Master Partner Agreement
We have updated our Master Partner Agreement. If you are a new Partner, then the Master Partner Agreement will be effective as of 25 April 2024. If you are an existing Partner, we are providing you with prior notice of these changes which will be effective as of 25 May 2024. For the previous version of our Master Partner Agreement, please click here.
MASTER PARTNER TERMS AND CONDITIONS
1.Definitions.
1.1 “Affiliate” means any majority-owned subsidiary or other entity which a party controls or is controlled by, or with which it is under common control with a party.
1.2 “Consulting” means the consulting services provided by NTT as provided for under the terms of the applicable Service Descriptions. By way of example, Consulting may include, incident response and investigation, compromise assessments, forensic services related to cyber security adversaries, tabletop exercises and penetration tests related to cyber security and typically provided on a time and material basis and sometimes sold as a retainer.
1.3 “Customer(s)” means the current or potential customers of Partner for the applicable NTT Samurai Services or Consulting excluding any entity or person deemed in NTT reasonable discretion as a competitor of NTT; provided, when used in the Terms of Service as referenced in Sections 1.10, 2.1, 2.4 and 2.6 of this Agreement, “Customer” shall mean Partner.
1.4 “Evidence Data" means the malicious code, URL’s, malware, commands, techniques, objectives, or other information of unauthorized third parties either provided by Partner or Customer to NTT or collected or discovered during the course of providing the Products or Services; provided, neither Partner nor any Customer(s) are identified in such information.
1.5 “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display, and publicly perform the copyrighted work), trademark rights (including rights in, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, (i) all rights worldwide in patent applications, any patents issuing therefrom, and all provisional rights with respect to patent applications, (ii) all rights worldwide in any improvements, substitutions, divisionals, patents of addition, continuations, continuations-in-part, reissues, renewals, registrations, confirmations, re-examinations, extensions, supplementary protection certificates, term extensions (under applicable patent law or regulation or other law or regulation), and certificates of invention of any patents or patent applications, and (iii) all rights worldwide to exploit any of the foregoing), know-how, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, all other intellectual property rights as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether such rights arise under the law of the Territory or any other state, country, region, or jurisdiction.
1.6 “NTT Content” means NTTs proprietary data that is contained in or made available as part of Services and Consulting.
1.7 “Samurai Services” consists of NTT MDR offerings for security operations management which are listed and further described in the relevant Service Descriptions.
1.8 “Services” means Samurai Services and Consulting. The Service Descriptions for the Services can be found here https://docs.mdr.security.ntt/docs/reference/legal/service_descriptions/
1.9 “Trademarks” means the words, names, symbols, designs, or any combination thereof, used in commerce to identify and distinguish the products, services, and company, of a party from those of others and to indicate the source of such consulting and services.
1.10 “Terms of Service” or “ToS” means the current standard terms, conditions, and legal notices, applicable to the Samurai Services found here https://docs.mdr.security.ntt/docs/reference/legal/, including any product specific terms that are included in valid quotes issued by NTT and related to the Samurai Services.
1.11 “Territory” means the jurisdiction(s) listed in the Cover sheet.
1.12 “Partner Tier” means the type of obligations to, and benefits and support the Partner will receive from, NTT as defined in the Partner Program Guide
1.13 “End User Agreement” means the same as “Terms of Service” as defined in clause 1.10 above.
2. Appointment and Restrictions.
2.1 Nonexclusive Appointment. Provided that Partner complies at all times with the terms and conditions of this Agreement, NTT appoints Partner and Partner accepts appointment as a nonexclusive Partner with non-transferable, limited right to market and promote the Services to Customers within the Territory provided, Partner shall expressly accept and agree to the Terms of Service with NTT prior to accessing the Services. The applicable Samurai Services and Consulting to which this appointment applies will be specified in the applicable Service Description(s). Partner agrees that nothing in this Agreement shall be construed to preclude NTT from directly or indirectly marketing, distributing, selling, or servicing any Services or Consulting to or for any third party in any location, including without limitation, other partners, resellers, distributors, managed service providers, and end-users. The rights and licenses granted to Partner under this Agreement are personal to Partner and Partner may not transfer or sublicense the appointment set forth in this Agreement.
