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Effective October 21, 2022
These NTT Security Holdings Corporation (“NTT”) Terms of Service (these “Terms”) apply to your purchase of NTT’s threat detection and response applications (including associated software and access to NTT’s hosted software applications) and related managed services and applicable documentation (“Samurai Services”), and consulting services and applicable service descriptions (“Consulting Services”, and together with Samurai Services, the “NTT Services”) directly from NTT or through any of NTT’s authorized resellers as identified in the quote, order form or online ordering document applicable to the NTT Services (the “Order”). The purpose of these Terms is to establish the terms and conditions under which you will access, use and receive NTT Services as described in the “Order”. These Terms shall take precedence over any other agreements, contracts or general terms that Customer may have entered into with a reseller as it relates to the NTT Services only. An Order is an integral part of these Terms and is fully incorporated herein.
These Terms are solely between NTT and you; any third party to whose services the NTT Services may allow connection is not a party to these Terms. Separate license terms apply to your use of such third-party services. To be eligible to register for a customer account in order to use or receive the NTT Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms, and, in such event, “you” and “your” will refer to that company or other legal entity. You and NTT may be referred to as a “Party” or, together, as the “Parties”.
The NTT Services are subject to these Terms, the related documentation and service descriptions, and any applicable Order submitted by you and expressly accepted by NTT.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THESE TERMS. IF YOU DO NOT AGREE WITH ALL THE TERMS, CONDITIONS AND LIMITATIONS OF THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BUTTON AND YOU ARE NOT AUTHORIZED TO RECEIVE THE NTT SERVICES. WRITTEN APPROVAL BY NTT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THESE TERMS AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF NTT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. ACCEPTANCE BY NTT IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY NTT, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 19.
IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Sections 26 and 28.
- Changes to These Terms. NTT may update these Terms from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address owner of your account. This notice will highlight the intended updates. Except as otherwise specified by NTT, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions. Following such notice, your continued access or use of the NTT Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the NTT Services.You, and each user will be required to accept these Terms upon every log-in by a new user or upon changes to these Terms.
- Your Account; Login. To access, use or receive the NTT Services or related software, you will be asked to create a customer account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you’re a human being by providing a telephone number to which we’ll send you a verification code to enter into a form. When registering for an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current and complete after you create each account.
- Your Responsibility. You are solely responsible for all access, use and receipt (whether or not authorized) of the NTT Services under your customer account(s) and for all acts and omissions of you or anyone to whom you provide access to or otherwise permit to use or receive the NTT Service (“Users”). You agree to take all reasonable precautions to prevent unauthorized access to or use of the NTT Service and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your customer account(s). You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you to connect to, access, use or receive the NTT Services.
- Access to Services. During the term and subject to and conditioned on your payment of applicable fees and compliance with all the terms and conditions of these Terms, NTT will make the NTT Service available to you in accordance with these Terms, the applicable documentation and service descriptions, and any applicable Order, on a limited, non-exclusive and non-transferable basis, for use, access and receipt by you, limited to, in the case of Samurai Services, the number of Users for whom access to the NTT Services has been purchased. Such license grant for any software associated with the NTT Services that is to be downloaded by you shall include the right to make one copy for internal use in accordance with the documentation. You may upgrade the Samurai Services at any time through the Portal. Any such upgrade made through the Portal will constitute a valid and binding purchase order subject to these Terms, and the applicable subscription fee will be adjusted accordingly. Use of the Samurai Services is limited to your internal business purposes.
- Restrictions and Unauthorized Use. You shall not (and shall not authorize any third party to): (i) decompile, disassemble, or otherwise reverse-engineer the NTT Services or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the NTT Services by any means whatsoever; (ii) sell, sublicense, rent, loan, lease, distribute, market, or commercialize the NTT Services for any purpose, including timesharing or service bureau purposes; (iii) remove any product identification, proprietary, copyright or other notices contained in the NTT Services; (iv) modify or create a derivative work of any part of the NTT Services, or incorporate the NTT Services into or with other products or software not contemplated by these Terms or the documentation (v) use the NTT Services for any competitive purpose or publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the NTT Services, or (vi) except for back-up purposes, copy or otherwise reproduce the NTT Services. Further, you will not use the NTT Services in any manner that violates any applicable law. In addition to complying with the other terms, conditions and restrictions set forth in these Terms, you agree to the Community Forum Guidelines which by this reference are hereby incorporated into this Agreement.
