GENERAL PROCUREMENT TERMS AND CONDITIONS

These General Procurement Terms and Conditions (these ‘Terms’), including any materials incorporated by reference herein, along with the relevant SOW or PO referencing these Terms, form the binding Agreement by and between NTT DATA and Supplier (as each such party is defined below) and govern the supply and provision of Products or Services to NTT DATA by Supplier, as specified in the relevant SOW or PO.

By entering into an SOW or accepting a PO (as set out in clause 2.1 below), Supplier acknowledges that it has carefully read and fully understood these Terms and agrees to be bound thereto. Supplier expressly acknowledges and accepts that these terms are maintained at this webpage by NTT DATA on an ongoing basis and may, subject to the terms of clause 16.7 below, be updated by NTT DATA from time-to-time.

In consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:

1. DEFINITIONS AND INTERPRETATION
   • 1.1. Capitalized terms in the Agreement will have the following meanings or, where applicable, as directly indicated in the terms:

   Affiliate means a legal entity that controls, is controlled by, or that is under common control with either NTT DATA or Supplier. For purposes of this definition, ‘control’ means the power to direct the management and policies of an entity through voting rights, contract or otherwise.

   Agreement means, collectively, (a) any and all binding SOWs or POs (as set out in clause 2.1 below) that reference these Terms, (b) these Terms, and (c) any materials incorporated by reference in either of the foregoing, including (without limitation the NTT DATA Policies).

   Applicable Laws means any court judgement or statute, by-law, directive, treaty, regulation, rule or policy issued by a regulatory authority which is applicable to the general business operations of a party and: (a) in the case of Supplier, is applicable to Supplier’s license, delivery, provisioning and billing of the Products or Services; and (b) in the case of NTT DATA, is applicable to NTT DATA’s receipt, use of, payment, license, sub-license or resale of the Products or Services (as applicable based on the nature of the Supplier engagement).

   Code of Business Conduct and Ethics means NTT DATA’s then-current code of business conduct and ethics, which is made available at https://services.global.ntt/en-us/legal/- /media/c11f74a8bdff4dd6b9f89e3b0d27bace.ashx (or successor site) and as may be updated by NTT DATA from time-to-time (effective upon publication).

   Force Majeure means a circumstance which is beyond the reasonable control of NTT DATA or Supplier or an unexpected and disruptive event, which results in NTT DATA or Supplier being unable, delayed or otherwise hindered in its ability to observe or perform an obligation under the Agreement and such circumstances include, but are not limited to, the following examples: (a) acts of God, earthquakes, or any natural disasters; (b) changes in Applicable Laws; (c) applicable trade or banking sanctions (except where imposed directly or indirectly against Supplier or its Affiliate), acts of sovereign states, blockade, embargo, public disorder, acts of war or public enemy, or terrorism; (d) epidemics and pandemics (or a lesser spread of disease that causes interruption or delay); and (e) shortages of materials or labor.

   Insolvency Event means the occurrence of a party being adjudicated as bankrupt or insolvent, making an assignment for the benefit of creditors, invoking any provision of law for general relief from its debtors or initiating any proceeding seeking general protection from its creditors. 

   NTT DATA means, specifically, the contracting NTT DATA entity, as indicated on the relevant PO or SOW referencing these Terms.

   NTT DATA Group means NTT DATA Inc. and all its Affiliates.

   NTT DATA Systems means physical or virtual systems managed or controlled by NTT DATA.

   Personal Data means any information relating to an identified or identifiable person or other similar definition under any Applicable Laws governing treatment of personal data or personal information.

   Products means the goods, including hardware or software (and related accessories, material and documentation) purchased by NTT DATA and provided by Supplier pursuant to a SOW or PO.

   Protected Data means any information or data (excluding Personal Data) that is subject to Applicable Laws or industry or compliance standards or regulations concerning its use, storage, transmission or similar function performed in connection therewith.

   Purchase Order or PO means a purchase order issued to Supplier by NTT DATA against a valid quote for Products or Services, and such Purchase Order or PO shall incorporate these Terms.

   Services means the services to be provided by Supplier to NTT DATA, including (as applicable) the development of any Work Product, pursuant to a SOW or PO.

   NTT DATA’s Data means, any data (a) provided or transmitted to Supplier or Supplier Personnel by or on behalf of NTT DATA, (b) accessed, hosted or processed by Supplier or Supplier Personnel on behalf of NTT DATA, or (c) created by Supplier or Supplier Personnel on behalf of NTT DATA, in each case in connection with the provision of any Services.

   Statement of Work or SOW means a document, in a form reasonably agreed by the parties, describing the Products or Services to be provided by Supplier to NTT DATA, along with any other details or terms and conditions agreed by the parties, and such Statement of Work or SOW shall incorporate these Terms.

   Supplier means, specifically, the contracting entity for purposes of supplying the relevant Products or Services to NTT DATA, as indicated on the relevant PO or SOW referencing these Terms.

   Supplier Code of Conduct means the then-current supplier code of conduct of NTT DATA, which is made available at https://services.global.ntt/-/media/ntt/global/legal/global/supplier-code-of-conduct.pdf (or successor site) and as may be updated by NTT DATA from time-to-time (effective upon publication).

   Supplier Trade Compliance Terms means NTT DATA’s then-current trade compliance terms applicable to Supplier’s performance under the Agreement, which is made available at services.global.ntt (or successor site) and as may be updated by NTT DATA from time-to-time (effective upon publication).

   Work Product means all intellectual property and other materials uniquely created or developed for NTT DATA under the Agreement, including any and all software, software features, computer files, reports, documents, marketing assets, plans, drawings, specifications, records, forms, templates, methodologies, processes, technologies, designs, charts, flow charts, user interfaces, templates, menus, buttons, icons, tools, data, algorithms, ideas, concepts, know-how and methods or other manifestations of efforts of Supplier, regardless of their form and including drafts.

