These NTT Security Holdings Corporation (“NTT”) Terms of Service (these “Terms”) apply to NTT’s Samurai XDR application for its extended detection and response security service (including associated software and access to NTT’s hosted software application)] (“NTT Services”). 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 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 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” BOTTON 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 Section 27.
- Changes to These Terms. NTT may update these Terms from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address 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
- Your Account. To use the NTT Services, 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 use (whether or not authorized) of the NTT Services under your customer account(s) and for all acts and omissions of Users or anyone to whom provide access to or otherwise permit to use the NTT Service. 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, and use the NTT Services.
- 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 Documentation and any applicable Order Forms, on a limited, non-exclusive and non-transferable basis, to use and access for Users for whom access to the NTT Services has been purchased. Such use 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.
- 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 form, 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.
- 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, NTTS reserves the right, in its discretion, to issue you a warning regarding the violation or immediately terminate or suspend any or all accounts you have created using the NTT Services.
- Term, Billing and Payment. The term for the NTT Services isas specified at the time you select the NTT Service through the cloud marketplace at the time of purchase (The “Portal”) or in an order for Managed NTT Services (the “Order”). NTT will bill and you agree to pay for the NTT Services a subscription fee for the term in advance commencing the day you subscribe and continuing thereafter until you cancel the NTT Service or terminate your account through the Portal. You may upgrade the NTT Services at any time through the 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.
- 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 measured by its net income. NTT will invoice you for such Taxes if NTT believe it has a legal obligation to do so. You agree to pay such Taxes if so invoiced.
- NTT may terminate your account and your access to the NTT Services (or, at NTT’s sole option, applicable portions of the NTT Service) at any time and for any reason. NTT is not required to provide you with any notice or warning prior to any such termination. You may, as the result of termination, lose your account and all information and data associated therewith and NTT is under no obligation to compensate you for any such loss; provided, in the event of a termination by NTT you will be entitled to a refund of the unamortized portion of the subscription fee. If NTT terminates a portion of the NTT Service you will not be entitled to a refund of any part of the subscription fee. You may terminate your account and access to the NTT Services for material breach upon thirty (30) days written notice to NTT (the Notice Period”) in the event of a material breach that NTT fails to cure within the Notice Period. Further, you may terminate your account or cancel the NTT Services without cause at any time and for any reason through the cloud marketplace where you purchased the NTT Services. In the event of a termination by you for material breach, you will be entitled to a refund of the unamortized portion of the subscription fee. In the event of termination by you without cause, you will not be entitled to a refund of the unamortized portion of the subscription fee.
- Any updates or support services or service level agreements for the NTT Services will be provided as stipulated at https://cyberthreatsensor.io/support/.
- 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 AND THE DOCUMENTATION 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 NONINFRINGEMENT. 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 Service as permitted hereunder, alleging that such 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 End-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 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 Service(s) and repay you, on a pro-rata basis, any Subscription Charges previously paid to NTT for the corresponding unused portion of your Subscription Term for such 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 Service(s) by anyone other than NTT; or (z) the combination, operation or use of the 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 End-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 NTT SERVICES 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. 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.
- NTT exclusively owns and reserves all right, title and interest in and to the NTT Services, Documentation, 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 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
- Use of Marks. You grant NTT the right to use your name, logo, and a description of your use case to refer to you on NTT’s website, marketing or promotional materials, subject to your standard trademark usage guidelines.
- Upon termination of these Terms, your payment obligations, the terms of this Section 26, and the terms of the following Sections will survive (i.e. still apply): Section 10 (Term, 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 26 (Survival), and Section 27 (Agreement to Arbitrate).
- Governing Law and Venue. The enforceability and interpretation of Section 27 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 27, 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. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 27 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the NTT Services shall be instituted in either the state or federal courts of San Francisco, California, and we each consent to the personal jurisdiction of these courts.
- Except for a disputes relating to our, your affiliates’, NTT’s 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 27 conflicts with the Rules, the language of this Section 27 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 27 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.
28 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 27 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. NTT’s failure to enforce at any time any provision of these Terms, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by NTT and you to be legally binding. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.