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@@ -16,99 +16,105 @@ ENTIRE AGREEMENT BETWEEN USER AND NTT CONCERNING THE SOFTWARE.
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BACKGROUND
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A.
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B.
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C.
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In consideration of these premises, and the mutual promises and conditions in this Agreement, the parties hereby agree as follows:
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1.
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2.
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3.
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4.
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(d) User shall take appropriate action, by instruction, agreement, or otherwise, with respect to its employees permitted
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under this Agreement to have access to the Software to ensure that all of User's obligations under this Section 4
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(d) If any provision, or part of a provision, of this Agreement is or becomes illegal, unenforceable, or invalidated, by
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operation of law or otherwise, that provision or part shall to that extent be deemed omitted, and the remainder of
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Agreement shall remain in full force and effect.
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(e) This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the
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subject matter hereof, and supersedes all written and oral contracts, proposals, and other communications between the
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parties relating to that subject matter.
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(f) Subject to Section 8, this Agreement shall be binding on, and shall inure to the benefit of, the respective
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assigns of NTT and User.
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(g) If either party to this Agreement initiates a legal action or proceeding to enforce or interpret any part of this
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Agreement, the prevailing party in such action shall be entitled to recover, as an element of the costs of
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as damages, its attorneys' fees and other costs associated with such action or proceeding.
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(h) This Agreement shall be governed by and interpreted under the laws of Japan, without reference to conflicts of law
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All disputes arising out of or in connection with this Agreement shall be finally settled by
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in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration
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The arbitration shall be conducted by three (3) arbitrators and in Japanese. The award rendered by
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(f) NTT shall not be liable to the User or to any third party for any delay or failure to perform NTT's obligation set
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forth under this Agreement due to any cause beyond NTT's reasonable control.
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BACKGROUND
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A. NTT is the owner of all rights, including all patent rights, copyrights and trade secret rights, in and to the Software
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and related documentation except OSS listed in Exhibit A to this Agreement.
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B. User wishes to obtain a royalty free license to use the Software to enable User to evaluate, and NTT wishes to grant such
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a license to User, pursuant and subject to the terms and conditions of this Agreement.
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C. As a condition to NTT's provision of the Software to User, NTT has required User to execute this Agreement.
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In consideration of these premises, and the mutual promises and conditions in this Agreement, the parties hereby agree as follows:
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1. Grant of Evaluation License. NTT hereby grants to User, and User hereby accepts, under the terms and conditions
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of this Agreement, a royalty free, nontransferable and nonexclusive license to use the Software internally for the
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non-commercial purposes of testing, analyzing, and evaluating the methods or mechanisms as shown in the research paper
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submitted by NTT to a certain academy or technical contest, etc. ("academy"). User may make a reasonable number of
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backup copies of the Software solely for User's internal use pursuant to the license granted in this Section 1.
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2. Shipment and Installation. NTT will ship or deliver the Software by any method that NTT deems appropriate. User shall
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be solely responsible for proper installation of the Software.
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3. Term. This Agreement is effective whichever is earlier (i) upon User's acceptance of the Agreement, or (ii) upon User's
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installing, accessing, and using the Software, even if User has not expressly accepted this Agreement. Without prejudice
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to any other rights, NTT may terminate this Agreement without notice to User (i) if User breaches or fails to comply with
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any of the limitations or other requirements described herein, and (ii) if NTT receives a notice from the academy stating
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that the research paper would not be published, and in any such case User agrees that NTT may, in addition to any other
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remedies it may have at law or in equity, remotely disable the Software. User may terminate this Agreement at any time by
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User's decision to terminate the Agreement to NTT and ceasing use of the Software. Upon any termination or expiration of
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this Agreement for any reason, User agrees to uninstall the Software and either return to NTT the Software and all copies
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thereof, or to destroy all such materials and provide written verification of such destruction to NTT.
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4. Proprietary Rights
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(a) The Software is the valuable, confidential, and proprietary property of NTT, and NTT shall retain exclusive title to
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this property both during the term and after the termination of this Agreement. Without limitation, User
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acknowledges that all patent rights, copyrights and trade secret rights in the Software except OSS shall remain
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the exclusive property of NTT at all times.
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User shall use not less than reasonable care in safeguarding the confidentiality of the Software.
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(b) NTT shall not be subject to the obligation of licensing the copyright, patent rights, etc. of author when user hope
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commercial / noncommercial use of the published / provided software, etc.
