These Reseller Terms of Sale, including all applicable terms referenced herein, (collectively, this “Agreement”) apply to your purchase (whether from NTT DATA or from a NTT DATA distributor in the United States or Canada) and resale of Products and Services, unless you have a separate written agreement with NTT DATA that expressly applies to your purchase and resale of such Products and Services. This Agreement does not apply to you if you are buying Products and Services for your own internal end-use.
DEFINITIONS. “NTT DATA” means NTT DATA Services, LLC, or the NTT DATA Affiliate identified on the NTT DATA sales documentation. “NTT DATA Affiliate” means NTT DATA Corporation and its subsidiaries. “You” or “your” means the entity that places an order for Products and/or Services with NTT DATA for purpose of resale to an End-User (defined below). “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation. Software includes software delivered electronically, pre-installed on an appliance, or locally installed on hardware systems, and software accessed through the internet or other remote means (such as websites, portals and "cloud-based" solutions). “NTT DATA Software” means Software licensed by NTT DATA or NTT DATA Affiliate. NTT DATA Software and NTT DATA-branded hardware products are collectively referred to as “NTT DATA Products.” “Services” means services provided by NTT DATA as described in one or more Service Agreements. “Third Party Product” means any non-NTT DATA-branded products and services and non-NTT DATA-licensed software products. NTT DATA Products and Third Party Products are collectively referred to as “Products”.
By placing your order, you accept and are bound to the terms and conditions of this Agreement.
A. General. Subject to the terms and conditions of this Agreement and your compliance therewith, you may resell certain Products and Services to End-Users. “End-User” means any entity purchasing or otherwise obtaining Products and/or Services from you for its own internal end-use and not for reselling, distributing, or sub-licensing to others. You shall not market, resell, or use Products or Services other than as expressly permitted in this Agreement. You understand that not all Products and Services may be purchased for resale under this Agreement. Certain activities require that you enter into a separate written agreement with NTT DATA, including but not limited to (i) use of NTT DATA Software to provide services to and on behalf of End-Users, (ii) use and reproduction of NTT DATA Software to combine with your software products or other products to create one unified product (“Bundled Product”) and marketing, distribution and sublicensing of NTT DATA Software to End-Users as part of the Bundled Product, and (iii) selling renewals of certain NTT DATA Software maintenance services.
B. Restrictions to Appointment. Notwithstanding Section 1.A., and unless and to the extent that you are expressly granted such rights under a separate written agreement between you and NTT DATA, you shall not market or resell Products or Services (i) to any consumers, resellers, distributors, or third-party sales agents; (ii) through retail storefronts, online stores, or auction or resale websites; or (iii) to any government (including federal, provincial, state, or local government), healthcare, or education end-users. You shall not market or resell Products or Services to anyone outside the United States or Canada, whichever is the country covered by the NTT DATA entity from which you purchased such Products and Services.
C. Non-Exclusive. This Agreement is not exclusive. NTT DATA may appoint third parties (including those who may compete with you) to sell or market Products and Services to anyone. NTT DATA may sell or market (whether directly or indirectly through a third party) Products and Services at any price NTT DATA chooses without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of Products or Services.
D. Additional Requirements. Your eligibility to resell certain Products and Services may be subject to additional obligations or conditions not outlined in this Agreement, including additional training, specialization requirements, contractual agreements, and other conditions. Any purchase and resale by you of NTT DATA Products that are integrated with Google Chrome OS may be subject to additional terms and conditions. You agree to provide NTT DATA with information and reports pertinent to your relationship with NTT DATA as may reasonably be requested by NTT DATA.
2. PRICING & TAX
A. Pricing. Prices for Products and Services will be as specified on NTT DATA’s website, in a written quote to you for such Products and Services, or as specified in the applicable NTT DATA invoice or Service Agreement (defined below) relating to such Product or Service. Except as otherwise expressly set forth in NTT DATA’s quote, NTT DATA’s quoted price is valid for thirty (30) days from the date of the quote. Before NTT DATA issues a quote, NTT DATA may require you to provide information concerning the End-User and you agree to provide such information. NTT DATA reserves the right to modify pricing (including quotes) due to shortage of materials or products, increase in costs, pricing or other error, currency and exchange rate fluctuations, or any event beyond NTT DATA’s control, without liability to you. Taxes, shipping and handling charges and any government mandated or other regulated environmental disposal surcharges are not included in prices for Products and Services, unless expressly indicated at the time of sale.
B. Unless you and NTT DATA have agreed to a different discount structure, NTT DATA's standard pricing policy for a solution that includes products, software, and services in one discounted price, allocates the discount off list price applicable to the services portion of the solution to be equal to the overall percentage discount off of the list price of the entire solution. If you breach the provisions of this Agreement or the terms of any offer, NTT DATA may charge or re-debit your account or credit card the full list price for your purchase (in lieu of a discounted or special price included in the offer). If NTT DATA offers you certain discounts off of NTT DATA’s standard list price, such discounts do not apply to special product promotions and cannot be combined with other offers.
C. Taxes. The charges stated in any NTT DATA quote or invoice will include all duties, levies or any similar charges and will exclude VAT, sales, use, or equivalent taxes. You are responsible for the payment of all taxes and fees assessed or imposed on Products and Services in any geography in which you or an End User receives the benefit of the Products and Services, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. You will defend and indemnify NTT DATA Parties (defined below) from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to tax liabilities that are your responsibility. If you are required by law to make any withholding or deduction in respect of any payments that you are required to make to NTT DATA under this Agreement, additional amounts shall be simultaneously payable such that NTT DATA’s nominated bank account receives (after that withholding and deduction) those amounts which NTT DATA would have received if no withholding or deduction had been required. Upon request, you will supply to NTT DATA evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of NTT DATA, that you have accounted to the relevant authority for the sum withheld or deducted.
D. Reseller Pricing. You are free to determine and set your resale pricing of Products and Services.
3. PURCHASE ORDERS
A. Orders. Each order must reference NTT DATA’s quote (if any), the requested Products and Services, the End-User’s name and address, and any other information requested by NTT DATA. If requested by NTT DATA, you shall submit Orders on NTT DATA designated order form(s). Orders for certain Software may require purchase of related services. You shall place orders for Products and Services in the country where the End-User is located. All orders and transactions are subject to acceptance or cancellation by NTT DATA, in NTT DATA’s sole discretion. Each accepted order will be interpreted as a single agreement, independent of any other orders.