   • 1.2. In the Agreement, the following rules apply (a) NTT DATA and Supplier are referred to collectively as the ‘parties’ and each individually as a ‘party’; (b) clause headings are for convenience only and will not impact the interpretation or meaning of any terms; (c) unless the context otherwise requires, words in the singular will include the plural and in the plural include the singular; (d) a reference to the word ‘include’ or ‘including’ is to be without limitation; (e) the term ‘or’ will be interpreted as ‘and/or’ unless otherwise indicated; (f) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns; (g) a reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment or modification, and includes any subordinate legislation for the time being in force made under it; (h) any obligation in the Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done; (i) a reference to a ‘writing’ or ‘written’ includes e-mails; (j) any reference to ‘days’ will be interpreted as calendar days unless otherwise indicated; and (k) all attachments and materials otherwise incorporated by reference form part of the Agreement.
2. AGREEMENT FRAMEWORK
   • 2.1. NTT DATA may enter into (a) Statements of Work (each a ‘SOW’) for Services to be performed by Supplier or (b) Purchase Orders (each a ‘PO’) for Products to be provided by Supplier. Each SOW and PO will automatically be subject to the terms of this Agreement upon signature of the SOW or when the Supplier commences rendering the Services or providing the Goods to NTT, whichever comes first. NTT Affiliates may use the Goods and/or Services. If applicable, the details of such extended use or supply may be recorded in a SOW or PO.
   • 2.2. This Agreement may be superseded by a customized agreement that is concluded to cater for a specific engagement, if any. Each SOW and PO entered into by the parties will be subject to the terms of this Agreement.
   • 2.3. In the event of a conflict between the terms of a SOW or PO and the terms of this Agreement, the terms of this Agreement will take precedence unless (a) the SOW or PO expressly references the conflicting provision of this Agreement and expresses an intent to override it or (b) a specific term of this Agreement is expressly stated to give deference to a term of the SOW or PO.
3. SERVICES & PRODUCTS  
   • 3.1. Supplier agrees to perform the Services or provide the Products as set out in any SOW or PO in accordance with the terms of the Agreement, including (as applicable) the relevant supplemental terms set out in clause 17 of these Terms which, for the avoidance of doubt, automatically apply in addition to the other terms of the Agreement based on the qualifying conditions set out therein (‘Supplemental Terms’).
   • 3.2. Supplier acknowledges that the Services (including any Work Product associated therewith) and Products may be intended:
     1. for resale to clients of the NTT DATA Group (either directly or indirectly through resellers or sales partners);
     2. to be used, incorporated, or combined with other hardware, software and technology in order to provide a managed service to clients of the NTT DATA Group; or
     3. for the NTT DATA Group’s internal use;
        
