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Superseded Documents

1: Data Processing Agreement (v1.0 2023-05-25)

2: Master Partner Agreement (v1.0 2023-05-25)

3: Master Partner Agreement (v2.0 2024-04-25)

4: NTT Software Terms of Use (v1.0 2023-05-25)

5: Product Beta Terms (v1.0 2023-05-25)

6: Terms of Service (v1.0 2023-05-25)

7: Terms of Service (v2.0 2023-10-24)

1 - Data Processing Agreement (v1.0 2023-05-25)

This document has been superseded. For the latest version please click HERE.

NTT SECURITY HOLDINGS CORPORATION

DATA PROCESSING AGREEMENT

By entering into the Client Agreement (as defined below), Client acknowledges it has accepted and signed the Client Agreement, the Data Processing Agreement, and the additional documents which are incorporated therein by reference (collectively, the “Agreement”), and is legally bound thereby.

1. Introduction

1.1 Pursuant to Terms of Service and/or related order forms accepted and agreed by You with NTT Security Holdings Corporation or its subsidiaries (the “Client Agreement”), You have entered into an agreement for access, use or delivery and receipt of certain services (the “Services”). In performing the Client Agreement NTT or it’s sub-processors may have access to personal data relating to You, Your employees, or end-users. In certain jurisdictions, it is a requirement under applicable data protection laws to have a data processing agreement in place to provide certain services to you which may involve the access, processing and storage of personal data. The data protection related obligations between parties are set out in this ‘Data Processing Agreement’ or ‘DPA’ which is a standalone agreement but is added as an addendum to the Client Agreement. In this DPA and its attachments NTT Security Holdings Corporation and its subsidiary are referred to as “NTT” and You are referred to as “Client”.

1.2 To the extent NTT may be required to process personal data on behalf of Client under the Client Agreement, NTT will do so in accordance with the terms set out in this Data Processing Agreement (‘DPA’).

2. Defined terms

2.1 ‘Contact’ means, in the case of Client, the contact information entered at the time it subscribed for the NTT Services and, in the case of NTT the contact information provided [here]contact points for Client and NTT as set forth pursuant to Attachment A

2.2 ‘GDPR’ means the General Data Protection Regulation ((EU) 2016/679).

2.3 ‘Personal Data’ means all personal data provided to NTT by, or on behalf of, Client through use of the Services.

2.4 ‘Restricted Transfer’ means a transfer of Personal Data from a member state of the European Economic Area (‘EEA’), the UK or Switzerland (a country not in the EEA or the EU) to a country outside the European Union, EEA, the UK or Switzerland.

2.5 ‘Standard Contractual Clauses’ or ‘SCCs’ means the EU SCCs and UK SCCs as may be updated, supplemented or replaced from time to time under applicable Data Protection Laws, as a recognized transfer or processing mechanism (as applicable).

2.6 ‘UK GDPR’ means the GDPR as implemented in the UK.

2.7 ‘UK GDPR Terms’ means those terms otherwise required pursuant to UK GDPR which are not comprised in the SCCs, as set out in Attachment C.

2.8 Lower case terms. The following lower case terms used but not defined in this DPA, such as ‘controller’, ‘data subject’, ‘personal data’, ‘processor’ and ‘processing’ will have the same meaning as set forth in Article 4 of the GDPR, irrespective of whether the GDPR applies.

3. Applicable law

3.1 NTT may be required to process personal data on behalf of Client under (a) any applicable law including (b) subordinate legislation and regulations implementing the GDPR and (c) UK GDPR, (collectively referred to ‘applicable Data Protection Laws’).

3.2 Unless expressly stated otherwise, in the event of any conflict between (a) the main body of this DPA; and (b) UK GDPR (to the extent the applicable UK GDPR applies), the applicable local law will prevail.

3.3 To the extent NTT is a processor of personal data subject to the GDPR and/or UK GDPR, the mandatory sections required by Article 28(3) of the GDPR (or UK GDPR, as applicable) for contracts between controllers and processors that govern the processing of personal data are set out in clauses 5.1, 6.1, 6.3, 6.4, 7, 8.1, 8.2, 9.1, 9.2, 10 to 14 (inclusive). The UK GDPR Terms will govern any processing in relation to any terms required by the UK GDPR which are not covered elsewhere in this DPA.

4. Duration and termination

4.1 This DPA will commence on the date it is signed by the party who signs it last and will remain in force so long as the Client Agreement remains in effect or NTT retains any Personal Data related to the Client Agreement in its possession or control.

4.2 NTT will process Personal Data until the date of expiration or termination of the Client Agreement, unless instructed otherwise by Client in writing, or until such Personal Data is returned or destroyed on the written instructions of Client or to the extent that NTT is required to retain such Personal Data to comply with applicable laws.

5. Personal data types and processing purposes

5.1 Where the applicable Data Protection Law is the GDPR or UK GDPR:

(a) Client and NTT acknowledge that Client is the controller and NTT is the processor or sub-processor.

(b) The details of the processing operations, in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the controller, are specified in Attachment B.

5.2 The Client retains control of the Personal Data and remains responsible for its compliance obligations under applicable Data Protection Laws, including providing any required notices, obtaining any required consents, and for the processing instructions it gives to NTT.

5.3 Attachment B describes the purpose of processing and the categories of data subjects and Personal Data that NTT may process in relation to the Services described in the Client Agreement (‘Business Purposes’).

6. NTT obligations

6.1 Client instructions. When NTT acts as the processor of Personal Data, it will only process the Personal Data on Client’s documented instructions and to the extent that this is required to fulfil the Business Purposes. NTT will not process the Personal Data for any other purpose or in a way that does not comply with this DPA or applicable Data Protection Laws. Should NTT reasonably believe that a specific processing activity beyond the scope of Client’s instructions is required to comply with a legal obligation to which NTT is subject, NTT must inform Client of that legal obligation and seek explicit authorization from Client before undertaking such processing. NTT will not process the Personal Data in a manner inconsistent with Client’s documented instructions.

6.2 Independent controller. To the extent NTT uses or otherwise processes Personal Data in connection with NTT’s legitimate business operations, NTT will be an independent controller for such use and will be responsible for complying with all applicable laws and controller obligations.

6.3 Compliance. NTT will reasonably assist Client in complying with Client’s obligations under applicable Data Protection Laws, taking into account the nature of NTT’s processing and the information made available to NTT, including in relation to data subject rights, data protection impact assessments and reporting to and consulting with data protection authorities under applicable Data Protection Laws. NTT will promptly notify Client if, in its opinion, any instruction infringes applicable Data Protection Laws. This notification will not constitute a general obligation on the part of NTT to monitor or interpret the laws applicable to Client, and this notification will not constitute legal advice to Client.

6.4 Disclosure. NTT will not disclose personal data except: (a) as Client directs in writing, (b) as described in this DPA or (c) as required by law. Where NTT is permitted by law to do so, upon receiving a request from a public authority, NTT will use reasonable endeavors to notify the Client and attempt to redirect the public authority to request the personal data directly from Client.

7. Contracting with sub-processors

7.1 List of sub-processors. A list of NTT’s sub-processors that NTT directly engages for the specific Services as a processor is available HERE or on request to the NTT Contact or as otherwise made available on an NTT website.

7.2 General authorization. Client provides its general authorization to NTT’s engagement with sub-processors, including current and future subsidiaries of NTT, to provide some or all Services and process Personal Data on its behalf. To the fullest extent permissible under applicable Data Protection Laws this DPA will constitute Client’s general written authorization to the subcontracting by NTT of the processing of Personal Data to this agreed list of sub-processors.

7.3 Changes. NTT will notify the Client in writing of any intended changes to the agreed list of sub-processors at least 14 days in advance, thereby giving the Client the opportunity to object to such changes. Such objection must be made in writing to the NTT Contact within 10 days of notification. Client’s failure to submit a written objection to the agreed list of sub-processors within 10 days of notification, will be deemed acceptance of the changes to the agreed list of sub-processors.

7.4 Performance. NTT is responsible for its sub-processors compliance with NTT’s obligations in this DPA.

8. Client obligations

8.1 Data subject requests. If NTT receives a request from Client’s data subject to exercise one or more of its rights under applicable Data Protection Laws, in connection with a Service for which NTT is a processor or sub-processor, NTT will redirect the data subject to make its request directly to Client. Client will be responsible for responding to any such request. NTT will comply with reasonable requests by Client to assist with Client’s response to such a data subject request. Client will be responsible for reasonable costs NTT incurs in providing this assistance.

8.2 Client requests. NTT must promptly comply with any Client request or instruction from persons authorized by Client requiring (a) NTT to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorized processing, (b) Client’s obligations regarding security of processing and (c) Client’s prior consultation obligations in terms of applicable Data Protection Laws, considering the nature of the processing and the information available to NTT.

8.3 Warranty. Client warrants that: (a) it has all necessary rights to provide the Personal Data to NTT for the processing to be performed in relation to the Services; and (b) NTT’s expected use of the Personal Data for the Business Purposes and as specifically instructed by the Client will comply with all applicable Data Protection Laws.

8.4 Privacy notices. To the extent required by applicable Data Protection Laws, Client is responsible for ensuring that all necessary privacy notices are provided to data subjects, and unless another legal basis set forth in applicable Data Protection Laws supports the lawfulness of the processing, that any necessary data subject consents to the processing are obtained and a record of such consents is maintained. Should such a consent be revoked by a data subject, Client is responsible for communicating the fact of such revocation to NTT, and NTT remains responsible for implementing Client’s instruction with respect to the processing of that Personal Data.

9. Security

9.1 TOMs. NTT will implement appropriate Technical and Organizational Measures (‘TOMs’) to ensure the security of the Personal Data in terms of applicable Data Protection Laws, including the security measures set out in B. This includes protecting the Personal Data against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to the Personal Data.

9.2 Access to Personal Data. NTT will grant access to the Personal Data undergoing processing to members of its personnel only to the extent strictly necessary for implementing, managing and monitoring of the Client Agreement. NTT will ensure that persons authorized to process the Personal Data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

9.3 Cost negotiations. The parties will negotiate in good faith the cost, if any, to implement material changes other than to the extent required by specific updated security requirements set forth in applicable Data Protection Laws or by data protection authorities of competent jurisdiction (in which case NTT would bear the responsibilities of such cost to the extent required by applicable Data Protection Laws or by the data protection authority).

10. Audits

10.1 Certifications. NTT will maintain any certifications that it is contractually obligated to maintain and comply with as expressly stated in the Client Agreement. NTT will re-certify against those certifications as reasonably required.

10.2 Provision of evidence. At Client’s written request, NTT will provide Client with evidence of those certifications relating to the processing of Personal Data, including applicable certifications or audit reports of its computing environment and physical data centers that it uses in processing Personal Data to provide the Services, so that Client can reasonably verify NTT’s compliance with its obligations under this DPA.

10.3 Compliance with TOMS. NTT may also rely on those certifications to demonstrate compliance with the requirements set out in clause 9.1.

10.4 Confidential information. Any evidence provided by NTT is confidential information and is subject to non-disclosure and distribution limitations of NTT and/or any NTT sub-processor.