B. Shipping, Title and Risk of Loss. Title to Products (except title to software which remains with the applicable licensors) passes from NTT DATA to you upon shipment to you. Loss or damage that occurs during shipping by a carrier selected by NTT DATA is NTT DATA's responsibility. Loss or damage that occurs during shipping by a carrier selected by you is your responsibility. Selecting your carrier of choice may not be available in certain geographic locations. Shipping and delivery dates are provided as estimates only and NTT DATA is not responsible for any early or delayed shipment or delivery. NTT DATA may ship parts of an order separately. NTT DATA may electronically deliver Software directly to the End-User. You must notify NTT DATA within twenty-one (21) days from the date of your invoice or acknowledgement if you believe any part of your order is missing, wrong, or damaged.
C. Cancellation. Orders for Third Party Products, Products that have been discontinued or have reached the end of their product lifecycle, and formerly standard parts that are no longer regularly used in Products, may not be changed or cancelled without NTT DATA’s prior written approval. If you purchase a multi-year software license and related support or maintenance, and you and NTT DATA (and, if applicable, the third-party licensor of the software) agree to make installation payments of the purchase price over the term of the license, then you shall make all such installation payments in full and such purchase is non-cancellable over the term of the license. NTT DATA is not responsible for pricing, typographical, or other errors in any offer or quote, and reserves the right to cancel any order arising from such errors. In addition, NTT DATA may cancel orders due to shortage of products or materials, increases in the costs of manufacturing, or any event beyond NTT DATA’s control.
D. No Return. All sales are final. Neither you nor any of your End-Users may return Products to NTT DATA, except as expressly permitted in Section 5.E. or to the extent that you are expressly granted return rights under a separate written agreement between you and NTT DATA.
E. Security Interest. You hereby grant NTT DATA, and NTT DATA hereby retains, a first priority security interest and lien on any and all of your rights, title, and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late payment fees and costs of collection. You agree NTT DATA may file any financing statements or related filings for protecting this security interest as NTT DATA reasonably deems necessary or appropriate.
4. INVOICING, AND PAYMENT
A. Invoices. NTT DATA may invoice parts of an order separately, or may invoice purchases of Products and Services in one invoice. Additional charges will apply if you request customized invoicing, consolidated invoicing, or other special billing arrangement or statements. NTT DATA reserves the right to change the method of delivery of all documentation. You agree that all invoices will be deemed accurate unless you advise NTT DATA in writing of a bona fide, material error within fourteen (14) days from the date of such invoice. In the event you advise NTT DATA of a material error, (i) payment of any amounts corrected or modified by NTT DATA in writing will be due, and you shall pay such amounts, within fourteen (14) days of such correction, and (ii) you shall pay all other amounts by the invoice due date. In the event you withhold payment of any invoiced amounts upon an assertion that such amounts are erroneous, and NTT DATA subsequently concludes that such invoiced amounts are accurate, then you shall pay a late payment fee as described in Section 4.C., from the due date, for such invoiced amounts, until NTT DATA's receipt of those amounts. In no event will you be entitled to offset, defer or deduct any invoiced amounts that NTT DATA determines are not erroneous following the notification process described in this paragraph. If you do not receive an invoice or acknowledgement in the mail or with your Products and/or Services, information about your purchase may be obtained by contacting your NTT DATA sales representative.
B. Payment. Invoices are due and payable within the time period noted on your invoice, or if not noted, then within thirty (30) days measured from the date of the invoice, subject to continuing credit approval by NTT DATA (such approval may be revoked without notice from NTT DATA). Payment shall be made in the currency as invoiced by NTT DATA. Payment for Products and Services must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method, unless credit terms have been agreed to by NTT DATA. You shall make payment to NTT DATA for Products and Services to the account indicated by NTT DATA (as may be amended from time to time). Timely payment is of the essence. Your assignment of a purchase order to a third-party financing company must be approved in advance in writing by NTT DATA, and in no case will any such approval excuse you from your obligations hereunder.
C. Late Payment. NTT DATA reserves the right to charge you a late payment fee of 1.5% per month (18% per annum) applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late payment fees will be recalculated every thirty (30) days thereafter based on your current outstanding balance. In addition, NTT DATA may, without waiving any other rights or remedies to which it may be entitled, take any one or more of the following actions: (a) not accept additional orders from you; (b) suspend or terminate its provision of software licenses, maintenance, warranty service, technical support, or any other Service; and (c) seek collection of all amounts due, including reasonable attorney or legal fees, expenses and costs of collection. NTT DATA will have no liability to you or to any End-User for any such suspension or termination or for any refusal of additional orders.
A. Use of Software by the End-User is subject to and governed by the end-user software license agreement that is shipped with, included in (e.g., part of a product installer or an executable document), made available by download, or otherwise accompanies such Software or Products. If no such agreement is shipped with, included in, made available by download, or otherwise accompanies the Software or Products, and there is no separate license agreement between End-User and the manufacturer or owner of such software, then the NTT DATA Software shall be governed by and subject to the applicable license agreement at nttdataservices.com/en-us/contracts (“NTT DATA EULA”). Any updates to the NTT DATA EULA shall be posted to nttdataservices.com/en-us/contracts.
B. For certain large or non-standard Software transactions, you acknowledge and agree that (a) NTT DATA may present or, if requested by NTT DATA, you shall present, a purchase acknowledgment form directly to the End-User, and (b) NTT DATA is not required to process your order or deliver the applicable Software to the End-User unless and until such End-User has executed the purchase acknowledgment form. You may obtain Not for Resale licenses to certain Software but may be required to comply with additional requirements and terms and conditions.
C. If you take possession of the Products, you shall pass on the end-user software license agreement to the End-User to which you resell such Products. You may not modify in any way the terms of any software license agreement or purchase acknowledgment form.
D. Notwithstanding anything contrary in this Agreement, you have no right under this Agreement to sublicense the NTT DATA Software. You may not use, install or download NTT DATA Software for your internal use. If you are installing, downloading, or otherwise using Software on behalf of an End-User, then prior to the installation or download, you shall obtain the End-User’s written authorization to accept the terms of the end-user software license agreement on behalf of the End-User. Additionally, you shall comply with the terms of the software license agreement and, for Canadian based End-Users, you shall obtain all End-User consents required under applicable law to install the Software on an End-User’s system).