        and Supplier expressly authorizes any and all such usage and, without limitation to any more specific terms set out herein, grants all rights and licenses necessary for the NTT DATA Group to use, transfer, pass-through, market, advertise, and sell the Services and Products as contemplated under the Agreement. In instances where subclauses (a) and (b) are not applicable to the Services being rendered or Products being provided to NTT DATA, Supplier must clearly stipulate and communicate such restrictions to NTT DATA in writing. 
   • 3.3. Without limiting the generality of clause 3.2 above, Affiliates of NTT DATA may use the Products or Services without need for further notice to or consent from Supplier. If applicable and necessary, the details of such extended use or supply may be recorded in a SOW or PO.
   • 3.4. NTT DATA does not guarantee Supplier a minimum purchase of Services or Products solely by the execution of the Agreement.
4. PAYMENT
   • 4.1. As full consideration for the delivery of the Products and performance of the Services, including (as applicable) the assignment of rights in any Work Product, NTT DATA will pay Supplier the amount specified in the applicable SOW or PO. Unless otherwise specified in the SOW or PO, the stated price for the Services and Products includes all charges and fees payable by NTT DATA (including shipping costs), but excludes any taxes billed in accordance with Applicable Laws, which must be stated separately on Supplier’s invoice. Supplier will provide NTT DATA with an estimate of applicable taxes for the Services and Products.
   • 4.2. The Services and Products will be invoiced as set out in the applicable SOW or PO.
   • 4.3. Unless otherwise specified in the applicable SOW or PO, NTT DATA will pay the invoiced amount (excluding any amounts subject to dispute) within 60 days after the date such invoice was properly received by NTT DATA. Supplier must continue performing its obligations under the Agreement in the event of any billing dispute. Payment of an invoice is not evidence or an admission that the Services or Products meet applicable requirements or specifications.
5. TAXES
   • 5.1. NTT DATA will, as applicable, provide to Supplier documentation substantiating a claim for exemption from any tax. Supplier may not bill any taxes to NTT DATA which are the liability of Supplier, including property taxes, franchise taxes and taxes based upon net income.
   • 5.2. Should any payment under the Agreement be subject to any withholding tax, NTT DATA will ensure (a) that such withholdings are made and remitted to the relevant government entity or authority and (b) the net amount after withholding is paid to Supplier, with the payment of (a) and (b) constituting full settlement of the sums owning for such payment.
6. INDEPENDENT CONTRACTOR
   • 6.1. Supplier is an independent contractor for all purposes, without express or implied authority to bind NTT DATA by contract or otherwise, and nothing in the Agreement creates any employment, agency, partnership, fiduciary or joint venture relationship between NTT DATA and Supplier or Supplier’s directors, officers, employees, agents, contractors, or subcontractors (collectively, ‘Supplier Personnel’). Neither Supplier nor any Supplier Personnel are entitled to any employee benefits of NTT DATA.
7. INSURANCE
   • 7.1. Subject to any additional or more specific insurance requirements set out in a SOW or PO, Supplier must, for the term of the Agreement and a period of 3 years after expiration or termination, maintain (at its own expense) insurance policies with reputable insurers which (a) are compliant with Applicable Laws, including workers compensation, disability or similar legislation and (b) provide coverage consistent with acceptable best practice in respect of the risks arising from Supplier’s performance of the Agreement. Supplier will ensure such coverage extends to NTT DATA property under the care, custody or control of Supplier or Supplier Personnel, if applicable. 
   • 7.2. Supplier will provide NTT DATA with certificates of insurance or evidence of coverage consistent with clause 7.1 upon NTT DATA’s request.
   • 7.3. Supplier will not do or omit to do anything which might invalidate or adversely affect the insurance Supplier is obligated to maintain under the Agreement and in the event any such policies become subject to (or are likely to become subject to) cancellation or any other material change, Supplier will provide NTT DATA with no less than 30 days’ prior written notice.
   • 7.4. In no event will Supplier seek contribution from NTT DATA’s own insurance and the lack of insurance coverage shall not reduce or limit Supplier’s indemnification obligations set out in the Agreement.
   • 7.5. For the avoidance of doubt, Supplier’s non-compliance with the terms of this clause 7 will constitute a material breach of the Agreement.
8. INDEMNITY
   • 8.1. Supplier will indemnify, defend, and hold NTT DATA and its Affiliates (including NTT DATA’s and its Affiliates’ respective officers, directors, agents and employees) harmless from and against all third-party claims and associated liabilities, damages, losses, expenses (including attorneys’ fees) and cost of suit arising, directly or indirectly, out of or in any way connected with:
   1. any breach by Supplier of Applicable Laws or, where applicable, its obligations under clause 17.3 below;
   2. any breach by Supplier of the Supplier Trade Compliance Terms;
   3. any claim based on the death or bodily injury to a person or destruction or damage to property arising out of Supplier’s acts or omissions relating to the Agreement;
   4. Supplier failing to satisfy any legislative or similar requirements for qualification as an independent contractor;
   5. any claim for any taxes, wages, or benefits brought by any Supplier Personnel; and
   6. any claim by a third party alleging that the Products, Services, Work Product (including any related products or processes provided in connection therewith), or NTT DATA’s use of any of the foregoing, infringe any patent, registered design, trademark, copyright or other intellectual property or proprietary right (‘Intellectual property Rights’).
   • 8.2. In the event of any claim subject to clause 8.1 above, NTT DATA will (a) notify Supplier and (b) hand over defense and related settlement negotiation of the claim, subject to NTT DATA’s right to participate (at Supplier’s cost) in such defense. Supplier will not settle any such claim without NTT DATA’s prior written consent. Notwithstanding the foregoing, if Supplier fails to respond to a notification as set out in this clause 8.2 within 10 days, then NTT DATA may proceed to settle or otherwise defend the claim as NTT DATA deems appropriate. In such instance, Supplier remains fully responsible for all costs and expenses incurred by NTT DATA, including any amounts awarded by a court or other judicial body or otherwise agreed in a settlement.
9. INFRINGEMENT
   • 9.1. If an infringement claim is made or appears likely to be made in connection with any Products, Services, or Work Product (including any related products or processes provided in connection therewith), Supplier will, in addition to Supplier’s indemnification obligations set out in clause 8.1, at NTT DATA’s option, either (a) procure for NTT DATA the right to continue to use the affected Products, Services, or Work Product, (b) modify the affected Products, Services, or Work Product so that it is no longer infringing, or (c) replace it with a noninfringing Products, Services, or Work Product of substantially similar function. If the parties determine that none of these options is commercially reasonable, the applicable SOW or PO will be terminated and NTT DATA will be refunded all amounts paid for the infringing Products, Services, or Work Product.
10. LIMITATION OF LIABILITY
    • 10.1. To the fullest extent permitted by law and subject to the express exceptions set out in clause 10.2 below:
    1. in no event will either party be liable to the other party for (i) any loss of revenue, business interruption loss, wasted time and expenditure loss, pure economic loss, loss of profits, loss of anticipated profits or anticipated savings, loss of opportunity, loss of business, loss of contract, loss of use, loss of goodwill, or loss of reputation, nor (ii) any incidental, indirect, special or consequential damages arising out of, or in connection with, the Agreement, in each case whether foreseeable or not; and
    2. in no event will either party’s aggregate liability arising out of, or in connection with, the Agreement exceed two times (x2) the total amount paid or payable by NTT DATA thereunder in the 12 months immediately preceding the event, act, or omission giving rise to the claim or liability.
    • 10.2. The damage exclusions and liability caps set out in clause 10.1 will not apply to:
    1. Supplier’s indemnification obligations the Agreement;
    2. either party’s breach of its obligations under clause 11;
    3. Supplier’s breach of Applicable Laws, the Supplier Trade Compliance Terms or, where applicable, its obligations under clause 17.3 below (including, as arising from such breach, any loss or corruption of NTT DATA’s Data).
    4. any claim based on the death or bodily injury to a person or destruction or damage to property arising out of Supplier’s acts or omissions relating to the Agreement; and
    5. any claim arising from Supplier’s gross negligence and willful misconduct.
11. CONFIDENTIALITY
    • 11.1. ‘Confidential Information’ means all non-public information (whether marked as confidential or which may reasonably be supposed to be confidential by its nature) that is disclosed before, on or after the Effective Date, by a party (‘Discloser’) to the other party (‘Recipient’) in connection with, or in furtherance of its performance under the Agreement, including the non-public terms and existence of the Agreement and information relating to the Discloser’s products, operations, processes, plans or intentions, product information know-how, trade secrets, market opportunities, clients and business, but expressly excluding information that can be reasonably shown was (a) in the public domain at the time of disclosure or becomes available to the general public afterwards other than by Recipient’s breach of the Agreement; (b) rightfully known by, or later becomes available to, Recipient on a non-confidential basis from a source other than Discloser that is not prohibited from disclosing such information to Recipient; or (c) independently developed by Recipient without use or reference to Discloser’s Confidential Information.
    • 11.2. With respect to Discloser’s Confidential Information, Recipient will (a) not use the Confidential Information for any purpose other than the performance or administration of its obligations or exercise of it rights under the Agreement, (b) disclose it to Recipient’s (or, if applicable, Recipient’s Affiliates’) directors, officers, employees, professional advisors, contractors, and, in the case of NTT DATA as Recipient, its third-party service providers used in the performance or administration of the Agreement, on a need-to-know basis only and subject to sufficient obligations of confidentiality with such parties (and Recipient will remain fully liable for a breach of this clause 11 by any entity or individual to which it transfers the Confidential Information as set out herein); and (c) protect it using the same level of care (but no less than reasonable care) Recipient uses to protect its own information of a confidential nature.
    • 11.3. The Recipient may disclose Discloser’s Confidential Information to the extent required by law or any governmental or other regulatory authority (including by a court or other authority of competent jurisdiction) (a ‘Disclosure Order’), provided that (a) Recipient’s disclosure of such Confidential Information is limited to the minimum amount necessary to comply and, (b) to the extent permitted by law, the Recipient (i) gives the Discloser prior written notice of the Disclosure Order as soon as practicable, (ii) provides the Discloser with a reasonable opportunity to make representations to the relevant authority to oppose the Disclosure Order; and (iii) reasonably cooperates with Discloser to oppose or limit the Disclosure Order or otherwise obtain the maximum possible continuing protection for such Confidential Information.
    • 11.4. The parties acknowledge and agree that damages may be an inadequate remedy in the event of a breach by Recipient of any confidentiality obligation, and, subject to the court’s discretion, the Discloser may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will constitute a breach.
    • 11.5. Upon the earlier to occur of Discloser’s written request or the termination of the Agreement, Recipient will promptly, at Discloser’s option, permanently and securely destroy or return all Confidential Information (and all copies) and, if requested by Discloser, promptly certify in writing that all such Confidential Information has been returned or destroyed in compliance with this clause. The foregoing notwithstanding, Recipient may retain documents and materials containing, reflecting, incorporating, or based on Discloser’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause 11 will continue to apply to any documents and materials retained by the Recipient.
    • 11.6. Supplier will not use the name or trademarks of NTT DATA or the NTT DATA Group or refer to or identify NTT DATA or the NTT DATA Group in any marketing materials (including without limitation testimonials or customer listings) or press releases without the prior written consent of NTT DATA.
    • 11.7. These confidentiality obligations will remain valid for a period of 3 years after the expiration or termination of the Agreement.
12. COMPLIANCE WITH LAWS AND NTT DATA POLICIES
    
    General Compliance
    
    • 12.1. Supplier warrants that it has complied with and will comply with all Applicable Laws in the performance of the Agreement, including those relating to:
    1. export controls, economic sanctions, customs and restrictions on international trade and investment (‘Trade Compliance Laws’); and
    2. prevention of bribery or corruption (‘ABAC Laws’).
    • 12.2. Supplier’s failure to comply with Applicable Laws will constitute a material breach of the Agreement.
      
      Trade Compliance
    • 12.3. Without limiting the generality of the obligations set out in clause 12.1 above, Supplier agrees to comply with NTT DATA’s then-current Supplier Trade Compliance Terms, the breach of which by Supplier will be a material breach of the Agreement.
    • 12.4. Supplier shall have the sole responsibility for obtaining any permit, license, exemption, or other government authorization, including any export or re-export authorization, required under any Trade Compliance Laws, in connection with Supplier’s performance of the Agreement and the provision of any Products or Services (including the transfer of any item or technical data under the Agreement) to NTT DATA, any Affiliate of NTT DATA, or to a client on NTT DATA’s behalf (where applicable).
      