10.5 Client Audits. Client may carry out audits of NTT´s premises and operations as these relate to the Personal Data of Client if:

(a) NTT has not provided sufficient evidence of the measures taken under clause 9; or

(b) an audit is formally required by a data protection authority of competent jurisdiction; or

(c) applicable Data Protection Laws provide Client with a direct audit right (and as long as Client only conducts an audit once in any twelve-month period, unless mandatory applicable Data Protection Laws requires more frequent audits).

NTT subsidiaries are intended third-party beneficiaries of this section.

10.6 Client audit process. The Client audit may be carried out by a third party (but must not be a competitor of NTT or not suitably qualified or independent) who must first enter into a confidentiality agreement with NTT. Client must provide at least 60 days advance notice of any audit unless mandatory applicable Data Protection Laws or a data protection authority of competent jurisdiction requires shorter notice. NTT will cooperate with such audits carried out and will grant Client´s auditors reasonable access to any premises and devices involved with the processing of the Client’s Personal Data. The Client audits will be limited in time to a maximum of three business days. Beyond such restrictions, the parties will use current certifications or other audit reports to avoid or minimize repetitive audits. The Client must bear the costs of any Client audit unless the audit reveals a material breach by NTT of this DPA in which case NTT will bear the costs of the audit. If the audit determines that NTT has breached its obligations under the DPA, NTT will promptly remedy the breach at its own cost.

11. Incident management

11.1 Security incidents. If NTT becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data while processed by NTT (each a ‘Security Incident’), NTT will promptly and without undue delay:

(a) notify Client of the Security Incident;

(b) investigate the Security Incident and provide Client with sufficient information about the Security Incident, including whether the Security Incident involves Personal Data of the Client;

11.2 Security incident notification. Notification(s) of Security Incidents will take place in accordance with clause 11.4. Where the Security Incident involves Personal Data of the Client, NTT will make reasonable efforts to enable Client to perform a thorough investigation into the Security Incident, to formulate a correct response, and to take suitable further steps in respect of the Security Incident. NTT will make reasonable efforts to assist Client in fulfilling Client’s obligation under applicable Data Protection Laws to notify the relevant data protection authority and data subjects about such Security Incident. NTT’s notification of or response to a Security Incident under this clause is not an acknowledgement by NTT of any fault or liability with respect to the Security Incident.

11.3 Other incidents. NTT will notify Client promptly if NTT becomes aware of:

(a) a complaint or a request with respect to the exercise of a data subject’s rights under any applicable Data Protection Laws in relation to Personal Data NTT processes on behalf of Client and its data subjects; or

(b) an investigation into or seizure of the Personal Data of Client by government officials, or a specific indication that such an investigation or seizure is imminent; or

(c) where, in the opinion of NTT, implementing an instruction received from Client in relation to the processing of Personal Data would violate applicable laws to which Client or NTT are subject.

11.4 Client notifications. Any notifications made to Client pursuant to this clause 11 will be addressed to the Client Contact mentioned in Attachment A.

12. General cross border transfers of Personal Data

12.1 Except as described elsewhere in the DPA, Personal Data that NTT processes on Client’s behalf may be transferred to and stored and processed in any country in which NTT or its sub-processors may operate.

12.2 Transfer restrictions. If an applicable Data Protection Law restricts cross-border transfers of Personal Data, the Client will only transfer that Personal Data to NTT if NTT, either through its location or participation in a valid cross-border transfer mechanism under the applicable Data Protection Laws, may legally receive that Personal Data.

12.3 Transfer mechanism. Where the parties determine that cross-border transfers of Personal data are necessary, the parties shall agree and implement the appropriate SCCs or other specific statutory mechanism prior to commencing such cross-border transfer. To the extent that NTT is relying on the SCCs or another specific statutory mechanisms to normalize international data transfers and those mechanisms are subsequently modified, revoked, or held in a court of competent jurisdiction to be invalid, Client and NTT agree to cooperate in good faith to promptly suspend the transfer or to pursue a suitable alternate mechanism that can lawfully support the transfer.

13.1 Where the GDPR or UK GDPR is the applicable Data Protection Law NTT may only process, or permit the processing, of Personal Data by the Services in respect of a Restricted Transfer under the following conditions:

(a) Adequacy decision. Where the European Commission or the UK (as applicable) has found that that the relevant countries provides adequate protection for the privacy rights of data subjects;

(b) Adequate safeguards. In the absence of an adequacy decision, where appropriate safeguards have been provided by the controller or processor established in third countries which do not ensure an adequate level of data protection, and who receive the Personal Data by way of a valid transfer mechanism under Article 46(2) of the GDPR, UK GDPR or other applicable Data Protection Law.

(i) the UK SCCs’ for Personal Data subject to UK GDPR;

(ii) the applicable Module(s) of the EU SCCs for Personal Data subject to GDPR and/or Swiss Federal Act of 19 June 1992 on Data Protection (FADP).

13.2 Execution of SCCs. If any cross-border transfer of Personal Data between NTT and the Client requires execution of SCCs to comply with the applicable Data Protection Law, the parties will complete all relevant details in, and execute, the applicable SCCs, and take all other actions required to legitimize the transfer.

13.3 Sub-processors. Where Client provides it general written authorization to NTT (located in the EEA or UK, as applicable) appointing a sub-processor located outside the EEA or UK (as applicable), Client authorizes NTT to enter into the applicable form of the applicable SCCs with the sub-processor in Client’s name and on its behalf (in which case Client will no longer require to enter into direct agreements itself with such sub-processors). NTT will make the executed applicable SCC available to Client on request.

14. Return or destruction of Personal Data

14.1 Client deletion. For certain Services the Client is responsible for installing, hosting, processing and using Personal Data. Here only Client has the ability to access, extract and delete Personal Data stored in that Service. Where the particular Service does not support access, retention or extraction of software provided by Client, NTT has no liability for the deletion of Personal Data as described in this clause 14.1.

14.2 Delete or return. Where the Client Agreement requires NTT to retain Personal Data, NTT will delete that Personal Data within the time period agreed to in the Client Agreement, unless NTT is permitted or required by applicable law to retain such Personal Data. Where the retention of Personal Data has not been addressed in the Client Agreement, NTT will either delete, destroy or return all Personal Data to Client and destroy or return any existing copies when NTT has finished providing Services:

(a) related to the processing;

(b) this DPA terminates;

(d) NTT has otherwise fulfilled all purposes agreed in the context of the Services related to the processing activities where Client does not require NTT to do any further processing.

14.3 Certificate of destruction. NTT will provide Client with a destruction certificate at Client’s request. Where the deletion or return of the Personal Data is impossible for any reason, or where backups and/or archived copies have been made of the Personal Data, NTT will retain such Personal Data in compliance with applicable Data Protection Laws.

14.4 Third parties. On termination of this DPA, NTT will notify all sub-processors supporting its own processing and make sure that they either destroy the Personal Data or return the Personal Data to Client, at the discretion of Client.

15. Liability and warranty

15.1 Any limitation of liability in the Client Agreement will apply to this DPA, other than to the extent such limitation (a) limits the liability of the parties to data subjects or (b) is not permitted by applicable law.

16. Notice

16.1 Any notice or other communication given to a party under or in connection with this DPA must be in writing and delivered to the other party by email.

16.2 Clause 16.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.3 Any notice or other communication will be deemed given when:

(a) delivered in person;

(b) received by mail (postage prepaid, registered or certified mail, return receipt requested); or

(c) received by an internationally recognized courier service (proof of delivery received by the noticing party) at the physical notice address (as identified above), with an electronic copy sent to the electronic notice address (as identified in the table above).

17. Miscellaneous

17.1 Conflict of terms. The Client Agreement terms remain in full force and effect except as modified in this DPA. Insofar as NTT will be processing Personal Data subject to applicable Data Protection Laws on behalf of the Client in the course of the performance of the Client Agreement, the terms of this DPA will apply. If the terms of this DPA conflict with the terms of the Client Agreement, the terms of this DPA will take precedence over the terms of the Client Agreement.

17.2 Governing law. This DPA is governed by the laws of the jurisdiction specified in the relevant provisions of the Client Agreement.

17.3 Dispute resolution. Any disputes arising from or in connection with this DPA will be brought exclusively before the tribunal specified in the relevant provisions of the Client Agreement.

17.4 Execution: This DPA may be executed in any number of counterparts, each of which will constitute an original, but which will together constitute one agreement. The parties will execute this DPA by electronic signature, and intend and agree that the electronic signature will have the same validity and legal effect as the use of a signature affixed by hand and is made with the intention of authenticating this DPA and evidencing the intention of that party to be bound by this DPA.

Attachment A: Particulars of Processing

Categories of data subjects whose personal data is transferred

Data subjects include the Client’s

-users including employees, contractors, and Clients. NTT acknowledges that, depending on Client’s use of the Services, NTT may process the personal data of any of the following types of data subjects:

Employees, contractors, temporary workers, agents and representatives of Client;
Users (e.g., clients end users) and other data subjects that are users of Client’s Services;
Juristic persons (where applicable).

Categories of personal data transferred

NTT acknowledges that, depending on Client’s use of the Services, NTT may process the following types of Personal Data:

Basic personal data (for example first name, last name, email address);
Authentication data (for example username and password);
Contact information (for example work email and phone number);
Unique identification numbers and signatures (for example IP addresses);
Biometric Information (for example fingerprints at NTT data centers);
Location data (for example, geo-location network data);
Device identification (for example IMEI-number and MAC address);
Special category personal data as identified in Article 9 of the GDPR;
Any other personal data identified in Article 4 of the GDPR.

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

Personal data may be transferred on a continuous basis in order to provide the Services under the existing Client Agreement

Nature of the processing

The nature of processing personal data is for NTT to provide the Services under the existing Client Agreement.

Purpose(s) of the data transfer and further processing

NTT will Process Personal Data, as necessary to perform the Services pursuant to the Client Agreement to the extent determined and controlled by Client. Further, NTT will also Process and enrich the Personal Data in NTT’s systems to (i) improve, enhance, support and operate the Services and its availability; (ii) develop new products and services; (iii) compile statistical reports and insights into usage patterns.

NTT may further transfer Personal Data to third-party service providers that host and maintain NTT’s applications, backup, storage, payment processing, analytics and other services as specified in the section on sub-processors below. These third-party service providers may have access to or Process Personal Data for the purpose of providing these services to NTT.

The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period

See clause 14 of the DPA

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing

In accordance with the DPA, NTT may engage sub-processors to provide some or all of the Services on NTT’s behalf or use any of current or future subsidiaries of NTT for the duration of the Client Agreement. Any such sub-processors will be permitted to obtain personal data only to provide some or all of the Services NTT has engaged them to provide, and they are prohibited from using personal data for any other purpose.

A list of sub-processors engaged by NTT is available.

Attachment B: Technical and Organizational Measures

NTT maintains Technical and Organizational Measures (‘TOMs’) to ensure it processes and protects Personal Data in a responsible way, considering the types of Personal Data that NTT processes, industry standards, the interests and rights of NTT’s employees, clients and communities, and the reasonable cost of implementation in accordance with clause 9 of the DPA and/or, as applicable, incorporated in the applicable SCCs and/or applicable Data Protection Laws. The TOMs maintained by NTT as referenced in this B are described at [ link – security (TOMs) ].