2.2 Ownership. Except for the limited license(s) expressly granted to Partner in this Agreement, all right, title and interest in and to the Services, Consulting, NTT Content, including the concepts and technology inherent in the Services, NTT Content and deliverables, all Intellectual Property Rights related thereto, shall at all times be and remain, relative to Partner, the sole and exclusive property of NTT. No other licenses, immunity or rights, express or implied are granted by NTT, by implication, estoppel, or otherwise.
2.3. Restrictions. Partner shall, by all appropriate means, prevent unauthorized disclosure, publication, display or use of the Services, Consulting and NTT Content. Partner shall not, and shall not encourage or authorize any third party to, modify or reverse engineer any Services or the technology related thereto, or attempt to gain unauthorized access to the Services or the NTT Content. Partner shall not remove, alter, cover or obfuscate any end-user agreement, privacy notice, copyright notices or other proprietary legends placed or embedded by NTT on or in the Services documentation, NTT Content, deliverables or literature related to any of the foregoing. Partner shall not affix or place any labels or markings on the Services, Consulting output, Service deliverables, or literature related to the foregoing, that might be interpreted as a claim of ownership by Partner or any third party in the foregoing.** Without NTT’s prior written consent (an email from the Chief Operating Officer shall suffice), Partner shall not, nor have a third party, (i) perform a competitive analysis on the Services or Consulting, or (ii) publish a review or the results of any internal evaluation of the Services or Consulting.
2.4 Terms of Service. With respect to each accepted quote for Services, Partner shall expressly accept and agree to be bound by the Terms of Service with NTT. Partner shall not be granted, and shall not grant to Customers, any access, use or other rights to the Services, unless Partner has accepted and agreed to the Terms of Service. Partner will promptly report to NTT any breach, or suspected breach, of the Terms of Service of which it becomes aware. NTT reserves the right to refuse to issue a quote, accept an order, or make the Services available to any Customer; provided that NTT provides to Partner a written notice of its objection to such Customer.
2.5 Changes to ToS. Partner acknowledges that NTT may update the Terms of Services from time to time as set forth in the Terms of Service.
2.6 Governing Terms and Conditions. Partner acknowledges and agree that, A) as to Partner, NTT’s obligations to Partner shall be as stated in this Agreement and the Terms of Service, and B) as to Customers, i) Partner shall be solely liable to Customers.
2.7 Partner Tier. Partner agrees to abide by the obligations of the Tier they hold. Partner further agrees that should they cease to meet such obligations NTT may, at it’s sole discretion, reduce Partner’s tier or remove Partner’s status as a Partner.
2.8 Partner Conduct. Partner shall: (i) conduct business in a manner that reflects favorably at all times on the Services, Consulting, goodwill and reputation of NTT; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to NTT; (iii) refrain from making any false or misleading representations or warranties with regard to NTT, the Services or Consulting; and (iv) comply with all applicable laws, rules, ordinances, decrees and regulations applicable to Partner’s activities under this Agreement, including without limitation, any applicable privacy laws and the Foreign Corrupt Practices Act, export laws and sanctions regulations or any similar legislation. Partner has reviewed and understands NTT’s Privacy Notice located at https://docs.mdr.security.ntt/docs/reference/legal/privacy_policy/. Partner shall not, directly or indirectly, through action or inaction, cause NTT to be in violation of its Privacy Notice or applicable laws.
2.9 Affiliate Appointment. An Affiliate of Partner may be authorized by NTTSH to resell Services pursuant to and in accordance with the terms and conditions of this Agreement, provided such Affiliate is approved by NTTSH and executes and delivers an agreement in form and substance required by NTTSH whereby Affiliate adopts and agrees to be bound by this Agreement (an “Adoption Agreement”). Any such Adoption Agreement shall constitute an individual contractual relationship between the respective Affiliate and NTTSH and will govern any purchase order executed or issued by such Affiliate. Each Affiliate shall only be liable under the Adoption Agreement it has executed, and NTTSH shall be liable only to the Affiliate executing such Adoption Agreement. In no event shall either NTTSH or Partner have recourse or be liable to the other or another Affiliate with regard to any acts or omissions, obligations, duties, or claims under an Adoption Agreement or any local purchase order entered into by the Affiliates and NTTSH.
