THESE TERMS AND CONDITIONS REGULATE THE NON-EXCLUSIVE, PERSONAL AND NON-TRANSFERABLE USE OF THE EVA PRODUCT (THE “PRODUCT”) OWNED BY NTT DATA BY THE USER. 

1. “Service Level Agreement” means the level of availability of the Products and Services to the User and the minimums to be met by NTT DATA in the delivery of the Products and the provision of the Services. 

2. “Terms and Conditions” means this General Terms and Conditions document. 

3. “Agreement” means these NTT DATA Product Terms and Conditions together with the Quotation, the Order Form, and any other attachments, specific terms of use, addenda, or supplements. In the event of any inconsistency between these Conditions and the Offer, the provisions of the Conditions shall prevail, except as expressly authorized to be modified by the Offer.  

4. “Third Party Content” means third party components, standards, rules, and best practices, which have been obtained by NTT DATA from publicly available sources or their rightful owners, and which are governed by their own terms and conditions.

5. “User Data” means any data, information, or other material (proprietary, copyrighted or otherwise) that is uploaded, entered, created or otherwise provided by the User in the course of using the Product, including, without limitation, any third-party data obtained by the User and any Personal Data. 

6. “Personal Data” means any information about an identified or identifiable natural person as defined in applicable law, in particular, in REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (“GDPR”) and Organic Law 3/2018, on Data Protection and Guarantee of Digital Rights (“LOPD”).

7.”Intellectual and Industrial Property Rights” means any and all of the following: (a) registered patents, designs, trademarks, trademarks, utility models, copyrights or copyrights, know-how or trade secrets and database rights; (b) any other intellectual and industrial property rights and similar or equivalent rights anywhere in the world, now or hereafter existing; (c) applications for registration, extensions and renewals relating to any of the foregoing rights; and (d) the expression of any original work or creation, in any format, whether tangible or intangible, including, but not limited to, computer programs, source codes, object codes, technical documentation, instruction manuals, training materials, technical specification documents, plans, molds, codes or technical references and/or parts thereof, data formats, sketches, designs, logos, as well as the result of the transformation, modification, updating, adaptation, new versions or changes of such works or creations. 

8. Technical Documentation” means technical and user support documentation – in any form – for the Product that is provided and/or made available by NTT DATA. For clarification purposes, it does not include source code. 

9. Order Form” means the document containing the details of the Product purchased by the User to which these Conditions are attached and which forms part of the Agreement.  

10. “Incidents” means those technical mishaps that prevent the User from using the Products normally.

11. Confidential Information” means, without limitation, commercial, technical or financial information relating to NTT DATA’s Product and Additional Services or the business relationship between the Parties that is confidential in nature or is designated as confidential or any other information disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”) pursuant to this Agreement and which, by reason of its nature and the circumstances of its disclosure, should be deemed to be confidential. Confidential Information does not include information (a) in the public domain that is not the result of a disclosure by the Receiving Party or any of its representatives in breach of this Agreement; (b) that was in the possession of the Receiving Party prior to its disclosure by the Disclosing Party; (c) which is acquired by the Receiving Party from a third party without any obligation of confidentiality to the Disclosing Party; (d) which is subsequently independently developed by the Receiving Party without reference to the Confidential Information received from the Disclosing Party; or (e) the disclosure of which is expressly authorized by the Disclosing Party to the Receiving Party. The party involved shall provide evidence of the above-mentioned cause.

12. Maintenance” refers to the technical services provided by NTT DATA SPAIN or its Affiliated Company to enable the User to maintain the Product under this License/Subscription in good working order, preventing its failure, expiration or deterioration.  

13. “NTT DATA” refers to NTT DATA SPAIN, PAIN S.L.U., a Spanish company with registered office at Camino Fuente de la Mora, 1, CP 28050 Madrid (Spain) and tax identification number, as well as any company over which NTT DATA SPAIN has or may have, directly or indirectly, control. NTT DATA and the USER shall be referred to for the purposes of these Conditions individually as the “Party” and jointly as the “Parties”. 

14. “Offer” means the offer or proposal, in any form or by any name, in which NTT DATA, or one of its authorized distributors offers to purchase the Product and/or Additional Services with reference to these Terms. By entering any Offer, the User warrants that the person representing it has all the necessary powers and authority to bind the User to these Conditions.

15. “On premise” or on-premises refers to the type of installation of the Solution. The installation is carried out within the Company’s server and infrastructure (ICT). 

16. “NTT DATA Pre-existing Intellectual Property” or “Pre-existing IP” means all technology and information, deliverables, methodologies, data, designs, ideas, concepts, know-how, techniques, user interfaces, templates, documentation, software, hardware, modules, development tools and any other tangible or intangible technical material or information that NTT DATA owns prior to the commencement of this Agreement or develops independently of the activities governed by this Agreement, as well as any derivatives, modifications or enhancements made to any of the foregoing.