      NTT DATA Policies
    • 12.5. Supplier will comply with NTT DATA’s Supplier Code of Conduct, Code of Business Conduct and Ethics, and any other applicable policies and procedures provided by NTT DATA to Supplier (and as may be updated by NTT DATA from time-to-time) (‘NTT DATA Policies’), the breach of which by Supplier will be a material breach of the Agreement. Without limiting the general obligations under clause 12.1 and this clause 12.5, Supplier shall not engage in nor permit any form of unauthorized or improper favors or payments (including bribery, corruption, extortion or embezzlement) in connection with the Agreement, the performance of the Services or provision of Products, or in the conduct of Supplier’s business.
      
      Training and Compliance by Relevant Supplier Personnel
    • 12.6. Supplier will ensure that any Supplier Personnel that have access to any NTT DATA Systems, NTT DATA’s
      Data, NTT DATA’s Protected Data, or NTT DATA’s Personal Data:
      
      1. undergo all training required by NTT DATA (as may be supplemented and updated by NTT DATA from time-to-time), including courses or other training relating to compliance, data protection, and security awareness; and
      2. certify, in a form reasonably acceptable to NTT DATA, completion of any such training (as set out in (a) above) and acknowledge receipt of, and agreement to, comply with all NTT DATA Policies (as provided pursuant to clause 12.5 above).
      Disclaimer
    • 12.7. NTT DATA assumes no responsibility for, and will not be liable for, any costs incurred or loss resulting from, Supplier’s violation of Applicable Laws, including Supplier’s failure to obtain any permit, license, exemption, or other government authorization pursuant to clause 12.4 above. Without limiting any termination rights reserved by NTT DATA under the Agreement, in the event NTT DATA is prevented from timely performing any obligation because of the denial, delay, cancellation, withdrawal, or non-renewal of any permit, license, exemption, or other government authorization required for NTT DATA’s performance under any Applicable Laws, NTT DATA’s failure to perform will be excused for as long as Supplier’s non-compliance persists.
      
13. AUDIT RIGHTS
    • 13.1. NTT DATA and its authorized representatives will have a right, both during the term of the Agreement and up to 24 months after termination, to audit Supplier’s records relating to the Agreement to verify compliance with the Agreement, including, for the avoidance of doubt, Supplier’s adherence to NTT DATA Policies (or similar compliance obligations) and the accuracy of Supplier’s charges. At a minimum, 7 years of written records relating to performance and charges under this Agreement will be maintained by Supplier.
14. TERM AND TERMINATION
    • 14.1. The Agreement commences on the Effective Date of each SOW or PO and will continue for the initial term set out in the SOW or PO, unless otherwise terminated in accordance with this clause 14. To the extent the parties wish to renew or extend the term of any SOW or PO, NTT DATA and Supplier will do so in writing by executing an amendment to the existing SOW or PO or by entering into a subsequent SOW or PO addressing such extension or renewal. There shall be no automatic extension or renewal upon expiration of the initial term or any expressly agreed extension or renewal term.
    • 14.2. NTT DATA may terminate any SOW or PO by giving at least 60 days prior written notice to Supplier. Supplier shall cease performing the applicable Services and providing the applicable Products on the date of termination specified in such notice.
    • 14.3. Either party may terminate any SOW or PO immediately upon delivery of written notice if the other party (a) commits a material breach that cannot be remedied; (b) commits a material breach that can be remedied but fails to do so within 30 days after receiving prior written notice detailing the breach; or (c) becomes subject to an Insolvency Event. NTT DATA will have the further right to terminate any SOW or PO immediately upon delivery of written notice if the Supplier is, in NTT DATA’s reasonable discretion, likely to become subject to an Insolvency Event or is otherwise impeded (or is likely to become impeded) in its ability to perform its obligations under the Agreement due to a materially adverse change in Supplier’s financial condition or status. In the event Supplier is exercising its termination rights for NTT DATA’s material breach pursuant to (a) and (b) of this clause 14.3, such rights will be limited to terminating the SOW or PO under which such material breach occurred.
    • 14.4. NTT DATA may, without liability for any resulting loss, additionally terminate any SOW or PO in its entirety and cease performance or implementation of any payment or other obligation under such SOW or PO without notice if NTT DATA reasonably determines that the Agreement would expose NTT DATA (or any Affiliate of NTT DATA) to any sanction, liability, prohibition, penalty, or restriction under any Trade Compliance Laws or ABAC Laws. NTT DATA’s termination rights under this clause 14.4 will apply notwithstanding any alleged or actual claim of Force Majeure asserted by Supplier pursuant to clause 16.1 below.
    • 14.5. Upon the expiration or termination of any SOW or PO, and in all cases subject to any terms governing the application of Transition Periods (as set out in clause 14.6 below), (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which are either expressed to survive its expiration or termination, or which it is contemplated by their nature or context that they are to survive, and (b) NTT DATA will be liable to Supplier only for those Services satisfactorily performed and those conforming Products delivered to NTT DATA through the date of termination.
    • 14.6. Unless more specific provisions are set out in Supplemental Terms below or the applicable SOW or PO, NTT DATA may, at any time prior to the expiration or termination of any SOW or PO for Services, provide notice to Supplier that it requires Supplier to extend the Services (or portion thereof), at the same rates, terms, and conditions, for a reasonable a period of up to 6 months from the previously scheduled date of expiration or termination (a ‘Transition Period’). During any such Transition Period, Supplier will, in addition to the continuation of the relevant Services (or portion thereof), provide reasonable transition assistance at no additional cost to NTT DATA, including the handover of (a) any information or documentation relating to NTT System configurations, settings, or designs, (b) NTT DATA’s Data, (c) NTT DATA’s Protected Data, and (d) NTT DATA’s Personal Data, in each case, to either NTT DATA or another supplier (as directed by NTT DATA).
15. DELAYS
    • 15.1. Supplier acknowledges that time is of the essence in the performance of its obligations under the Agreement. If Supplier believes that it may not be able to provide NTT DATA with the Products or Services by the relevant due date set out in the PO or SOW, as applicable, Supplier will:
    1. promptly provide NTT DATA with notice in writing, detailing: (i) the reasons for the anticipated delay; (ii) an estimate of the additional time that Supplier believes it will need to meet its obligations; (iii) details of (1) actions the Supplier intends to take to minimize the delay and (2) the Supplier recommendations of tasks to be done by NTT DATA to minimize the delay (if any); and
    2. commit such additional resources at no additional cost to NTT DATA (including suitably qualified and experienced personnel) in order to: (i) accelerate work to ensure provision of the delayed performance as soon as is reasonably possible; and (ii) reasonably ensure performance of all subsequent obligations on time; and
    3. use its best commercial efforts to require any authorized third party supplier or subcontractor of any Products or Services, whose fault or delay has caused or contributed to the delay, to: (i) allocate a suitably qualified technical person to assist in overcoming the delay until the delay has been overcome; (ii) allocate a manager of sufficient seniority to supervise the implementation of the remedy for the delay by the authorized third party supplier or subcontract and to report to NTT DATA on the progress thereof; and (iii) implement any other procedures for the minimization of the delay as may be set out in a project management plan agreed to by NTT DATA and Supplier.
    • 15.2. Notwithstanding anything else in this clause 15, if Products or Services are more than 10 calendar days late for any reason other than a cause attributable to NTT DATA or an event set out in clause 16.1 below (Force Majeure), NTT DATA may termination the relevant PO or SOW with immediate effect, with no liability to Supplier for the delayed Products or Services and NTT may procure similar substitute products or services from alternate suppliers. Supplier will provide a prorate refund of all payments made in advance to Supplier for the unexpired portion of the term.
16. GENERAL TERMS