3. Services. During the term of the MPA and subject to the terms and conditions therein and herein, NTT agrees to provide certain: (i) Samurai Services, and/or (ii) Consulting services purchased by Partner in accordance with the terms of this MPA. The Services purchased are specified in a quote delivered by NTT and accepted by Partner without alteration (“Order”) or statement of work (“SOW”) executed (or, if online, accepted pursuant to an online order process) by the parties which references this MPA. A detailed description of the Services being purchased is provided in the service description and for such Services attached to the Order (or linked to if the Partner is purchasing online) and incorporated therein by reference. All Orders (whether signed or accepted pursuant to an online order process) and all SOWs are subject to the terms and conditions of this MPA and will include the following: (i) the particular Services to be performed, including, if applicable, the applicable Specification Document; (i) the subscription term of the Services; (iii) the compensation and billing method for the Services; and (iv) any other applicable information agreed to by the parties.
4. Go To Market and Use of Trademarks.
4.1 Go To Market. Subject to the terms of this Section 4, each party will have the right to refer to the fact that Partner is in a collaborative relationship with NTT on its website and in marketing collateral. Otherwise, neither party will make any public statement or issue any press release with respect to this relationship without the prior written consent of the other party.
4.2 Trademark Use. Each party (the “Trademark Party”) grants the other party a worldwide, non-exclusive, non-transferable royalty free limited license (with no right of sublicense) during the term of this Agreement to use the Trademark Party’s Trademarks solely for the purpose of carrying out the terms of the Go To Market Plan and as otherwise contemplated by this Agreement, including but not limited to, the promotion of the Services and Consulting, the parties’ joint efforts and channel programs; provided, that, such Trademarks are used solely in accordance with the Trademark Party’s specifications as to style, color, and typeface, as such specifications may be modified by such party from time to time and communicated to the other party. Partner agrees not to attach any other trademarks, logos or trade designations to the Services, nor to remove or modify any of NTT’s Trademarks or proprietary notices affixed to the Services, Service deliverables or documentation. Partner shall not affix any NTT Trademarks to services other than the genuine Services. Upon notice from the Trademark Party of its objection to any improper or incorrect use of the Trademark Party’s Trademarks, the other party shall correct or stop such usage as soon as reasonably practicable.
4.3 Ownership of Trademarks. Each Trademark Party claims ownership of all right, title, and interest in and to its Trademarks, together with any new or revised trademarks, trade names, and logos that such Trademark Party may adopt to identify it or any of its products or services. Neither party shall claim any rights in the other party’s Trademarks or take any action that threatens or challenges the Trademark Party’s proprietary rights therein. All use by a party of the Trademark Party’s Trademarks and all goodwill associated therewith shall inure exclusively to the benefit of the Trademark Party and its Affiliates. Partner is prohibited from using or registering any of NTT’s Trademarks or domain names, including without limitation any terms containing the terms “Samurai” as part of Partner’s company name, service name, trade names or domain names. NTT does not authorize Partner’s use of any of the NTT Trademarks to promote or use for search engine ranking or ad word purchase or as part of a trade name, business name or Internet domain name in any manner that could be detrimental to the interests of NTT. If Partner registers or otherwise obtains rights to marks (as trademarks, service marks, URLs, company names or otherwise) in violation of this Agreement, Partner will, at its own expense, transfer and assign such rights to NTT, and execute all documents reasonably requested by NTT to facilitate such assignment or transfer.
5. Samurai Service Fees. NTT’s’ fees for the Samurai Services are set forth on the Order. The Samurai Services ordered will commence on the date set forth in the Order (the “Commencement Date”), and NTT shall invoice Partner for Samurai Services on the Commencement Date and thereafter in advance on the renewal date. If there is no date in the Order, the date on which the Quote was accepted shall be the Commencement Date.
6. Consulting Service Fees. NTT’s fees and billing milestones for the Consulting Services are set forth on the applicable Order or Statement of Work (“SOW”) (as applicable).