17.”Product” means the NTT DATA proprietary product identified in the Agreement.  

18. SaaS” means a distribution and licensing model used to deliver the Product over the Internet, i.e., as a service. 

19. “Maintenance Services” or “Maintenance” means professional services consisting of the performance of a task, assistance, support, or access to a resource that NTT DATA provides and makes available to Users in connection with the Product. 

20. “Development Services” or “Development” means professional services consisting of the inclusion of new functionality or adaptation of existing functionality at the request of the User. 

21. “Implementation Services” or “Implementation” means professional services consisting of performing the necessary actions to enable the Product to develop some or all of its intended functionality (as described in the Product’s technical documentation) on the User’s devices or infrastructure.

22. “Support Services” or “Support” means the services to be provided by NTT DATA to the User to clarify any doubts about the Product and its specifications. 

23. “Additional Services” means Maintenance, Development, Implementation or Support services. 

25. “Subscription Period” or “Subscription” means the period and the conditions under which a right to use the Product is granted to the User.  
26. “Fees” means an economic amount that NTT DATA will receive as consideration for the use of the Product by the User, and/or for the provision of Additional Services, as set forth in the corresponding Offer.
27. Additional Services” means Maintenance, Development, Implementation or Support services. 
28. “Subscription Period” or “Subscription” means the period of time and the conditions under which a right to use the Product is granted to the User.  

28. Authorized User” means a specific person authorized by the User (e.g., employees or co-workers of the User) to access and use the Product on behalf of and for the benefit of the User regardless of whether such persons are actively using the Product. Fees will be associated with the number of Authorized Users requested by the User.

2.1 License to use the Product. Subject to the terms and conditions of the Agreement, NTT DATA grants to User, who accepts, for the Subscription period set forth in the Offering, a non-exclusive, personal, non-transferable, limited, non-sublicensable, revocable license to use the Product as set forth in the Agreement and the Technical Documentation solely through Authorized Users. Access to and provision of the Product and the Technical Documentation is by electronic means.  

2.2 License to Use Third Party Content. To the extent Third Party Content is made available to the User as part of the Product, the User agrees and understands that the Third-Party Content is an essential and indivisible part of the Product and may not copy, publish or distribute any Third-Party Content separately from its use of the Product, nor transfer it to any third party. User shall not license, assign or transfer any Third-Party Content and shall not remove or alter any Intellectual Property Rights or any proprietary notices appearing on or in the Third-Party Content. User acknowledges and agrees that (a) Third Party Content is subject to User’s acceptance of its own terms and conditions; (b) NTT DATA makes no representations or warranties as to its accuracy, relevance, or the results of its use. 

2.3 Technical Documentation. To the extent the Technical Documentation is provided with the Product, NTT DATA grants to User a non-exclusive, non-transferable, revocable, non-assignable, non-assignable and free license in the Territory to access the Technical Documentation in hard copy and/or electronic copy formats for reading purposes only, and exclusively, to the extent that User’s Documentation is necessary for use of the Product. Reproduction, relabeling, distribution, offering, importing, sale, translation, modification, and derivative works of the Technical Documentation is strictly prohibited. 

2.4 Acceptable Uses and Restrictions on Use of the Product. These Terms and Conditions permit the use of the Product solely for the use for which it was designed, as set forth in the Agreement and the Technical Documentation. NTT DATA shall not be liable to the User in respect of any use other than the above. In particular, the User shall not (a) use the Product in any manner that violates applicable laws or regulations; (b) knowingly send or store infringing, threatening, defamatory or otherwise unlawful or criminal material, including material that violates the privacy rights of any person; (c) interfere with or disrupt the integrity or performance of the Product or the data contained therein; (d) attempt to gain unauthorized access to the Product or related systems or networks; (e) use any other robot, spider, scraper, deep link or other automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor any part of the Product; (f) attempt to post or transmit any file that contains viruses, computer worms, Trojan horses or any other contaminating or destructive features, or otherwise interferes with the proper functioning of the Product; or (g) perform any test or analysis on the security or performance of the Product without NTT DATA’s prior written consent, or publicly disclose the results of any such test or analysis. NTT DATA reserves the right to immediately suspend User’s use of the Product or to take any appropriate remedial action to address any infringement or suspected infringement by User. 

2.5 Use by Third Parties: If the Authorized Users include third party service providers, independent contractors and/or consultants of the User, the User agrees that all Authorized Users are aware of and comply with the terms of the Agreement.   