E. For NTT DATA Software, if (i) the End-User does not agree to be bound by the NTT DATA EULA, (ii) the NTT DATA EULA provides End-User a specific right of return in the event End-User does not accept the NTT DATA EULA terms, (iii) the End-User has not downloaded, installed, activated or otherwise used the software and, (iv) the End-User exercises the right to return the software (including media, written materials and packaging) and any hardware to which such software is attached, then you will be entitled to return such hardware and the software to NTT DATA for a refund; provided, however, your right to return and obtain a refund, as permitted in this Section, expires twenty-one (21) days from the date of NTT DATA’s invoice to you, and further provided that NTT DATA may require documentation from End-User of its objection to the software license agreement and its receipt of refund from you. Notwithstanding anything otherwise set forth in this Section 5.E. or 3.D., no right of return shall be provided for Products that are specifically excluded from the right of return policy located at nttdataservices.com/en-us/contracts.
F. If you receive activation or registration codes or keys (“Activation Codes”), you shall distribute the Activation Codes as directed by NTT DATA and to activate (i) only the particular Software copy for which the Activation Codes are intended by NTT DATA to be used and (ii) only as many copies of the Software as licenses you have purchased and resold to an End-User. You shall not reuse Activation Codes for multiple End-Users or for multiple Software copies for the same End-User.
A. NTT DATA Terms and Conditions Applicable to End-Users. You will only resell Services to End-Users who agree to be bound to:
(i) (a) if the End-User is purchasing Services other than NTT DATA’s cloud solutions, (1) if the End-User is located in the U.S., NTT DATA’s Commercial Terms of Sale set forth at nttdataservices.com/en-us/contracts (the “U.S. CTS”), (2) if the End-User is located in Canada, NTT DATA’s Commercial Terms of Sale (Canada) also set forth at nttdataservices.com/en-us/contracts (the “Canada CTS”), or (3) such other written agreement as NTT DATA may designate; or
(b) if the End-User is purchasing any of NTT DATA’s cloud solutions, NTT DATA’s Cloud Solutions Agreement set forth at nttdataservices.com/en-us/contracts for U.S. or for Canada (the “CSA”) or such other agreement as NTT DATA may designate; and
(ii) all applicable service contracts associated with such Services, including service descriptions available at nttdataservices.com/en-us/contracts, any statements of work, and any other service contracts designated by NTT DATA (all such documents referenced in the foregoing clauses (i) and (ii), collectively, the “Service Agreements”).
You shall communicate to the End-User in writing (in each quote and in your own agreement with such End-User for the sale of Services (such agreement, the “End-User Agreement”)) that the provision and performance of such Services are subject to and will be governed by the applicable Service Agreements. You acknowledge and agree that NTT DATA is a third party beneficiary of the End-User Agreement and may enforce the provisions thereof directly against the End-User or through you, and you shall require the End-User to acknowledge and agree to such in the End-User Agreement. Additionally, you acknowledge and agree that (x) NTT DATA may present or, if requested by NTT DATA, you shall present, all applicable Service Agreements directly to the End-User and (y) NTT DATA is not required to provide or perform any Services for such End-User unless and until such End-User has agreed to be bound by all such Service Agreements, as may be determined in each case by NTT DATA in its sole discretion. You shall immediately notify NTT DATA if you become aware of any End-User’s violation of any of the Service Agreements. NTT DATA reserves the right, in its sole discretion, to suspend or terminate the provision of any one or more of the Services to an End-User in response to such End-User’s violation, or suspected violation, of any of the applicable Service Agreements, and NTT DATA will have no liability to you as a result of any such suspension or termination.
B. Services Delivery. All Services will be performed by NTT DATA or its subcontractors. You may not use, provide, or perform any Services, including in your capacity as a managed services provider, absent a separate written agreement with NTT DATA expressly authorizing the same.
A. Limited Warranty on NTT DATA Products and Services. NTT DATA MAKES NO WARRANTIES TO YOU UNDER THIS AGREEMENT. YOU UNDERSTAND THAT ( I ) WITH RESPECT TO NTT DATA SOFTWARE, END USER WARRANTIES MAY BE FOUND IN THE APPLICABLE NTT DATA EULA AT nttdataservices.com/en-us/contracts; AND (II) WITH RESPECT TO SERVICES, END USER WARRANTIES MAY BE FOUND IN THE APPLICABLE SERVICE AGREEMENT. You shall not make any warranty on NTT DATA’s behalf. You are solely responsible for providing the End-User with the correct warranty information, including term and coverage, and you shall indemnify and hold NTT DATA harmless from any claims related to any warranty you grant that is beyond the NTT DATA end user warranties described in this paragraph.
B. Third Party Products. Third Party Products may carry a limited warranty from the third-party publisher, provider or original manufacturer of such Third Party Products. NTT DATA is not responsible for fulfillment of any Third Party Product warranty or for problems attributable to the use of Third Party Products. NTT DATA does not warrant that any Product will function in any specific configuration that includes any Third Party Products, or that any Product will function to produce a particular result, even if the specific configuration or the result has been discussed with NTT DATA. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY NTT DATA ON AN “AS IS” BASIS.
C. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.A., AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NTT DATA (INCLUDING NTT DATA AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SUCCESSORS AND ASSIGNS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH NTT DATA, THE “NTT DATA PARTIES”), DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. HIGH RISK APPLICATIONS. You understand that NTT DATA Products have been designed, manufactured, and tested by NTT DATA or its suppliers for use in general-use office/business environments. NTT DATA has not tested or certified NTT DATA Products for use in any high-risk applications, including the operation of nuclear facilities, aircraft navigation, air traffic control, emergency communications systems, life support machines, weapons systems, or any other application where the failure or malfunction of any NTT DATA Products can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm (“High Risk Applications”). The Services are not fault-tolerant and are not designed or intended for use in, and you shall not use any Services in, any hazardous environments requiring fail-safe performance or in any High Risk Applications. You understand and agree that NTT DATA makes no warranties or assurances that the Products and Services are suitable for any High Risk Applications and you shall defend and indemnify NTT DATA from any claims made by third parties resulting from any such High Risk Applications. As between you and NTT DATA, you are responsible for the design and implementation of configurations, systems, networks, and services suitable for the risks involved in the End-User applications and operating environments into which you sell.
9. EXCLUDED DATA. The Products and Services have not been designed with security and access management for the processing and/or storage of the following categories of data: (a) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles and defense services, (c) ITAR (International Traffic in Arms Regulations) released data; and (d) personally identifiable information that is subject to heightened security requirements as a result of your or End-User’s internal policies or practices, industry-specific standards or by law (collectively referred to as “Excluded Data”). You are solely responsible for reviewing data that you will provide to NTT DATA (or to which NTT DATA will have access) to ensure that it does not contain Excluded Data.