7. Invoice and Payment. NTT will invoice Partner in accordance with the billing terms set forth and detailed on the applicable Order or SOW. All charges, fees, payments and amounts hereunder will be in currency designated in the applicable Order or SOW, and (ii) all undisputed amounts due hereunder are payable within thirty (30) days from the date of the invoice, which shall be submitted to Partner electronically (the “Invoice Due Date”).
8. Disputes and Nonpayment. Partner shall have the right to reasonably, and in good faith, dispute any invoice or any portion of any invoice claimed by NTT as due and payable provided that, prior to the Invoice Due Date, Partner (i) timely pays any undisputed portion of the amount due and payable, and (ii) provides NTT with written notice specifying the disputed amount and the basis for the dispute in reasonable detail. Except for amounts that are disputed in good faith by Partner in accordance with this Section 8, NTT reserves the right to charge Partner a late fee of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, for invoices not paid on or before the Invoice Due Date. In addition, NTT, without waiving any other rights or remedies to which it may be entitled, shall have the right, upon prior written notice to Partner, to suspend the Services until such payment is received.
9. Taxes. Partner shall be responsible for the payment of all taxes and fees assessed or imposed on the Services provided or the amounts charged under the Order/SOW in any country or territory in which the Partner receives the benefit of the Services, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes: (i) for which the Partner has provided a valid resale or exemption certificate, or (ii) imposed on NTT’ income or arising from the employment relationship between NTT and its employees. Should any payments become subject to withholding tax, the Partner will deduct these taxes from the amount owed and pay the taxes to the appropriate tax authority in accordance with applicable tax laws. Partner will promptly provide NTT with receipts or documents evidencing these tax payments. NTT shall not be liable for any withholding tax, penalty or interest due as a result of Partner’s failure to withhold any applicable tax.
10. Change Control. “Change” means any change to the scope of engagement that (i) would modify NTT’s obligations in relation to delivery of the Services, or (ii) would alter the cost to Partner for the Services, or (iii) is agreed by Partner and NTT in writing to be a Change. From time to time during the term of the Services, Partner or NTT may propose Changes to the scope of the engagement. Any Change to the applicable Order/SOW shall be implemented by request for, issuance of, and acceptance of a quote. For the avoidance of doubt, change described in this Section 10 does not apply to the composition of the Samurai Service as defined in the Service Description.
11.Confidentiality.
11.1 Definitions. In connection with this Agreement, each party (“Recipient”) may be exposed to or acquire Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form and regardless of the method of acquisition that the Discloser designates as confidential to Recipient or which, due to the nature of such information and/or under the circumstances surrounding disclosure ought to be treated as confidential by the Recipient. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient (which must be demonstrable) without an obligation of confidentiality; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality, or (v) Evidence Data.
11.2 Restrictions on Use. Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, agents and consultants, including without limitation, counsel, accountants and advisors (collectively, “Representatives”) and its Affiliates and their Representatives who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than to carry out the terms of this Agreement and further the parties’ business relationship. Recipient shall take the same degree of care that it uses to protect its own confidential information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Discloser’s Confidential Information. Recipient shall promptly notify Discloser of any breach of this Agreement that it becomes aware, and in any event, shall be responsible for any breach of this Agreement by any of its Affiliates, Representatives or Affiliates’ Representatives.
11.3 Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation, or (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory or legislative body of competent jurisdiction, or (iii) in connection with any regulatory report, audit or inquiry, or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall to the extent permissible by law give the Discloser prompt written notice of such requirement or request prior to such disclosure and reasonable assistance (at Discloser’s expense) in obtaining an order protecting the information from public disclosure. NTT and Partner agree that the terms and conditions of this Agreement as it relates to the other party shall be treated as Confidential Information and shall not be disclosed to any third party except as otherwise provided in this Section 11 (Confidentiality) and (i) in connection with the enforcement of this Agreement or rights under this Agreement; or (ii) in confidence, in connection with an actual or proposed merger, acquisition or similar transaction.