    Force Majeure

    • 16.1. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by Force Majeure, provided that the affected party will provide prompt notice to the other party of any such Force Majeure and, in the case of Supplier as the affected party, use all reasonable endeavors to cure any such events or circumstances and resume performance under the Agreement. If any events or circumstances prevent the Supplier from carrying out its obligations under the Agreement for a continuous period of more than 30 days, NTT DATA may terminate the impacted SOW or PO immediately by giving notice to Supplier.

    Business Administration Data

    • 16.2. Supplier acknowledges and accepts, without the need for further notification or consent (unless required by Applicable Laws), that NTT DATA may transfer (both locally and cross-border) and disclose Supplier’s business administration data (including contact information for relevant Supplier personnel) to NTT DATA’s (and its Affiliates’) personnel, subcontractors, and third-party service providers that have a need-to-know such information for the purposes of administering the performance of this Agreement. NTT DATA will process and maintain such business administration data, including any Personal Data contained therein, in accordance with its privacy policies and Applicable Laws, provided that Supplier remains solely responsible for obtaining any individual consents or authorizations that may be required in connection with the contemplated processing activities set out in this clause 16.2.

    Notices

    • 16.3. Any notice required in connection with the Agreement must be in writing and will be deemed given when (a) delivered in person, (b) received by mail (postage prepaid, registered or certified mail, return receipt requested), or (c) received by an internationally recognized courier service (proof of delivery received by the noticing party) at the physical notice address, with an electronic copy sent to the electronic notice address. The physical and electronic notice address of the parties will be set out in a SOW or PO.

    Governing Law; Jurisdiction

    • 16.4. The following laws, without regard to choice-of-law principles, will govern the construction and enforcement of the Agreement and the parties irrevocably agree that the following courts will have exclusive jurisdiction to settle any dispute that arises in connection with the Agreement, according to the location of incorporation of the relevant NTT DATA entity entering into the relevant SOW or PO:
      

      Location of Contracting NTT DATA Entity	Laws / Venue
      Australia	The laws of New South Wales / the courts of New South Wales and the Commonwealth of Australia.
      South Africa	The laws of the Republic of South Africa / the courts of South Africa.
      United States	The laws of the State of New York / the courts of the State of New York.
      All other locations	The laws of England and Wales / the courts of London.

    Assignment

    • 16.5. Supplier may not assign or subcontract this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of NTT DATA. Any assignment or transfer without such written consent shall be null and void. If NTT DATA consents to Supplier subcontracting its rights or obligations hereunder, Supplier will (a) ensure that the subcontractor commits, in a legally enforceable contract, to obligations and requirements that are the same or no less restrictive than those set out herein, and (b) be responsible for all acts, omissions, and breaches of the Agreement by its subcontractors to the same extent as if Supplier had committed such act, omission or breach itself. The Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of NTT DATA without restriction.

    Variation

    • 16.6. No variation to the terms of any SOW or PO will be effective unless it is in writing and duly signed by NTT DATA and Supplier.
    • 16.7. NTT DATA may update these Terms by publishing a revised version at this URL (or successor site). Any such updated version of these Terms will be effective from the date of publication, without need for further notice to Supplier. Supplier may, within 30 days from the effective date of the update, notify NTT DATA of an objection to an update to these Terms, in which case the parties will discuss in good faith whether an accommodation may be made for Supplier. Any agreed accommodation must be recorded in a written amendment mutually executed by the parties. Notwithstanding the obligation to discuss in good faith whether an accommodation may be made, NTT DATA will be under no obligation to agree to Supplier’s requested accommodation. In the event the parties cannot agree to a resolution within 30 days of receipt of Supplier’s objection, NTT DATA may terminate the relevant SOW or PO without penalty or liability (beyond payment for Services rendered or conforming Products delivered), and Supplier will provide a prorate refund of all payments made in advance to Supplier for the unexpired portion of the term.
    • 16.8. The terms and conditions of the Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment, ‘click-through’, ‘shrink-wrap’ or other document submitted by Supplier.

    Severability

    • 16.9. If any provision of the Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

    Waiver

    • 16.10. A waiver of any default hereunder or of any term or condition of the Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.

    Non-Solicitation

    • 16.11. Supplier may not, during the term of the Agreement and for a period of 12 calendar months after its termination or expiration (including termination or expiration of all POs and SOWs entered hereunder), directly or indirectly (whether by itself or through the use of a third party):
    1. engage, recruit or employ any employee of NTT DATA who is or was at one time involved in the performance of the Agreement, unless such employee responds (without prompting from the hiring party or any representative acting on its behalf) to a general advertisement made in good faith for the purposes of recruitment and not merely to circumvent this clause;
    2. solicit (or otherwise circumvent NTT DATA to deal directly with) any client of NTT DATA for the purpose of offering such client goods or services which are substantially similar to or compete with the Products or Services being provided by NTT DATA through or in connection with the Agreement; and
    3. interfere with, disrupt, alter, or attempt to disrupt or alter, the relationship (contractual or otherwise) between NTT DATA and any client being provided Products or Services through or in connection with the Agreement.
       

    Nothing in this clause will have the effect of limiting Supplier’s obligations in respect of Confidential Information to the extent any information relevant to the restrictions in this clause 16.11 are also subject to the express limitations and restrictions set out in clause 11 above.

    No Exclusivity

    • 16.12. This is not an exclusive agreement. NTT DATA is free to engage others to perform Services or provide Products the same as or similar to Supplier’s.

    No Third Party Rights

    • 16.13. A person who is not a party to the Agreement shall not have any rights under or in connection with it.

    Entire Agreement

    • 16.14. The Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof.
17. SUPPLEMENTAL TERMS

In addition to the terms and condition set out above, the following Supplemental Terms apply to Supplier’s performance of the Agreement. To the extent of any inconsistency between the terms and conditions set out above and these Supplemental Terms, the Supplemental Terms will prevail. These Supplemental Terms are divided into multiple parts addressing different aspects of Products, Services, or Work Product that may be supplied to NTT DATA. More than one part may apply to Supplier’s performance of the Agreement depending upon the scope of the Products, Services or Work Product provided.