To the extent that the DPA does not address all of the issues in this Attachment C or provides lesser data protection commitments to Client in the DPA where NTT processes Personal Data within the scope of the UK GDPR on behalf of Client, NTT makes the commitments in this Attachment to the Client (‘UK GDPR Terms’, for short). These UK GDPR Terms do not limit or reduce any data protection commitments NTT makes to Client in the Client Agreement.

For purposes of these UK GDPR Terms, Client and NTT agree that Client is the controller and NTT is the processor of Personal Data, except when Client acts as a processor, in which case NTT is a sub-processor. These UK GDPR Terms do not apply where NTT is a controller of Personal Data.

18. Supplementary contractual measures

18.1 To the extent that the processing of Personal Data carried out by NTT is subject to the UK GDPR and NTT makes a transfer to its sub-processors the obligations set out in 1 to 1.11. inclusive will apply.

18.2 Each party warrants that it has no reason to believe that applicable laws to which it is subject, including any requirements to disclose Personal Data or measures authorising access by public authorities, prevent it from fulfilling its obligations under this DPA and the UK SCCs. Each party declares that in providing this warranty, it has taken due account in particular of the following elements:

(a) the specific circumstances of the processing, including the scale and regularity of processing subject to such applicable laws; the transmission channels used; the nature of the relevant Personal Data; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by it for the type of Personal Data processed by it;

(b) the applicable laws to which it is/are subject, including those requiring to disclose data to public authorities or authorising access by such authorities, as well as the applicable limitations and safeguards; and

(c) safeguards in addition to those under this DPA, including the technical and organisational measures applied to the processing of the Personal Data by NTT and the relevant sub-processor.

18.3 Each party warrants that, in carrying out the assessment under clause 1.2, it has made best efforts to provide Client with relevant information and agrees that it will continue to cooperate with Client in ensuring compliance with this DPA. NTT agrees to document this assessment and make it available to Client on request and it agrees that such assessment may also be made available to a data protection authority.

18.4 NTT agrees to promptly notify Client if, after having agreed to this DPA and for the duration of the term of this DPA, it has reason to believe that it (or a relevant sub-processor to whom a transfer is made) is or has become subject to applicable laws not in line with the requirements under 1.2, including following a change of applicable laws to which is it (or the relevant sub-processor) is subject or a measure (such as a disclosure request) indicating an application of such applicable laws in practice that is not in line with the requirements under clause 1.2. Following such notification, or if Client otherwise has reason to believe that NTT can no longer fulfil its obligations under this DPA (including in relation to the relevant sub-processor), Client (and the relevant subsidiaries who are controllers) will promptly identify appropriate measures (such as, for instance, technical or organisational measures to ensure security and confidentiality) to be adopted by itself or NTT (and/or the relevant sub-processor), at Client’s cost, to address the situation, if appropriate in consultation with the competent data protection authority.

18.5 NTT agrees to promptly notify Client if it (or the relevant sub-processor to whom a transfer is made):

(a) receives a legally binding request by a public authority under applicable laws to which it (or the relevant sub-processor) is subject for disclosure of Personal Data; such notification will include information about the Personal Data requested, the requesting authority, the legal basis for the request and the response provided;

(b) becomes aware of any direct access by public authorities to Personal Data in accordance with applicable laws to which it (or the relevant sub-processor) is subject; such notification will include all information available to NTT (and the relevant sub-processor).

18.6 If NTT (or the relevant sub-processor to whom the transfer is made) is prohibited from notifying Client as set out in clause 1.4 it agrees to use its best efforts to obtain (and to procure that the relevant sub-processor obtains) a waiver of the prohibition, with a view to communicate as much information and as soon as possible. NTT agrees to document its (and the relevant sub-processor’s) best efforts in order to be able to demonstrate them upon request of Client.

18.7 To the extent permissible under the applicable laws to which NTT (and the relevant sub-processor) is subject, NTT agrees to provide to Client, for the duration of the processing, the relevant information on the requests received by it and the relevant sub-processor (in particular, number of requests, type of data requested, requesting authority or authorities, whether requests have been challenged and the outcome of such challenges, etc.).

18.8 NTT agrees to preserve the information pursuant to clauses 1.1 to 1.7 for the duration of the processing and make it available to the competent data protection authority upon request.

18.9 NTT agrees to review (and to procure that the relevant sub-processor to whom the transfer is made will review), having regard to applicable laws to which it (and the relevant sub-processor) is subject, the legality of the request for disclosure, notably whether it remains within the powers granted to the requesting public authority, and to exhaust all available remedies to challenge the request if, after a careful assessment, it (or the relevant sub-processor) concludes that there are grounds under applicable laws to which it (or the relevant sub-processor) is subject to do so. When challenging a request, NTT will (and will procure that the relevant sub-processor will) seek interim measures with a view to suspend the effects of the request until the court has decided on the merits. NTT will not (and will procure that the relevant sub-processor will not) disclose the Personal Data requested until required to do so under the applicable procedural rules. These requirements are notwithstanding the obligations on NTT pursuant to clause 1.4. NTT agrees to document its (and the relevant sub-processor’s) legal assessment as well as any challenge to the request for disclosure and, to the extent permissible under applicable laws to which it (or the relevant sub-processor) is subject, make it available to Client. It will also make it available to the competent data protection authority upon request.

18.10 NTT will use reasonable endeavours to provide (and to procure that the relevant sub-processor to whom the transfer is made will provide) the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.

18.11 NTT will inform (and will procure that the relevant sub-processor to whom the transfer is made will inform) data subjects in a transparent and easily accessible format, on its website, of a contact point authorised to handle complaints or requests and NTT will (and will procure that the sub-processors will) promptly deal with any complaints.

2 - Master Partner Agreement (v1.0 2023-05-25)

This document has been superseded. For the latest version please click HERE.

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 Addendum. 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, as specified in the applicable Addendum, excluding any entity or person deemed in NTT reasonable discretion as a competitor of NTT.
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 offers under the applicable Addendum as: proprietary, cloud-based software platform (“Samurai”), which can be accessed and used on a hosted basis, and related services, for security operations management, which are specified in the applicable Addendum and are described on the relevant Sales Order.
1.8. “Services” means Samurai Services and Consulting.
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://support.samurai.security.ntt/hc/en-001/sections/5261260577681-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 Addendum.

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 as set forth in the executed Addendum(s) hereto, with non-transferable, limited right to market and promote the Services to Customers within the Territory; provided, Partner shall require and ensure that each such Customer shall accept and agree to the Terms of Service with NTT prior to accessing the Services.
a)
The applicable Samurai Services and Consulting to which this appointment applies will be specified in the applicable Addendum(s). Samurai Services and Consulting that are not specified in the applicable Addendum are not eligible for use under this Agreement. 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 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(s) from the Chief Operating Officer and Chief Technology 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. Partner shall ensure that each Customer shall accept and agree to be bound by the Terms of Service with NTT. Partner shall not a) grant to Customers any access, use or other rights to the Services or b) make to Customer any warranties with respect to NTT or the Services, other than pursuant 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 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 by providing notice to Customers as set forth in the Terms of Service, and shall ensure that Customers shall accept and agree to be bound by the modified Terms of Service with NTT. Partner shall not delete or modify, or make additions to any of the representations, warranties, covenants or other terms and conditions set forth in the Terms of Service when entering into agreements with Customers.
2.6. Experienced Staff. Partner shall maintain a staff of employees with a good working knowledge of the Services and Consulting, including their use, applications, limitations, installation, maintenance and related subjects. Partner’s employees shall also be knowledgeable in the use of complementary consulting and services. Partner shall appoint employees of appropriate experience and skill to participate in training programs required by NTT from time to time as mutually agreed by the parties. Partner shall appoint one primary point of contact to coordinate the collaborative relationship with NTT’s designated point of contact.
2.7. 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://support.samurai.security.ntt/hc/en-001/articles/5295566187281-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.
2.8. Partner will not be liable to NTT for Customer breach except as and to the extent such breach is due to or occurs as a result of breach of this Agreement by Partner, including, without limitation, the requirements of Sections 2.1, 2.4 and 2.5.

3. Go To Market and Use of Trademarks.
3.1. Go To Market. Subject to the terms of this Section 3, 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 with respect to the subject matter of the applicable Addendum(s) in effect between the parties. 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.
3.2. 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.
3.3. 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.

4. Confidentiality.
4.1. 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.
4.2. 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.
4.3. 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 (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.
4.4. 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.
4.5. Equitable Relief. Each party acknowledges that a breach of this Section (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.
4.6. 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.

5. Representations and Warranties.
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.

6. 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.

7. 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.

8. Indemnification.
8.1. 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 (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.
8.2. 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 on behalf of the other party that is not specifically authorized in writing; or (iii) an Indemnitor’s or its representative’s negligent act or negligent omission, 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.

9. Limitation of Liability. Each party’s sole remedy and the other party’s sole obligation shall be governed by this Agreement.
9.1. Maximum Liability.
9.1.1 EXCEPT IN THE CASE OF NTT’s DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1, EACH PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.2, FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACHES OF SECTION 4 (CONFIDENTIALITY) AND PARTNER’S BREACH OF SECTION 2.3 (RESTRICTIONS) OF THIS AGREEMENT, 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 THE SUBJECT OF THE CLAIM IN THE 12 MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM, OR (B) $250,000.
9.1.2 IN THE CASE OF EACH PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.2, FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACHES OF SECTION 4 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE GREATER OF: (A) FOUR (4) TIMES THE AGGREGATE AMOUNTS PAID OR OWED BY PARTNER TO NTT UNDER THIS AGREEMENT OR (B) $1,000,000.
9.2. EXCEPT IN THE CASE OF EACH PARTY’S DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACHES OF SECTION 4 (CONFIDENTIALITY) AND PARTNER’S BREACH OF SECTION 2.3 (RESTRICTIONS) OF THIS AGREEMENT 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.

10. Legal Compliance.
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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
10.5. 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.

11. 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.

12. Termination.
12.1. 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.
12.2. 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 or any Addendum at any time without cause to the other party.
12.3. Termination With Cause. Either party may terminate this Agreement or any Addendum upon 30 days written notice for a material breach of this Agreement if such breach is not cured within such 30-day period.
12.4. Rights Upon Termination. Upon any termination of this Agreement: (i) all Addendum(s) executed under this Agreement shall automatically terminate, (ii) 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, (iii) Partner is no longer authorized to conduct any activities under this Agreement, including without limitation under any executed Addendum(s); (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 Security Holdings 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.
12.5. 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.

13. Miscellaneous.
13.1. 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.
13.2. 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. If such audit reveals an underpayment of more than 5%, Partner shall also reimburse NTT Security Holdings for the reasonable costs and expenses of such audit.
13.3. 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:”.
13.4. 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.
13.5. 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.
13.6. 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.
13.7. 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.
13.8. 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.
13.9. 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.
13.10. 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.
13.11. 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. In the event of any conflict between the Terms and those of any Addendum, the Terms will govern, except when the Addendum states that the conflicting provision is intended to apply with respect to the subject matter of the Addendum and then such provision will apply with respect to the subject matter of that Addendum only.