10. INTELLECTUAL PROPERTY
A. Trademarks and Copyrights. You may use the “NTT DATA” name and the names of NTT DATA Products and Services (collectively, “Names”) solely for the purpose of accurately identifying the NTT DATA Products and Services you market or sell under this Agreement. You shall not use any of the Names for any other purpose, and shall not use any other NTT DATA trademarks, services marks, logos, or copyrighted works, unless and to the extent you are expressly granted such usage right under a separate written agreement signed by an authorized representative of NTT DATA. You agree to change or correct, at your own expense, any materials or activity that NTT DATA decides is inaccurate, objectionable or misleading, or is a misuse of any of the Names, trademarks, service marks, logos, or copyrighted works. You are prohibited from using NTT DATA’s logos, referring to yourself as an authorized reseller of NTT DATA, or creating the impression that NTT DATA is affiliated with you, other than as expressly permitted by the terms of a separate written agreement signed by an authorized representative of NTT DATA. You shall not claim or imply or create an impression that you and NTT DATA are legal partners or that NTT DATA has sponsored, authorized, approved, or endorsed your business or any offer or marketing, advertising, or promotion thereof in any manner. You will clearly and prominently identify yourself in all your offers and advertising, marketing, and promotional materials. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of NTT DATA’s. Additionally, you may not use any Names or NTT DATA marks in search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without NTT DATA’s prior written permission.
B. Intellectual Property Ownership and Reservation of Rights. All right, title and interest in and to the intellectual property rights in NTT DATA Products and Services, including processes, tools, technology, confidential information and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to NTT DATA, NTT DATA Affiliates or their licensors or suppliers, and you have no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in any of the intellectual property rights in or to any NTT DATA Products or Services, in whole or in part. You agree you will take appropriate steps with your End Users to inform them of and ensure their compliance with the restrictions contained in this Section 10.
C. Discontinued or Changed Products or Services. NTT DATA reserves the right to revise or discontinue any Product or Service offering at any time without notice to you or the End-User. Changes to NTT DATA Products or Services may occur after you place an order but before NTT DATA ships the NTT DATA Product, before NTT DATA performs the Services, or before the end of the Service subscription. As a result, any NTT DATA Products or Services that you or an End-User receive might display minor differences from the NTT DATA Products and Services ordered, but NTT DATA Products and Services will meet or exceed all material specifications of such NTT DATA Products and Services that were ordered.
D. Confidential Information. The term “NTT DATA Confidential Information” means any confidential or proprietary information pertaining to or provided by NTT DATA, including, without limitation, product plans, software, pricing, discounts, marketing and sales information, business plans, customer and supplier data, financial and technical information, “know-how,” trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form. You will keep all NTT DATA Confidential Information confidential for a period of three years from the date of NTT DATA’s disclosure to you, and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers’ personally-identifiable information and NTT DATA trade secrets shall never expire. You may not disclose NTT DATA Confidential Information to any third party without NTT DATA’s prior written consent. You may share NTT DATA Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any NTT DATA Confidential Information that (i) you can demonstrate was in your possession before receipt from NTT DATA; (ii) is or becomes publicly available through no fault by you; or (iii) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any NTT DATA Confidential Information, you agree to give NTT DATA reasonable advance notice so that NTT DATA may contest the disclosure or seek a protective order. You may use the NTT DATA Confidential Information solely for the purpose of, and in connection with, your business relationship with NTT DATA. No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to NTT DATA Confidential Information is granted under this Agreement except the limited rights to use the NTT DATA Confidential Information as expressly set forth in this paragraph. NTT DATA makes no warranties as to the accuracy or completeness of the NTT DATA Confidential Information. ALL NTT DATA CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. To the extent permitted by law, NTT DATA disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the NTT DATA Confidential Information or any intellectual property in them. Upon NTT DATA’s written request, you will promptly return all NTT DATA Confidential Information, together with all copies, or certify in writing that all such NTT DATA Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of NTT DATA Confidential Information may be irreparable and that NTT DATA shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government. NTT DATA may disclose Confidential Information (including pricing information) to third parties, if NTT DATA believes the Confidential information is useful in conducting any investigation or other proceeding that involves compliance, fraud, corruption, antitrust, or collection efforts.
11. YOUR RESPONSIBILITIES. In addition to your other obligations set forth in this Agreement, you are responsible for the following:
A. End- User Documentation. You will provide each End-User with appropriate product warranty statements, registration cards, software license agreements and other materials that NTT DATA includes with its shipments of Products to you. In addition, you are responsible for providing all similar information related to your addition or modification to the Products.
B. Business Conduct. At all times you shall conduct business in a manner which reflects favorably on the Products, Services, and goodwill and reputation of NTT DATA. In your marketing and sales of Products and Services, you will conduct your business in an ethical manner and avoid any business practices that may be perceived as deceptive, misleading, or otherwise improper. You shall not make any false or misleading statement concerning NTT DATA or any Products or Services in any of your advertising, marketing or promotional materials or in any content. Furthermore, you shall not make any representations, warranties, or guarantees with respect to the specifications, features or capabilities of NTT DATA Products or Services that are inconsistent with or absent from NTT DATA’s published product specifications, service descriptions, or software license agreements at nttdataservices.com/en-us/contracts.
C. Anti-Corruption. “Anti-Corruption Laws” means the anti-corruption or anti-bribery laws in effect in jurisdictions where you market or sell NTT DATA products or services, and Anti-Corruption Laws specifically include the Foreign Corrupt Practices Act of the United States and, if you conduct business in Canada, the Corruption of Foreign Public Officials Act of 1999. The Anti-Corruption Laws apply to your marketing, sale, and distribution of NTT DATA Products and Services.
(i) You agree to comply with the Anti-Corruption Laws. You will not, in connection with this Agreement, take or allow any third party to take, any action or engage in any practice that would violate the Anti-Corruption Laws.
(ii) You agree that in the event that you subcontract the provision of any element of this Agreement to any person, or receive any services in connection with your performance of this Agreement from any person (each such person being an "Associated Person"), you shall impose upon such Associated Person Anti-corruption obligations that are no less onerous than those imposed upon you in this Agreement.
