This document has been superseded.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**.**
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.