Supplemental Terms applicable to Products

• 17.1. If Supplier is providing Products under the Agreement, the following additional terms will apply:
1. Delivery. Delivery of Products will be made pursuant to the schedule, via the carrier and to the place specified on the applicable PO, consistent with Incoterms®1 2010 rules. NTT DATA may reschedule any delivery at any time prior to shipment of the Products. NTT DATA will not be subject to any charges or other fees as a result of such rescheduling. NTT DATA reserves the right to return all Products received in advance of the delivery schedule shipping charges collect. If no delivery schedule is specified, the order will be filled promptly and delivery will be made by the most expeditious form of land transportation. Supplier will promptly notify NTT DATA if it is unable to deliver the Products within the time specified. In the event Supplier fails to deliver the Products within the time specified, NTT DATA may, at its option, decline to accept the Products and terminate the PO or may demand its allocable fair share of Supplier’s available Products and terminate the balance of the PO. Supplier will be liable for the actual and reasonable costs and damages NTT DATA incurs if NTT DATA purchases replacement Products elsewhere due to the failure of Supplier to deliver such Products within the required time.
2. Packaging. Supplier will package all items in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. NTT DATA’s PO number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
3. Risk of Loss; Damaged Products. Unless otherwise specified on the PO (which will be interpreted in accordance with Incoterms® 2010 rules), the following terms will apply. Supplier assumes all risk of loss of the Products until receipt by NTT DATA. Title to the Products will pass to NTT DATA upon receipt by it of the Products at the designated destination. If the Products ordered are destroyed or damaged prior to title passing to NTT DATA, NTT DATA may at its option cancel the PO or require delivery of substitute Products of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of, or damage to, the Products is partial, NTT DATA will have the right to require delivery of the Products not destroyed or damaged.
4. Warranties. Supplier represents and warrants that all Products provided will (i) be new and will not be used or refurbished, unless expressly agreed by NTT DATA in writing, (ii) be free from defects in design, materials and workmanship and will conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to NTT DATA or for the period provided in Supplier’s standard warranty covering the Products, whichever is longer, (iii) be free of and clear of all liens, security interests or other encumbrances and Supplier has good title to the Products, (iv) not infringe or misappropriate any third party’s Intellectual Property Rights and (v) if such Products are software or hardware, not contain any code or other component designed to disrupt, disable, harm, erase, permit unauthorized access to NTT DATA’s data or systems or which includes or implements any worms, Trojan horses, viruses or other harmful code. Supplier hereby agrees that it will make spare parts available to NTT DATA for a period of five (5) years from the date of shipment at Supplier’s then current price, less applicable discounts. Additionally, Products purchased will be subject to all written and oral express warranties made by Supplier’s suppliers and manufacturers. All warranties will be construed as conditions as well as warranties and will not be exclusive. To the extent that it is more favorable to NTT DATA than the foregoing warranties, Supplier will furnish to NTT DATA Supplier’s (or the applicable suppliers or manufacturer’s) standard warranty and service guaranty applicable to the Products. All warranties and service guaranties will run to, and be enforceable by, both NTT DATA and to its clients. If NTT DATA identifies a warranty problem with the Products during the warranty period, NTT DATA will promptly notify Supplier of such problems and will return the Products to Supplier, at Supplier’s expense. Within ten (10) business days of receipt of the returned Products, Supplier will, at NTT’s option, either repair or replace such Products, or credit NTT DATA’s account for the same. Replacement and repaired Products will be warranted for the remainder of the warranty period or twelve (12) months, whichever is longer.
5. Software. To the extent any software is incorporated into any Products provided to NTT DATA, Supplier hereby grants NTT DATA a worldwide, non-exclusive, royalty-free, perpetual and transferable license to use such software for NTT DATA’s business purposes, including, if applicable, providing services to its clients. In the case of software supplied for resale by NTT DATA, Supplier grants NTT DATA a nonexclusive right to supply or sub-license the software to its clients. As between NTT DATA and Supplier (i) Supplier retains all right, title and interest in and to any software provided hereunder, including all rights under any applicable patents, copyright, trademarks, and trade secrets and does not convey any proprietary interest therein to NTT DATA other than the licenses granted hereunder and (ii) all right, title, and interest in and to the following will vest in NTT DATA and will be the sole and exclusive property of NTT DATA, and NTT DATA does not convey any proprietary interest therein to Supplier: (1) any data used in combination with the software or (2) all output derived from the use of the software. In the event a copy of any software provided hereunder become(s) damaged or destroyed through no fault of NTT DATA, Supplier agrees to promptly provide NTT DATA with replacement copy.
6. Inspection. NTT DATA will have a reasonable time after receipt of Products to inspect them for conformity hereto, and Products received prior to inspection will not be deemed accepted until NTT DATA has run an adequate test to determine whether the Products conform to the specifications hereof. Use of a portion of the Products for the purpose of such testing will not constitute an acceptance of the Products. If Products tendered do not wholly conform to the Agreement, NTT DATA will have the right to reject such Products. Nonconforming Products will be returned to Supplier freight collect and risk of loss will pass to Supplier upon NTT DATA’s delivery to the common carrier.
7. Hazardous Materials. Supplier represents and warrants that: (i) if Products include hazardous materials, Supplier understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials and will provide a safety data sheet to NTT DATA and (ii) no Products contain any substance or material that is subject to a reporting requirement under Applicable Law.
8. Customs. Upon NTT DATA’s request, Supplier will promptly provide NTT DATA with a statement of origin for all Products and any customs documentation for Products wholly or partially manufactured outside of the country to which they are delivered.
9. Sole Remedy. For the purchase of Products, Supplier’s sole remedy in the event of breach of this Agreement by NTT DATA will be the right to recover damages for any losses it may incur if it is unable to resell the relevant Products, which in no event will exceed the purchase price specified in the applicable PO. No alternate method of measuring damages will apply to this transaction. Supplier will have no right to resell Products for NTT DATA’s account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by NTT DATA and any resale so made will be for the account of Supplier.
10. UN Convention. The applicability of the UN Convention on Contracts for the International Sale of Products is hereby expressly waived by the parties and it will not apply to the terms and conditions of this Agreement or any PO hereunder.

