions on your use or your End Users’ use of the Solutions or the Portal. If you or your End Users violate this AUP, we may deactivate or terminate your use or your End Users’ use of the Solutions.
Terms used in this AUP that are capitalized and not otherwise defined have the meanings set forth in the NTT DATA Cloud Solutions Agreement.
You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party's networks or equipment; (2) permitting other individuals or entities to copy the Solutions; (3) providing unauthorized access to or use of Activation Instructions; (4) attempting to probe, scan or test the vulnerability of the Solutions or of a system, account or network of NTT DATA or any of our clients or suppliers; (5) interfering or attempting to interfere with service to any user, host or network; (6) engaging in fraudulent, offensive or illegal activity of any nature; (7) uploading any content, or engaging in any activity, that is pornographic, obscene, harassing, abusive, slanderous or defamatory or that encourages, promotes or expresses racism, hatred, bigotry or violence; (8) engaging in any activity that infringes the intellectual property rights or privacy rights of any individual or third-party; (9) transmitting unsolicited bulk or commercial messages; (10) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (11) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Solutions (except for tools with safety and security functions); or (12) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any NTT DATA (or NTT DATA supplier) facilities used to deliver the Solutions.
We may investigate suspected violations of this AUP. We may report suspected violations of this AUP to applicable law-enforcement authorities or third-parties and may cooperate with any investigation of illegal activities associated with your use or your End Users’ use of the Solutions, the Portal, the system or network, or any violation of this AUP.
Change Control Procedures
“Change Management” is NTT DATA Services’ standard process for the planning, testing, coordinating, implementing, and monitoring of technical changes affecting delivery of the Services and Client's operating environments without adversely impacting delivery of the Services, and is separate from the Change Control Procedures.
NTT DATA Cloud Solutions Agreement
Revision Date: June 26, 2018