This End-User License Agreement (“EULA”) is entered into between the respective NTT DATA Business Solutions Group company (hereinafter referred to as “NTT DATA”) and the Client for the provisioning and use of NTT DATA Software and Third-Party Software (collectively, “Software”), Cloud Services, and related documentation, tools, or other material, as follows:
- On-Premise Perpetual Software License (one-time license fee for an unlimited period of time)
- On-Premise Subcribed Software License (subscription license for a fixed period of time)
- Cloud Services (for a fixed period of time)
- Documentation, tools, or other materials (required for the use of the Software)
This EULA shall apply to and is incorporated in the corresponding Software or Cloud Services ordered by Client via a seperate order form, license and software maintenance agreement, or other contractual document with NTT DATA or its Affliate (the “Agreement”).
1.1. In all contractual relationships in which NTT DATA (i) provides Software and related services or Cloud Services to business entities (referred to as the “Client”) and (ii) grants usage rights for an unlimited or limited time, this EULA shall apply. For Third-Party Software, the end-user conditions of the respective third party shall apply, which may require the Client to execute a separate EULA provided by the third party.
1.2. These provisions constitute the complete EULA between the parties and may not be modified or amended without the prior written consent of both parties. Sales orders, purchase orders, or other similar purchasing forms will not modify or expand this EULA, even if such forms contain provisions to the contrary. In the event of a conflict between this EULA or the Agreement and Third-Party Software conditions, the Third-Party Software conditions shall prevail.The Agreement shall become effective upon Client’s acceptance of the contractual documents required by NTT DATA for the provisioning of the Software and/or access to the Cloud Services.
2. General Definitions
2.1 “Add-On” shall mean any Software created by NTT DATA or a third party that communicates with, adds, or enhances functionality to of the provided Software, and is not a Modification of the Software.
2.2 “Affiliate” shall mean any corporation, partnership, or legal entity under applicable corporate law that is directly or indirectly controlled by, controlling, or under common control with the Client or NTT DATA.
2.3 “Cloud Service” shall mean any on-demand solution (including support) provided by NTT DATA under an Agreement.
2.4 “Cloud Materials” shall mean all materials provided to the Client prior to or as part of the provision of the Cloud Services, including materials created in collaboration with the Client, and excluding Client Data, Client Proprietary Information, or the Cloud Service itself.
2.5 “Client Data” shall mean all content, materials, data, personal data, and information captured by Defined Users in the production system of a Cloud Service or derived from its use and stored in the Cloud Service (e.g., Client-specific reports). The Client Data and the data derived therefrom do not contain any Proprietary Information of NTT DATA, its Partners, or its licensors.
2.6 “Data Center Operation” shall mean the use of or access to the Software by or for third parties to operate or manage the business of a third party or the provision of outsourcing services.
2.7 “Defined User (also “Authorized User”)” shall mean an employee of the Client, its Affiliates, or a Third-Party Business Partner who is authorized to access the Licensed Software.
2.8 “Designated Unit” shall mean each individual computer or server on which the Software and the Third-Party Database are installed.
2.9 “Documentation” shall mean the technical and/or functional documentation relating to the Software and, if applicable, descriptions of roles and responsibilities of the manufacturer, which is provided or made available to the Client together with the Software. Manuals are not included in the scope of delivery.
2.10 “Force Majeure” shall mean causes beyond the parties’ reasonable control, such as fire, natural disasters, power blackout, strike, embargo, acts of civil or military authorities, war, terrorism, cyber-attacks, acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of online services).
2.11 “Licensed Software” or “Software” shall mean the NTT DATA Software or Third-Party Software that the Client has acquired through NTT DATA via an executed Agreement, including, for the avoidance of doubt, software that is part of the Cloud Services.
2.12 “Maintenance” shall mean the software support/maintenance provided by NTT DATA as agreed in the Agreement for the Licensed Software.
2.13 “Modification” shall mean all upgrades, updates, patches, fixes, changes, regulations and/or global or industry standards, and other modifications to the Software that do not constitute a new version of the Software.
2.14 “NTT DATA Business Solutions Group” shall mean any corporation, partnership, or legal entity under applicable corporate law that is owned or controlled, whether directly or indirectly, by NTT DATA Business Solutions AG through ownership of more than 50% of the voting or management rights and located in the Territory.
2.15 “NTT DATA Business Solutions Software (“NTT DATA Software”)” shall mean (i) all standard software products and related documentation developed for or by NTT DATA or its Affiliates; (ii) all new versions (including, without limitation, releases, updates, patches, or/and corrections) of such NTT DATA Software made available to the Client in performance of an Agreement (through Maintenance); and (iii) all complete or partial copies thereof.
2.16 “Non-Productive Use” shall mean the Use of the Licensed Software solely for the Client’s internal training purposes to enable the Client’s Authorized User to use the Licensed Software to process the Client’s internal business transactions, or for internal testing or development work in support of the Client’s productive environment.
2.17 “On-Premise Software” shall mean the Licensed Software that is installed and utilized from the Client’s provided designated unit.
2.18 “Open-Source Software” (“OSS”) shall mean software that is distributed with its source code, making it publicly available for use, modification, and distribution under its original rights. It includes a license that allows programmers to modify the software and control how it can be distributed. If components of the NTT DATA Software contain OSS components, NTT DATA will notify the Client prior to the execution of an Agreement. Upon delivery of the NTT DATA Software, the Client shall receive an OSS description which lists the respective Open-Source components used which apply to the Client as-is.
2.19 “Partner or NTT DATA´s licensor” shall mean any other party whose Software or services are distributed, sold, loaned, offered as a service, or otherwise made available by NTT DATA.
2.20 “Productive Use” shall mean the use of the Software exclusively for the processing of the Client’s internal business transactions. Preparation for productive operation shall also constitute Productive Use.
2.21 “Proprietary Information” shall mean (i) in relation to the Software and Documentation and any full or partial copies thereof, the program concepts, the Third-Party Database, any other Third-Party Software provided with or as part of the Software, and results of comparative tests and (ii) any information which NTT DATA, a Partner, or an NTT DATA licensor or the Client protects against unrestricted disclosure to third parties or which is to be regarded as confidential and/or proprietary. Excluded from this is such Proprietary Information that (a) is or becomes publicly known without any act or omission by the other party; (b) is or becomes lawfully acquired by the other party from a source other than the disclosing party prior to disclosure by the disclosing party; or (c) lawfully and independently becomes available to the other party.
2.22 “Release” shall mean any edition of the Licensed Software.
2.23 “Software Development Tools” shall mean all development tools (software in object code and documentation as softcopy and/or hardcopy) provided by NTT DATA in connection with the Software for Non-Productive Use in the development of extensions based on the relevant Agreements. The Software Development Tools may include the Software Development Kit development version (“SDK”) or may be included in the licensed workbench. The term “Software Development Tools” includes (i) all releases, versions, or correction levels of a Software Development Tool; and (ii) all complete or partial copies thereof.
2.24 “Supplemental Terms” (or “Supplement”) shall mean the product-specific supplemental terms and conditions applicable to the Cloud Service and referenced in an Agreement.
2.25 “Territory” shall mean the territory in which the Software is installed, provided that the installation may only be made in one country at any time.