2.6 Restrictions on Technical Documentation: In addition to the above restrictions, User may not (a) disseminate or distribute the Technical Documentation to anyone other than Designated Users; (b) license, sell or otherwise commercially exploit the Technical Documentation; (c) create Internet “links” to the Technical Documentation or “frame” or “mirror” any content of the Technical Documentation on any other server or wireless or Internet-based device. 

2.7 Security: The User shall implement the security measures suggested by NTT DATA for the proper use of the Product and services, and, if applicable, according to the proposal contained in the Offer, to reinforce its systems and protect the Product and Additional Services. 

3.1 NTT DATA warrants that the Product will operate during the term of the license in accordance with the essential functionalities included in the Offering and in the Technical Documentation applicable to the Product. NTT DATA does not warrant that use of the Product will be uninterrupted or error free. If the essential functionalities of a Product do not conform to those set forth in the Offering or its Technical Documentation, User shall notify NTT DATA in writing so that NTT DATA may, in its sole discretion and unilaterally, take such actions as are reasonably possible from a commercial point of view to promptly repair or replace the Product or any part thereof or any other remedy contemplated by this Agreement. 

3.2 This warranty shall not apply, and accordingly NTT DATA shall have no obligation to make corrections or repairs or to replace the Product or any part thereof in the event of: (i) fault or negligence of the User; (ii) use of the Product in a manner not specified in the Technical Documentation; (iii) unavailability of third party services or causes external to the Product or NTT DATA; or (iv) incompatibility of the Product with other systems or applications of the User.  

3.3 EXCEPT FOR EXPRESS WARRANTIES IN THE AGREEMENT, THE PRODUCT, TECHNICAL DOCUMENTATION, THIRD PARTY CONTENT AND ANY SERVICES PROVIDED UNDER THE AGREEMENT ARE PROVIDED “AS IS”, ARE NOT WARRANTED TO BE ERROR FREE, AND USER ACCEPTS THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE, RELIABILITY, ACCURACY AND RESULTS OF THEIR USE. 

4.1 NTT DATA shall be entitled to conduct audits (at least once a year and in accordance with NTT DATA’s standard procedures, which may include audits at User’s premises and/or remote audits) on the use of the Product and the Technical Documentation. User shall reasonably cooperate in the conduct of such audits. In the event an audit reveals that (i) User has underpaid the Fees and/or (ii) User has made Use of the Software in excess of the number of licenses or tiers specified in the Offer, User shall pay such underpaid Fees and/or excess usage based on the Offered Fees and shall sign an additional Offer to include the necessary licenses in any additional number or tier. User shall pay NTT DATA’s reasonable costs of an audit if the results of the audit indicate that usage more than the quantities or tiers permitted by the license has been exceeded. NTT DATA reserves all rights to reclaim payments of less than Fees and more than the quantities or levels of use permitted by the license by User. 

4.2 NTT DATA reserves the right to incorporate software security mechanisms within the Product to monitor the use of the Product for the purpose of verifying compliance with the Agreement. The User may not take any action to prevent or defeat the purpose of any such measures. 

5.1 All Intellectual Property Rights in or relating to the Product, the Technical Documentation, the Additional Services, as well as NTT DATA’s Pre-existing IP shall remain NTT DATA’s exclusive Intellectual Property. NTT DATA may incorporate such measures as it deems appropriate in a Product or Technical Documentation to prevent unauthorized use. The User shall be liable for any infringement of the applicable regulations on Intellectual and Industrial Property Rights arising from the breach of the Agreement. In particular, the User is not authorized to access the source code of the Product. 

5.2 NTT DATA reserves all Intellectual Property Rights and all other rights not expressly granted to the User in this Agreement. Accordingly, nothing in the Agreement shall in any way limit NTT DATA’s right to develop, use, license, improve, modify, create derivative works, or otherwise exploit the Product, or to permit any third party authorized by NTT DATA to do so. 

5.3 In no event shall NTT DATA be prevented from using its general knowledge, skills and experience, as well as any ideas, concepts, know-how and techniques that are acquired or used in the course of the Agreement, or from reusing any general knowledge that is public and common to different companies in the same sector.  

5.4 The User acknowledges that all Intellectual and Industrial Property Rights owned by NTT DATA, or any other rights belonging to NTT DATA or third parties, are and shall remain the sole and exclusive property of NTT DATA or third parties, whether they are protected by Intellectual and Industrial Property Rights applicable in the Territory or in other countries at any time. 

5.5 The User shall not acquire any rights in or to any pre-existing Intellectual and Industrial Property Rights of NTT DATA, including the Product, the Additional Services, and the Technical Documentation, as well as rights of third parties, including rights to Third Party Content, except as set forth in this Agreement.   