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(c) USER SHALL NOT, IN WHOLE OR IN PART, AT ANY TIME DURING THE TERM OF OR AFTER THE TERMINATION OF THIS AGREEMENT:
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(i) SELL, ASSIGN, LEASE, DISTRIBUTE, OR OTHERWISE TRANSFER THE SOFTWARE TO ANY THIRD PARTY;
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(ii) EXCEPT AS OTHERWISE PROVIDED HEREIN, COPY OR REPRODUCE THE SOFTWARE IN ANY MANNER;
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(iii) DISCLOSE THE SOFTWARE TO ANY THIRD PARTY, EXCEPT TO USER'S EMPLOYEES WHO REQUIRE ACCESS TO THE SOFTWARE
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FOR THE PURPOSES OF THIS AGREEMENT;
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(iv) MODIFY, DISASSEMBLE, DECOMPILE, REVERSE ENGINEER OR TRANSLATE THE SOFTWARE;
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OR (v) ALLOW ANY PERSON OR ENTITY TO COMMIT ANY OF THE ACTIONS DESCRIBED IN (i) THROUGH (iv) ABOVE.
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(d) User shall take appropriate action, by instruction, agreement, or otherwise, with respect to its employees permitted
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under this Agreement to have access to the Software to ensure that all of User's obligations under this Section 4
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shall be satisfied.
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5. Indemnity. User shall defend, indemnify and hold harmless NTT, its agents and employees, from any loss, damage,
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or liability arising in connection with User's improper or unauthorized use of the Software. NTT SHALL HAVE THE SOLE
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RIGHT TO CONDUCT DEFEND ANY ACTTION RELATING TO THE SOFTWARE.
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6. Disclaimer. THE SOFTWARE IS LICENSED TO USER "AS IS," WITHOUT ANY TRAINING, MAINTENANCE, OR SERVICE OBLIGATIONS
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WHATSOEVER ONTHE PART OF NTT. NTT MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY TYPE WHATSOEVER, INCLUDING WITHOUT
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LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE AND OF NON-INFRINGEMENT
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ON COPYRIGHT OR ANY OTHER RIGHT OF THIRD PARTIES. USER ASSUMES ALL RISKS ASSOCIATED WITH ITS USE OF THE SOFTWARE,
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INCLUDING WITHOUT LIMITATION RISKS RELATING TO QUALITY, PERFORMANCE, DATA LOSS, AND UTILITY
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IN A PRODUCTION ENVIRONMENT.
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7. Limitation of Liability. IN NO EVENT SHALL NTT BE LIABLE TO USER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL,
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INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR PERSONAL INJURY, PROPERTY DAMAGE,
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LOST PROFITS, OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH USER'S USE OF OR INABILITY TO USE THE SOFTWARE,
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IN CONNECTION WITH NTT'S PROVISION OF OR FAILURE TO PROVIDE SERVICES PERTAINING TO THE SOFTWARE,
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OR AS A RESULT OF ANY DEFECT IN THE SOFTWARE. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARD¬LESS OF THE FORM
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OF ACTION THAT MAY BE BROUGHT AGAINST NTT, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION
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FOR NEGLIGENCE. USER'S SOLE REMEDY IN THE EVENT OF ANY BREACH OF THIS AGREEMENT BY NTT SHALL BE TERMINATION
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PURSUANT TO SECTION 3.
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8. No Assignment or Sublicense. Neither this Agreement nor any right or license under this Agreement, nor the Software,
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may be sublicensed, assigned, or otherwise transferred by User without NTT's prior written consent.
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9. OSS. The OSS included in the software is shown on the "OSS List" in Exhibit A.
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User shall be subject to the license term of each OSS, when User uses the software.
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10. General
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(d) If any provision, or part of a provision, of this Agreement is or becomes illegal, unenforceable, or invalidated, by
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operation of law or otherwise, that provision or part shall to that extent be deemed omitted, and the remainder of
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this Agreement shall remain in full force and effect.
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(e) This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the
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subject matter hereof, and supersedes all written and oral contracts, proposals, and other communications between the
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parties relating to that subject matter.
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(f) Subject to Section 8, this Agreement shall be binding on, and shall inure to the benefit of, the respective
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successors and assigns of NTT and User.
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(g) If either party to this Agreement initiates a legal action or proceeding to enforce or interpret any part of this
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Agreement, the prevailing party in such action shall be entitled to recover, as an element of the costs of
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such action and not as damages, its attorneys' fees and other costs associated with such action or proceeding.
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(h) This Agreement shall be governed by and interpreted under the laws of Japan, without reference to conflicts of law
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principles. All disputes arising out of or in connection with this Agreement shall be finally settled by
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arbitration in Tokyo in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration
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Association. The arbitration shall be conducted by three (3) arbitrators and in Japanese. The award rendered by
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the arbitrators shall be final and binding upon the parties.
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Judgment upon the award may be entered in any court having jurisdiction thereof.
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(f) NTT shall not be liable to the User or to any third party for any delay or failure to perform NTT's obligation set
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forth under this Agreement due to any cause beyond NTT's reasonable control.
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