2.26 “Term” shall mean the duration or contract period of a Use right, Cloud Service, or Maintenance Agreement, consisting of an initial term and renewal terms.
2.27 “Third Party Database” shall mean any third-party proprietary database software which NTT DATA has licensed to the Client.
2.28 “Third Party Business Partner (or “Third Party)” shall mean any third party that requires access to the Software or the Cloud Services to conduct the Client’s or its Affiliates’ internal business, including, without limitation, the Client’s auditors, distributors, clients, service providers, and/or suppliers.
2.29 “Third Party Software” shall mean (i) all software products and related documentation developed for or by companies other than NTT DATA or their Affiliates and that are not NTT DATA Software; (ii) all new versions (including, without limitation, releases, updates, patches, and/or corrections) of such Third Party Software made available to the Client in performance of an Agreement; and (iii) all full or partial copies thereof. For the avoidance of doubt, OSS is deemed Third-Party Software.
2.30 “Trade Compliance Laws” shall mean any applicable import, export control, and/or economic sanctions law, including, without limitation, the laws of the United States, the United Kingdom, the European Union, and Germany.
2.31 “Use” shall mean the execution of the process functions of the Software, loading, executing, accessing, using the Software, or displaying data resulting from those functions. Use may occur through an interface provided with or as part of the Software, through a Client or Third-Party interface, or through another intermediary system.
2.32 “Usage Metric” shall mean the usage parameters for determining the agreed usage volume and calculating the relevant payment for a Cloud Service or Software under an Agreement.
3. Usage Rights Provisions
3.1. Ownership and Intellectual Property Rights
All rights to the Software, including copyright, trade secret, and all other intellectual property rights to all programs, documentation, documents, programme concepts (such as concepts, methods, best practices, ideas, and know-how), and other protected information, including subsequent performance and/or Maintenance, are and shall remain exclusively vested in, and be the sole and exclusive property of, NTT DATA and/or the Partners or NTT DATA’s licensors (e.g., Microsoft). NTT DATA and its Partners or licensors retain all rights to the Software and Proprietary Information not expressly granted to the Client under an Agreement. All rights going beyond the rights of use described below, including the right to distribute, subscribe, translate, edit, arrange, and make the Software available to the public, shall remain exclusively with NTT DATA or the respective Partner or licensor. The Client is not granted any rights to or in relation to the source code of the Software. The Client shall only be granted the following non-exclusive rights to the Software.
3.2. Granting Use Rights/License
Subject to payment of fees agreed in an Agreement, NTT DATA grants the Client the right to Use the Software or Cloud Services, as specified in an Agreement. The following conditions shall apply:
3.2.1. Extent of Use and Users
The Client may only use the Software or Cloud Services to the extent stipulated in the Agreement. The right to use is limited to the Software or contracted Services (functions), even if the Client could access other software or service components. The Client must have the necessary license for all persons (Client employees, Affiliates, and Client Third-Party Business Partners) who utilize the Software or Cloud Services, directly and/or indirectly.
The Client may permit Authorized Users to use the Software or Cloud Service to the contractually agreed extent, which may not exceed the licensed maximum number of Defined Users or the Usage Metric, and must correspond to the details in an Agreement. Access data for the Cloud Service or a Defined User license may not be used more than once or by more than one person at the same time. However, such licenses or access to Cloud Services may be transferred from one person to another if the original user is no longer authorized to use the Software or Cloud Services (e.g., due to termination of employment).
The Client shall be responsible for acts and omissions of Authorized Users and shall require them to use the provided Cloud Services, Software, and/or documentation or other materials in accordance with the Agreement.
It is not possible to return or exchange Usage Metrics or Defined Users if actual usage results to be less than expected, or if actual usage requirements change.
A license key may be required for the Use of Software. Access data is required for the use of Cloud Services.
a) Authorization to Use the Software or Cloud Services for the Benefit of Affiliated Companies
The Client is authorized to use the Software and the Third-Party Database, or the Cloud Services for Productive Use for its Affiliates, provided that:
(i) the Affiliate has previously signed and delivered to NTT DATA an agreement to comply with this EULA;
(ii) rights of use have been acquired for all persons using the Software or Cloud Services directly and/or indirectly for the Affiliate; and
(iii) the Software and the Third-Party Database are not installed at the Affiliate’s sites.
The Client shall provide NTT DATA with a list of its Affiliates to be included in the Agreement prior. This Affiliate list forms an integral part of the Agreement and may only be modified by a written agreement signed by the parties.
b) Authorization of Third-Party Business Partners to Access the Software or Cloud Services
The Client is authorized to allow the Client’s Third-Party Business Partners to access the Software or Cloud Services to assist the Client in conducting the Client’s internal business transactions, provided that:
(i) all personnel of the Third-Party Business Partner accessing the Software or Cloud Services shall be considered Authorized Users;
(ii) access is expressly limited to screen access only;
(iii) Third-Party Business Partners shall not have access to the source code of the Software; and
(iv) Third-Party Business Partners shall not use the Software or Cloud Services to conduct their internal business transactions or operate and/or manage their own business.
3.2.2 Prohibitions on Use and Obligations of the Client
The Client is prohibited from:
(a) copying, translating, disassembling, decompiling, reverse engineering, or otherwise modifying (except as required by law or permitted under the applicable terms of the EULA or the Agreement) any portion of the Software or Cloud Services, including the source code, documentation, or other materials, or create derivative works thereof; provided, however, that the documentation may be copied for internal use to the extent necessary;
(b) using any Software or Cloud Services in a manner that violates any applicable law, including the transmission of unlawful data or data that infringes third-party proprietary rights;
(c) using the Software or Cloud Services to develop an application or interface functionality with, or provide access to, the functionality of the Software or Cloud Services or any database used with them, except through permitted Software Development Tools and only where the Cloud Services are designed to be used as an interface;
(d) using the Software or Cloud Services in excess of the usage rights granted, both quantitatively and qualitatively; (e) interfere with or circumvent the operation or security of the Cloud Service; and
(f) sublicensing, licensing, selling, leasing, or otherwise making the Software or Cloud Services available to any third party, except as expressly permitted under this EULA.
3.2.3 Intellectual Property Rights & Infringement
The Software and Cloud Services, including, without limitation, all related source code, object code, materials, designs, techniques, methods, inventions, forms, formulas, and other works of authorship, and any extracts or derivatives, shall remain the sole and exclusive property of NTT DATA, its Partners, or licensors, who retain all rights, title, and interest under copyright, trade secret, trademark, patent, and other intellectual property laws.The Client shall not infringe the rights of NTT DATA, its Partners, or licensors in the Licensed Software or Cloud Services. The Client is solely responsible for ensuring proper use of the Software and Cloud Services in accordance with the Agreement. If the Client recognises, suspects, or becomes aware of a breach or potential breach of the Agreement or intellectual property rights, the Client agrees to inform NTT DATA immediately. NTT DATA, its Partners, or licensors and their agents shall be indemnified by the Client against all claims by third parties arising from illegal use of the Software or Cloud Services by the Client or with the Client’s approval.