5.6 The User shall not seek to register as its own, in any jurisdiction, the Intellectual and Industrial Property Rights owned by NTT DATA or any third party, whether protected by intellectual and/or industrial property laws in force in the Territory or in any other country at any time.  

5.7 User shall not remove or alter in any way NTT DATA’s copyright notices, trademarks and other proprietary notices on the Product, and Technical Documentation. 

5.8 The Parties may not use any trademark, logo, trade name, trade name, Internet domain name or other distinctive sign of the other Party, without the prior express written consent of the other Party. Such consent shall not be necessary for NTT DATA to use the foregoing in any proposal and/or presentation to third parties, as a mere commercial reference, or on NTT DATA’s internal Intranet, which is accessible only to employees, provided that the confidentiality obligations set forth in this Agreement are not breached.   

5.9 Where Third-Party Content is licensed under a Free Open Source license (FOSS) such components may only be used in accordance with the applicable licenses. All Third-Party Content subject to FOSS licenses provided with the Product (together with their respective licenses) are listed in the applicable Offering. 

5.10 User may, at any time, provide suggestions, enhancement or feature requests or other comments to NTT DATA with respect to the Product, services, or Technical Documentation (collectively, the “Comments”). User agrees that all Comments are voluntary and are provided to NTT DATA on an entirely voluntary basis. NTT DATA may use, disclose, reproduce, license, or distribute and exploit the Comments in its sole discretion, without restriction or obligation of any kind or nature. The Comments, even if designated as confidential by the User, shall not create any obligation of confidentiality for NTT DATA, unless expressly agreed to by NTT DATA in writing. To the extent that User, or any Designated User, makes any suggestions regarding any feature, functionality or performance that NTT DATA adopts for its Product or services (expressly excluding User Confidential Information), User and such Designated User hereby grant NTT DATA a non-exclusive right and license, royalty-free, worldwide, perpetual and irrevocable right and license to copy, use, make use of, publish, adapt, distribute, sell, license, create derivative works and otherwise freely exploit such suggestions, including incorporation into future versions of the Product or services. 

5.11 The User is authorized to print and make a reasonable number of copies of the Technical Documentation for its internal use in accordance with the Agreement, provided that the User reproduces on such copies all copyright and other proprietary notices found on the original copy of such Technical Documentation.  

5.12 If the Product, in whole or in part, consists of a database, the User shall not be entitled to perform any extraction and/or reuse of all or a substantial part, evaluated qualitatively and/or quantitatively, of such database. This exclusion shall only affect the original data provided by NTT DATA and shall not prevent the User from using the results derived from the use of the Product. 

6.1 Confidentiality. Each Party may have access to Confidential Information related to the Product, the User’s needs or the Agreement. Each Party acknowledges that the Confidential Information is private and valuable to the Disclosing Party and that any unauthorized disclosure or use thereof will cause irreparable damage and loss to the Disclosing Party. Each Party agrees to maintain the confidentiality of the Confidential Information of the other Party during the term of this Agreement until such Party returns or destroys all Confidential Information in its possession or control. Notwithstanding the foregoing, the Parties agree that all Confidential Information exchanged for purposes of the Agreement prior to the execution of the same shall be subject to the confidentiality provisions set forth in this clause.  

In addition, the obligation of confidentiality assumed by the Parties under this Agreement shall remain in force for a period of five (5) years after the termination of the Agreement.     

Neither Party shall disclose the Confidential Information of the other Party to any third party or use the Confidential Information of the other Party for any purpose other than that of the Contract, except to the extent required by law, governmental order or valid court order in accordance with Clause 12.2 below. The Parties shall be jointly and severally liable, together with their employees, agents and third parties for whom they are responsible, for all loss and damage arising from the breach of the confidentiality obligation, without prejudice to any actions that the injured Party may bring against the other Party or third parties under applicable law. The Receiving Party agrees to use the Confidential Information for the sole purpose of fulfilling the Agreement, unless otherwise agreed in writing by the Parties. 

6.2 Mandatory Disclosure. Each Party further agrees to take reasonable security measures when submitting Confidential Information. If the Receiving Party is required or compelled by applicable law or legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, prior to such compelled disclosure, inform the Disclosing Party (to the extent legally permissible) and reasonably assist the Disclosing Party, at the Disclosing Party’s expense, if the Disclosing Party wishes to object to the disclosure. Any such disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent reasonably practicable. Disclosure of Confidential Information required by applicable law or legal process shall not constitute a breach of this Agreement. 

