VyNDEX - Terms of Use

“VyNDEX”

Terms of Use

(Online Signup)

 

These “Terms of Use of VyNDEX” (the “Terms”) shall be applied to the customers using “VyNDEX” (the “Service”) provided by WingArc1st Inc. (“WingArc”).  The customers shall be deemed to have agreed to the content of these Terms when they sign up to use the service or download an add-in program provided by WingArc.  In the event that individual codes, guidelines, policies or other conditions, etc., (collectively, the “Codes, etc.”) are added in the course of their use of the Service, besides these Terms, the customer shall be deemed to have agreed to the content of the Codes, etc., once they have used the Service thereunder.  In addition, “customers” shall mean corporations or similar organizations that sign up for the use of the Service following the procedures designated by WingArc, and that are granted the permission to use the Service by WingArc.  In the event that the person or organization that signed up for the Service in the way designated by WingArc is an employee or agent of the customer, such person or organization shall represent or warrant that they have been authorized so that the effects of their acts should be attributed to the customers or delegated by the customers.  Such acts shall be carried out on behalf of the customers, and the effects of such acts shall be attributed to the relevant customer.

 

Article 1   Formation of the Agreement, etc.

1.1   The agreement concerning the use of the Service based on these Terms between a customer and WingArc (the “Agreement”) shall become effective when the customer signs up for the use of the Service by the means designated by WingArc (the “Signup”), and WingArc approves the same by its specified means.  Please note that in the event that WingArc does not send a notification to the customer within 10 business days from the Signup or sends a notification of rejection of the Signup, such Signup shall be deemed as having been rejected.

1.2   The customer shall print or input his/her/its current correct and complete information, with regard to the content of the Signup, and shall not print or input any false information.  In addition, the customer may not change or retract the content of the Signup after the signup under the previous article, without the prior approval of WingArc.  Further, after this Agreement is executed, the customer may not cancel this Agreement during the agreement term stipulated under Article 5.

 

Article 2   Usage Right of the Service

2.1   WingArc shall, in accordance with the Agreement, the Terms and the details of the Service to be separately determined by WingArc (including, without limitation, manuals, etc.) and within the country in which the customer signs up for the use of the Service (the “Subject Country”), grant the customers the non-exclusive, non-transferable right to use the Service, which is only usable for the purpose of the customer’s internal business operations, either with or without charge, within the scope of the number of users chosen by the customer at the time of the signup and during the term of this Agreement.  Please note that a “user” shall mean an individual that the customer registers as a user of the Service under its management.

2.2   In using the Service, the customers shall complete the Signup procedure and provide WingArc with information necessary when using the Service.

2.3   During Signup, the customers shall choose the maximum number of users of the Service.  The Service may not be used by more than this maximum number of users. Only specified users may use the Service.  A user account may not be shared or used by two or more persons.

2.4   When, notwithstanding the provisions of the preceding paragraph, increasing the number of users of the Service during the term of this Agreement, the Usage Fee of the Service (hereinafter in this Article, this refers to the Usage Fee as defined in Article 4) shall be as stipulated below.

(i) When the customers pay the Usage Fee of the Service based on invoices issued by WingArc (“Payment by Invoice”):

The customers shall Signup for the additional users in the same way as described in the preceding article, and the additional users of the Service shall be added upon the approval by WingArc of such Signup.  In such a case, the Usage Fee of the Service shall change to the Usage Fee including the additional users beginning at the time the additional users are added.

(ii) When the customers pay the Usage Fee of the Service by credit card (“Payment by Credit Card”):

The additional users of the Service shall be added upon Signup by the customer for the addition of users.  However, such addition shall be conditional on the customer renewing this Agreement with a Usage Fee of the Service for a number of users that includes the additional users upon the next renewal.  In such a case, there is no need to pay the additional Usage Fee in the month of Signup for the additional users.

2.5   The customers shall agree that they may not decrease or partially cancel the number of users of the Service, regardless of whether by an act or an omission, during the term of this Agreement.  The customers shall agree that if they wish to decrease or partially cancel the number of users of the Service, they may do so only through Signup for renewal of the term of this Agreement reflecting the number of users after such decrease or partial cancellation, upon the next renewal.  However, when adding to the number of users upon renewal of the agreement term of this Agreement as described under Subparagraph ii of the preceding paragraph, the customers may not decrease or partially cancel the number of users of the Service during the next agreement term of this Agreement.

2.6   WingArc may determine general handling guidelines or set certain limitations concerning the use of the Service and may amend them. The customers shall agree that the use of the Service is not conditional upon the functions or features that are planned to be provided in the future, and is not dependent upon any oral or written external comments by WingArc regarding functions or features that are planned to be provided in the future.

 

Article 3   Free Trial

3.1   The free usage right of the Service mentioned in Article 2.1 is a limited time offer, and shall be a trial usage right for the evaluation of the Service by the customers (the “Free Trial”).  The term of the Free Trial shall continue until the earlier of (i) 14 days from the time that the Service is made available to the customers by WingArc after the effectuation of the Agreement, or (2) the commencement of the term of the agreement for the charged-for usage right of the Service after the customer has bought the charged-for usage right of the Service after the effectuation of the Agreement (collectively, the “Free Trial Period”); provided, however, that the above provision shall not be applied if WingArc designates otherwise, with regard to the free trial period.  In addition, if the customer does not purchase the charged-for usage right of the Service, during the Free Trial Period, this Agreement shall terminate simultaneously with the expiration of the Free Trial Period.