3 - Master Partner Agreement (v2.0 2024-04-25)

This document has been superseded. For the latest version please click HERE.

We have updated our Master Partner Agreement. If you are a new Partner, then the Master Partner Agreement will be effective as of 26 May 2023. If you are an existing Partner, we are providing you with prior notice of these changes which will be effective as of 26 June 2023. For the previous version of our Master Partner Agreement, please click here.

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

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 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

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 here Partner shall not, directly or indirectly, through action or inaction, cause NTT to be in violation of its Privacy Notice or applicable laws.

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.

11.5 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.

4 - NTT Software Terms of Use (v1.0 2023-05-25)

This document has been superseded. For the latest version please click HERE.

Effective October 21, 2022

PLEASE READ CAREFULLY: YOU AND ANY COMPANY OR ENTITY THAT YOU ARE ACTING FOR (“YOU” OR “YOUR”) ACCEPTS THESE SOFTWARE TERMS OF USE (THE “SOFTWARE TERMS”) BY INSTALLING AND/OR USING THE SOFTWARE. YOU REPRESENT THAT YOU: 1. ARE LAWFULLY ABLE TO ENTER INTO THESE SOFTWARE TERMS, AND 2. HAVE FULL AUTHORITY TO BIND THE YOU TO THESE SOFTWARE TERMS. THESE SOFTWARE TERMS ARE A BINDING CONTRACT BETWEEN YOU AND NTT SECURITY HOLDINGS CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF JAPAN (“NTT”), ON BEHALF OF ITSELF AND ANY OF ITS AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, “NTT”). IF YOU DO NOT HAVE THIS AUTHORITY, OR YOU DO NOT AGREE TO, OR CANNOT COMPLY WITH, ALL THE SOFTWARE TERMS, THEN YOU MAY NOT USE THE SOFTWARE. THESE SOFTWARE TERMS GOVERN YOUR USE OF THE SOFTWARE UNLESS YOU HAVE ANOTHER VALID AGREEMENT WITH NTT FOR THE USE OF THIS SOFTWARE.

Updating the Software Terms. NTT may revise and update these Software Terms from time to time in our sole discretion. Your continued use of the Software following the update of revised Software Terms means that you accept and agree to the changes. When accepted by you, the revised Software Terms automatically supersede the prior version. New Terms apply prospectively only.
Definitions.
“NTT Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security products or services substantially similar to or competitive with NTT’s products or services.
“Generated Data” shall mean the data generated by the Software, including but not limited to, correlative and/or contextual data, and/or detections. For the avoidance of doubt, Generated Data does not include Your Data. Any access to or use of Generated Data through the Software is expressly limited to your Internal Use.
“Documentation” means the Software end-user technical documentation.
“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual machine image.
“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.
“Internal Use” means access or use solely for Software User’s own internal information security purposes. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Software User, or (ii) in any event, for the development of any product or service. Internal Use is limited to access and use by Software User’s employees or your Third Party Providers for Software User’s benefit.
“Personal Data” means any information relating to an identified or identifiable person or other similar definition under the applicable data privacy laws; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Software” means the software accompanying these Software Terms, or NTT software that you or a Third Party Provider have installed or used on your Endpoints, including any updates thereto and/or related Documentation that may be made available from time to time by NTT. NTT software may commonly be referred to as “XDR” or “Samurai”.
“Third Party Provider” means any individual or entity (other than an NTT Competitor) that: (i) has access or use of the Software: (a) under these Software Terms solely on behalf of and for your Internal Use, or (b) under a separate valid agreement with NTT, (ii) has an agreement to provide you (or your Affiliates) services, and (iii) is subject to confidentiality obligations covering NTT’s Confidential Information.
“Your Data” means the data generated by your Endpoints and collected by the Software, but excluding Evidence Data. For the avoidance of doubt, Your Data does not include Generated Data.
Your Account. You (and each user seeking access, use or receipt of the Software) will be asked to create a customer account. As part of the account creation process, you and each user be asked to provide a valid email address, create a password, and verify that they are a human being by providing a telephone number to which we’ll send a verification code to enter into a form. When registering for an account, you and each user must provide true, accurate, current and complete information about as requested during the account creation process. You and each user must keep that information true, accurate, current and complete after you create each account
License and Restrictions**.**
1. License. Subject to these Software Terms, if you have obtained a valid evaluation license or subscription to the Software through NTT or a designated NTT partner or reseller, You may, solely for Software User’s own Internal Use and during the period of time such evaluation or subscription remains valid, install and run this Software up to the validly licensed quantity.
2. Restrictions. In addition to any restrictions stated in the Software Terms, you agree that the rights set forth in 4.1 above do not include any rights to, and you shall not: (i) employ or authorize a NTT Competitor to use the Software or the Documentation, or to provide management, hosting, or support for Software; (ii) alter, publicly display, translate, create derivative works of or otherwise modify the Software; (iii) sublicense, distribute or otherwise transfer the Software to any third party; (iv) allow third parties to access or use the Software; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to NTT’s hosted software or its related systems or networks; (vi) use the Software to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (vii) remove or alter any notice of proprietary right appearing on the Software; (viii) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, the Software (provided, that this does not prevent you from comparing Software to other products for legitimate purchase evaluation decisions and Software User’s Internal Use); or (x) cause, encourage or assist any third party to do any of the foregoing. You agree to use the Software in accordance with laws, rules and regulations directly applicable to you and acknowledges that you are solely responsible for determining whether a particular use of the Software is compliant with such laws. NTT Competitors or any other party with interests or intentions adverse to NTT may not access, install or use the Software or Generated Data.
3. Third Party Software. NTT uses certain third party software in its Software, including what is commonly referred to as open source software. Under some of these third party licenses, NTT is required to provide you with notice of the license terms and attribution to the third party. See the licensing terms and attributions for such third party software that NTT uses in NTT’s list of Third Party Software Licensing Terms.
4. Ownership & Feedback. Software is made available for use and licensed, not sold. NTT owns and retains all right, title and interest (including all intellectual property rights) in and to the Software. Any feedback or suggestions that you provides to NTT regarding any NTT products or services is non-confidential and may be used by NTT for any purpose without acknowledgement or compensation; provided, You will not be identified publicly as the source of the feedback or suggestion.
Your Obligations and Third Party Providers.
1. Your Obligations. You represents and warrants that: (i) it owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Software will be installed, (ii) to the extent required under any federal, state, or local U.S. or non-US laws it has authorized NTT to access the Systems and process and transmit data through the Software and any other NTT offerings in accordance with these Software Terms and as necessary to provide the Software and other services, (iii) it has a lawful basis in having the Software operate on the Systems, and collect and process the Your Data and the Personal Data; (iv) that it is and will at all relevant times remain duly and effectively authorized to instruct NTT to carry out the services related to the Software, (v) it has made all necessary disclosures, obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of Your Data and Personal Data from you and your Affiliate, to NTT; and (vi) you authorize NTT to provide access to and use of the Software and Your Data to Third Party Providers.
2. Third Party Providers. You are solely responsible for: (i) independently testing and validating any Third Party Provider products and services and the Software before deploying it or them in a test or production environment, (ii) evaluating whether using any Third Party Provider products or services are lawful under the laws that apply to you or are permitted in your jurisdiction, and (iii) paying for the Third Party Provider products and services and any claims that arise out of your use of their products and services. Any breach by a Third Party Provider of these Software Terms is a breach by you. NTT is not responsible or liable for any loss, costs or damages arising out of Third Party Provider’s actions or inactions in any manner, including but not limited to, for any disclosure, transfer, modification or deletion of Your Data. NTT does not control, monitor, maintain or provide support for, Third Party Providers or their services or products. NTT disclaims all warranties of any kind, and all indemnities, obligations, and other liabilities in connection with the Third Party Provider’s services and products, and any Third Party Provider interface or integration with NTT’s products or services (including the Software).
NTT Use of Data.
1. Data Collection. The Software uses Your Data, Generated Data, Evidence Data and Execution Profile/Metric Data, for the benefit of all users, to help users protect themselves against suspicious and potentially destructive activities. NTT uses such data to: (i) analyze, characterize, attribute, warn of, and/or respond to threats against you and other users, (ii) analyze trends and performance, (iii) improve the functionality of, and develop, NTT’s products and services, and enhance cybersecurity; provided, however, that in all of the foregoing use cases, in a way that does not identify you or Software User’s Personal Data to other NTT users (other than your Third Party Providers). NTT may also enable Software Users and/or their Third Party Providers to use certain Your Data, Generated Data, Evidence Data or Execution Profile Metric Data in other applications or services. Neither Execution Profile/Metric Data nor Evidence Data are Software User’s confidential information or Your Data.
2. File Collection. You and your Third Party Providers may have the option to upload (by submission, configuration, and/or, retrieval) files and other information related to the files for security analysis and response or, when submitting crash reports, to make the product more reliable and/or improve NTT’s products and services or enhance cyber-security. These potentially suspicious or unknown files may be transmitted and analyzed to determine functionality and their potential to cause instability or damage to Software User’s endpoints and systems. In some instances, these files could contain Personal Data.
3. Processing Personal Data. Personal Data may be collected and used during the provisioning and use of the Software, to deliver, support and improve NTT’s products and services, further our business relationship, comply with law, act in accordance with Software User’s written instructions, or otherwise in accordance with these Software Terms and the Documentation. You authorizes NTT to collect, use, store, and transfer the Personal Data that you provide to NTT as contemplated in these Software Terms, NTT’s documentation and NTT’s Privacy Policy and Cookie Statement.
No Warranty.
1. Disclaimer. THE SOFTWARE AND ALL OTHER NTT OFFERINGS ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. NTT AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NTT AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND ALL OTHER NTT OFFERINGS. THERE IS NO WARRANTY THAT THE SOFTWARE OR ANY OTHER NTT OFFERINGS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF SOFTWARE USER’S PARTICULAR PURPOSES OR NEEDS. THE SOFTWARE AND ALL OTHER NTT OFFERINGS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE SOFTWARE OR ANY OTHER NTT OFFERINGS ARE 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. YOU AGREE THAT IT IS SOFTWARE USER’S RESPONSIBILITY TO ENSURE SAFE USE OF SOFTWARE AND ANY OTHER NTT OFFERING IN SUCH APPLICATIONS AND INSTALLATIONS. NTT DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.
2. No Guarantee. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT NTT DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, DISCOVER, PREVENT OR WARN OF, ALL OF SOFTWARE USER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND YOU AND YOUR AFFILIATES WILL NOT HOLD NTT RESPONSIBLE THEREFOR.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NTT SHALL NOT BE LIABLE TO YOU (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (A) ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF NTT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE; OR (B) AN AMOUNT THAT EXCEEDS IN THE AGGREGATE $100. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THESE SOFTWARE TERMS. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 7.
Compliance with Laws. You agree to comply with all laws directly applicable to it in the performance of these Software Terms and use of the Software, including but not limited to, applicable export and import, anti-corruption and employment laws. You acknowledge and agree the Software shall not be used, transferred, or otherwise exported or re-exported to regions that the United Nations, the United States of America, the European Union and/or the United Kingdom maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., 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), without first obtaining all required authorizations from the applicable government(s). You represent and warrant that you are not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.
Support. Any updates or support services or service level agreements for the NTT Services will be provided as stipulated in the NTT Support Policy
Free Evaluation and Beta Test. NTT may, directly or through a reseller, offer you access to the Software for a free trial evaluation or invite you to participate in a beta test program. If you are permitted to access the Software on a free trial basis, you acknowledge and agree that the provisions of this Section 10 shall apply. In the event of a conflict between any other terms of these Software Terms of the Terms of Service and the provisions of this Section 11, the provisions of this Section 11shall control. A free trial evaluation may be requested by submitting a free trial evaluation request form and is subject to approval by NTT, in its sole discretion. The free trial access period is limited to thirty (30) days and will expire automatically without further action by you or NTT. During the free trial evaluation period NTT will monitor your use and communicate with you regarding the Software. The free trial does not include managed services. Other terms and conditions may apply. See the free trial evaluation request form. If you are invited by NTT to participate in a beta test of certain Software (“Beta Program”), your usage of the subject Software will be subject to these Software Terms and the additional beta program terms(the “Beta Terms”). With respect to the Beta Program, in the event of a conflict between these Software Terms and the Beta Program Terms, the Beta Program Terms will take precedence. IN AN EVALUATION OR BETA, THE SOFTWARE IS PROVIDED “AS IS, WHERE IS” WITH NO WARRANTY OF ANY KIND. NTT MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT
General.
Incorporation by Reference; Priority. These Software Terms are subject to and incorporate by reference the Terms of Service. As it relates to access to and use of the Software, in the event of a conflict between the terms of these Software Terms and the Terms of Service, the terms of these Software Terms shall control.
Entire Agreement. Unless you have another valid agreement with NTT for the use of this Software, these Software Terms constitute the entire agreement between you and NTT concerning the Software. It is expressly agreed that as between you and NTT and regarding the Software, these Software Terms supersede any other terms you have on your procurement Internet portal, purchase order or any other agreement with any reseller, prime contractor or service provider. NTT is not obligated under Third Party Provider’s, or any reseller’s, prime contractor’s or other service provider’s agreement with you unless an officer of NTT executes the agreement. These Software Terms shall not be construed for or against any party to these Software Terms because that party or that party’s legal representative drafted any of its provisions.
Governing Law; Venue. These Software Terms, and the rights and duties of the parties arising hereunder, shall be governed by, construed, and enforced in accordance with the laws of Sweden, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under these Software Terms shall be the courts in Sweden, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in NTT’s case, to recoup any payments due.
Waiver, Severability & Amendments. The failure of either party to enforce any provision of these Software Terms shall not constitute a waiver of any other provision or any subsequent breach. If any provision of these Software Terms is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of these Software Terms will remain in full force and effect.
Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of these Software Terms due to, any failure to perform its obligations under these Software Terms (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.