6.3 Data of the signatories  

6.3.1. Purposes of processing. The personal data of the representatives, collaborators or employees of the User, to which NTT DATA has access by virtue of the contractual relationship, will be used exclusively for the purpose of executing, fulfilling and requesting the fulfillment of the obligations and responsibilities arising from the Contract, and managing the relationship between the Parties, as well as, where appropriate, for the defense of NTT DATA’s interests, legal advice and compliance systems. The above personal data will be processed, respectively, by NTT DATA, which will act, independently, as data controller. Said data will be processed for the purpose of complying with the rights and obligations of the Contract, without automated decisions being taken that may affect the data subjects. Consequently, the legal basis for the processing is the fulfillment of the contractual relationship. The data will be kept for the duration of the contractual relationship and will only be processed by NTT DATA and by those third parties to whom it is legally or contractually obliged to communicate them. 

6.3.2 Personal Data. For the purposes described in the previous Clause, NTT DATA may process the following categories of data: identification data, employment, or professional data (such as, for example, place of work and position), business information (such as, for example, activities and business or business licenses). The data processed shall be data provided between the Parties or by the data subject and other natural or legal persons. 

6.3.3. Exercise of rights. The interested parties may exercise, under the terms established by current legislation, the rights of access, rectification, and deletion of data, as well as request the limitation of the processing of their personal data, oppose to the same, or request the portability of their data by sending a written communication to NTT DATA. If they are not satisfied with the attention received from the Parties after exercising any of the rights, they may file a complaint with the Spanish Data Protection Agency or other competent authority. The interested parties may contact NTT DATA’s data protection officer at the following e-mail address: data.protection.office@nttdata.com 

6.4 Assignment Agreement. When the use of the Product by the User or the provision of Additional Services includes the processing of personal data on behalf of and for the User by NTT DATA, Addendum A to this Agreement shall apply and the parties shall include the details of the data processing in the Offer.  

6.5. Trial Version. Clauses 6.3 and 6.4 of these Conditions shall not apply when the User uses the trial version of the Product. In this case, the corresponding clause of the Specific Terms of Use of eva (Trial Version) shall apply. 

7.1 User Data. User has and will retain ownership and control of all User Data. User may not enter, upload, process, or host User Data on or with a Product unless User has lawfully obtained it and complies with all applicable laws regarding User’s use of such User Data. NTT DATA shall have no obligation or liability for any Data entered, uploaded, processed, or hosted by the User on the Product(s). 

7.2 Product Usage Data. NTT DATA may collect, use, process and store technical and usage-related content from the computer, cell phone or other devices that the User uses to download, install, and access the Product, for enhancement, support, and software verification purposes. This may include, but is not limited to, IP addresses and other information such as Internet service, location, browser type and modules being used and/or accessed (the “Usage Data”). You agree that NTT DATA may process the Usage Data to create and compile anonymous and aggregated data sets and/or statistics about the Product to maintain, monitor and improve the performance and integrity of NTT DATA’s Product. 

7.3 Product Improvement. NTT DATA may use the User Data and the Usage Data generated or obtained during the use of the Product by the User for the purpose of analyzing and identifying possible areas of improvement of the Product. Where User Data or Product Usage Data includes personal data within the meaning of the GDPR, NTT DATA will first irreversibly anonymize the information prior to its use for Product improvement purposes. 

8.1 Fees. The User shall pay the Fees set forth in the Offer. Unless otherwise stated in the applicable Offer, the Fees shall be payable within thirty (30) days from the date of invoice and are non-cancellable and non-refundable.  

8.2 Taxes. All applicable taxes (excluding taxes on NTT DATA’s net income), duties or other governmental fees are in addition to and payable by User, and are based on the address specified in the Offering. If User is obligated to pay any withholding tax, charge or levy with respect to any payment due to NTT DATA hereunder, User shall calculate the payments made in such a manner that NTT DATA receives the amounts due hereunder in full and free of any deduction for any withholding tax, charge or levy. NTT DATA shall not collect any taxes from the payment of which User is exempt if User is a tax-exempt institution or entity and evidenced by an appropriate tax-exempt certificate. 

8.3 Late Payment of Fees. Except as otherwise stated in the applicable Offering, if payment of any Fees is more than thirty (30) days past due, NTT DATA may, without limiting all other rights and remedies available to it, suspend or terminate User’s access to and use of the Product, or the Additional Services, with respect to which payment of Fees is outstanding until such amounts are paid in full. NTT DATA will give at least seven (7) days’ notice that Fees are outstanding prior to any suspension and will not exercise such right if the User reasonably and in good faith is dissatisfied with and has complained about the applicable Fees and is cooperating diligently to resolve the dispute. Also, if payment has not been made within thirty (30) days from the date of issuance of the invoice, NTT DATA may bill late payment charges which shall be calculated by applying 3% per month of the amount of the charges to the days of delay, except as otherwise provided by law. Such charges shall not be in lieu of any other claim NTT DATA may bring. 