11.4 Return or Destruction. Upon Discloser’s written request, Recipient shall use commercially reasonable efforts to either return or destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. If Recipient elects to destroy Discloser’s Confidential Information (subject to any retention rights provided in this Agreement), Discloser may request that Recipient provide it with written confirmation of destruction in compliance with this provision.
11.6 Equitable Relief. Each party acknowledges that a breach of this Section 11 (Confidentiality) shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.
11.6 NTT Development; Communications. It is expressly understood, acknowledged and agreed that Partner may, regardless of whether or not formally requested, provide to NTT suggestions, comments and feedback regarding the Services or Consulting, including but not limited to usability, bug reports and test results, with respect to the foregoing (collectively, “Feedback”). Partner grants NTT, under all of its intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights without any attribution of any kind: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any NTT Service or Consulting or related technology, specification or other documentation; (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any NTT’s Service or Consulting or related technology, specification or other documentation; (iii) solely with respect to your copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by Partner that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the Feedback or portion thereof incorporated into an NTT Service or Consulting or related technology, specification or other documentation. Further, Partner warrants that its Feedback is not subject to any license terms that would purport to require NTT to comply with any additional obligations with respect to any NTT Service or Consulting or related technology, specification or other documentation that incorporate any Feedback.
12.Representations and Warranties.
12.1 Each party represents and warrants that it has full power and authority to execute this Agreement and to take all actions required by, and to perform the agreements contained in, this Agreement, and that each party’s obligations under this Agreement do not conflict with its obligations under any other agreement to which it is a party.
12.2 WARRANTY DISCLAIMER. EXCEPT FOR ANY LIMITED EXPRESS WARRANTIES MADE BY NTT FOR THE SERVICES AND/OR CONSULTING IN ITS END USER AGREEMENT(S) (WHICH SHALL BE APPLICABLE ONLY IF PARTNER OR CUSTOMER IS AN END USER OF THE APPLICABLE SERVICE OR CONSULTING UNDER SUCH AN AGREEMENT), NTT MAKES NO OTHER WARRANTIES RELATING TO THE SERVICES OR CONSULTING, EXPRESS, IMPLIED OR STATUTORY (EXCEPT FOR THOSE PRESCRIBED BY LAW WHICH CANNOT BE EXCLUDED), INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. PARTNER ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT NTT DOES NOT GUARANTEE OR WARRANT THAT USE OF THE SERVICES OR CONSULTING WILL FIND, LOCATE OR DISCOVER ALL SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND WILL NOT HOLD NTT RESPONSIBLE THEREFOR. PARTNER AGREES NOT TO REPRESENT TO CUSTOMER OR ANY THIRD PARTY THAT NTT HAS PROVIDED SUCH GUARANTEE OR WARRANTY. NTT SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NTT SERVICES ARE NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
12.3 No individual is authorized by NTT to make any warranty or representation concerning the performance of the Services or Consulting. Partner shall make no warranty, express or implied, on behalf of NTT.
13. Indemnification.
13.1 Infringement Indemnity. NTT will defend, at its own expense, a third-party claim, suit or proceeding brought against Partner insofar as it is based on a claim that a Service or a Consulting deliverable when used by Partner in accordance with the terms of this Agreement, constitutes an infringement of a patent or copyright valid within the Territory. NTT shall pay all damages, costs and expenses finally awarded to third parties as a result of a final judgment against Partner or settlement of such claim negotiated by NTT, but shall not be responsible for any compromise made without its consent. To qualify for such defense and payment, the Partner must: (i) give NTT prompt written notice of any such claim, and (ii) allow NTT to control, and fully cooperate with NTT in, the defense and all related settlement negotiations. Upon notice of an alleged infringement, or if, in NTT’s opinion, such a claim is likely, NTT shall have the right, at its option, to obtain the right to continue the distribution of Services, substitute other products or services with similar operating capabilities and/or performance, or modify the Service or Consulting deliverable so that it is no longer infringing or subject to a third party claim. In the event that none of the above options are reasonably available in NTT’s sole discretion, NTT may terminate this Agreement’ and all accompanying subscription licenses. In the event of such termination, NTT shall, without limiting its obligation to defend and indemnify Partner, refund to Partner: (i) the fees paid for Services subscriptions prorated for the remainder of any pre-paid subscription term unused by the Customer, or (ii) the portion of the fees attributable to the Service deliverable, as applicable. This Section 13 (Infringement Indemnity) states NTT’s entire liability under this Agreement for all claims of intellectual property infringement. NTT shall not be responsible for any claim of infringement that arises from (i) modifications to a Service or Consulting deliverable not made by NTT, (ii) use of a Service or Consulting deliverable in a manner or in combination with products or services not provided by NTT to the extent such claim would not have occurred except for such modifications, use or combination; (iii) use of other than the latest available version of the Services or Consulting deliverable made available to Partner or the Customer; or (iv) any use of the Services or Consulting deliverable not in accordance with this Agreement or the applicable end user terms, documentation or specifications.