5 - Product Beta Terms (v1.0 2023-05-25)

This document has been superseded. For the latest version please click HERE.

You are invited to participate in beta testing NTT’s Samurai XDR subject to the Terms of Service and these beta terms (“Beta Terms,” together with the Terms of Service, the “Applicable Terms”). The Applicable Terms are made by and between You and NTT and are effective as of the date You first accept them (whether via an online click-through or a signed agreement or by using the Beta Product) (the “Effective Date”).

General Terms. From time to time, NTT may seek to test XDR Services and make them available to you under these Beta Terms (each, the “Beta Product”). You agree that these Beta Terms are separate and independent agreements for each such Beta Product.
Beta Test Participation. As the Beta Product is still in a testing phase, it is likely to contain errors. In addition to the disclaimers in the Terms of Service, you agree that the Beta Product is provided “AS IS” and “AS AVAILABLE.” You understand and agree that we may change, withdraw, terminate your access to, testing of and/or use of, or discontinue the Beta Product (or any portion thereof) at any time and in our sole discretion, with or without notice to you. During the term of these Beta Terms, you will use commercially reasonable efforts to provide suggestions, comments or ideas and report issues or problems related to your use of the Beta Product (collectively, “feedback”) to us in a timely basis or as otherwise agreed between the parties in writing (email will suffice). You agree not to disclose feedback to any third party and hereby assign to us all right, title and interest in and to any feedback, without any right to compensation or other obligation from us.
Fee. Your use of the Beta Product pursuant to these Applicable Terms is free of charge during the Term (as define at Section 6 below). Upon the expiration or termination of the Beta Term in accordance with Section 6, You agree to immediately discontinue any use of the Beta Product; provided, in the event of an expiration occurring pursuant to Section 6(ii) You may elect to continue using the applicable Samurai XDR product subject to the Terms of Use and payment of applicable fees and charges.
Confidentiality. “Confidential Information” means any and all information disclosed by us to you, or accessed or provided by you, relating to the Beta Product, including your use thereof, the relationship contemplated herein, feedback, and the Service Descriptions, except to the extent made public by us. You agree that you: (a) will not use any Confidential Information other than as necessary to use or test the Beta Product hereunder; (b) will maintain Confidential Information in strict confidence and will use the same degree of care to protect it as you use to protect your own confidential information, but in no circumstances less than reasonable care; and (c) will not disclose the Confidential Information to any person or entity other than those who need access to such Confidential Information to effect the intent of these Beta Terms and who are bound by written confidentiality obligations at least as protective as those set forth in this section; provided, however, that you will remain responsible for each such person’s or entity’s compliance with and breach of the confidentiality terms herein. You will not make any public announcements related to the Beta Product without our prior written approval, which we may grant or withhold in our sole discretion. This confidentiality provision supersedes any prior agreements between the parties solely with respect to Confidential Information hereunder.
Service Descriptions. Product-specific terms and policies may also apply to your use of the Beta Product (the “Service Descriptions”). In such case, Service Descriptions will be made available to you (online or, prior to being made available online, as separately provided to you) and will also apply to your use of the Beta Product. For clarity, once we post Service Descriptions online (in the Terms of Service, in other supplemental terms, or otherwise), the online version of such Service Descriptions will supersede any prior versions provided to you. By continuing to access, test, or use the Beta Product after any modification to the applicable Service Descriptions, you agree to be bound by them.
Term. With respect to each Beta Product, the term of these Beta Terms will begin on the Effective Date and, unless terminated earlier in accordance with the Applicable Terms, will expire on the earlier of (i) the date specified by us in our sole discretion (after which you will cease use of such Beta Product), (ii) the date we (in our sole discretion) make such Beta Product generally publicly available (after which any permitted use is subject to our Terms of Service alone, and not these Beta Terms, and payment of applicable fees and charges), or (iii) the date we discontinue such Beta Product (the “Term”). These Beta Terms, as applied to each Beta Product, may be terminated by either party: (a) with cause immediately upon written notice to the other party; or (b) without cause upon thirty (30) days’ prior written notice to the other party. Sections 2, 3, 7, and 8 of these Beta Terms, and the provisions of the Terms of Service, will survive any termination or expiration of these Beta Terms.
Miscellaneous. You agree that your use of the Beta Product is subject to the Applicable Terms; the Service Descriptions; and Our Privacy Policy. To the extent these Beta Terms conflict with the Terms of Service, these Beta Terms will govern with respect to your use of the Beta Product to the extent of the conflict. As between the parties, we retain exclusive ownership of the Beta Product. Notwithstanding the foregoing, the Terms of Service (unmodified by these Beta Terms) continue to apply to your use of any NTT Services other than the Beta Product even if use thereof is in connection with the Beta Product. Terms used but not defined herein have the meaning given in the Terms of Service. The term “including” means including without limitation. Notwithstanding (and in further limitation of) the liability cap in the Terms of Service, OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO ANY ACCESS TO, TESTING OF OR USE OF THE BETA PRODUCT OR THESE BETA TERMS SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). We may modify Our Terms of Service or these Beta Terms at any time, and by continuing to access, test, or use the Beta Product after any modification to the Terms of Service or these Beta Terms, you agree to be bound by them.

6 - Terms of Service (v1.0 2023-05-25)

This document has been superseded. For the latest version please click HERE.

Effective October 21, 2022

These NTT Security Holdings Corporation (“NTT”) Terms of Service (these “Terms”) apply to your purchase of NTT’s threat detection and response applications (including associated software and access to NTT’s hosted software applications) and related managed services and applicable documentation (“Samurai Services”), and consulting services and applicable service descriptions (“Consulting Services”, and together with Samurai Services, the “NTT Services”) directly from NTT or through any of NTT’s authorized resellers as identified in the quote, order form or online ordering document applicable to the NTT Services (the “Order”). The purpose of these Terms is to establish the terms and conditions under which you will access, use and receive NTT Services as described in the “Order”. These Terms shall take precedence over any other agreements, contracts or general terms that Customer may have entered into with a reseller as it relates to the NTT Services only. An Order is an integral part of these Terms and is fully incorporated herein.

These Terms are solely between NTT and you; any third party to whose services the NTT Services may allow connection is not a party to these Terms. Separate license terms apply to your use of such third-party services. To be eligible to register for a customer account in order to use or receive the NTT Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms, and, in such event, “you” and “your” will refer to that company or other legal entity. You and NTT may be referred to as a “Party” or, together, as the “Parties”.

The NTT Services are subject to these Terms, the related documentation and service descriptions, and any applicable Order submitted by you and expressly accepted by NTT.

YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THESE TERMS. IF YOU DO NOT AGREE WITH ALL THE TERMS, CONDITIONS AND LIMITATIONS OF THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BUTTON AND YOU ARE NOT AUTHORIZED TO RECEIVE THE NTT SERVICES. WRITTEN APPROVAL BY NTT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THESE TERMS AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF NTT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. ACCEPTANCE BY NTT IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY NTT, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 19.

IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Sections 26 and 28.