8.4 Modification of Fees. Except as otherwise set forth in the Offer, NTT DATA reserves the right to change, update or modify the Fees set forth in the Offer upon prior written notice of such price modification to User (i) in the case of Offers with a term of more than one (1) year, at least two (2) months prior to the implementation of such change and, (ii) in the case of Offers with a term of one (1) year or less, at the time of renewal of such Offer. 

9.1 Term of the Conditions. These Terms shall remain in effect indefinitely. NTT DATA may update these Terms.  

9.2 License Term. The Product license granted to User shall be for the term set forth in the applicable Offering. If no term is set forth in the Offer, the term shall be one (1) year from the date of acceptance of the Offer. 

9.3 Term of the Additional Services. The Additional Services shall have the term established in the corresponding Offer. If no term is established in the Offer, the term of the Services shall be the same as that established for the license to which they are associated. 

9.4 Renewal. Unless otherwise stated in the Offering, User’s license and Additional Services shall renew at the end of each Subscription term for a new term of one (1) year, unless unless unless: (a) NTT DATA receives notice of non-renewal from User at least thirty (30) days prior to the end of the then-current Subscription term; or (b) NTT DATA delivers notice of non-renewal to User at least sixty (60) days prior to the end of the then-current Subscription term. 

10.1 Early Termination. Either Party may terminate the Contract and/or the Offer immediately if the other Party is in material breach of its obligations under the Contract and within thirty (30) days after receipt of written notice from the Party terminating the Contract, the breaching Party fails to cure the breach, or fails to make substantial progress, to the reasonable satisfaction of the other Party. Either Party may also terminate the Agreement at any time without cause by giving written notice to the other Party at least thirty (30) days prior to the intended date of termination; however, any Fees paid in advance shall not be refunded and User shall remain liable for any unpaid Fees for the remaining term. 

10.2 Termination for breach. NTT DATA may elect, in addition to suspending access to the Product and/or discontinuing the provision of Additional Services, to terminate the Agreement and/or the Offering immediately if User breaches any of the following obligations (i) User’s use of the Product in contravention of the contents of the Offering and its Technical Documentation (ii) User’s failure to pay Fees (iii) User’s breach of any representation or warranty regarding User’s obligations or its regulatory compliance program. If NTT DATA terminates the Agreement due to any of the foregoing breaches by User, notwithstanding any applicable liquidated damages, if any, User shall remain liable for all outstanding Fees due for the entire term of the license and Additional Services. If the User terminates the Agreement for cause, NTT DATA will refund any prepaid Fees calculated from the effective date of termination until the end of the current Subscription term. 

10.3 Effects of Termination. Upon termination of the Agreement and/or the Offering, NTT DATA will terminate access to and use of the Product and, if applicable, terminate the provision of Additional Services to User and Designated Users. The User shall destroy or delete the original and all copies of such Product and Technical Documentation in its possession or control. NTT DATA reserves the right to decide between the following options: 

(a) upon NTT DATA’s written request, an authorized signatory of User’s organization will certify in writing to NTT DATA, within thirty (30) days of such request, that the original and all copies of the Product and Technical Documentation have been destroyed or returned to NTT DATA.  

(b) Upon one day’s prior notice, NTT DATA or a third party designated by NTT DATA will access User’s premises to verify the destruction of the original and all copies of the Product and Technical Documentation. 

10.4 Return of Confidential Information. Each Party shall promptly return to the other Party all Confidential Information of the other Party in its possession or control. Where set forth in the Offering, User shall be responsible for removing all User Data from the Product upon expiration or termination of the Subscriptions, for which NTT DATA shall allow User access to the Product for a period of thirty (30) days after expiration or termination to facilitate such removal. If there is no such obligation on the User as set forth above, NTT DATA shall delete all User Data provided under this Agreement. 

10.5 Survival. Termination of the Agreement shall not constitute a waiver of any Fees, amounts or charges owed by User, nor shall such termination in any way limit or compromise any other rights of either Party under this Agreement. Regardless of the termination of the Agreement for any reason, the Parties agree that certain terms shall survive termination of the Agreement, including, but not limited to, Confidential Information, data protection and Intellectual and Industrial Property Rights. 

11.1 Disclaimer of Responsibility. EXCEPT AS OTHERWISE RESTRICTED BY APPLICABLE LAW, NTT DATA AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCT, TECHNICAL DOCUMENTATION, THIRD PARTY CONTENT AND ANY SERVICES PROVIDED UNDER THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR STATEMENT PROVIDED BY NTT DATA, ITS LICENSORS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, ADVISORS, AFFILIATES, CONTRACTORS, DISTRIBUTORS OR AGENTS SHALL EXPAND THE SCOPE OF ANY EXPRESS WARRANTIES IN THE AGREEMENT OR CREATE ANY NEW REPRESENTATIONS, WARRANTIES OR CONDITIONS. 