- Reservation of Rights. Each party reserves all rights not expressly granted in these Terms and no licenses are granted by either party to the other party under these Terms except as expressly stated in an Order, whether by implication, estoppel or otherwise. NTT or its licensors own and retain all right, title and interest (including all intellectual property rights) in and to the NTT Services, documentation and associated software, as applicable, including any modifications or improvements thereof, and applicable service descriptions.
- Modification by NTT. NTT reserves the right to modify or discontinue, temporarily or permanently, the NTT Services (or any part thereof) with or without notice. NTT reserves the right to refuse any User access to the NTT Services without notice for any reason, including but not limited to a violation of these Terms. If you violate these Terms, including the Community Forum Guidelines, NTT reserves the right, in its discretion, to issue you a warning regarding the violation or immediately suspend or terminate any or all accounts you have created using the NTT Services.
- Billing and Payment. NTT or the applicable reseller will bill, and you agree to pay, (i) for Samurai Services a subscription fee for the term in advance commencing on the subscription date, order date or renewal date, and (ii) for Consulting Services in accordance with the Order.
You are responsible for providing valid and current payment information and you agree to promptly update your account information, including payment information, with any changes that may occur (for example, a change in your billing address or credit card expiration date).
If you choose to upgrade your subscriptions for Samurai Services during your subscription term, any incremental subscription fees associated with such upgrade will be charged in accordance with the remaining subscription term and any renewal and you will be invoiced by NTT or the reseller promptly following the date of upgrade of renewal.
If you purchased the NTT Services from NTT and pay by credit card or certain other payment instruments, the portal provides an interface for you to change payment information (e.g. upon card renewal). Payments made by credit card, debit card or certain other payment instruments for NTT Services may be billed and processed by NTT using a third-party payment agent designated by NTT. You hereby authorize NTT or it’s payment agent to bill your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the applicable subscription or Order. You will receive a receipt upon each acceptance of payment by the payment agent, or you may obtain a receipt from within the portal to track subscription status. To the extent the payment agent is not NTT, the payment agent is acting solely as a billing and processing agent for and on behalf of NTT and shall not be construed to be providing the applicable NTT Service.
- Taxes. Unless otherwise stated, the fees do not include taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (“Taxes”). You are responsible for paying Taxes assessed in connection with your subscription to the NTT Services except those assessable against NTT or the reseller measured by its net income. You will be invoiced for such Taxes if NTT or the reseller believe it has a legal obligation to do so. You agree to pay such Taxes if so invoiced.
- Term, Termination. The term for the NTT Services is as specified at the time you select the NTT Service through the cloud marketplace at the time of purchase (the “Portal”) or in the applicable Order. Unless otherwise specified at the time of purchase, Samurai Services will automatically renew for like term unless a Party provides thirty (30) days prior notice of nonrenewal. Either Party may terminate these Terms or an Order subject hereto upon thirty (30) days written notice to the other Party (the "Notice Period”) in the event of a material breach that the other Party fails to cure within the Notice Period. We may immediately terminate these Terms for cause and without advance notice if you violate the Community Forum Guidelines. Further, except in any case where the Order specifies the Samurai Services are subject to a minimum term, you may i) terminate your account or cancel the Samurai Services without cause at any time and for any reason, or for no reason, through the cloud marketplace where you purchased the Samurai Services, and ii) receive a refund of the unamortized portion of the prepaid fee for the terminated Samurai Services. Where the Order specifies the Samurai Services are subject to a minimum term, you will have no right to terminate the Samurai Services without cause during the minimum term or any renewal term, or receive a refund of prepaid fees. You acknowledge that you may, as the result of a termination, lose your account and all information and data associated therewith and you shall not be entitled to compensation for any such loss.
- Updates, Support. Any updates or support services or service level agreements for the NTT Services will be provided as stipulated in the NTT Support Policy.