(iii) You warrant and represent that neither you nor any of your officers or employees has been convicted of any offense involving bribery, corruption, fraud or dishonesty or, to the best of your knowledge, has been or is the subject of any investigation, inquiry or enforcement proceeding by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Corruption Laws.
(iv) You shall (a) maintain, throughout the duration of dealings between you and NTT DATA, your own anti-corruption policies and procedures, including without limitation, adequate procedures designed to ensure that you and your Associated Persons comply with the Anti-Corruption Laws; (b) provide a copy of such policies and procedures to NTT DATA on request; and (c) monitor and enforce such policies and procedures as appropriate. You shall provide information, documentation and reasonable assistance to NTT DATA and its authorized representatives for purposes of ensuring your compliance with the Anti-Corruption Laws or to support an inquiry or investigation of a suspected violation of those laws.
(v) NTT DATA may immediately terminate this Agreement or suspend its performance without further liability to you if: (i) NTT DATA has reason to believe that you have breached this Section 11.C, or that a breach may occur; or (ii) you refuse to provide information requested by NTT DATA to confirm your compliance with this Section 11.C.
D. Insurance. You will obtain and maintain commercial general liability, including products liability, insurance in an amount appropriate for your business, but in no event less than $1,000,000.00 (U.S.), with an insurance company having an AM Best rating of A minus or better or similar local rating agency if not subject to AM Best. You will name NTT DATA as an additional insured on all commercial general liability insurance policies procured in accordance with this paragraph. Upon request, you will provide to NTT DATA a certificate of the above-mentioned insurance, including any new or amended certificates of insurance.
E. Compliance with Laws. You shall comply with all laws and regulations applicable to your activities in connection with this Agreement, including your marketing and sale of Products and Services. You will ensure any third party you engage with in connection with this Agreement will comply with all applicable laws and regulations.
F. Unauthorized Parts. Except as prohibited by law, you will not, and will not permit your End Users to, configure NTT DATA Products with Unauthorized Parts. “Unauthorized Parts” means any third-party parts which were not: (i) procured from NTT DATA or (ii) otherwise authorized and/or certified by NTT DATA for integration into the applicable NTT DATA Product.
A. IP Indemnity. NTT DATA shall defend and indemnify you against any third-party claim or action (provided that such third party is not affiliated with you) that the NTT DATA Products and Services prepared or produced by NTT DATA and delivered pursuant to this Agreement infringe or misappropriate that third party's U.S. (or, if you are in Canada, Canadian) patent, copyright, trade secret, or other U.S. (or, if you are in Canada, Canadian) intellectual property rights (collectively, “Indemnified Claims”). In addition, if NTT DATA receives prompt notice of an Indemnified Claim that, in NTT DATA's reasonable opinion, is likely to result in an adverse ruling, then NTT DATA shall, at its option and expense: (a) obtain a right for End-User to continue using such NTT DATA Products or allow NTT DATA to continue performing the Services; (b) modify such NTT DATA Products or Services to make them non-infringing; (c) replace such NTT DATA Products or Services with a non-infringing substitute; or (d) terminate any allegedly infringing Service and the applicable Service Agreement, and refund any pre-paid fees for such allegedly infringing Service on a pro rata basis for the period of time that such Service has not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing NTT DATA Products. Notwithstanding the foregoing, NTT DATA shall have no responsibility for, and no obligation to defend or indemnify you for, any claim resulting or arising from (1) any Third Party Products; (2) any open source software; (3) modifications of the NTT DATA Products or Services that were not performed by or on behalf of NTT DATA; (4) the combination, operation, or use of any of the NTT DATA Products or Services with any Third Party Product (where such combination, operation or use causes the claimed infringement); (5) NTT DATA’s compliance with any of your written specifications or directions, including the incorporation of any materials, processes, or Third Party Products provided by or requested by you; or (6) any circumstance for which you are required to indemnify any NTT DATA Party. NTT DATA shall have no responsibility to defend or indemnify you for any claim that would have been avoided if not for your failure to incorporate free Product updates or upgrades provided by NTT DATA. NTT DATA has no obligation to defend or indemnify any End-User or any other third party. NTT DATA’s duty to indemnify and defend under this paragraph is contingent upon: (i) NTT DATA receiving prompt written notice of the third-party claim or action for which NTT DATA must indemnify you, (ii) NTT DATA having the right to solely control the defense and resolution of such claim or action, and (iii) your cooperation with NTT DATA in defending and resolving such claim or action. NTT DATA has no obligation to defend or indemnify any End-User or any other third party. This paragraph states your exclusive remedies, and NTT DATA’s sole liability, for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate NTT DATA to provide any greater indemnity to you.
B. Your Indemnity to NTT DATA. You shall defend and indemnify the NTT DATA Parties against any third-party claim or action resulting from or relating to (a) your failure to obtain or maintain any appropriate license, intellectual property rights, or other permissions, regulatory certifications or approvals associated with any product, software, data or other materials you provide, request or direct to be installed or integrated as part of the Products or Services; (b) your misuse or modification of any Products or Services; (c) your combination, operation or use of any of the Products or Services with any Third Party Product, where such combination, operation or use infringes or misappropriates any intellectual property right or trade secret of a third party; (d) your fraud, misrepresentation, gross negligence, willful misconduct or breach of any provision of this Agreement; (e) the provision of your own products, software, or services; (f) your breach of or noncompliance with the terms of this Agreement; (g) the relationship or transactions between you and an End-User; (h) any false or inaccurate representation by you, or your agent regarding the existence of an export license or the applicability or inapplicability of a license requirement or exception; or (i) any violation or alleged violation of any applicable customs, export control, or Sanctions laws or regulation (except to the extent that such violation or alleged violation is a direct result of NTT DATA’s violation of applicable export control laws or regulations).
13. LIMITATION OF LIABILITY
A. NTT DATA WILL NOT BE LIABLE FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, (B) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY, (C) BUSINESS INTERRUPTION OR DOWNTIME, (D) LOST OR CORRUPTED DATA OR SOFTWARE, OR (E) LOSS OF USE OF ANY PRODUCTS OR SERVICES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ON NTT DATA’S WEB SITE TO THE CONTRARY, NTT DATA IS NOT RESPONSIBLE FOR INFORMATION OR DATA YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT TO THE CONTRARY. NTT DATA DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS AGREEMENT.
