Effective Date: April 1, 2022
These NTT Security Holdings Corporation (“NTT”) Terms of Service (these “Terms”) apply to NTT’s Samurai XDR application for its extended detection and response security service (including associated software and access to NTT’s hosted software application)] (“NTT Services”). These Terms are solely between NTT and you; any third party to whose services the NTT Services may allow connection is not a party to these Terms. Separate license terms apply to your use of such third-party services. To be eligible to register for a customer account in order to use the NTT Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms, and, in such event, “you” and “your” will refer to that company or other legal entity.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THESE TERMS. IF YOU DO NOT AGREE WITH ALL THE TERMS, CONDITIONS AND LIMITATIONS OF THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BOTTON AND YOU ARE NOT AUTHORIZED TO RECEIVE THE NTT SERVICES. WRITTEN APPROVAL BY NTT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THESE TERMS AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF NTT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. ACCEPTANCE BY NTT IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY NTT, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 19].
IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Section 27.
THE PROVISIONS OF THIS SECTION 19 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
Each of us can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their websitehttp://www.adr.orgor you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 27 conflicts with the Rules, the language of this Section 27 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 27 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
28 Miscellaneous. Neither these Terms nor the licenses granted hereunder are assignable or transferable by you (and any attempt to do so shall be void). NTT may freely assign, delegate, license and/or transfer these Terms, in whole or in part, without consent. You and NTT are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. These Terms shall be deemed to have been made in and shall be construed pursuant to the laws of California without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Subject to the foregoing, the provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. This is the complete and exclusive statement of the mutual understanding of the parties with respect to the license granted herein and supersedes and cancels all previous written and oral agreements and communications relating to such license and any waivers or amendments shall be effective only if executed in writing by NTT; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by NTT after the effectiveness hereof, shall have no force or effect. You are responsible for the information you provide or make available to the NTT Services and you must ensure it is accurate, not misleading and does not contain material that is obscene, defamatory, or infringing on any rights of any third party; does not contain malicious code and is not otherwise legally actionable. The substantially prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. Except as described in Section 27 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect. NTT’s failure to enforce at any time any provision of these Terms, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by NTT and you to be legally binding. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.