4. Use Rights – On Premise and Cloud Services
4.1. On Premise Software Use Rights
4.1.1 General
NTT DATA grants the Client a non-exclusive right to use the Licensed Software (whether delivered in source or object code), which is either perpetual or terminable in accordance with Section 5.7 of this EULA. If the Client subscribes to the Licensed Software for a defined period, the right of use shall apply only for the agreed subscription period. This right shall also apply to the documentation, other Proprietary Information, and the Third-Party Database (if licensed by NTT DATA), provided by NTT DATA to the Client for Productive and Non-Productive use at the specified location(s) within the Agreement Territory. The Client accepts this grant of rights and confirms that it has read and understood the conditions of use before signing the order form or Software and Maintenance Agreement.
The Client is not permitted:
(i) to use the Software, other Proprietary Information, and the Third-Party Database for any purpose other than for its own and its Affiliates’ Data Center Operations;
(ii) to provide training to third parties, except to the extent expressly permitted in this EULA; or
(iii) to use the Software for the control of power plants or means of mass transportation.
The right to use the Software applies solely to the current version thereof.
The Software may be used via an interface supplied with or as part of the Software, via an interface of the Client, a third-party supplier, or another intermediary system.
The Client may transfer the Software and the Third-Party Database from one Designated Unit to another without additional payment. The Client shall notify NTT DATA in writing of such installation within five (5) business days following the date of the transfers. The Software and Third-Party Database must be immediately and completely deleted from the Designated Unit no longer in use, including any backup copies.
4.1.2 Transfer of Perpetual Licensed Software to Third Parties
In the case of Software licensed on a perpetual basis (not subscription), the following shall apply:
Clients located in the European Economic Area (“EEA”), which comprises all countries in the European Union (“EU”), including Iceland, Liechtenstein, and Norway, may transfer the rights granted in respect of perpetual Licensed Software (including Software acquired through subsequent licenses or Maintenance) to a third party (the new user) only uniformly and with complete and final abandonment of their own use. The Client must notify the new user of the transfer in writing without undue delay, stating the new user’s name and address, and must have paid the fees for the Software and Maintenance in full to NTT DATA.
Transfer of the Licensed Software is conditioned upon:
(i) the Client providing the new user with the terms and conditions of use and transfer of the Software;
(ii) the Client completely and permanently discontinuing and abandoning the use of the Software; and
(iii) the Client promptly deleting all copies of the Software, including backups, and not retaining any copies of the Software or Proprietary Information.
Temporary or partial transfer to third parties, or transfers to multiple third parties, are not permitted.
These restrictions of the preceding sentences shall also apply in the event of corporate transformations and legal successions. The Client may not transfer Software acquired outside the scope of a contract purchase. The abovementioned provisions are only applicable within the scope of of the Computer Programs Directive (Directive 2009/24/EC). For Clients located outside the EEA, the transfer of the perpetual Licensed Software requires the prior written consent of NTT DATA, which shall not be unreasonably withheld.
For Third-Party Databases and other Third-Party Software, deviating provisions may apply, as identified upon the Client’s request for transfer. For the avoidance of doubt, this transfer right applies only to the License Software and not to the Agreement. Software and Cloud Services shall not be subject to any transfer to third parties.
4.1.3 Archival Copy, Copy Restrictions, Origin Notes to Be Reproduced
The Client may make one (1) copy of the Software for archival purposes and such number of backup copies of the Software as is consistent with the Client’s usual backup procedures. The Client shall document the number and location of all originals and copies of the Software.
The Client may copy or reproduce parts of the documentation for internal purposes in machine-readable or printed form, but only to the extent necessary to exercise its rights under this EULA.
The Client shall affix all copyrights, trademark, service mark, or other proprietary notices of NTT DATA, its Partners, or licensors to every copy, whether in whole or in part, of the Software, documentation, Third-Party Database, or Proprietary Information, in the same form and location as such notices appear on the original materials. The Client shall not remove, alter, or obscure such notices.
4.1.4 Modifications and Add-Ons
Any Modifications or Add-Ons developed for the Client or made available as a product or Software by NTT DATA, any other third-party licensor, or any of their Affiliates shall be governed exclusively by the applicable Agreement.
The Client is not entitled to create, use, or make available any Modifications or Add-Ons to the Licensed Software for any third party, unless expressly permitted by mandatory law or in accordance with this section. Modifications by the Client may only be made in relation to the Licensed Software supplied by NTT DATA.
Minor changes, extensions, Software modifications, or other interventions by the Client may lead to unforeseeable and significant disruptions in the operation of the Software and other programmes, or in communication between the Software and other systems. Disruptions may also result from changes, extensions or modifications that are incompatible with later versions of the Software.
For any modifications or Add-Ons made by the Client or at the Client’s request, the Client shall be solely responsible for any disruptions in the operation, security, or performance of the Licensed Software and other programmes, or in the communication of the Licensed Software and other programmes (collectively, “Disruptions”). NTT DATA shall not be obliged to remedy any malfunctions arising in connection with changes, extensions, Modifications, Add-Ons, or other interventions made by or requested by the Client, nor shall be liable for any resulting Disruptions. NTT DATA may modify the Software at any time without any obligation to ensure compatibility with Modifications made or used by the Client.
The foregoing provisions of this section shall also be applicable to the use of the Software together with Add-Ons. NTT DATA is not obligated to provide Maintenance services if and to the extent that such services are impeded by Modifications or Add-Ons made or requested by the Client.
Modifications and Add-Ons made by the Client may only be used together with the Licensed Software and only in accordance with the granted right of use. These Modifications and Add-Ons may not be used to:
(i) circumvent contractually agreed restrictions, and/or enable access to Software for which the Client has not acquired any rights of Use; or
(ii) make accessible or disclose any information about the Software itself.
The Client acknowledges that the Software is continuously developed and modified by NTT DATA, its Partners, or i licensors in accordance with their release and development strategies. NTT DATA, its Partners, and licensors may develop, use, and distribute Modifications or developments whose functions are wholly or partially identical to those developed by or for the Client. Neither party shall be entitled to copy other’s source code. The Client agrees not to assert any intellectual property rights in such Modifications or developments against NTT DATA, its Affiliates, its Partners, licensors, and/or and their Affiliates.
If the Client opts for certain preset solutions, Add-Ons, or other best practice solutions, full functionality or compatibility with the Licensed Software may not be guaranteed.
4.1.5 Decompiling
The Client may not disassemble, decompile, reverse engineer, or use any other method to obtain the source code of the Software. However, Clients located in the EEA shall have the right to decompile the Software to the extent necessary to achieve interoperability with another programme, in accordance with Article 6 (“Decompilation”) of Directive 2009/24/EC.
Before any decompilation of the Licensed Software, the Client shall request in writing that NTT DATA, its Partners, or licensors provide the necessary information and documentation to achieve interoperability, setting a reasonable deadline. If applicable, the Client shall be entitled to decompile after the expiration of the time limit within the limits of Article 6 (“Decompilation”) of EU Directive 2009/24/ or other the applicable local legislation.
For Clients outside the EEA, decompilation is not permitted unless mandated by local legislation, and then only in accordance with such local legislation and these provisions.
Prior to the involvement of third parties in the decompilation process, the Client shall provide NTT DATA, its Partners, or licensors with a written declaration from the third party that the third party confirming their direct commitment to comply with Sections 3.1 and 3.2 of this EULA.