13.2 Indemnity. NTT and Partner (each an “Indemnitor”) shall defend and indemnify the other party and its Affiliates, and their officers, directors, employees, and agents (collectively, “Indemnitees,” respectively, for each of NTT and Partner), from any third party claims and the associated costs, damages or settlement (inclusive of attorney’s fees and court costs) that an Indemnitee may incur as a result of: (i) an Indemnitor’s breach of this Agreement or any agreement with the Customer; (ii) an Indemnitor making a representation, warranty, or other statement to a Customer on behalf of the other party that is not specifically authorized in writing; or (iii) an Indemnitor’s or its representative’s gross negligence, fraud or willful misconduct. To qualify for such defense and payment, the Indemnitee must: (i) give the Indemnitor prompt written notice of any such claim, and (ii) allow Indemnitor to control, and fully cooperate with Indemnitor in, the defense and all related settlement negotiations.
14.Limitation of Liability. Each party’s sole remedy and the other party’s sole obligation shall be governed by this Agreement.
14.1.Maximum Liability.
EXCEPT IN THE CASE OF NTT’s DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.1, AND EACH PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.2, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE GREATER OF: (A) THE AGGREGATE AMOUNTS PAID OR OWED BY PARTNER TO NTT UNDER THIS AGREEMENT WITH RESPECT TO THE SERVICE OR CONSULTING DELIVERABLE THAT IS SUBJECT OF THE CLAIM IN THE 12 MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM, OR (B) $250,000.
14.2 EXCEPT IN THE CASE OF EACH PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY IS AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NTT SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM ALTERATION OR UNAUTHORIZED USE OF THE SERVICE, OR FROM THE UNINTENDED AND UNFORESEEN RESULTS OBTAINED BY PARTNER OR ANY CUSTOMERS RESULTING FROM SUCH USE.
15.Legal Compliance.
15.1 Export. The parties shall comply with all applicable United States and foreign laws and regulations, including without limitation: (i) all applicable laws and regulations relating to the advertising, packaging, sale, and distribution of the Service and Consulting deliverables, (ii) all United States export laws and regulations governing the export or re-export of all Services/Consulting and any products or services provided in connection with the Services/Consulting, including without limitation the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and any regulations administered by the Department of the Treasury’s Office of Foreign Assets Control, and (iii) all applicable laws and regulations of countries other than the United States that govern the importation, use, or re-export of the Services/Consulting. Partner further agrees to comply with any reasonable conditions that NTT notifies Partner are contained in any applicable export licenses pertaining to the Services/Consulting. Partner shall comply with any reporting requirements that may apply to the export or re-export of the Services/Consulting deliverables and shall provide to NTT and the appropriate governmental authority any periodic reports containing such information as may be required under applicable law. Partner further agrees to pay any taxes or tariffs that may apply to the export, or re-export of the Services/Consulting.
15.2 Sanctions. Partner warrants that (i) neither it or its Affiliates are subject to any economic, trade or financial sanctions or other trade restrictions administered or enforced by the United Nations, the European Union, the United Kingdom, the United States of America or any other relevant jurisdiction, including, without limitation, the EU Consolidated list of persons, groups and entities subject to EU financial sanctions, the U.S. Treasury Department Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons or any similar list maintained by any EU member state (“Sanctions”), and (ii) if at any time it or an Affiliate become subject to any Sanctions which prohibit or restrict NTT’s performance of or rights under this Agreement, or the continuing performance of this Agreement exposes NTT, or creates a risk of NTT being exposed, to any Sanctions, including, without limitation, any extraterritorial or secondary sanctions, NTT may suspend or terminate this Agreement.