Changes to These Terms. NTT may update these Terms from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address owner of your account. This notice will highlight the intended updates. Except as otherwise specified by NTT, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions. Following such notice, your continued access or use of the NTT Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the NTT Services.You, and each user will be required to accept these Terms upon every log-in by a new user or upon changes to these Terms.
Your Account; Login. To access, use or receive the NTT Services or related software, you will be asked to create a customer account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you’re a human being by providing a telephone number to which we’ll send you a verification code to enter into a form. When registering for an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current and complete after you create each account.
Your Responsibility. You are solely responsible for all access, use and receipt (whether or not authorized) of the NTT Services under your customer account(s) and for all acts and omissions of you or anyone to whom you provide access to or otherwise permit to use or receive the NTT Service (“Users”). You agree to take all reasonable precautions to prevent unauthorized access to or use of the NTT Service and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your customer account(s). You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you to connect to, access, use or receive the NTT Services.
Access to Services. During the term and subject to and conditioned on your payment of applicable fees and compliance with all the terms and conditions of these Terms, NTT will make the NTT Service available to you in accordance with these Terms, the applicable documentation and service descriptions, and any applicable Order, on a limited, non-exclusive and non-transferable basis, for use, access and receipt by you, limited to, in the case of Samurai Services, the number of Users for whom access to the NTT Services has been purchased. Such license grant for any software associated with the NTT Services that is to be downloaded by you shall include the right to make one copy for internal use in accordance with the documentation. You may upgrade the Samurai Services at any time through the Portal. Any such upgrade made through the Portal will constitute a valid and binding purchase order subject to these Terms, and the applicable subscription fee will be adjusted accordingly. Use of the Samurai Services is limited to your internal business purposes.
Restrictions and Unauthorized Use. You shall not (and shall not authorize any third party to): (i) decompile, disassemble, or otherwise reverse-engineer the NTT Services or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the NTT Services by any means whatsoever; (ii) sell, sublicense, rent, loan, lease, distribute, market, or commercialize the NTT Services for any purpose, including timesharing or service bureau purposes; (iii) remove any product identification, proprietary, copyright or other notices contained in the NTT Services; (iv) modify or create a derivative work of any part of the NTT Services, or incorporate the NTT Services into or with other products or software not contemplated by these Terms or the documentation (v) use the NTT Services for any competitive purpose or publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the NTT Services, or (vi) except for back-up purposes, copy or otherwise reproduce the NTT Services. Further, you will not use the NTT Services in any manner that violates any applicable law. In addition to complying with the other terms, conditions and restrictions set forth in these Terms, you agree to the Community Forum Guidelines which by this reference are hereby incorporated into this Agreement.
Applications and APIs. In some cases, it may be necessary for You to grant NTT access to an API or an Application which NTT is required to access in order to provide the NTT Services. You hereby grant NTT the right to access, use, assess and test the application(s) and/or application programming interface(s) (“API(s)”) in connection with providing NTT Services. You acknowledge and agree that NTT’s access and use of the application(s) and/or API(s) to provide NTT Services, is not subject to any “Terms of Use” or other terms or conditions that may be posted on, linked or otherwise provided with, the application(s) and/or API(s). You represent that you are either the owner of the application(s) and/or API(s) or have the authority to permit NTT to provide NTT Services in connection with such applications and/or API(s). You shall provide NTT adequate written evidence thereof upon NTT’s In the event any of the applications and/or API(s) are subject to third-party rights, you shall defend, indemnify and hold harmless NTT for any claims against NTT that arise from NTT accessing or using such applications and/or APIs to provide NTT Services.
Reservation of Rights. Each party reserves all rights not expressly granted in these Terms and no licenses are granted by either party to the other party under these Terms except as expressly stated in an Order, whether by implication, estoppel or otherwise. NTT or its licensors own and retain all right, title and interest (including all intellectual property rights) in and to the NTT Services, documentation and associated software, as applicable, including any modifications or improvements thereof, and applicable service descriptions.
Third-Party Services. We may use third-party services to help us provide the NTT Services, but such use does not indicate that we endorse the third-party or the third-party services, or are responsible or liable for the third-party services or the actions or omissions of the third-party. In addition, the NTT Services may link to third-party websites to facilitate its provision of services to you. If you use these links, you will leave the NTT Services. Please note that your use of such third-party services will be governed by the terms and Privacy Policy applicable to the corresponding third party or third-party service. We are not responsible for nor do we endorse these third-party websites or the organizations sponsoring such third-party websites or their products or services, whether or not we are affiliated with such third-party websites. You agree that we are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a third-party website or as a result of the presence of any third-party advertising on the NTT Services.
Modification by NTT. NTT reserves the right to modify or discontinue, temporarily or permanently, the NTT Services (or any part thereof) with or without notice. NTT reserves the right to refuse any User access to the NTT Services without notice for any reason, including but not limited to a violation of these Terms. If you violate these Terms, including the Community Forum Guidelines, NTT reserves the right, in its discretion, to issue you a warning regarding the violation or immediately suspend or terminate any or all accounts you have created using the NTT Services.
Billing and Payment. NTT or the applicable reseller will bill, and you agree to pay, (i) for Samurai Services a subscription fee for the term in advance commencing on the subscription date, order date or renewal date, and (ii) for Consulting Services in accordance with the Order.

You are responsible for providing valid and current payment information and you agree to promptly update your account information, including payment information, with any changes that may occur (for example, a change in your billing address or credit card expiration date).

If you choose to upgrade your subscriptions for Samurai Services during your subscription term, any incremental subscription fees associated with such upgrade will be charged in accordance with the remaining subscription term and any renewal and you will be invoiced by NTT or the reseller promptly following the date of upgrade of renewal.

If you purchased the NTT Services from NTT and pay by credit card or certain other payment instruments, the portal provides an interface for you to change payment information (e.g. upon card renewal). Payments made by credit card, debit card or certain other payment instruments for NTT Services may be billed and processed by NTT using a third-party payment agent designated by NTT. You hereby authorize NTT or it’s payment agent to bill your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the applicable subscription or Order. You will receive a receipt upon each acceptance of payment by the payment agent, or you may obtain a receipt from within the portal to track subscription status. To the extent the payment agent is not NTT, the payment agent is acting solely as a billing and processing agent for and on behalf of NTT and shall not be construed to be providing the applicable NTT Service.

Taxes. Unless otherwise stated, the fees do not include taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (“Taxes”). You are responsible for paying Taxes assessed in connection with your subscription to the NTT Services except those assessable against NTT or the reseller measured by its net income. You will be invoiced for such Taxes if NTT or the reseller believe it has a legal obligation to do so. You agree to pay such Taxes if so invoiced.
Term, Termination. The term for the NTT Services is as specified at the time you select the NTT Service through the cloud marketplace at the time of purchase (the “Portal”) or in the applicable Order. Unless otherwise specified at the time of purchase, Samurai Services will automatically renew for like term unless a Party provides thirty (30) days prior notice of nonrenewal. Either Party may terminate these Terms or an Order subject hereto upon thirty (30) days written notice to the other Party (the “Notice Period”) in the event of a material breach that the other Party fails to cure within the Notice Period. We may immediately terminate these Terms for cause and without advance notice if you violate the Community Forum Guidelines. Further, except in any case where the Order specifies the Samurai Services are subject to a minimum term, you may i) terminate your account or cancel the Samurai Services without cause at any time and for any reason, or for no reason, through the cloud marketplace where you purchased the Samurai Services, and ii) receive a refund of the unamortized portion of the prepaid fee for the terminated Samurai Services. Where the Order specifies the Samurai Services are subject to a minimum term, you will have no right to terminate the Samurai Services without cause during the minimum term or any renewal term, or receive a refund of prepaid fees. You acknowledge that you may, as the result of a termination, lose your account and all information and data associated therewith and you shall not be entitled to compensation for any such loss.
Updates, Support. Any updates or support services or service level agreements for the NTT Services will be provided as stipulated in the NTT Support Policy.
Confidential Information. You acknowledge that you may obtain information relating to the NTT Services or NTT that has not been released to the public, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). You shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the NTT Services as licensed under these Terms. You will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind and, in any case, at least a reasonable degree of care. You acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 14 and that, in the event of an actual or threatened breach of the provisions of this Section 14, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
Warranty Disclaimer. THE NTT SERVICES, THE DOCUMENTATION AND SERVICE DESCRIPTIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOUR USE OF THE NTT SERVICES IS AT YOUR SOLE RISK. IN ADDITION, WHILE NTT ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE NTT SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE NTT SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification by NTT. NTT will indemnify and defend you from and against any claim brought by a third party against you by reason of your use of a Samurai Service, as permitted hereunder, alleging that such Samurai Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (a “Claim”). NTT shall, at its expense, defend such IP Claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by NTT for such defense, provided that (a) you promptly notify NTT of the threat or notice of such IP Claim; (b) NTT will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, NTT shall not settle or compromise any claim that results in liability or admission of any liability by you without your prior written consent); and (c) you fully cooperate with NTT in connection therewith. If use of a Service by you, your agents or users has become, or, in NTT’s opinion, is likely to become, the subject of any such Claim, NTT may, at NTT’s option and expense, (i) procure for you the right to continue using the Samurai Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by NTT, terminate your subscription to the Samurai Service(s) and repay you, on a pro-rata basis, any subscription fees previously paid to NTT for the corresponding unused portion of the term of your subscription for such Samurai Service(s). NTT will have no liability or obligation to indemnify you with respect to any Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by you; (y) modification of the Samurai Service(s) by anyone other than NTT; or (z) the combination, operation or use of the Samurai Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 16 state the sole, exclusive and entire liability of NTT to you and constitute your sole remedy with respect to an Claim brought by reason of access to or use of a Service by you, your agents or users.
Indemnification by You. You agree to defend, indemnify and hold NTT, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with: (i) your use of and access to the NTT Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right or any third party agreement; (iv) any information you provide on or through the Service, or NTT’s access or use of applications or APIs (each, a “Claim”). As used in this Section 17, “you” shall include anyone accessing the Service using your password.
Conditions of Indemnification. As a condition of the foregoing indemnification obligations set forth in Sections 16 and 17: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 18 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
Limitation of Damages and Remedies. IN NO EVENT SHALL NTT OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE NTT SERVICES, THIRD-PARTY USE OF THE NTT SERVICES ENABLED BY YOU, OR YOUR OR THIRD-PARTY USE OF ANY DATA OR SOFTWARE ENABLED BY YOU VIA THE NTT SERVICES. NTT SHALL NOT BE LIABLE FOR LOSS, INACCURACY, INCOMPLETENESS, OR RELEASE OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF NTT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF NTT ARISING OUT OF THESE TERMS, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY OF NTT ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY YOU WITH RESPECT TO THE SPECIFIC NTT SERVICE WHICH CAUSED THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION 19 ARE ESSENTIAL AND THAT NTT WOULD NOT PERMIT YOU TO USE THE NTT SERVICES ABSENT THE TERMS OF THIS SECTION 19. THIS SECTION 19 SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 19 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Export Compliance, Sanctions. You acknowledge that the NTT Services may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not and shall not authorize any third-party to remove or export from the United States or allow the export or re-export of any part of the NTT Services or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The NTT Services are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

You warrant that neither you or any entity or person that has direct or indirect control of fifty percent or more of your shares are not 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”). You agree that if at any time you become subject to any Sanctions which prohibit or restrict NTT’s performance of or rights under the Terms, or the performance of the Terms 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 the NTT Services upon such Sanctions becoming effective.

A breach of this Section 20 shall be a material default for the purpose of Section 12.