- Confidential Information. You acknowledge that you may obtain information relating to the NTT Services or NTT that has not been released to the public, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). You shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the NTT Services as licensed under these Terms. You will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind and, in any case, at least a reasonable degree of care. You acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 14 and that, in the event of an actual or threatened breach of the provisions of this Section 14, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
- Warranty Disclaimer. THE NTT SERVICES, THE DOCUMENTATION AND SERVICE DESCRIPTIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOUR USE OF THE NTT SERVICES IS AT YOUR SOLE RISK. IN ADDITION, WHILE NTT ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE NTT SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE NTT SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
- Indemnification by NTT. NTT will indemnify and defend you from and against any claim brought by a third party against you by reason of your use of a Samurai Service, as permitted hereunder, alleging that such Samurai Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (a “Claim”). NTT shall, at its expense, defend such IP Claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by NTT for such defense, provided that (a) you promptly notify NTT of the threat or notice of such IP Claim; (b) NTT will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, NTT shall not settle or compromise any claim that results in liability or admission of any liability by you without your prior written consent); and (c) you fully cooperate with NTT in connection therewith. If use of a Service by you, your agents or users has become, or, in NTT’s opinion, is likely to become, the subject of any such Claim, NTT may, at NTT’s option and expense, (i) procure for you the right to continue using the Samurai Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by NTT, terminate your subscription to the Samurai Service(s) and repay you, on a pro-rata basis, any subscription fees previously paid to NTT for the corresponding unused portion of the term of your subscription for such Samurai Service(s). NTT will have no liability or obligation to indemnify you with respect to any Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by you; (y) modification of the Samurai Service(s) by anyone other than NTT; or (z) the combination, operation or use of the Samurai Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 16 state the sole, exclusive and entire liability of NTT to you and constitute your sole remedy with respect to an Claim brought by reason of access to or use of a Service by you, your agents or users.
- Indemnification by You. You agree to defend, indemnify and hold NTT, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with: (i) your use of and access to the NTT Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right or any third party agreement; (iv) any information you provide on or through the Service, or NTT’s access or use of applications or APIs (each, a “Claim”). As used in this Section 17, “you” shall include anyone accessing the Service using your password.
- Conditions of Indemnification. As a condition of the foregoing indemnification obligations set forth in Sections 16 and 17: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party's consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 18 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
- Limitation of Damages and Remedies. IN NO EVENT SHALL NTT OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE NTT SERVICES, THIRD-PARTY USE OF THE NTT SERVICES ENABLED BY YOU, OR YOUR OR THIRD-PARTY USE OF ANY DATA OR SOFTWARE ENABLED BY YOU VIA THE NTT SERVICES. NTT SHALL NOT BE LIABLE FOR LOSS, INACCURACY, INCOMPLETENESS, OR RELEASE OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF NTT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF NTT ARISING OUT OF THESE TERMS, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY OF NTT ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY YOU WITH RESPECT TO THE SPECIFIC NTT SERVICE WHICH CAUSED THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION 19 ARE ESSENTIAL AND THAT NTT WOULD NOT PERMIT YOU TO USE THE NTT SERVICES ABSENT THE TERMS OF THIS SECTION 19. THIS SECTION 19 SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 19 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
- Export Compliance, Sanctions. You acknowledge that the NTT Services may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not and shall not authorize any third-party to remove or export from the United States or allow the export or re-export of any part of the NTT Services or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The NTT Services are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
You warrant that neither you or any entity or person that has direct or indirect control of fifty percent or more of your shares are not subject to any economic, trade or financial sanctions or other trade restrictions administered or enforced by the United Nations, the European Union, the United Kingdom, the United States of America or any other relevant jurisdiction, including, without limitation, the EU Consolidated list of persons, groups and entities subject to EU financial sanctions, the U.S. Treasury Department Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons or any similar list maintained by any EU member state ("Sanctions"). You agree that if at any time you become subject to any Sanctions which prohibit or restrict NTT's performance of or rights under the Terms, or the performance of the Terms exposes NTT, or creates a risk of NTT being exposed, to any Sanctions, including, without limitation, any extraterritorial or secondary sanctions, NTT may suspend or terminate the NTT Services upon such Sanctions becoming effective.
A breach of this Section 20 shall be a material default for the purpose of Section 12.
- Ownership. NTT exclusively owns and reserves all right, title and interest in and to the NTT Services, documentation, service descriptions, our Confidential Information, and all anonymized or aggregated data resulting from use and operation of the NTT Services and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”).
- Suggestions and Contributions. If you submit suggestions or contributions (“Contributions”) you agree that: (a) NTT is not under any obligation of confidentiality with respect to your Contributions; (b) NTT may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) NTT will own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from NTT under any circumstances for your Contributions.