4.1.6 Rights to New Versions of the On-Premise Software
If the Client receives from NTT DATA a new version of a Licensed Software that replaces a previously provided version, the right of use shall apply exclusively to the most recently received version. The right of use with respect to the previously provided version shall expire as soon as the Client implements the new version for Productive Use.
However, the Client may use the new version for testing purposes alongside the previous version in a Productive Use environment for a period of three (3) consecutive calendar months, commencing on the date that the new version is implemented.
4.1.7 Storage Location and Use in Data Center Operations
All data processing devices (e.g., hard disks and processors) onto which the Software is copied in whole or in part, temporarily or permanently, are located on the premises or in the direct possession of the Client or one of its Affiliates. If the Client wishes to operate, or has operated the Software for
the processing of its internal business transactions on data processing equipment, which is located on the premises and in the direct possession of a third-party company (outsourcing), the Client shall be responsible for third-party company’s compliance with the obligations in this EULA, and the Client shall indemnify and hold NTT DATA harmless for any breach of the terms of this EULA by the Client’s third party companies. The Client shall not use the Software, other Proprietary Information, and/or the Third-Party Database in Data Center Operation without such an agreement.
4.1.8 Prerequisites for Use, Delivery of Software
In order to use the On-Premise Software, certain requirements must be met by the hardware utilized by the Client. The Client shall be responsible for ensuring sufficient server hardware and, if applicable, system software. NTT DATA can provide release-dependent minimum requirements upon request by the Client. NTT DATA reserves the right to update or modify these requirements.
Delivery shall occur, at NTT DATA’s option, by:
(i) making the Licensed Software available to the Client for download;
(ii) in the case of NTT DATA Software, providing access to the relevant system (Electronic Delivery); or
(iii) shipping the Licensed Software on DVD or other data carriers to the agreed delivery address (Physical Delivery).
In the case of Physical Delivery, the moment NTT DATA hands over the Licensed Software to the data carrier shall determine compliance with delivery dates and the transfer of risk. In the case of Electronic Delivery, delivery shall be deemed to have occurred when the Licensed Software is made available for download, and the Client is notified (via download letter).
If the Client fails to accept the Licensed Software on the agreed date, NTT DATA may, without prejudice to its statutory rights arising from default, withdraw from the Agreement and demand liquidated damages (due immediately) in the amount of twenty-five percent (25%) of the total payment accruing up to the date on which the Client could have terminated the Agreement, as well as compensation for services already rendered. The amount may be adjusted higher or lower if NTT DATA demonstrates that the actual damage incurred is greater or lower.
4.2. Cloud Services Use Rights
4.2.1 General
NTT DATA grants the Client a non-transferable, worldwide right to use the Cloud Service (including its implementation and configuration), the Cloud Materials, and documentation exclusively for the purpose of processing internal business transactions of the Client and its Affiliates, in accordance with the Agreement and applicable conditions, including product-specific supplemental terms and conditions, the product description, and other associated documentation:
a. If the Cloud Service contains links to web services or mobile applications of other Partners or providers, NTT DATA shall only provide technical access to the contents of such integrated websites. The third parties are exclusively responsible for the content of those websites. Any additional terms and conditions associated with such web services or mobile applications are directly between the third party and the Client.
b. If NTT DATA procures Cloud Services from other providers, the specific terms and conditions of the respective third-party licensors shall apply.
c. Authorized Users may access certain Cloud Services via mobile applications (‘Mobile Apps’) made available through third-party platforms, such as the Google Play Store or Apple App Store.
The use of the Mobile Apps is subject to the terms and conditions agreed upon when downloading or accessing the mobile application and not to the provisions of the Agreement.
The Cloud Service may contain On-Premise Software components that can be downloaded and installed by the Client (including updates). If On-Premise Software components are delivered by NTT DATA, the conditions for On-Premise Software shall apply.
NTT DATA shall be entitled to temporarily block the Client’s access (e.g., usernames and passwords, Virtual Private Network (VPN), or other connections) to the Cloud Service for the purpose of loss prevention if and to the extent there is a reasonable likelihood that the continued use of the Cloud Service by the Client, Authorized Users, or any third party in breach of the Agreement could adversely affect the Cloud Service, other Clients, or the rights of third parties in a manner that requires immediate action. NTT DATA will promptly notify the Client of any such suspension. Where circumstances permit, the Client shall be notified in advance in writing or by email. NTT DATA shall limit any blocking in time and scope to what is reasonable under the circumstances.
4.2.2 Free of Charge Services
NTT DATA shall provide the Cloud Service and related support as stated in the Agreement. For any Cloud Services provided free of charge, NTT DATA shall not provide support, shall not make any service level or performance commitments, and may discontinue such services at any time without notice to the Client. Furthermore, NTT DATA shall be free of any liability to the extent permitted by law.
4.2.3 Service Level Agreements
Unless otherwise provided in the Agreement or supplemental documents, NTT DATA will maintain an average monthly system availability for the Cloud Service’s Productive Use system as set forth in the applicable Service Level Agreement (“SLA”).
If Productive Use system availability does not meet the SLA for an extended period, NTT DATA may, at its sole discretion, issue credit to the Client, provided that such failure has not insignificantly impacted the Client’s use of the Services.
If NTT DATA fails to achieve a Productive Use system availability of at least ninety-five percent (95%) in any calendar month for four (4) consecutive calendar months, or in five (5) or more calendar months in any twelve (12) consecutive month period, the Client shall have the right to terminate the affected Cloud Service upon thirty (30) days’ prior written notice to NTT DATA after the conditions have occurred. The burden of proof lies with the Client. Termination shall be effective at the end of the calendar month following the thirty (30) day notice period.
4.2.4 Client Data
NTT DATA and its Affiliates may perform analyses using anonymized or aggregated Client Data and information resulting from the Client’s Use of the Cloud Service for the following purposes:
a. Product improvement or development (including, without limitation, product features and functionality, performance, workflows, and user interfaces);
b. Services planning and improvement;
c. Training and development of machine learning algorithms; and
d. Reviewing security and data integrity.
Unless otherwise specifically agreed between the parties, personal data will not be processed under this clause.
4.2.5 Controls
NTT DATA shall implement and maintain appropriate technical and organizational measures to protect the personal data processed by NTT DATA as part of the Cloud Service, as set forth in the Data Processing Agreement referenced in the Agreement, and in accordance with the applicable data protection regulations.
4.2.6 Access to Data
During the Term of the Cloud Service, the Client shall have the option to access, retrieve, and export the Client Data in a standard format at any time. Retrieval and export may be subject to technical limitations and requirements (as described in the documentation). In such cases, NTT DATA and the Client shall agree on a reasonable method to enable the requesting party (ordering party) to access its data.
Prior to the end of the Agreement, the Client may perform a final export of the Client Data from the Cloud Service in accordance with the method agreed with NTT DATA.
After the expiration or termination of the Agreement, NTT DATA shall delete or overwrite any remaining Client Data on the servers used to host the Cloud Service, unless retention is required by law. Any retained data shall remain subject to the confidentiality obligations set forth in the Agreement.