Ownership. NTT exclusively owns and reserves all right, title and interest in and to the NTT Services, documentation, service descriptions, our Confidential Information, and all anonymized or aggregated data resulting from use and operation of the NTT Services and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”).
Suggestions and Contributions. If you submit suggestions or contributions (“Contributions”) you agree that: (a) NTT is not under any obligation of confidentiality with respect to your Contributions; (b) NTT may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) NTT will own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from NTT under any circumstances for your Contributions.
Additional Addenda. Your use of the NTT Services, and associated software are subject to the NTT Privacy Policy, Cookie Statement and Data Processing Agreement. To the extent your use of the NTT Service allows you to use the associated software, or you otherwise access and use the NTT software, such access and use shall be subject to the Software Terms of Use.
Data Protection. The terms of the Data Processing Agreement made part hereof (“Data Processing Agreement”) shall apply when personal data is being processed pursuant to these Terms. Additionally, personal data may be disclosed in accordance with the Privacy Policy. You acknowledge that you have read the “Privacy Policy” and understand that it sets forth how NTT will collect, store, use and disclose your data including personal data. If you do not agree with our Privacy Policy, then you must stop using the NTT Service immediately.
Survival. Upon termination of these Terms, your payment obligations, the terms of this Section 25, and the terms of the following Sections will survive (i.e. still apply): Section 10 (Billing & Payment), Section 14 (Confidentiality), Section 15 Warranty Disclaimer, Section 16 (Indemnification by NTT), Section 17 (Indemnification by You), Section 18 (Conditions of Indemnification), Section 19 (Limitation of Damages and Remedies), Section 21 (Ownership), Section 25 (Survival), Section 26 (Governing Law), and Section 28 (Agreement to Arbitration).
Governing Law. The enforceability and interpretation of Section 28 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 28, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply; provided, if your principal place of business is in the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom, these Terms will be governed by the substantive laws of Sweden without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 28 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in either the state or federal courts of San Francisco, California, and we each consent to the personal jurisdiction of these courts; provided, if pursuant to this Section 26 the laws of Sweden govern these Terms, legal suit, action or proceedings arising out of or related to these Terms or the NTT Services shall be instituted in the courts of Sweden.
Venue. Except as provided in Section 28 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in either the state or federal courts of San Francisco, California, where the laws of California govern and we each consent to the personal jurisdiction of these courts; provided, where the laws of Sweden govern these Terms, any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in the applicable courts of Stockholm, Sweden, and we each consent to the personal jurisdiction of these courts.
Agreement to Arbitration. Except for a disputes relating to you, your affiliates’, NTT or NTT’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) (the “Excepted Disputes”). NTT and you agree to arbitrate. If a dispute cannot be resolved, you or any of your affiliates on one hand and NTT and any of NTT’s affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the NTT Services by binding arbitration in San Francisco, California. This applies to all claims under any legal theory, except Excepted Disputes. It also applies even after you have stopped using your customer account(s) or closed it. If NTT and you have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.
Each of us can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 28 conflicts with the Rules, the language of this Section 28 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 28 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
Free Evaluation and Beta Test. NTT may, directly or through a reseller, offer You access to the Samurai Services for a free trial evaluation or invite You to participate in a beta test program. If You are permitted to access the Samurai Services on a free trial basis, You acknowledge and agree that the provisions of this Section 29 shall apply. In the event of a conflict between any other terms of the Terms of Service and the provisions of this Section 29, the provisions of this Section 29 shall control. A free trial evaluation may be requested by submitting a free trial evaluation request form and is subject to approval by NTT, in its sole discretion. The free trial access period is limited to thirty (30) days and will expire automatically without further action by You or NTT. During the free trial evaluation period NTT will monitor Your use and communicate with you regarding the Service. The free trial does not include managed services. Other terms and conditions may apply. See the free trial evaluation request form. If you are invited by NTT to participate in a beta test of certain Samurai Services (“Beta Program”), your usage of the subject Samurai Services will be subject to these Terms of Service and the additional beta program terms (the “Beta Terms”). With respect to the Beta Program, in the event of a conflict between these Terms of Service and the Beta Program Terms, the Beta Program Terms will take precedence. IN AN EVALUATION OR BETA, THE SERVICE IS PROVIDED “AS IS, WHERE IS” WITH NO WARRANTY OF ANY KIND. NTT MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Miscellaneous. Neither these Terms nor the licenses granted hereunder are assignable or transferable by you (and any attempt to do so shall be void). NTT may freely assign, delegate, license and/or transfer these Terms, in whole or in part, without consent. You and NTT are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. These Terms shall be deemed to have been made in and shall be construed pursuant to the laws of California without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Subject to the foregoing, the provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. This is the complete and exclusive statement of the mutual understanding of the parties with respect to the license granted herein and supersedes and cancels all previous written and oral agreements and communications relating to such license and any waivers or amendments shall be effective only if executed in writing by NTT; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by NTT after the effectiveness hereof, shall have no force or effect. You are responsible for the information you provide or make available to the NTT Services and you must ensure it is accurate, not misleading and does not contain material that is obscene, defamatory, or infringing on any rights of any third party; does not contain malicious code and is not otherwise legally actionable. The substantially prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. Except as described in Section 28 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. NTT’s failure to enforce at any time any provision of these Terms, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by NTT and you to be legally binding. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. In the event of a conflict between a provision of these Terms and the provisions of an Order subject to these Terms, the provision of the Order will control.

7 - Terms of Service (v2.0 2023-10-24)

This document has been superseded. For the latest version please click HERE.

These NTT Security Holdings Corporation (“NTT”) Terms of Service (these “Terms”) apply to your purchase of NTT’s Samurai Managed Detection and Response service, related managed services and applicable documentation and applicable Service Descriptions (“Samurai Services”), and consulting services and applicable Service Descriptions (“Consulting Services”, and together with Samurai Services, the “NTT Services”) directly from NTT or through any of NTT’s authorized resellers as identified in the quote, order form or online ordering document applicable to the NTT Services (the “Order”). The Service Descriptions for the Samurai Services and Consulting Service are found here. The purpose of these Terms is to establish the terms and conditions under which you will access, use and receive NTT Services as described in the “Order”. These Terms shall take precedence over any other agreements, contracts or general terms that Customer may have entered into with a reseller as it relates to the NTT Services only. An Order is an integral part of these Terms and is fully incorporated herein.

To be eligible to register for a customer account in order to use or receive the NTT Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms, and, in such event, “you” and “your”, whether or not capitalised, will refer to that company or other legal entity. You and NTT may be referred to as a “Party” or, together, as the “Parties”.

The NTT Services are subject to these Terms, the related documentation and Service Descriptions, and any applicable Order submitted by you and expressly accepted by NTT. All documentation related to these Terms can be found here.

You acknowledge and agree that you have read, understood and agreed to these terms. If you do not agree with all the terms, conditions and limitations of these terms, you should not click the “I Accept” or “Get Started” button and you are not authorized to receive the NTT services. Written approval by NTT is not a prerequisite to the validity or enforceability of these terms and no solicitation of any such written approval by or on behalf of NTT shall be construed as an inference to the contrary. Acceptance by NTT is expressly conditional on your assent to these terms to the exclusion of all other terms; if these terms are considered an offer by NTT, acceptance is expressly limited to these terms.

Important note: these terms limit our liability to you. For more details, go to Section 18.

In addition, disputes related to terms or related to your use of the services generally must be resolved by a dispute resolution process which may lead to binding arbitration. For more details, go to Sections 25 and 27.