15.3 Applicable Laws. The parties shall at all times conduct their efforts hereunder with the highest commercial standards and in strict accordance with all applicable laws, rules, directives and regulations (“Laws”). Each party shall be responsible for current and ongoing familiarity and compliance with all Laws applicable to the importation, distribution, marketing, sale, operation, use or support of the Services and Consulting, and the privacy and protection of personal data.
15.4 Anti-bribery. Each party will maintain adequate policies and procedures designed to ensure that its officers, directors, employees and contractors comply, at all times, with all relevant and applicable laws concerning anti-bribery and corruption.
15.5 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with NTTs policies regarding foreign business practices, Partner and its employees and agents shall not directly or indirectly make and offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist Partner and/or NTT in obtaining, retaining or directing any such business.
16.Personal Information. Subject to compliance with applicable laws, including data protection laws, each party reserves the rights to transfer (both domestically and cross-border) and disclose information, including relevant confidential information and, as applicable, personal data of the other party’s personnel to the receiving party’s (and its affiliates’) directors, officers, employees, contractors, professional advisors, and third-party service providers, solely as needed to support or facilitate the performance and administration of the Agreement by the receiving party, provided that such information will be disclosed a) on a need-to-know basis only (based on the receiving party’s business operations); and b) subject to appropriate obligations of confidentiality and/or personal data transfer arrangements with such parties, as applicable.
17.Termination.
17.1 Term. The term of this Agreement shall commence as of the Effective Date of this Agreement and continue until terminated by either party as provided herein.
17.2 Termination Without Cause. Upon ninety (90) days prior written notice and payment of any unpaid amounts owed by the terminating party, either party may terminate this Agreement at any time without cause to the other party.
17.3 Termination With Cause. Either party may terminate this Agreement upon 30 days written notice for a material breach of this Agreement if such breach is not cured within such 30-day period.
17.4 Rights Upon Termination. Upon any termination of this Agreement: (i) Partner shall remit all a) accrued but unpaid amounts due NTT and b) the unamortized portion of any fees prepaid by clients for Services or Consulting less the agreed Partner discounts (Samurai MDR subscription discounts (RRP), Services discounts, Additional subscription discounts and possible other agreed discounts),, (ii) Partner is no longer authorized to conduct any activities under this Agreement; (iv) Partner shall immediately cease using the Trademarks of NTT and discontinue all representations that it has a relationship with NTT; and (iv) Partner shall promptly return to NTT any tangible sales literature, brochures, technical information, price lists, samples, evaluation units, and other materials received from NTT or if intangible, destroy such items in a secure manner, except to the extent such materials are reasonably required for delivery of Services or provisions of Consulting ordered prior to termination as directed by NTT.
17.5 Survival. The Sections entitled Ownership, Restrictions, Ownership of Trademarks, Confidentiality, Warranty Disclaimer, Indemnification, Limitation of Liability, Rights Upon Termination, Survival and Miscellaneous shall survive expiration or termination of this Agreement for any reason.
18.Order of Precedence. In the event of a conflict between the terms of the MPA, and an Order/SOW (including any exhibits or attachments thereto), the terms of the Order/SOW shall govern but only as regards such Order/SOW.
19. Miscellaneous.
19.1 Assignment. Partner may not assign this Agreement without the prior written approval of NTT. For the purposes of this section, a change in the persons or entities that control 50% or more of the equity securities or voting interest of Partner shall be considered an assignment of Partner’s rights. NTT may assign this Agreement at any time and may delegate aspects of its performance under this Agreement to any of its Affiliates.