- Survival. Upon termination of these Terms, your payment obligations, the terms of this Section 25, and the terms of the following Sections will survive (i.e. still apply): Section 10 (Billing & Payment), Section 14 (Confidentiality), Section 15 Warranty Disclaimer, Section 16 (Indemnification by NTT), Section 17 (Indemnification by You), Section 18 (Conditions of Indemnification), Section 19 (Limitation of Damages and Remedies), Section 21 (Ownership), Section 25 (Survival), Section 26 (Governing Law), and Section 28 (Agreement to Arbitration).
- Governing Law. The enforceability and interpretation of Section 28 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 28, these Terms will be governed by and interpreted according to the laws of the State of California without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply; provided, if your principal place of business is in the European Union, Iceland, Liechtenstein, Norway, Switzerland or the United Kingdom, these Terms will be governed by the substantive laws of Sweden without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 28 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in either the state or federal courts of San Francisco, California, and we each consent to the personal jurisdiction of these courts; provided, if pursuant to this Section 26 the laws of Sweden govern these Terms, legal suit, action or proceedings arising out of or related to these Terms or the NTT Services shall be instituted in the courts of Sweden.
- Venue. Except as provided in Section 28 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in either the state or federal courts of San Francisco, California, where the laws of California govern and we each consent to the personal jurisdiction of these courts; provided, where the laws of Sweden govern these Terms, any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in the applicable courts of Stockholm, Sweden, and we each consent to the personal jurisdiction of these courts.
- Agreement to Arbitration. Except for a disputes relating to you, your affiliates’, NTT or NTT’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) (the “Excepted Disputes”). NTT and you agree to arbitrate. If a dispute cannot be resolved, you or any of your affiliates on one hand and NTT and any of NTT’s affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the NTT Services by binding arbitration in San Francisco, California. This applies to all claims under any legal theory, except Excepted Disputes. It also applies even after you have stopped using your customer account(s) or closed it. If NTT and you have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.
Each of us can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 28 conflicts with the Rules, the language of this Section 28 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 28 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
- Free Evaluation and Beta Test. NTT may, directly or through a reseller, offer You access to the Samurai Services for a free trial evaluation or invite You to participate in a beta test program. If You are permitted to access the Samurai Services on a free trial basis, You acknowledge and agree that the provisions of this Section 29 shall apply. In the event of a conflict between any other terms of the Terms of Service and the provisions of this Section 29, the provisions of this Section 29 shall control. A free trial evaluation may be requested by submitting a free trial evaluation request form and is subject to approval by NTT, in its sole discretion. The free trial access period is limited to thirty (30) days and will expire automatically without further action by You or NTT. During the free trial evaluation period NTT will monitor Your use and communicate with you regarding the Service. The free trial does not include managed services. Other terms and conditions may apply. See the free trial evaluation request form. If you are invited by NTT to participate in a beta test of certain Samurai Services (“Beta Program”), your usage of the subject Samurai Services will be subject to these Terms of Service and the additional beta program terms (the “Beta Terms”). With respect to the Beta Program, in the event of a conflict between these Terms of Service and the Beta Program Terms, the Beta Program Terms will take precedence. IN AN EVALUATION OR BETA, THE SERVICE IS PROVIDED “AS IS, WHERE IS” WITH NO WARRANTY OF ANY KIND. NTT MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
- Miscellaneous. Neither these Terms nor the licenses granted hereunder are assignable or transferable by you (and any attempt to do so shall be void). NTT may freely assign, delegate, license and/or transfer these Terms, in whole or in part, without consent. You and NTT are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. These Terms shall be deemed to have been made in and shall be construed pursuant to the laws of California without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Subject to the foregoing, the provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. This is the complete and exclusive statement of the mutual understanding of the parties with respect to the license granted herein and supersedes and cancels all previous written and oral agreements and communications relating to such license and any waivers or amendments shall be effective only if executed in writing by NTT; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by NTT after the effectiveness hereof, shall have no force or effect. You are responsible for the information you provide or make available to the NTT Services and you must ensure it is accurate, not misleading and does not contain material that is obscene, defamatory, or infringing on any rights of any third party; does not contain malicious code and is not otherwise legally actionable. The substantially prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. Except as described in Section 28 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. NTT’s failure to enforce at any time any provision of these Terms, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by NTT and you to be legally binding. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause. In the event of a conflict between a provision of these Terms and the provisions of an Order subject to these Terms, the provision of the Order will control.