4.3. Overuse, System Measurement (License Audit), and Additional Purchase
4.3.1 The Client shall be responsible for monitoring proper use and shall immediately notify NTT DATA in writing of any use in excess of the Agreement, including but not limited to exceeding the Usage Metrics. In such cases, the Client shall be obligated to sign an extension agreement for the additional usage and pay any additional amounts owed. The corresponding payment shall be due as of the day on which the overuse occurred. A separate agreement is required for adding Usage Metrics or license scope (“Additional Purchase”). The Additional Purchase shall be based on the price lists and metrics of NTT DATA, its licensors, or Partners valid at the time of the Additional Purchase.
4.3.2 NTT DATA, or a third party authorized by NTT DATA, shall be entitled to verify the use of the Licensed Software in accordance with the applicable standard procedures of the Software owner. Surveys shall be conducted regularly in the form of self-reports using surveying tools or similar procedures. Unless otherwise agreed, the Client shall prepare the survey protocol no later than two (2) weeks after a request from NTT DATA and/or a third party authorized by NTT DATA. The results of thesurvey shall be transmitted to NTT DATA in unchanged form, both in writing and in a file format (e.g., .txt, .pdf). NTT DATA, or its authorized third party, may also conduct remote or on-site audits if: (i) the survey was refused;(ii) the survey did not provide any meaningful results; and/or(iii) there are objective indications that the Client may be violating the Use rights or the Agreement.
4.3.3 The Client shall cooperate with NTT DATA and/or its authorized third party in the performance of such audits by granting access to its systems. NTT DATA shall provide reasonable notice to any on-site audits. The Client’s confidentiality interests and the protection of its business operations against impairment shall be duly considered. The reasonable costs of the audit shall be borne by the Client if the results reveal use that is not in accordance with the Agreement.
4.3.4 Unless otherwise agreed, if it becomes apparent during an audit (or by other means) that the Client’s Use of the Licensed Software exceeds the terms of the Agreement, a contract for Additional
Purchase shall be executed. Any previously agreed special purchase terms, including discounts, shall not be applicable. NTT DATA reserves the right to claim damages and interest for late payment.
4.3.5 Additional purchases increase the overall contract price and may result in higher Software license or service fees in total. Such fees shall be based on the prices for the Software valid at the time of Additional Purchase.
4.4 Country Versions/Language Versions and Restrictions on Availability and Use in Multinational Environments
4.4.1 Software, or parts thereof, may be subject to restrictions regarding their availability. No rights of use for specific country or language versions of the Software are acquired from the Client unless expressly agreed otherwise in the Agreement. Packages may be subject to certain restrictions on availability. Information regarding such restrictions, including, for example, availability in certain countries, supported languages, supported operating systems, and databases, will be made available to the Client upon request.
4.4.2 Unless otherwise expressly agreed in the Agreement, the Client shall only acquire usage rights for the country or language version of NTT DATA Software specified in the Agreement. In countries where such use is prohibited due to export laws, the use of the Software or Cloud Services is not allowed.
4.4.3 Software may only be used in the country in which it was purchased, unless otherwise agreed in the Agreement.
4.5. Condition of the Software and Services and Obligations of Client
4.5.1 The product description in the Agreement and the documentation shall be conclusive regarding the quality of the Software or the Cloud Services. NTT DATA does not owe, and will not provide, any further quality assurances concerning the Software. The Client may not derive any obligations from public statements or advertising related to the Software. Any warranties shall be specified exclusively in this EULA and/or the Agreement.
4.5.2 The Client is responsible for understanding the essential functional features of the Software or Cloud Services and their technical requirements (e.g., database, operating system, hardware, data carriers, internet connection). The Client bears the risk of the Software or Cloud Services meeting its specific requirements and intended areas of Use.
4.5.3 The Client shall provide the infrastructure and IT environment necessary for the Software or Cloud Services as specified in the Agreement and in accordance with the specifications of NTT DATA and the Software licensors. It is the Client’s responsibility to establish and maintain the required IT environment and ensure its proper operation, including through contracts with third parties if necessary. NTT DATA shall not be responsible for any loss of functionality resulting from the Client’s failure to meet requirements or due to Internet connection failures.
4.5.4 The Client shall cooperate in the performance of the Agreement, free of charge, to the extent reasonably required. This includes providing NTT DATA and its authorized third parties with access to employees, workspaces, IT infrastructure, data, and telecommunication facilities, or granting access to the Licensed Software (application) or IT systems directly or via remote data transmission.
The Client shall designate a contact person in writing, providing their name, address, mobile phone number, and email address. The contact person must have authority to make the necessary decisions on behalf of the Client or ensure decisions are made without delay. Any changes to the designated contact person must be communicated to NTT DATA immediately in writing.
4.5.5 The Client shall thoroughly test the Licensed Software to confirm it is free from defects before commencing its operational use. This should be done as soon as reasonably possible after receipt of the Software or after receiving access authorization, typically within ten (10) days after receipt. This obligation shall also apply to Software received as part of subsequent performance or Maintenance. Any perceived defects must be reported to NTT DATA immediately in writing, with a detailed description of the issue.
4.5.6 The Client shall take reasonable precautions if it believes the Licensed Software does not function properly, such as performing data backup, fault diagnostics, and regular review of results. In the absence of express written notice, all NTT DATA personnel involved in service delivery shall assume that the Client Data they may access is properly secured.
4.5.7 The Client shall bear any disadvantages and additional costs to arising from its breach of obligations under this EULA. Any delay or non-performance of any provision of this EULA (other than for the payment of amounts due hereunder) caused by circumstances beyond the reasonable control of a party, such as Force Majeure, and which could not have been overcome by reasonable means, shall not constitute a breach of this EULA. The time for performance of such provision, shall be extended for a period equal to the duration of the circumstances preventing performance.
4.6. Warranties, Quality Defects, Defects in Title, and Other Faults
4.6.1 Warranties for On-Premise Software Without Maintenance
NTT DATA warrants that the Software will substantially conform to the specifications contained in the documentation for a period of six (6) months following delivery. The Client shall have the remedies set forth in herein, which constitutes the Client’s sole and exclusive remedy.
4.6.2 Client’s Warranties on Subscribed Software (On-Premise)
NTT DATA warrants that the subscribed Software (On-Premise) will meet the specifications stated in the documentation during its Term. This warranty applies only to defects that exist at the time NTT DATA delivers the Software.
4.6.3 Exclusions
The warranties set forth above shall not apply:
(i) if the Software is not used in accordance with the documentation and/or the Agreement;
(ii) if the defect is caused by a Modification or Add-on (other than one made by NTT DATA, its Partners, or licensors and provided through NTT DATA support or under a services warranty); or
(iii) in connection with any unlicensed activities by the Client.
NTT DATA does not warrant that the Software will operate uninterrupted, be free from minor defects or errors that do not materially affect performance, or that the applications contained in the Software will meet all of the Client’s business requirements.
4.6.4 Client’s Warranties on Cloud Services
NTT DATA warrants that the Cloud Service will meet the specifications stated in the documentation during its Term. This warranty applies only to defects that exist at the time NTT DATA delivers the Cloud Services.
4.6.5 Express Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, NTT DATA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
4.7. Remedies
In the event of a proven material defect, NTT DATA shall, at its sole discretion, repair or replace the nonconforming Licensed Software or deficient Cloud Service. The rectification of defects may also consist of NTT DATA offering the Client reasonable alternatives to mitigate the effects of the defect. The foregoing remedies may be affected via telephone, written, or electronic instructions, which the Client is reasonably expected to be capable of implementing.