B. NTT DATA’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT YOU PAID TO NTT DATA UNDER THIS AGREEMENT FOR SUCH PRODUCTS OR SERVICES THAT CAUSED THE LIABILITY IN THE PREVIOUS 12 MONTHS PRIOR TO SUCH CLAIM FOR LIABILITY. The existence of more than one claim will not increase or otherwise alter these limitations on NTT DATA's liability.
C. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES OR LIABILITY, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR NTT DATA'S SALE OF PRODUCTS AND SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF NTT DATA HAS BEEN ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LIABILITIES.
14. CUSTOMS, EXPORT CONTROLS, AND SANCTIONS COMPLIANCE
A. NTT DATA’s acceptance of any order for any Products or Services is contingent upon your compliance with the provisions of this clause. You shall require your End-Users to agree to terms no less restrictive than those contained in this Section 14.
B. You agree to abide by, and to assume sole responsibility for obtaining, and complying with the requirements of, all required export, re-export, in-country transfer, and import licenses, registrations, and other government authorizations relating to the Products and Services provided under this Agreement.
C. You agree that, in connection with the Products and Services supplied to you by NTT DATA and any goods or services that you provide to NTT DATA, you will not contract with or otherwise do business with any individual, company, organization or other entity, or with, in or involving any country or territory (including without limitation, North Korea, Cuba, Iran, Sudan, Syria, and Crimea), that is the subject or target of any U.S. or other national government financial and economic sanctions or trade embargoes or otherwise identified on a list of prohibited, sanctioned, debarred, or denied parties, including but not limited to those imposed, administered or enforced from time to time by the U.S. government through OFAC, the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce, or the U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), without having first obtained any required license or other government authorization or in any manner which would result in a violation of Sanctions by you or NTT DATA.
D. Neither you nor or any of your subsidiaries nor any of your or your subsidiaries' directors, administrators, officers, board of directors (supervisory and management), members or employees is the subject or target of any Sanctions.
E. You have adequate controls and systems in place to screen, and are fully responsible for screening, transactions of all other third parties who may assist, benefit from, or provide goods or services to, or receive goods or services from, you and to ensure compliance with applicable laws pertaining to Sanctions.
F. You have appropriate procedures in place to comply with (and to ensure timely reporting under) the requirements of the anti-boycott laws and regulations of the United States and other jurisdictions in which NTT DATA does business.
G. You have adequate policies and procedures in place to ensure that, and will ensure that, the Products, Software and Services provided in connection with this Agreement will not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an End-User engaged in any of the following activities: (i) activities related to weapons of mass destruction, including any activities related to the design, development, production or use of: (A) nuclear weapons, materials or facilities; (B) missiles or the support of missile projects; or (C) chemical or biological weapons; (ii) terrorist activities (iii) military end uses in or connected with certain government owned or controlled corporations of such countries as identified by U.S. and other applicable government licensing authorities; (iv) exploration or production of oil and gas in Arctic, deepwater (greater than 500 feet), or shale formations in Russia or in, by, or with Russian companies, territories, or any other entities as identified by BIS and/or OFAC.
H. Unless prohibited by law or compulsory governmental process, you agree to provide notice to NTT DATA in a commercially reasonable manner (if not herein elsewhere stated with specificity) of any government action or communication that you receive or become aware of concerning Sanctions or trade compliance relating to the Products, Software and/or Services provided herein by or to you and to or by NTT DATA.
I. Any goods, software, technology, or source or object code provided by you and installed on, exported with, or used as part of the Products, Software or Services that contain encryption are authorized for export, re-export, or transfer pursuant to an export license obtained by you or is otherwise covered by a license exception.
J. You are responsible for accurately reporting and providing all applicable export license, product classification information, End-User and end use statements, and destination control statements required by applicable customs, export controls, and sanctions laws.
K. Nothing in this clause is to be construed as authorization by NTT DATA for you to market or resell Products, Software and Services in violation of the provisions of this Section 14.
L. You are not authorized to import to or export out of the Territory under Ex Works (EXW) terms unless you have received written approval from NTT DATA (must be at NTT DATA Sales Vice President level or higher) and you have signed an Ex Works addendum with NTT DATA and comply with such addendum.
15. DISPUTE RESOLUTION - ARBITRATION. YOU AND NTT DATA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR, WHERE APPLICABLE, TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
A. The parties will attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort and equitable claims) between you and NTT DATA Parties arising from or relating to any purchase of Products or Services, this Agreement or any Service Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from such written agreements (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), the reseller or channel partner program, NTT DATA’s advertising, or any related purchase (each a "Dispute") through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator.
B. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION administered by the International Institute for Conflict Prevention and Resolution (CPR), the American Arbitration Association (AAA), or JAMS (for Canadian resellers, arbitration will be at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration located at www.adrchambers.com). Arbitration proceedings shall be governed by this Dispute Resolution – Arbitration section and the applicable procedures of the selected arbitration administrator in effect at the time the claim is filed. The arbitration will be limited solely to the individual dispute or controversy between you and NTT DATA.
C. You agree to arbitration on an individual basis. Where enforceable, NEITHER YOU NOR NTT DATA SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (BUT IN NO CASE SHALL THERE BE A CLASS ARBITRATION).
D. The arbitration hearing shall take place in Dallas, Texas (unless the arbitrator orders otherwise), and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrator shall base its award on the terms of any written Agreement(s), and will follow the law and judicial precedents that a United States District Judge sitting in the Northern District of Texas would apply to the Dispute. (For Canadian entities: the arbitration hearing shall take place in Halifax, Nova Scotia (unless the arbitrator orders otherwise), and will be governed by the Expedited Arbitration rules published by ADR Chambers and by the applicable laws of Nova Scotia and Canada). The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. For information on CPR, call (212) 949-6490; on AAA, call (800) 778-7879; on JAMS, call (800) 352-5267. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Dispute Resolution – Arbitration section.
16. GOVERNING LAW. You agree that this Agreement, any purchase hereunder and any Dispute will be governed by the laws of the State of Texas (or for Canadian entities, the Province of Nova Scotia), without regard to its conflict-of-laws rules or to the United Nations Convention on Contracts for the International Sale of Goods. Furthermore, the parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this Agreement, and the parties waive any and all rights they may have under any laws(s) adopting UCITA in any form
A. Headings, Interpretation and Language. The section headings used herein are for convenience and reference only and are not to be considered in construing or interpreting this Agreement. All references herein to “Sections” will be deemed references to sections of this Agreement. The words “include” and “including”, and other variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation”. The parties confirm that it is their wish that this Agreement, as well as other documents relating to this Agreement, including all notices, have been and will be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédiges en langue anglaise.