11.2 Limit of Liability for Damages. NTT DATA’S (AND THEIR RESPECTIVE LICENSORS, AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, DIRECTORS, CONTRACTORS, DISTRIBUTORS AND AGENTS) TOTAL AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL BE LIMITED SOLELY TO DIRECT, PROVEN DAMAGES SOLELY ATTRIBUTABLE TO NTT DATA THAT DO NOT EXCEED THE LESSER OF THE AMOUNT OF THE FEES PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR THE TOTAL AMOUNT PROVIDED IN THE OFFERING OF THE PRODUCT OR SERVICE FROM WHICH THE DAMAGES ARISE. NTT DATA, ITS LICENSORS AND AFFILIATES (INCLUDING THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, DISTRIBUTORS AND AGENTS), SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA OR COSTS OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THE USER’S USE OF OR INABILITY TO USE THE PRODUCT, TECHNICAL DOCUMENTATION, THIRD PARTY CONTENT, ANY SERVICE PROVIDED UNDER THE AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THE AGREEMENT, REGARDLESS OF THE TYPE OF LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMIT OF DIRECT DAMAGES PROVIDED FOR IN THIS CLAUSE SHALL NOT APPLY TO (I) INDEMNIFICATION OBLIGATIONS (II) ANY BREACH AFFECTING NTT’S INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS IN RELATION TO THE PRODUCT (IV) AMOUNTS CORRESPONDING TO FEES DUE AT THE DATE OF TERMINATION (V) ANY GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE PARTIES (VI) LIABILITY ARISING FROM DEATH OR PERSONAL INJURY. 

11.3 Responsibility for Third Party Content. USE OF THIRD-PARTY CONTENT IS SUBJECT TO THEIR PARTICULAR TERMS AND CONDITIONS. BY USING IT, YOU RELEASE NTT DATA AND ITS LICENSORS FROM ANY AND ALL LIABILITY THAT MAY ARISE IN CONNECTION WITH SUCH USE. IN PARTICULAR, NTT DATA DISCLAIMS ALL WARRANTIES AND LIABILITY IN CONNECTION WITH THIRD PARTY CONTENT BASED ON FOSS LICENSES. 

11.4 NTT DATA’s Liability for Third Party Claims. NTT DATA will defend User with respect to any claim asserted against User that a Product or a service, when used in accordance with the Agreement, infringes any Intellectual Property Rights of a third party in the Territory, and will indemnify User for actual damages (including reasonable attorneys’ fees) finally awarded against User with respect to such claim, or for the amount agreed to settle such claim, provided that: (a) User notifies NTT DATA without undue delay of the claim received; (b) NTT DATA has sole control of the defense and all negotiations for its settlement or compromise (provided that this does not require an admission of fault or liability by User); and (c) User reasonably assists NTT DATA in the defense. NTT DATA shall have no obligation to User if the infringement claim is based on or related to: (a) the User’s continued use of a version of the Product that NTT DATA no longer commercially distributes, if NTT DATA has available a new version of a Product that would avoid or reduce the infringement claim; (b) the use or combination of any Product or services with other programs, components products or services not provided or authorized by NTT DATA, if such use or combination gives rise to the infringement claim; (c) the improper use, misuse or combination of any Product or services with other programs, components products or services not provided or authorized by NTT DATA, if such use or combination gives rise to the infringement claim; (c) misuse, misappropriation or improper disclosure of User Data by User; or (d) use of a Product or service in breach of the Agreement, or in a manner that does not comply with the terms of the Agreement or that is not in accordance with the applicable Technical Documentation. 

11.5 Third Party Claims Actions. Upon notice of a claim of infringement or, if in NTT DATA’s opinion, such a claim is likely to be made, NTT DATA shall have the right, at its option and expense, to (a) procure that User is entitled to continue to use the affected Product or service; or (b) replace or modify such Product or service so as to provide substantially equal or superior functionality and performance to the affected Product. If, in NTT DATA’s opinion, none of the foregoing options is commercially reasonable under the circumstances, NTT DATA may terminate the Agreement and/or the Offering upon thirty (30) days prior written notice to User and will refund on a prorated basis the prepaid and unused Fees for the remainder of the current Subscription term. The pro-rated refund will be calculated from the date NTT DATA receives notice of the infringement claim through the remainder of the term of the license. Clauses 11.3 and 11.4 set forth NTT DATA’s entire obligation and liability with respect to infringement of Intellectual Property Rights and proprietary rights of third parties. 