If the subsequent remedy ultimately fails after an appropriate and agreed cure period (minimum of thirty (30) days), the Client may terminate the Agreement by providing thirty (30) days prior written notice. Any payment owed under a Maintenance subscription or Cloud Service subscription may be subject to a reduction, if agreed by the parties.
The Client also has the right to terminate the Agreement in the event of repeated failure to cure defects, by providing written notice to NTT DATA. The limitations stipulated in Section 5.3 shall apply to any claims for damages or reimbursement of expenditure incurred as a result of an uncured warranty defect.
4.7.1 Reporting
The Client shall promptly notify NTT DATA in writing of any breach of NTT DATA’s obligations, providing a detailed description of the defect. If the Client reports a defect that is not demonstrable or not attributable to NTT DATA, or if the Licensed Software is not used in accordance with the Documentation and the Agreement, NTT DATA may claim reimbursement from the Client for the expenses incurred in troubleshooting or attempting to rectify the reported defect. In particular, the Client shall reimburse NTT DATA for additional expenses incurred due to:
(a) failure to fulfill its cooperation obligations;
(b) improper operation of the Licensed Software;
(c) failure to use support or other services recommended by NTT DATA; or
(d) interference with the Licensed Software by the Client or a third party.
4.7.2 Notice Period
If NTT DATA fails to provide Cloud Services in accordance with the Agreement, the Client must notify NTT DATA in writing of the non-conformance and grant a cure period of minimum thirty (30) days, during which NTT DATA shall be given the opportunity to perform the service properly or otherwise remedy the situation.
Section 5.7 shall apply to notices. Section 5.3 shall apply for damages and reimbursement of expenses.
4.8. Additional Software Maintenance Services Provisions
Maintenance for NTT DATA Software applies to the Client’s entire inventory of maintenance-related NTT DATA Software. To be eligible for Maintenance Services, the Client must ensure that all installations of NTT DATA Software for which Maintenance is offered (including later acquisitions or NTT DATA Software acquired as part of Maintenance) are fully covered by Maintenance provided by NTT DATA.
The Client may terminate Maintenance either for all NTT DATA Software products or for individual products. If Maintenance is cancelled for a specific NTT DATA Software product, the remaining Maintenance services for any other NTT DATA Software products shall remain unaffected.
In cases where Software Maintenance is not in effect from the time of delivery but is only agreed upon at a later date, the Client shall pay retroactive Maintenance fees equivalent to the amount that would have been payable had Maintenance been in place from the date of delivery. The retroactive payment shall be due and payable immediately.
5. General Provisions
5.1. Payment, Taxes, and Reservation
5.1.1 The Client shall pay NTT DATA the contractually agreed amount for (a) the Licensed Software and its Maintenance; or (b) the agreed Cloud Services. Software Maintenance fees and annual payments shall be calculated as a percentage of the respective contract price of the Software (“Maintenance Base”). The Maintenance Base is independent of the actual Use of the Software.
5.1.2 All prices are subject to the applicable statutory value-added tax (VAT) or other country-specific sales or use taxes. If NTT DATA is subject to increased sales tax under the Agreement, the Client shall promptly reimburse NTT DATA for such amounts. For On-Premise perpetual Software Agreements, invoice shall be issued after delivery of the Licensed Software.
5.1.3 Software Maintenance, On-Premise subscribed Software, and Cloud Services represent recurring fees, which are invoiced in advance as specified in the Agreement. For any partial period, billing shall be on a pro rata basis. The payment obligation begins with the start of the respective Agreement.
5.1.4 Payments shall be made as specified in the invoice and are due within ten (10) calendar days from the invoice date, unless otherwise set forth in the Agreement. Failure to make timely payment may result in the assessment of default interest.
5.1.5 NTT DATA may suspend the Client’s use of the Cloud Service, Maintenance, or subscribed On-Premise Software until payment is received.
5.1.6 The Client may only offset invoiced amounts if agreed to by NTT DATA in writing or if legally established claims exist. The Client may only assert a right of retention based on undisputed or legally established claims. Claims may not be assigned to third parties without NTT DATA’s prior written consent, unless required by law.
5.1.7 The Agreement and the rights and obligations under it may only be transferred to another party with NTT DATA’s prior written consent.
5.1.8 NTT DATA may adjust the payment for Maintenance or Cloud Services by providing written notice to the Client in accordance with the notice period specified in the Agreement. Unless otherwise agreed, the amended payment shall take effect on January 1st of the following calendar year, in compliance with the terms herein. Unless otherwise agreed, NTT DATA shall change the remuneration according to the index mentioned under a) for Agreements subject to German law or under b) for all other Agreements governed by different law.
a. The index of the average gross monthly earnings of full-time employees in Germany in the economic sector of information technology services (currently published in quarterly figures by the Federal Statistical Office in Fachserie 16, Reihe 2.4, Gruppe J 62) shall be used as the basis for determining the change framework. Should this index no longer be published, the index published by the Federal Statistical Office which most closely reflects the development of average gross monthly earnings in the aforementioned sector of the economy shall be decisive for the determination of the change framework. If this is the first compensation adjustment, the index development
between the index level published at the time of the conclusion of the agreement and the index level last published at the time of the adjustment declaration shall be decisive for the change framework. If a remuneration adjustment has already taken place previously, the change framework shall be defined by the index development between the index level last published at the time of the preceding adjustment declaration and the index level last published at the time of the new adjustment declaration.
b. At its NTT DATA’s discretion, the adjustment may be up to three percent (3 %) of the respective annual remuneration or as otherwise specified in the Agreement. If the Client does not terminate the respective Agreement at the end of the calendar year by providing notice within the time period specified in the Agreement (special right of termination), the new payment shall be deemed accepted.
NTT DATA shall notify the Client in advance of any rate adjustment and, if required by law, notify the Client of its termination rights.
5.2. Third Party Claims
In the event of proven defects in title or in NTT DATA’s right and authority to provide the Licensed Software, NTT DATA shall remedy the issue by either obtaining the right for the Client to use the Licensed Software or by replacing or modifying the Licensed Software with equivalent software. The Client must adopt a new version of the Software if necessary to preserve the scope of functionality under the Agreement, provided that such adoption is not unreasonable.
If a third party asserts claims challenging the Client’s authorization to use the Licensed Software, the Client shall immediately inform NTT DATA immediately in writing. The Client shall not acknowledge any such claim without prior to a written confirmation from NTT DATA. If the Client discontinues the use of the Licensed Software due to mitigation measures or for other valid reasons, the Client shall notify the third party that such discontinuation does not constitute acknowledgement of the alleged infringement.
The Client authorizes NTT DATA, to the extent permitted and at its sole discretion, to settle the dispute with the third party, whether in or out of court, or to conduct settlement discussions in coordination with NTT DATA. The Client shall provide NTT DATA with the required and reasonable support, including relevant information, throughout the dispute resolution process.
NTT DATA shall indemnify and hold the Client harmless from costs and damages resulting from the defense against such claim, provided that the Client has complied with the conditions stated herein and if the claim is not based on the Client’s conduct.