Supplemental Terms applicable to Services

• 17.2. If Supplier is providing Services under the Agreement, the following additional terms will apply:
1. Warranties. Supplier represents and warrants that (i) all Services will be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures, and conforming to any applicable occupational health and safety standards, (ii) the Services will be completed in accordance with applicable specifications and will be correct and appropriate for the purposes contemplated in this Agreement and (iii) the performance of the Services will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound or infringe or misappropriate any third party’s Intellectual Property Rights.
2. Supplier Personnel. Supplier represents and warrants that:
1. all Supplier Personnel assigned to any projects pursuant to a SOW or PO have been subject to an industry standard background check or the equivalent including (A) verification of identity, employment history, and academic credentials, (B) check for criminal violations (for all counties for the last seven years) including crimes involving violent behaviour, drugs and crimes of dishonesty, and (C), to the extent permissible under Applicable Law, drug screening.
2. Supplier Personnel (A) with any record of violent behavior, (B) who have been convicted of any felonies, (C) who have been convicted of misdemeanors involving illegal drugs, fraud or moral turpitude, (D) who fail to pass drug screening for illegal drugs or I who pose a national security risk to any country in which such Supplier Personnel may be assigned to provide Services will not be assigned to NTT DATA.
3. If NTT DATA is dissatisfied with a particular Supplier Personnel for failing to perform the Services in accordance with the policies, programs, and procedures of NTT DATA and if Supplier has failed to correct the individual or individuals’ performance promptly following notice from NTT DATA, then NTT DATA, at its option and without prejudice to its other rights and remedies, has the right to demand the Supplier to immediately remove such Supplier Personnel, and Supplier, at NTT DATA’s request, will remove such Supplier Personnel on demand and furnish a replacement acceptable to NTT DATA as soon as reasonably practicable.
3. Contract Workers; Consultants. If Supplier provides any temporary contract workers, consultants, or similar temporary workers to supply the Services under a SOW or PO, Supplier will, in addition to any general indemnification obligations set out in the Agreement, indemnify NTT DATA for and in respect of:
1. any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) against NTT DATA arising out of or in connection with the provision of the Services;
2. any and all costs, expenses, payments, claims, penalties, fines or interest incurred or payable by NTT DATA in connection with or in the consequence of NTT DATA’s failure to withhold or remit any liability, deduction, contribution, assessment or claim from any payments due to the Supplier, other than where the latter arose out of NTT DATA’s negligence or willful default; and
3. any and all costs, expenses, payments, claims, penalties, fines or interest incurred or payable by NTT DATA in the event the Agreement constitutes a contract of employment or any temporary contract workers, consultants, or similar temporary workers is determined to be an employee of NTT.
4. Ownership. As between Supplier and NTT DATA, the following will remain the sole property of NTT DATA and Supplier must return the same to NTT DATA on completion of the Services or at NTT DATA’s request, whichever is earlier: (i) all tools, materials, equipment supplied by or on behalf of NTT DATA and (ii) all NTT DATA’s Data, including NTT DATA’s Personal Data and Protected Data (as applicable).
5. Lead Generation Services. If Supplier provides Lead Generation Services (defined below) to NTT DATA, NTT DATA will receive Licensed Data (defined below) that includes Personal Data of business professionals. Supplier will ensure that such business professionals have agreed to and confirmed in writing, that their Personal Data may be disclosed to NTT DATA or Supplier’s customers. Supplier warrants that it has the necessary rights, permissions, and authorizations to provide the Licensed Data to NTT DATA in accordance with the terms of this Agreement, the California Consumer Privacy Act of 2018, as amended, the General Data Protection Regulation 2016/679, and any equivalent law, statute or regulation regarding the processing, integrity, security and protection of Personal Data. Once NTT DATA receives the Licensed Data, NTT DATA will use the Licensed Data in accordance with Applicable Laws and it will not sell, license, or sublicense any Licensed Data provided or otherwise made available pursuant to this Agreement. NTT DATA understands and agrees that Supplier is not responsible for its use of the Licensed Data. Supplier will (i) not disclose the Personal Data of a business professional or include such Personal Data in the Licensed Data if it has not secured written consent from the business professional allowing Supplier to share the business professional’s Personal Data with NTT DATA; (ii) not disclose the Personal Data of a business professional or include such Personal Data in the Licensed Data if prior to disclosure, Supplier has processed a valid deletion or ‘do not share’ request in accordance with Applicable Laws, and (iii) as required under Applicable Laws, notify NTT DATA in a timely fashion if it subsequently processes a valid deletion or ‘do not share’ request in accordance with Applicable Laws by a business professional whose Personal Data is included in the Licensed Data. Supplier indemnifies NTT DATA against liability arising from third-party claims, including claims from business professionals, due to Supplier’s breach of this clause. To the extent that any Services involve the transfer of NTT DATA’s Personal Data to Supplier, then NTT DATA’s Vendor Data Processing agreement (which is available here) is incorporated into and forms part of this Agreement and will govern such transfer and use.
   
   For the purposes of this clause, ‘Lead Generation Services’ means lead and demand generation services which entail the disclosure of Licensed Data after an individual has signed up with the Supplier and agreed for his/her details to be shared by Supplier to Supplier’s customer base; and ‘Licensed Data’ means an individual’s contact record that includes information regarding a business professional, including the individual’s name, contact information, company affiliation, and other information made available to NTT DATA as part of the Services.
6. Supplemental Staffing Services. If Supplier provides any supplemental staffing services or services for the supply of resources, it is the express intent of the parties that NTT DATA’s standard Supplemental Staffing Services Agreement, as published at the services.global.ntt website (or successor site) or otherwise made available to Supplier, and not these Terms, govern the provision of such services.