19.2 Audit Rights. Once per calendar year, upon reasonable notice and during Partner’s normal business hours, NTT shall have the right to audit, through an independent third party auditor selected by NTT and approved by Partner (which approval will not be unreasonably withheld or delayed) Partner’s books of account and business records as necessary to verify Partner’s compliance with this Agreement, including but not limited to, compliance with the requirements of Sections 2.1, 2.4 and 2.5 and the accuracy of the amounts paid pursuant to this Agreement. The auditor may disclose to NTT Security Holdings, with a written copy to Partner, only whether the amounts paid are correct or incorrect and the amount of any discrepancy. No other information may be provided to NTT Security Holdings. If the auditor identifies a discrepancy, the appropriate party shall pay to the other party the amount of the discrepancy (plus interest) within thirty (30) days of the date Partner receives the auditor’s written report.
19.3 Notices. All notices given pursuant to this Agreement shall be in writing and effective: (i) upon receipt if hand delivered; (ii) on the next day after being sent by email if followed by the methods in subsections (iii) or (iv); (iii) on the third business day after being sent prepaid by certified or registered mail; or (iv) on the second business day after being sent prepaid by commercial express courier. Notices to NTT shall be sent to Råsundavägen 12, 169 67 Solna, Sweden, Attention: COO, with a copy to legal@security.ntt. Notices to Partner will be sent to the address first set forth above, attention Chief Executive Officer for Partner, with a “copy to:” _______________.
19.4 Waiver. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
19.5 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions, or if necessary to maintain the validity of the remaining terms, removed from the Agreement.
19.6 Controlling Law. This Agreement shall be governed in all respects by the laws of Sweden, without regard to its choice of law rules.. Application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded.
19.7 Dispute Resolution and Attorneys’ Fees. Except for claims for breach of confidentiality obligations, the parties agree that as a condition precedent to the institution of any action regarding disputes arising under or in connection with this Agreement all such disputes shall first be submitted to mediation before a professional mediator selected by the parties. Such mediation shall be conducted at a mutually agreed time and place, shall not be less than two days in length, and the costs and expenses of the mediation, including but not limited to the mediator’s fees, shall be split equally between the parties. The parties agree that they will participate in the mediation in good faith. The parties further agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by mutual agreement in mediation within sixty days of the request of a party for such a mediation, shall be submitted to binding arbitration to be held in[ Stockholm, Sweden, in accordance with the then-current rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “Rules’). One arbitrator shall be selected in accordance with the Rules; provided, any arbitrator shall be independent, impartial arbiter with at least ten years of experience in the area of dispute. If a mediation process is not established or one party fails to agree on a mediation process or fails to participate in the mediation as agreed herein, the other party can commence arbitration prior to the expiration of the sixty day period. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The parties shall share equally in the costs of the arbitration. In any suit or arbitration to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees, including without limitation, costs and fees incurred on appeal or in a bankruptcy or similar action; provided, however, that prior to the initiation of such suit or arbitration the prevailing party participated in good faith in mediation as set forth above or offered in good faith to participate in mediation and the other party refused or failed to participate in such mediation proceedings.
19.8 No Agency. The use of the term “Partner” is for convenience and does not reflect an intention of the parties to form a legal partnership. The parties are independent contractors under this Agreement, and nothing contained herein shall be construed as creating any agency, partnership, employment, or other form of joint enterprise between the parties and nothing contained in this Agreement (including use of the term “Partner”) will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) create a principal-agent or employer-employee relationship, or (iii) give either Party the authority to bind the other Party to any contract with a third party.
19.9 Force Majeure. NTT, NTT agents and Affiliates, Partner and Partner’s agents shall not be liable for any delay or failure to perform for any cause beyond their reasonable control, except for the payment of money, to the extent that performance is rendered impossible by strike, fire, flood, wars, sabotage, civil unrest, governmental acts, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.
19.10 Counterparts and Electronic Copies. This Agreement may be e-signed. Further, if this Agreement is signed in two counterparts, the two counterparts together shall form a single agreement as if both parties had executed the same document. Electronic copies (e.g., .pdf, .tif) and facsimile signature pages shall be binding as if original.
19.11 Entire Agreement; Order of Precedence. This Agreement completely and exclusively states the agreement of the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment or appendix signed on behalf of NTT and Partner by their duly authorized representatives. Any provision of Partner’s purchase order or other document purporting to vary or add to the provisions hereof shall be void.