5.3. Liability
In all cases of contractual or non-contractual liability, the following shall apply:
5.3.1 Each party is fully liable for willful misconduct and fraudulent intent, bodily injury, gross negligence, unauthorized use or disclosure of Proprietary Information or granted license, and a party’s breach of its data protection and security obligations that result in unauthorized use or disclosure of personal data. The Client shall also be liable for any failure to pay any fees due under the Agreement.
5.3.2 In all other cases, NTT DATA shall be liable only for breaches of material obligations (also referred to as cardinal obligations), and only to the extent stated in the liability limits indicated below. Material obligations are those obligations that must be fulfilled for the proper execution of the Agreement, or the breach of which would jeopardize the achievement of the contractual purpose and on which the
Client may reasonably rely on. In such cases, liability is limited to provable, direct, and typical damages. Moreover, total liability in such cases is further limited to the fees paid under the Agreement within the preceding twelve (12) months. In cases of default due to impossibility of performance by NTT DATA, total liability shall be limited to a maximum of twenty percent (20%) of the fees paid under the Agreement within the past twelve (12) months.
5.3.3 The option to assert contributory negligence remains available. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS; LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR SHARE VALUE; LOST OR CORRUPTED DATA OR SOFTWARE; LOSS OF SYSTEM(S) OR NETWORK(S), OR THE RECOVERY OF SUCH; LOSS OF GOODWILL OR REPUTATION; CONSEQUENTIAL, SPECIAL, INDICENTIAL, OR PUNITIVE DAMAGES, HOWEVER ARISING OUT OR RELATING TO AN AGREEMNT OR THE EULA.
5.3.4 In the event of data loss directly attributable to the acts or omission by NTT DATA, NTT DATA shall be liable only for the expenses necessary for the recovery of the data at reasonable cost, assuming the Client has performed regular and proper data backups. This liability shall not exceed the maximum limits specified in Section 5.3.2. The limitation shall not apply if NTT DATA is responsible for data backup as part of the Cloud Services it provides.
5.3.5 A limitation period of one (1) year shall apply to all claims for damages or reimbursement of expenses against NTT DATA arising from the Agreement. For contracts governed by U.S. law, the limitation period shall be two (2) years. The limitation period shall commence at the end of the calendar year in which the claim arose, or the Client should have become aware of it. The provisions of this section shall not apply to liability in cases of willful misconduct, fraudulent intent, gross negligence, bodily injury, or where otherwise prohibited by mandatory law.
5.3.6 Certain NTT DATA software and solutions may be used to collect, analyze, and report data or otherwise assist the Client with its legal, regulatory, or compliance obligations. The Client acknowledges that it is solely responsible for compliance with laws and regulations applicable to its business, including but not limited to financial regulations and securities trading. Under no circumstance shall NTT DATA be liable for damages arising from or in connection with the Client’s or any third party’s failure to comply with laws or regulations specific to the Client’s industry or business.
5.4. Confidentiality and Data Protection
5.4.1 Each party undertakes to treat all Proprietary Information of the other party, obtained prior to or in the course of the performance of the Agreement, as confidential for an unlimited period of time. Such information shall be protected with the same level of care as the receiving party uses to protect its own comparable Proprietary Information, but at a minimum with reasonable care.
Disclosure by the receiving party to third parties shall only be permitted to the extent necessary for exercising the receiving party’s rights or for performing the Agreement, and only where such third parties are subject to confidentiality obligations substantially similar to those set forth herein. Reproductions of the other party’s Proprietary Information shall, to the extent possible, include all notices and legends indicating its confidential or proprietary nature as contained in the original.
5.4.2 NTT DATA and its Affiliates may use the Client’s data and/or the contact person’s information (e.g., name, business address, and email address) to send product information, service offers, event information, news updates, and other relevant communications about NTT DATA’s goods and services. For the purpose of targeted advertising, NTT DATA may share names and addresses with processors (e.g., shipping service providers, media agencies) that process this data to compile and distribute promotional materials.
The processing of the data is required for the legitimate interests of NTT DATA and is justified by balancing interests in favor of NTT DATA. When selecting communication channels (e.g., postal mail or email for self-promotion to existing Clients), NTT DATA shall take reasonable care to ensure minimal disruption to the Client. The Client or the individual addressed may object to receiving such communications at any time.
5.4.3 NTT DATA shall comply with applicable data protection laws. Where NTT DATA receives access to the Client’s hardware or software (e.g., for remote maintenance), such access does not involve processing or use of personal data by NTT DATA for business purposes. Any personal data handled by NTT DATA shall be processed in accordance with currently applicable data protection and privacy regulations.
The final provisions governing the parties’ data protection obligations, particularly in the context of Maintenance services or other processing activities shall be set forth in a separate data processing agreement to be entered into between the parties.
5.4.4 The Client is responsible for the content of the Client Data and its collection within the Cloud Service or Maintenance. Subject to this Section, the Client grants NTT DATA (including its Affiliates and subcontractors) a non-exclusive right to use the Client Data solely and to the extent necessary:
(i) for the purpose of providing the Cloud Service or Maintenance (including, without limitation, creating backup copies and performing penetration testing) and related support; and
(ii) to verify the Client’s compliance with the Agreement.
5.5. Trade Compliance and End-User Restrictions
5.5.1 The Client shall not use the Software or Services under this Agreement in any manner prohibited by applicable Trade Compliance Laws. This includes, without limitation, reexporting, transferring, or
allowing access to the Software or Services to any country, person, or entity subject to trade, export, end-user, end-use, or end-destination restrictions.
The Client is responsible for ensuring compliance with all applicable Trade Compliance Laws in the Client’s country of headquarters, as well as in any other jurisdictions relevant to the Client’s use (including reexports, transfers, or allowing access) of the Software or Services.
5.5.2 The Client agrees to comply with NTT DATA’s Client Trade Compliance Terms, the breach of which shall constitute a material breach of the Agreement. The Client Trade Compliance Terms of Use are available on the NTT DATA Compliance Website (https://nttdata-solutions.com/my/about-us/compliance/export-control-and-sanctions-compliance/) (or any successor website) and form an integral part of this Agreement.
5.5.3 NTT DATA may, upon written notice to the Client, immediately terminate the Agreement if:
(a) subsequent changes in the applicable Trade Compliance Laws restrict or prohibit the delivery or performance under this Agreement;
(b) the Client fails to comply with NTT DATA’s Trade Compliance Terms; or
(c) the Client’s use of the Software or Services indicates non-compliance with applicable Trade Compliance Laws, and the Client, after receiving a request for clarification and being granted a reasonable response period of at least two (2) weeks, is unable to demonstrate compliance.
5.6. Usage of Artificial Intelligence (AI)
5.6.1 NTT DATA may use Artificial Intelligence (AI) technologies to support the Software application or Cloud Services provided to the Client.
5.6.2 The Software application or Cloud Services may integrate, utilize, or rely on Artificial Intelligence (AI) technologies for various functionalities, including but not limited to automation, decision-making, data processing, and user interactions.
5.6.3 AI-Generated Outputs: Outputs generated by AI components are provided on an “as-is” basis. The Client acknowledges that AI outputs are based on algorithms and data inputs, which may not always be accurate or error-free. The Client is responsible for verifying any information generated by the
Software before making significant decisions and should consult a human expert when necessary. NTT DATA disclaims any liability for decisions made based on AI-generated outputs.