Changes to These Terms. NTT may update these Terms from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address of the owner of your account. This notice will highlight the intended updates. Except as otherwise specified by NTT, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions. Following such notice, your continued access or use of the NTT Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the NTT Services. If you cease using the NTT Services for this reason you will receive a refund of the unused portion of subscription fees paid in advance. Every user will be required to accept the Software Terms of Use upon first login. You are required to accept these Terms before using the Service and upon changes to these Terms.
Your Account: Login. To access, use, or receive, the NTT Services or related software, you will be asked to create a customer account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you’re a human being by providing a telephone number to which we’ll send you a verification code to enter into a form. When registering for an account, you must provide true, accurate, current, and complete information, about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete, after you create each account.
Your Responsibility. You are solely responsible for all access, use, and receipt, (whether or not authorized) of the NTT Services under your customer account(s) and for all acts and omissions of you or anyone to whom you provide access to or otherwise permit to use or receive the NTT Service (“Users”). You agree to take all reasonable precautions to prevent unauthorized access to or use of the NTT Service and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your custoData Protection.mer account(s). You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you to connect to, access, use or receive the NTT Services.
Access to Services. During the term and subject to and conditioned on your payment of applicable fees and compliance with all the terms and conditions of these Terms, NTT will make the NTT Service available to you in accordance with these Terms, the applicable documentation and Service Descriptions, and any applicable Order, on a limited, non-exclusive and non-transferable basis, for use, access and receipt by you, limited to, in the case of Samurai Services, the number of Users for whom access to the NTT Services has been purchased.
Restrictions and Unauthorized Use. You shall not (and shall not authorize any third party to): (i) decompile, disassemble, or otherwise reverse-engineer the NTT Services or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the NTT Services by any means whatsoever; (ii) sell, sublicense, rent, loan, lease, distribute, market, or commercialize the NTT Services for any purpose, including timesharing or service bureau purposes; (iii) remove any product identification, proprietary, copyright or other notices contained in the NTT Services; (iv) modify or create a derivative work of any part of the NTT Services, or incorporate the NTT Services into or with other products or software not contemplated by these Terms or the documentation (v) use the NTT Services for any competitive purpose or publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the NTT Services, or (vi) except for back-up purposes, copy or otherwise reproduce the NTT Services. Further, you will not use the NTT Services in any manner that violates any applicable law. NTT reserves the right to refuse any User access to the NTT Services without notice for any reason, including but not limited to a violation of these Terms. If you violate these Terms NTT reserves the right to issue you a warning regarding the violation or immediately suspend or terminate any or all accounts you have created using the NTT Services.
Applications and APIs. In some cases, it may be necessary for you to grant NTT access to an API or an Application which NTT is required to access in order to provide the NTT Services. You hereby grant NTT the right to access, use, assess and test the application(s) and/or application programming interface(s) (“API(s)”) in connection with providing NTT Services. You acknowledge and agree that NTT’s access and use of the application(s) and/or API(s) to provide NTT Services, is not subject to any “Terms of Use” or other terms or conditions that may be posted on, linked or otherwise provided with, the application(s) and/or API(s). You represent that you are either the owner of the application(s) and/or API(s) or have the authority to permit NTT to provide NTT Services in connection with such applications and/or API(s). You shall provide NTT adequate written evidence thereof upon NTT’s In the event any of the applications and/or API(s) are subject to third-party rights, you shall defend, indemnify and hold harmless NTT for any claims against NTT that arise from NTT accessing or using such applications and/or APIs to provide NTT Services.
Reservation of Rights. Each party reserves all rights not expressly granted in these Terms and no licenses are granted by either party to the other party under these Terms except as expressly stated in an Order, whether by implication, estoppel or otherwise. NTT or its licensors own and retain all right, title and interest (including all intellectual property rights) in and to the NTT Services, documentation and associated software, as applicable, including any modifications or improvements thereof, and applicable Service Descriptions.
Third-Party Services. We may use third-party services to help us provide the NTT Services, but such use does not indicate that we endorse the third-party or the third-party services, or applicable to the corresponding third party or third-party service. We are not responsible for nor do we endorse these third-party websites or the organizations sponsoring such third-party websites or their products or services, whether or not we are affiliated with such third-party websites. You agree that we are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a third-party website or as a result of the presence of any third-party advertising on the NTT Services. Privacy Policy applicable to the corresponding third party or third-party service. We are not responsible for nor do we endorse these third-party websites or the organizations sponsoring such third-party websites or their products or services, whether or not we are affiliated with such third-party websites. You agree that we are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings you may have on or through a third-party website or as a result of the presence of any third-party advertising on the NTT Services.
Modification by NTT. Without materially degrading the Service, NTT reserves the right to modify, enhance, or otherwise change, the NTT Services (or any part thereof), including the Service Description, with or without notice.
Taxes. Unless otherwise stated, the fees do not include taxes, levies,
or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (“Taxes”). You are responsible for paying Taxes assessed in connection with your subscription to the NTT Services except those assessable against NTT or the reseller measured by its net income. You will be invoiced for such Taxes if NTT or the reseller believe it has a legal obligation to do so. You agree to pay such Taxes if so invoiced.
Term, Termination. The term for the NTT Services is as specified in the applicable Order for the NTT Service. Unless otherwise specified at the time of purchase, Samurai Services will automatically renew for like term unless a Party provides thirty (30) days prior notice of nonrenewal. Either Party may terminate these Terms or an Order subject hereto upon thirty (30) days written notice to the other Party (the “Notice Period”) in the event of a material breach that the other Party fails to cure within the Notice Period. Further, except in any case where the Order specifies the Samurai Services are subject to a minimum term, you may i) terminate your account or cancel the Samurai Services without cause at any time and for any reason, or for no reason, and ii) receive a refund of the unamortized portion of the prepaid fee for the terminated Samurai Services. Where the Order specifies the Samurai Services are subject to a minimum term, you will have no right to terminate the Samurai Services without cause during the minimum term or any renewal term, or receive a refund of prepaid fees. You acknowledge that you may, as the result of a termination, lose your account and all information and data associated therewith and you shall not be entitled to compensation for any such loss.
Updates, Support. Any updates or support services or service level agreements for the NTT Services will be provided as stipulated in the NTT Support Policy.
Confidential Information. Both Parties acknowledge that they may obtain information relating to the each other’s services or businesses that has not been released to the public, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). A Party shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the NTT Services as licensed under these Terms or other purposes for which the Information has been provided. Each Party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind and, in any case, at least a reasonable degree of care. Each Party acknowledges and agrees that no adequate remedy may exist at law for an actual or threatened breach of this Section 14 and that, in the event of an actual or threatened breach of the provisions of this Section 14, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
Warranty Disclaimer. THE NTT SERVICES, THE DOCUMENTATION AND SERVICE DESCRIPTIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOUR USE OF THE NTT SERVICES IS AT YOUR SOLE RISK. IN ADDITION, WHILE NTT ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE NTT SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE NTT SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification by NTT. NTT will indemnify and defend you from and against any claim brought by a third party against you by reason of your use of a Samurai Service, as permitted hereunder, alleging that such Samurai Service infringes or misappropriates a third party’s valid patent, copyright,
or trade secret (a “Claim”). NTT shall, at its expense, defend such IP Claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by NTT for such defense, provided that (a) you promptly notify NTT of the threat or notice of such IP Claim; (b) NTT will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, NTT shall not settle or compromise any claim that results in liability or admission of any liability by you without your prior written consent); and (c) you fully cooperate with NTT in connection therewith. If use of a Service by you, your agents or users has become, or, in NTT’s opinion, is likely to become, the subject of any such Claim, NTT may, at NTT’s option and expense, (i) procure for you the right to continue using the Samurai Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by NTT, terminate your subscription to the Samurai Service(s) and repay you, on a pro-rata basis, any subscription fees previously paid to NTT for the corresponding unused portion of the term of your subscription for such Samurai Service(s). NTT will have no liability or obligation to indemnify you with respect to any Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by you; (y) modification of the Samurai Service(s) by anyone other than NTT; or (z) the combination, operation or use of the Samurai Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 15 state the sole, exclusive and entire liability of NTT to you and constitute your sole remedy with respect to a Claim brought by reason of access to or use of a Service by you, your agents or users.
Indemnification by You. You agree to defend, indemnify and hold NTT, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with: (i) your use of and access to the NTT Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right or any third party agreement; (iv) any information you provide on or through the Service, or NTT’s access or use of applications or APIs (each, a “Claim”). As used in this Section 16, “you” shall include anyone accessing the Service using your password.
Conditions of Indemnification. As a condition of the foregoing indemnification obligations set forth in Sections 15 and 16: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 17 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
Limitation of Damages and Remedies. IN NO EVENT SHALL NTT OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE NTT SERVICES, THIRD-PARTY USE OF THE NTT SERVICES ENABLED BY YOU, OR YOUR OR THIRD-PARTY USE OF ANY DATA OR SOFTWARE ENABLED BY YOU VIA THE NTT SERVICES. NTT SHALL NOT BE LIABLE FOR LOSS, INACCURACY, INCOMPLETENESS, OR RELEASE OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF NTT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF NTT ARISING OUT OF THESE TERMS, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY OF NTT ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY YOU WITH RESPECT TO THE SPECIFIC NTT SERVICE WHICH CAUSED THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION 18 ARE ESSENTIAL AND THAT NTT WOULD NOT PERMIT YOU TO USE THE NTT SERVICES ABSENT THE TERMS OF THIS SECTION 18. THIS SECTION 19 SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 18 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Export Compliance, Sanctions. You acknowledge that the NTT Services may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not and shall not authorize any third-party to remove or export from the United States or allow the export or re-export of any part of the NTT Services or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The NTT Services are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. You warrant that neither you or any entity or person that has direct or indirect control of fifty percent or more of your shares are not 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”). You agree that if at any time you become subject to any Sanctions which prohibit or restrict NTT’s performance of or rights under the Terms, or the performance of the Terms 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 the NTT Services upon such Sanctions becoming effective. A breach of this Section 19 shall be a material default for the purpose of Section 11.
Ownership. NTT exclusively owns and reserves all right, title and interest in and to the NTT Services, documentation, Service Descriptions, our Confidential Information, and all anonymized or aggregated data resulting from use and operation of the NTT Services and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”).
Suggestions and Contributions. If you submit suggestions or contributions (“Contributions”) you agree that: (a) NTT is not under any obligation of confidentiality with respect to your Contributions; (b) NTT may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) NTT will own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from NTT under any circumstances for your Contributions.
Additional Terms. Your use of the NTT Services, and associated software are subject to the NTT Privacy Policy, Cookie Statement and Data Processing Agreement. To the extent your use of the NTT Service allows you to use the associated software, or you otherwise access and use the NTT software, such access and use shall be subject to the Software Terms of Use.
Data Protection. The terms of the Data Processing Agreement shall apply when personal data is being processed pursuant to these Terms. Additionally, personal data may be disclosed in accordance with the Privacy Policy. You acknowledge that you have read the Privacy Policy and understand that it sets forth how NTT will collect, store, use and disclose your data including personal data. If you do not agree with our Privacy Policy, then you must stop using the NTT Service immediately.
Survival. Upon termination of these Terms, your payment obligations, the terms of this Section 24, and the terms of the following Sections will survive (i.e. still apply): Section 13 (Confidentiality), Section 14 Warranty Disclaimer, Section 15 (Indemnification by NTT), Section 16 (Indemnification by You), Section 17 (Conditions of Indemnification), Section 18 (Limitation of Damages and Remedies), Section 20 (Ownership), Section 24 (Survival), Section 25 (Governing Law), and Section 27 (Agreement to Arbitration).
Governing 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.
Venue. Except as provided in Section 27 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in the applicable courts of Stockholm, Sweden, and we each consent to the personal jurisdiction of these courts.
Agreement to Arbitration. Except for a disputes relating to you, your affiliates’, NTT or NTT’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) (the “Excepted Disputes”) 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 resolution. 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.
Beta Test. NTT may, directly or through a reseller, invite you to participate in a beta test program. If you are invited by NTT to participate in a beta test of certain Samurai Services features (“Beta Program”), your usage of the subject Samurai Services features will be subject to these Terms of Service and NTT’s additional beta program terms . In the event of a conflict between these Terms of Service and the Beta Program Terms, the Beta Program Terms will take precedence. IN A BETA, THE SERVICE IS PROVIDED “AS IS, WHERE IS” WITH NO WARRANTY OF ANY KIND. NTT MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Service True-Up. NTT reserves the right to review the number of endpoints you have onboarded to the Samurai Service and, should that number exceed the number your subscription includes, to adjust (“True-Up”) your service charges to reflect the number onboarded as of the date of the review revealing the excess endpoints (“True-Up Date”). The revised service charge will be applied from the True-Up Date and reflected in your next billing point and for the remainder of your service term or until a further change to the number of endpoints onboarded is made. The service is designed with a log volume allowance of 5GB per endpoint per month. If your log volumes exceed this allowance NTT reserves the right to True-Up your service charge by the number of endpoints needed to cover the excess log volume.
Marketing. Each Party agrees that the use of the other Party’s trademarks, service marks, and/or logos shall be subject the other Party’s prior consent.
Miscellaneous. Neither these Terms nor the licenses granted hereunder are assignable or transferable by you (and any attempt to do so shall be void). NTT may freely assign, delegate, license and/or transfer these Terms , in whole or in part, to an affiliate upon written notice to you.. For purposes of this provision regarding assignment by NTT, “affiliate” shall mean any entity controlling, controlled by or under common control with NTT. You and NTT are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Subject to the foregoing, the provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. This is the complete and exclusive statement of the mutual understanding of the parties with respect to the license granted herein and supersedes and cancels all previous written and oral agreements and communications relating to such license and any waivers or amendments shall be effective only if executed in writing by NTT; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by NTT after the effectiveness hereof, shall have no force or effect. You are responsible for the information you provide or make available to the NTT Services and you must ensure it is accurate, not misleading and does not contain material that is obscene, defamatory, or infringing on any rights of any third party; does not contain malicious code and is not otherwise legally actionable. The substantially prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. Except as described in Section 27 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. NTT’s failure to enforce at any time any provision of these Terms, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by NTT and you to be legally binding. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. In the event of a conflict between a provision of these Terms and the provisions of an Order subject to these Terms, the provision of the Order will control.

Superseded Documents

1 - Data Processing Agreement (v1.0 2023-05-25)

1. Introduction

2. Defined terms

3. Applicable law

4. Duration and termination

5. Personal data types and processing purposes

6. NTT obligations

7. Contracting with sub-processors

8. Client obligations

9. Security

10. Audits

11. Incident management

12. General cross border transfers of Personal Data

13. GDPR and UK GDPR cross border transfers of Personal Data

14. Return or destruction of Personal Data

15. Liability and warranty

16. Notice

17. Miscellaneous

Attachment A: Particulars of Processing

Attachment B: Technical and Organizational Measures

Attachment C: UK GDPR Terms

18. Supplementary contractual measures

2 - Master Partner Agreement (v1.0 2023-05-25)

3 - Master Partner Agreement (v2.0 2024-04-25)

4 - NTT Software Terms of Use (v1.0 2023-05-25)

5 - Product Beta Terms (v1.0 2023-05-25)

6 - Terms of Service (v1.0 2023-05-25)

7 - Terms of Service (v2.0 2023-10-24)