Supplemental terms applicable to NTT DATA Systems and NTT DATA’s Data

• 17.3. If Supplier is providing Services that require access to or use of NTT DATA Systems or processing, hosting, transfer or storage of NTT DATA’s Data, the following additional terms will apply:
1. Ownership. Consistent with clause 17.2(d), Supplier agrees that NTT DATA’s Data will remain the property of NTT DATA.
2. Restrictions on Use. Supplier is provided, during the term of the applicable SOW or PO, a license to use NTT DATA Systems and NTT DATA’s Data hereunder for the sole and exclusive purpose of providing the Services. This license will terminate automatically upon expiration or termination of the applicable SOW or PO (or, as applicable, any Transition Period thereunder).
3. Minimum Necessary Access. Supplier will limit access to, and use of, NTT DATA Systems and NTT DATA’s Data to only Supplier Personnel that need to access or use NTT DATA’s Data to provision or support the Services. Without limiting the general obligations set out in clause 12.6 above, Supplier will procure that such Supplier Personnel are informed of the confidential nature of NTT DATA’s Data (if applicable) and comply with all restrictions and requirements applicable to the relevant NTT DATA Systems and NTT DATA’s Data, as set out in the Agreement or otherwise directed by NTT DATA. Supplier is fully responsible for any breach of such restrictions and requirements by Supplier Personnel.
4. Data Security. Without limiting Supplier’s obligation of confidentiality, Supplier will, in respect of any NTT DATA’s Data hosted on Supplier maintained or managed systems, be responsible for implementing and enforcing an information security program that is designed to:
1. ensure the security and integrity of the NTT DATA’s Data;
2. protected against any anticipated threats or hazards to the security or integrity of the NTT DATA’s Data;
3. protect against unauthorized access to or use of the NTT DATA’s Data,
4. ensure the proper disposal of NTT DATA’s Data; and
5. ensure that all permitted subcontractors, if any, comply with the foregoing.
5. Without limiting the generality of the foregoing, Supplier’s information security program must, at a minimum, comply with the security measures set out in Attachment C to NTT DATA’s Vendor Data Processing agreement which is made available on services.global.ntt (or successor site) and is incorporated into and forms part of this Agreement (available here).
6. Security Breaches. In the event of any unauthorized access to or use of NTT DATA Systems or NTT DATA’s Data or any loss or corruption of NTT DATA’s Data (‘Security Incident’), Supplier must:
1. immediately notify NTT DATA (no later than 24 hours after reasonably suspecting the occurrence of a Security Incident);
2. provide all available information (at the time of notification and as is subsequently discovered) regarding the Security Incident, including identification of the impacted NTT Systems, NTT DATA’s Data or Supplier maintained or managed systems (as applicable), the duration and any other information reasonably requested by NTT DATA;
3. take immediate steps to mitigate the harmful effects of the Security Incident, including those requested by NTT DATA; and
4. cooperate with NTT DATA’s efforts to satisfy its obligations (1) to any third parties (including any clients of NTT DATA) impacted by the Security Incident or (2) under any Applicable Laws.
5. In the event any specific security breach or incident notification or mitigation obligations are set out in the terms applicable to Personal Data or Protected Data or otherwise required by Applicable Laws, those more specific obligations will take precedence over these general terms.
7. Information Security Audit. In addition to the audit rights granted in clause 13 above, NTT DATA (and its representatives) will have the right to audit Supplier’s premises and information security program, upon reasonable advance notice, in order to confirm Supplier’s compliance with the terms set out in this clause 17.3.
8. Obligations on Termination. Where NTT DATA’s Data is hosted or stored on Supplier maintained or managed systems under a given SOW or PO, Supplier must, upon expiration or termination thereof (or, as applicable, the corresponding Transition Period), as required Transition Services (unless otherwise directed by NTT DATA) (i) immediately provide NTT DATA with a final export of the NTT DATA’s Data in a standard and readable format and (ii), upon NTT DATA’s written verification of receipt and validation of such NTT DATA’s Data, permanently delete or destroy all NTT DATA’s Data (including copies thereof) in Supplier’s possession.
9. Personal Data. To the extent any NTT DATA’s Data accessed, used, processed, stored, hosted or transferred by Supplier in accordance with this clause 17.3 is Personal Data, Supplier will comply with all Applicable Laws in respect of such Personal Data in the performance of the Services, and the parties will enter into additional agreements reflecting the jurisdiction specific compliance requirements with respect to such Personal Data (including, but not limited to, the execution of a data processing agreement and, as necessary, the EU standard contractual clauses). In the absence of a separately negotiated data processing agreement, the Supplier will comply with the Vendor Data Processing agreement which is made available on the services.global.ntt site (or successor site), which is incorporated into and forms part of this Agreement (available here).
10. Protected Data. To the extent any NTT DATA’s Data accessed, used, processed, stored, hosted or transferred by Supplier in accordance with this clause 17.3 is Protected Data, the parties will enter into additional agreements reflecting the industry, jurisdiction, or other specific compliance requirements with respect to such Protected Data.

Supplemental Terms applicable to Work Product

• 17.4. If Supplier is providing any Work Product under the Agreement, the following additional terms will apply:
1. Work Product. To the extent permissible under Applicable Laws, Work Product will be considered work made for hire pursuant to the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq., and any foreign equivalent thereof. All Work Product will at all times be and remain the sole and exclusive property of NTT DATA. To the extent, if any, that NTT DATA does not own full rights, title and interest in and to the Work Product, Supplier hereby agrees to irrevocably assign and transfer to NTT DATA and does hereby assign and transfer to NTT DATA all of its worldwide right, title and interest in and to the Work Product including all associated Intellectual Property Rights. NTT DATA will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that NTT DATA deems appropriate. Supplier agrees (i) to disclose promptly in writing to NTT DATA all Work Product in its possession, (ii) to assist NTT DATA in every reasonable way, at NTT DATA’s expense, to secure, perfect, register, apply for, maintain, and defend for NTT DATA’s benefit all Intellectual Property Rights and all other proprietary rights or statutory protections in and to the Work Product in NTT DATA’s name as it deems appropriate, and (iii) to otherwise treat all Work Product as NTT DATA Confidential Information as described above. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of this Agreement. To the extent, if any, that this clause does not provide NTT DATA with full ownership, right, title and interest in and to the Work Product, Supplier hereby grants NTT DATA a perpetual, irrevocable, fully paid, royalty free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Work Product, with the right to sublicense each and every such right. Supplier will ensure that Supplier Personnel appropriately waive any and all claims and assign to NTT DATA any and all rights or any interests in any Work Product. Supplier irrevocably agrees not to assert against NTT DATA or its direct or indirect customers, assignees or licensees any claim of any Intellectual Property Rights of Supplier affecting the Work Product.
2. Supplier Intellectual Property. Notwithstanding the foregoing, ‘Work Product’ will not include (i) standard Products manufactured by Supplier or a third party and sold to NTT DATA without having been designed, customized or modified for NTT DATA and (ii) any works conceived or reduced to practice by Supplier which were developed entirely on Supplier Personnel’s own time without using equipment, supplies, facilities, trade secrets or Confidential Information of NTT DATA (‘Supplier Intellectual Property’), unless such works (A) relate to NTT DATA’s business or NTT DATA’s actual or demonstrably anticipated research or development, or (B) such works result from any Services performed by Supplier for NTT DATA. Supplier grants and shall procure that the Supplier Personnel grant to NTT DATA and its Affiliates a nonexclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sub-licensable license to any Intellectual Property Rights in the Supplier Intellectual Property to the extent necessary for NTT DATA and its Affiliates to exercise their rights in the Products, Services or Work Product as reasonably contemplated by this Agreement.

Additional terms applicable to NTT DATA premises

• 17.5. If Supplier is provided with access to any facilities or premises owned, leased, licensed, or operated by NTT DATA or NTT DATA’s Affiliates or clients (‘NTT DATA Facilities’) under the Agreement, the following additional terms will apply:
1. NTT Premises Requirements. Supplier will:
1. comply with all policies and other directions issued by NTT DATA from time to time while accessing NTT DATA Facilities;
2. take all reasonable precautions to avoid injury or damage to people and property while accessing NTT DATA Facilities;
3. not interfere with NTT DATA’s activities or those of any other person on NTT DATA Facilities;
4. immediately notify NTT DATA on becoming aware of any event that results in, or has the potential to result it, personal injury or ill health to any person on NTT DATA Facilities; and
5. not bring any toxic, hazardous or otherwise regulated substance or material onto any NTT DATA Facilities except to the extent necessary to perform its obligations under the Agreement, and then Supplier may do so only to the extent that Supplier (A) complies with all Applicable Laws, (B) provides all appropriate warnings and notifications to NTT DATA and (C) provides NTT DATA with all information necessary for NTT DATA to comply with any obligations that are imposed upon NTT DATA due to the existence of such substance or material (alone or together with other substances or materials).
2. Confidentiality. Supplier will ensure that any Supplier Personnel granted access to NTT DATA Facilities have agreed to confidentiality obligations in accordance with clause 11 above or, if requested by NTT DATA, execute written confidentiality undertakings directly with NTT DATA.

Sensitivity Label: General | Version 2.0

© 2023 NTT DATA, Inc. | NTT Ltd. and its affiliates are NTT DATA, Inc. companies.

31 December 2023