B. Independent Contractors. No provision of this Agreement will be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between you and NTT DATA, or impose a trust, partnership, or fiduciary duty, obligation, or liability on or with respect to such entities. You and NTT DATA are independent contractors. Neither party will make any representations or warranties, or assume any obligations, on the other party’s behalf. Neither party is or will claim to be a legal representative, franchisee, agent or employee of the other party.
C. Audit and Record-Keeping. You will maintain legible, accurate and complete books and records relating to the Agreement or the sale, licensing, delivery, or end-use of Products and Services for a period of 5 years from the date of creation. At the end of the retention period, you must dispose of all records appropriately. At NTT DATA's request, you must cooperate and assist NTT DATA with any audit, review, or investigation ("Audit") that relates to (i) the Agreement or your compliance with law; (ii) your sale, distribution, licensing, or delivery of NTT DATA Offerings, whether sourced from NTT DATA or a third-party; (iii) any amounts payable by NTT DATA; or (iv) any amounts due to NTT DATA. In connection with an Audit, you will deliver all records, information, and documents reasonably requested by NTT DATA. NTT DATA has the right to conduct onsite Audits, and you will grant NTT DATA and its employees and representatives reasonable access to information, records, personnel, and customers, (including customer agreements to verify your compliance with the Agreement), and provide entry and access to your premises or other locations (during normal business hours) where such information and records are located. Failure to cooperate with an Audit or provide the information or records requested by NTT DATA is a material breach of this Agreement. NTT DATA will pay the costs of an Audit except where a discrepancy of five (5) percent or more is discovered in the information disclosed by you, in which case you agree to be responsible for all reasonable costs.
D. Federal Acquisition Regulations. Any purchase order issued under a U.S. Government prime contract or subcontract is a subcontract for “commercial items,” as defined in Federal Acquisition Regulation (FAR) Subpart 2.1. Only clauses in FAR Subparts 12.5 and 44.4 effective as of the date of the purchase order and which are required to be incorporated into a commercial item subcontract shall apply to such purchase order. Any additional FAR, agency FAR Supplement clauses or any additional terms and conditions outside those contained in the Reseller Terms of Sale are specifically rejected by NTT DATA and shall have no force or effect unless NTT DATA accepts their inclusion in writing.
E. U.S. Government End Users. The software and documentation provided with Products and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein. Contractor/manufacturer of NTT DATA Products is NTT DATA Services, LLC, 2300 West Plano Parkway, Plano, Texas 75075 or NTT DATA Affiliates.
F. No Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in this Agreement is intended to, or will be deemed or construed to, create any rights or remedies in any third party.
G. Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than two (2) years after the cause of action has arisen, or in the case of non-payment, more than two (2) years from the date of last payment.
H. Assignment; Subcontracting. You shall not assign this Agreement, in whole or in part, whether by operation of law, merger or stock or asset sale, or otherwise, without the prior written consent of NTT DATA. Any attempt to assign this Agreement without NTT DATA’s written consent will render the purported assignment null and void. NTT DATA has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that NTT DATA will remain responsible for the performance of Services under this Agreement.
I. Force Majeure. NTT DATA shall not be liable to you for any delays or failure to perform any of its obligations under this Agreement during any period in which such performance is delayed or prevented by circumstances beyond its reasonable control including fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
J. Waiver. Failure by NTT DATA to enforce any provision of this Agreement will not operate or be construed as a waiver of any future enforcement of that or any other provision of this Agreement. No waiver will be effective against NTT DATA unless in writing and signed by an authorized representative of NTT DATA.
K. Severability. If any provision of this Agreement is declared or found to be illegal, invalid or unenforceable, then such provision will be stricken or modified to the extent necessary to make it legal, valid, and enforceable while preserving the parties’ original intent to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and will not be terminated.
L. Entire Agreement. This Agreement (including all online terms referenced herein) constitutes the entire integrated agreement between you and NTT DATA regarding its subject matter, and supersedes all prior or contemporaneous, written or oral understandings, communications or agreements between you and NTT DATA regarding such subject matter. In entering into this Agreement, neither Party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; rather each Party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statements not expressly set forth in this Agreement. This Agreement may not be altered, supplemented or amended by you via the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by an authorized representative of NTT DATA. Any use of your pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms set forth therein that are in addition to, inconsistent or in conflict with the terms of this Agreement shall be given no force or effect. In the event of a conflict or ambiguity between the terms of this Agreement, a Schedule, or an Order, (agreed to by the parties in writing) the terms will take precedence in the following order: the Order, the Schedule, and this Agreement. In regards to Software, in the event of a conflict or ambiguity between the terms of this Agreement, a Software Agreement, or an Order, (agreed to by the parties in writing) the terms will take precedence in the following order: the Order, the Software Terms, and this Agreement.
M. Agreement Updates. NTT DATA reserves the right to update this Agreement (including all applicable terms referenced herein) at any time, effective upon posting an updated version of the Agreement to the NTT DATA website at nttdataservices.com/en-us/contracts. You shall monitor the revision date/version number, and any change to its posted date/version number will be deemed notice to you that the terms have been updated. However, subject to Section 10.C., your rights and obligations with respect to any particular Products or Services will be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of such Products or Services or, when applicable, at the time of renewal of any Services or software license.
N. Reseller Information. NTT DATA may use your information for commercially reasonable purposes, and disclose information to relevant End-Users in order to enable warranties, provide service, and resolve customer issues. You grant NTT DATA permission to use and disclose such information that you provide. If you provide an End-User's, or other third-party's personal data to NTT DATA, you confirm and represent that you have complied with applicable privacy laws in collecting and providing such personal data to NTT DATA.
O. Non-exclusive remedies. NTT DATA is not liable for any delay or failure to deliver any Products or Services resulting from your failure to comply with this Agreement, including your failure to timely obtain an applicable license or to provide certification to NTT DATA that any necessary license has been obtained. Except as prohibited by law, your violation of the terms of the Agreement may result in NTT DATA's (i) refusal to accept orders, (ii) suspension of NTT DATA's performance under the Agreement, (iii) suspension, termination or withholding of discounts or other benefits, (iv) suspension of NTT DATA's warranty service or technical support, and/or (v) refusal to provide indemnification. NTT DATA will be entitled to any other remedies available at law or in equity.