11.6 User’s Liability for Third Party Claims. You will defend and indemnify for damages arising out of any claim against NTT DATA (including, without limitation, its group companies and their employees, directors, agents and representatives) arising out of or relating to: (a) your collection and use of the User Data in connection with the Product, or (b) your failure to comply with your obligations in connection with the Third Party Content or restrictions in the Product. The indemnity set forth in this clause includes any damages (including costs associated with legal defense) finally awarded against NTT DATA with respect to any such claim, or for the amount agreed to settle such claims, provided that (a) NTT DATA notifies the User without undue delay of the claim; (b) User has sole control of the defense and all negotiations for its settlement or compromise (provided that this does not require an admission of fault or liability by NTT DATA); and (c) NTT DATA reasonably assists User in the defense. This indemnification shall not apply to the extent that such claim arises solely out of the Product itself or is caused by NTT DATA’s breach of this Agreement. 

11.7 Liability for Force Majeure: None of the Parties shall be liable for delays in performance or non-performance due to force majeure or acts of God, understood as those established by the applicable Spanish legislation. 

Any notice, request, demand, requirement, instruction, instruction, notification, or other communication given or sent in the context of the Contract shall be in writing and shall be sent by post (with acknowledgement of receipt), by e-mail or delivered to the relevant Party at the address stated in the Quotation. Notices shall be deemed to have been effectively received, if delivered personally, at the time of such delivery; if delivered by mail, at the time of proof of such delivery to the addressee; and, if sent by e-mail, when an explicit acknowledgement of receipt thereof is obtained or when it is technically feasible not to repudiate it.  

Any change of address for the purpose of notifications shall be notified to the other Party with reasonable notice and in accordance with the provisions of this clause. 

13.1 This Agreement shall be governed by and construed in accordance with Spanish law.  

13.2 Any dispute, controversy or claim arising out of or relating to the Contract, or the breach, termination, or invalidity thereof, shall be resolved by the Courts and Tribunals of the city of Madrid (Spain). 

The Parties undertake to comply with all the regulations in force that may be applicable (including international regulations) to the Contract and during the term of the same, especially the Spanish Anti-Corruption, Criminal Code, Prevention of Money Laundering and Antitrust regulations.  

Each Party declares that it has implemented a Regulatory Compliance Program or Compliance Program, which entails the development of the professional activity under ethical and integrity parameters, embodied in its own Code of Ethics, and whose essential purpose is the identification of regulatory compliance risks in the organization, as well as their prevention and control.  

Each Party undertakes to fully comply with the provisions of its Compliance Program, which includes, among other aspects, observing the values, principles and guidelines contained in its Code of Conduct, as well as the rest of its own internal policies and procedures. Both Parties agree to prohibit any act or behavior that may imply, directly or indirectly, corruption or bribery of any kind, both in the public and private sectors.   

Additionally, within the framework of the present contractual relationship, the Parties agree to avoid any conflicts of interest, whether of a personal or professional nature.  

Any breach of this Clause, if it is duly accredited, shall entitle the non-breaching Party to automatically terminate the Contract, as well as to claim whatever is legally appropriate in the event of being affected by such breach. 

15.1 Entire Agreement. This Agreement includes all obligations, liabilities, representations and warranties arising from the agreement between the Parties with respect to the use of the Product and the Additional Services, and supersedes any prior oral or written discussions or agreements between the Parties, expressly excluding any terms of any order of User or any general terms of User, which shall not be binding on the Parties and shall not be construed to modify this Agreement. Any modification of this Agreement must be in writing and signed by authorized representatives of both Parties.   

15.2 Partial Invalidity. If any provision of this Agreement is declared null and void or unenforceable, such provision shall be deemed severed from this Agreement, but shall not render this Agreement null and void. In this case the parties shall make every effort to find an equivalent solution that is valid and duly reflects their intentions.  

15.3 Waiver. The failure of either party to exercise any right to which it may be entitled under this Agreement shall not be construed as a waiver thereof.  

15.4 Assignment of the contractual position. NTT DATA may assign its contractual position under this Agreement upon one (1) month’s prior written notice to User. User may not assign the Agreement without NTT DATA’s prior written consent, except to a corporate successor by merger, purchase of assets and assumption of liabilities, acquisition, reorganization, or otherwise, provided that User gives prior notice to NTT DATA and such corporate successor agrees to be bound by the Agreement. In addition to the foregoing, User may only assign this Agreement if the assignee is not a competitor of NTT DATA, User ceases to use the Product, and the use does not exceed the number of Subscriptions purchased by User. This Agreement shall inure to the benefit of the Parties and shall be binding upon their respective successors, executors, heirs and permitted assigns.