5.6.4 Intellectual Property: AI-generated content within the Software may be subject to ownership restrictions. NTT DATA retains all rights to proprietary AI models and algorithms. The Client may only use AI-generated outputs within the scope of the Software’s intended purpose.
5.6.5 Data Processing and Privacy: AI features may process user data in accordance with NTT DATA’s applicable privacy policies and relevant data protection. The Client acknowledges and consents to the collection, processing, and potential storage of relevant data for AI functionality.
5.6.6 Responsible Use: The Client agrees to utilize AI functionalities responsibly and in compliance with applicable laws, ethical guidelines, and industry best practices. The Software must not be used for unlawful, discriminatory, or harmful purposes.
5.6.7 Modifications and Updates: NTT DATA reserves the right to update, modify, or discontinue AI functionalities as required, to ensure alignment with technological advancements, legal requirements, and ethical considerations.
5.7. Duration and Termination of the Software Transfer
5.7.1 Use rights to On-Premise Software, unless subscribed to, are perpetual This means that the Client is entitled to use the Software for an unlimited period, unless the authorization is revoked or terminated for good cause or due to the Client’s breach of the Agreement. Good cause shall exist only where it is unreasonable for NTT DATA to continue the Agreement in view of the circumstances and the interests of the parties. For example, good cause shall be deemed to exist if software piracy can be traced back to the Client and the individuals involved have committed a criminal offence.
5.7.2 For subscribed On-Premise Software, Cloud Services or Maintenance, if not otherwise specified in an Agreement, the following applies:
a. The arrangement ends upon the expiration of the Agreement’s Term.
b. The initial term shall end on December 31st of the third full calendar year following the effective date of the Agreement (minimum term). For Agreements commencing on January 1st, the minimum term shall run until December 31st of the third calendar year. Should no termination occur by the initial term, the Agreement shall automatically renew for an additional calendar year (renewal term).
c. Acquisition of additional subscribed On-Premise Software or Cloud Services automatically extends the term of the Maintenance or Cloud Services Agreement by one full calendar year, unless:
(i) the purchase occurs before the final calendar year of the initial term; or
(ii) the Client has already terminated the relevant Agreement and the purchase occurs after confirmation of termination but before the Agreement’s end date.
d. After the initial term, the Agreement may be terminated in writing with four (4) months’ prior notice before the end of a calendar year. Separate termination rights and termination for cause shall remain unaffected.
e. NTT DATA may terminate the Agreement without notice If the Client is in default of payment for the Licensed Software, Maintenance, or Cloud Services for two (2) consecutive months, or over
a period exceeding two (2) months. NTT DATA also reserves the right to terminate for good cause, particularly in the case of multiple instances or gross neglect of contractual obligations.
f. NTT DATA retains the right to claim payment accrued prior to termination and may demand flat-rate compensation equal to sixty percent (60%) of the payment due up to the earliest date the Client could have ordinarily terminated the Agreement. NTT DATA may also pursue other claims related to late payments.
5.7.3 NTT DATA may, without liability for any resulting loss, terminate the Agreement in its entirety and cease delivery or provision of the Software immediately and without prior notice if it reasonably determines that such delivery or performance would expose NTT DATA or its Affiliates to sanctions, liability, prohibitions, penalties, or restrictions under applicable export or end-user laws (including economic sanctions or embargoes).
5.7.4 In all cases of termination of the Client’s right of use, the Client is obliged to immediately cease using the Licensed Software and Proprietary Information. No later than one month after the end of the right of use, the Client shall irrevocably and permanently discontinue the use of the Software and either destroy all copies of the Licensed Software in an unrecoverable manner, or upon request by NTT DATA or its licensors, return all copies of the Licensed Software.
A right of retention is excluded. This obligation shall also apply to all copies, source code, and backup copies, unless retention is strictly required by law; in such cases, return or destruction shall occur at the end of the legally required retention period.
Any use of the Software by the Client, its Affiliates, or Third-Party Business Partners is strictly prohibited following termination. The Client shall confirm in writing to NTT DATA and its licensor that it and all relevant parties have complied with these obligations.
5.8. Modifications to the EULA, Business and Service Descriptions and Pricing
NTT DATA shall be entitled to adapt the EULA, prices, and product descriptions, including the scope of Maintenance or Cloud Services, to technical, economic, or legal developments, or to ensure compliance with applicable laws. NTT DATA shall notify the Client by email or by other suitable means about any intended changes to the EULA, specifications of Maintenance or Cloud Services, and/or the prices at least two (2) months before the change takes effect.
In such a case, the Client shall have the right to terminate the Agreement for convenience, effective on the date the changes take effect, by providing written notice to NTT DATA. If the Client does not provide written notice of termination within two (2) weeks of receiving the notice of change, the changes shall become part of the applicable Agreement on the effective date of the announced modification, and the Agreement shall continue under the amended terms.
NTT DATA is also entitled to adapt the scope of services of Maintenance or Cloud Services to the development of Software and technical advances. If such changes in services could negatively impact the legitimate interests of the Client, NTT DATA shall inform the Client of this change in services in writing or electronically no later than three (3) months before the changes take effect. This notification shall include a reference to the Client’s right to terminate and the consequences of not exercising that right to terminate.
In such cases, the Client is entitled to terminate the Maintenance or Cloud Services Agreement early, within two (2) months following the effective date of the amendment. If the Client does not exercise this right to terminate, the Maintenance or Cloud Services shall continue under the amended scope.
5.9 Miscellaneous
5.9.1 If any provisions of this EULA are held to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions. This EULA shall be construed and enforced as if such invalid or unenforceable provision had never been included herein.
5.9.2 If either party should waive any breach of any provision of this EULA, such waiver shall not be construed as a waiver of any preceding or succeeding breach of the same or any other provision this EULA.
5.9.3 Amendments and supplements to the EULA and the Agreement, as well as all notices or reports, required or permitted under the EULA and the Agreement, in particular notices of termination, reminders or setting of deadlines, must be made in writing and sent to the address specified in the order form or the Software and Maintenance Agreement. This shall also apply to the waiver of the written form requirement. The written form requirement may be fulfilled by facsimile transmission, exchange of letters, or other written forms, including email.
5.9.4 The parties agree that all disputes between them shall be promptly submitted for informal resolution to their respective executives who have the authority to bind their respective companies. The foregoing process shall not require either party to delay seeking injunctive relief or equitable remedies for claims arising from the other party’s breach of intellectual property or confidentiality obligations under this Agreement.
The Agreement, and any claims arising out of or relating to the Agreement and its subject matter, shall be governed exclusively by and construed by the laws of the country (and state, if applicable) in which the contracting NTT DATA entity has its registered office (local NTT DATA office), without reference to its conflict of laws principles. In the event of any conflict between foreign laws, rules, and regulations of the local NTT DATA office shall prevail and govern.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as amended, shall not apply. Unless otherwise agreed in the Agreement, all disputes shall be subject to the exclusive jurisdiction of the courts located in the city of the registered office of the local NTT DATA office.
Other services that are not covered by the express descriptions of the On–Premise perpetual or subscribed Software license, Cloud Service, or Maintenance Agreements must be agreed upon separately and are not the subject of this EULA or the Agreement.