P. Notices. Any notice to NTT DATA relating to this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified by NTT DATA in writing, and will be effective upon receipt. Notice from NTT DATA may be sent to you by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address and contact information provided by you to NTT DATA in connection with this Agreement.
NTT DATA Services, LLC (U.S.)
NTT DATA Canada, Inc. (Canada)
Attention: Legal, NTT DATA Services
Attention: Contracts Manager
2300 West Plano Parkway
200 Barrington Street, Suite 300
Plano, TX 75075
Halifax, NS B3J3KI
18. SUPPLEMENTAL TERMS FOR OEM CUSTOMERS ONLY. The following terms in this Section 18 will apply to you only if you are an OEM Customer (as defined below). To the extent there is a conflict, the terms of this Section 18 will take precedence and govern over the terms in Sections 1-17, including any terms referenced therein.
A. Definitions. “OEM Customer” means you in your capacity as an original equipment manufacturer that is purchasing NTT DATA Products and Services from NTT DATA (or its successor) for an OEM project. In general, an OEM Customer (a) embeds or bundles such NTT DATA Products in or with OEM Customer’s proprietary hardware, software or other intellectual property, resulting in a specialized system or solution with industry or task-specific functionality (such system or solution an “OEM Solution”) and (b) resells such OEM Solution under OEM Customer’s own brand. With respect to OEM Customers, the term (1) “NTT DATA Products” includes NTT DATA Products that are provided without NTT DATA branding (i.e. unbranded OEM-ready system), and (2) “End-User” means any entity purchasing an OEM Solution for its own end-use and not for reselling, distributing or sub-licensing to others.
B. Appointment. Notwithstanding Section 1.B., and subject to the other terms and conditions of this Agreement and your compliance therewith, you (whether directly or through distributors, resellers, or sales agents in your distribution channel (collectively, “OEM Representatives”)) may resell certain NTT DATA Products to End-Users only as part of your OEM Solution and after you have added value to the NTT DATA Product through the addition of hardware, software or services. You may use OEM Representatives to resell OEM Solutions, provided that the agreement between you and such OEM Representatives is as comprehensive and as restrictive as the terms of this Agreement. You shall include in all agreements selling, leasing, or transferring ownership of NTT DATA Products or selling Services, a limitation of liability provision similar to Section 13, including a disclaimer as to NTT DATA’s liability for incidental, consequential, special, indirect, exemplary, and punitive damages; loss of revenue, income, profit, or savings; lost or corrupted data or software; and loss of use of products or services.
C. Additional Fees and Taxes. NTT DATA’s prices do not include, and you are responsible for paying, all import or export fees, duties, tariffs, insurance or other charges associated with exporting or importing any Products from NTT DATA’s or its contractor’s manufacturing facility.
D. Product Labeling. Except as otherwise agreed between you and NTT DATA in a Service Agreement, you must resell all NTT DATA Products with their original markings. In no event shall you (or any others on your behalf) remove or change safety or agency certification labels or other manufacturers’ labels on any Products without the appropriate agency or manufacturer written approval.
E. Customization Services. If your order includes Services (including custom factory integration services and custom fulfillment services) to customize the NTT DATA Product portion of your OEM Solution, such Services will be performed subject to (a) the U.S. CTS (if your order is placed in the U.S.) or to the Canada CTS (if you order is placed in Canada) and (b) other applicable Service Agreements. You are solely responsible for (1) determining technical specifications for such customized project; (2) ensuring that those technical specifications are properly documented in the applicable Service Agreement; (3) testing of prototype(s) to verify that the prototype(s) meet applicable specifications and that all hardware and software are compatible, before you place any production order for the customized configuration; and (4) obtaining all necessary licenses and other rights for NTT DATA to perform the Service, including all rights to copy, install, modify and distribute any Third Party Products and any software or hardware provided or requested by you. Regardless of any tests that may be performed by NTT DATA, NTT DATA is not responsible for the suitability of the customized configuration, for any effect any NTT DATA Services may have on any warranty or service contract for Third Party Products, for the compatibility of any Third Party Products or your software or hardware with any of the NTT DATA Products, or for any liability or damage arising from the installation or customization of a configuration in accordance with a Service Agreement or your instructions. Any additional regulatory and safety compliance required due to the integration of non-NTT DATA hardware or software into the configurations shall be your sole responsibility. To the extent you require NTT DATA to affix or label any non-NTT DATA name, logo, trademark, artwork or images on any of the NTT DATA Products, you hereby grant NTT DATA a non-exclusive, royalty-free, fully paid-up, transferable and sub-licensable license to use, reproduce and distribute such name, logo, trademark, artwork and images solely in connection with such purpose and you shall enter into a trademark license agreement if requested by NTT DATA.
F. Unique Materials. NTT DATA may purchase unique parts, end-of-life products, and long lead-time components (collectively “Unique Materials”) to support the manufacture of customized configurations for you. If (i) the Unique Materials are not used within ninety (90) days because of a change in forecast, reschedule or cancellation of any purchase order, or other reasons, and (ii) NTT DATA is unable to resell such Unique Materials to others at a reasonable price or unable to cancel its order for the Unique Materials, then in its sole discretion NTT DATA may invoice and deliver the Unique Materials to you. You will pay NTT DATA for the Unique Materials and any stocking fees NTT DATA may incur as a result of holding such Unique Materials in its inventory.
G. Warranty Exclusions. NTT DATA’s limited warranty does not cover any components (or any problems caused by such components) that are added to any NTT DATA Products after such products are shipped from NTT DATA or that are added by you or at your request.
H. Regulatory Compliance. The regulatory compliance marks on NTT DATA Products may vary, depending on where such products are manufactured and sold to you. You understand that the NTT DATA Products sold from the United States generally contain regulatory compliance marks that are required to ship into the United States, Canada, and European Union (EU) countries. Additional regulatory compliance marks are required to ship to other locations, and you are responsible for obtaining such additional marks required for each country where you or your OEM Representatives will sell or ship such products. If you (or others on your behalf) make any modifications or additions to the NTT DATA Product (including adding logos or markings) after the NTT DATA Products are shipped from NTT DATA, you are solely responsible for obtaining all necessary regulatory and agency approvals and other authorizations. You shall ensure that your OEM Solution complies with all legal and regulatory requirements for its target market and locations and is properly labeled.
I. Independent Efforts. Nothing in this Agreement precludes NTT DATA from independently developing, manufacturing, marketing or selling any products or services in competition with those offered by OEM Customer, provided that OEM Customer’s confidential information is not used by NTT DATA.