3.2   In the event that a customer uses the Service on Free Trial, WingArc will not bear obligations such as the obligation to provide technical support, etc., set forth in Article 6, and even in the event that any customer incurs damage due to reasons attributable to WingArc, in connection with the Agreement, WingArc shall not bear any responsibility whatsoever regarding such customer, regardless of whether it is based on an agreement, tort, or any other theory of responsibility.

 

Article 4   Usage Fee of the Service

4.1   The customers shall pay WingArc any and all consideration for the permission for the usage of the Service granted by WingArc to the customer, arising under this Agreement (the “Usage Fee”).  The Usage Fee shall accrue based on the Signup to use the Service, and it will not be based on the actual usage of the customers.  The obligation to pay the Usage Fee is not cancellable, and the Usage Fees that are already paid will not be refunded.

4.2   Customers shall pay the Usage Fee before commencing the use of the Service (if a customer using Payment by Invoice wishes to increase the number of users, before the commencement of the use of the Service after such increase), following the payment procedure designated by WingArc and chosen by the customer, and the same shall apply when this Agreement is renewed; provided, however, that in the event that a separate payment due date is determined between WingArc and the customer, such payment due date shall be applied.

4.3   In the event that WingArc does not receive the Usage Fee by the payment due date, WingArc, at its discretion, may take either or both of the following measures with regard to the customer: (i) invoicing the unpaid balance for each month adding a delinquency charge at an annual rate of 14.6%, which shall accrue from the payment due date until the date of the payment, or (ii) setting a shorter payment period than set forth in the previous paragraph as a condition for the future renewal of the Agreement term.

4.4   In the event that the performance of the monetary obligation that the customer owes to WingArc under a separate agreement between the customer and WingArc is delayed for more than 30 days, WingArc may deprive the customer of the benefit of time with regard to the unpaid fee of the customer under such separate agreement, without limiting WingArc’s other rights or possible remedies, and all such obligations shall become immediately payable.

4.5   Notwithstanding the provisions of the preceding paragraph, if the customer uses Payment by Credit Card and WingArc is unable to receive payment of the Usage Fee by the payment due date because payment cannot be completed by credit card for any reason, WingArc may, at its discretion, suspend the Service.

 

 

Article 5   Agreement Issuance Date / Agreement Term

5.1   This Agreement shall come into effect when WingArc approves the customer’s Signup.

5.2   When using Payment by Invoice, the agreement term of this Agreement shall be the Free Trial Period, with regard to the case in which the Service is used in the free trial version, and the Agreement term chosen by the customer at the time of the Signup (including the renewal period chosen by the customer at the time of the Signup, as the renewal period of the agreement term of this Agreement, before the termination of this Agreement), if the charged-for Service is used; provided, however, that in the event that the customer or WingArc does not indicate to the other party that they would like to terminate this Agreement, at least 45 days prior to the expiration of the agreement term of this Agreement, this Agreement shall be renewed automatically for one month, and the same shall apply thereafter.

5.3   When using Payment by Credit Card, the agreement term of this Agreement shall be the Free Trial Period, with regard to the case in which the Service is used in the free trial version, and the charged-for Service period. The charged-for Service period shall be one month. In the event that the customer or WingArc does not complete the prescribed cancellation procedures by the expiration of the agreement term of this Agreement, this Agreement shall be renewed automatically for one month, and the same shall apply thereafter.  However, in the event that Signup has been made for the addition of users pursuant to Article 2, Paragraph 4, Subparagraph ii, this Agreement must be renewed for the following agreement term and may not be cancelled during the month of Signup for addition of users and the next agreement term.

 

Article 6   Technical Support

6.1   WingArc shall provide the technical support for the Service to its customers, in accordance with the Customer Support Guide it will separately determine (including the content of the website URL: https://wingarc.com.au/wp-content/uploads/2017/08/WingArc-Customer-Support-Guide-Cloud.pdf and sites related to it; collectively, the “Customer Support Guide”).  Please note that the Customer Support Guide may be changed at WingArc’s discretion, and the latest valid version as of the time of the provision will be applied to the customers.  (However, in the event of a change to the URL itself, the URL link after such change shall be indicated to customers in the Customer Support Guide prior to such change.) The customers may only make technical inquiries regarding the Service to WingArc, and shall render necessary cooperation for the provision of the technical support by WingArc (including, without limitation, the separation of the cause of the malfunction, etc.).

6.2   Customers shall consent to the fact that WingArc may use the customers’ information and access the Service used by the customers, after necessary procedures have been taken by the customers, for the resolving of the customers’ technical problems or upon the request of the customers.  Please note that in the event that WingArc carries out any operations that go beyond the scope of the Customer Support Guide, based on the customer’s request, the customer shall be deemed as having consented to pay the costs accruing due to such operations to WingArc.

6.3   Technical support shall be provided subject to the following conditions: (i) The operating system (OS) of the computer on which the customers will use the Service and other software on which the Service depends shall be eligible for standard support from their manufacturers; (ii) If, when WingArc provides technical support for the Service, there is a need to differentiate between issues caused by WingArc’s products and services and those caused by products and services other than WingArc’s products and services (“Third-Party Products etc.”), the customer shall cooperate with WingArc as necessary for such differentiation, for example by making inquiries to the manufacturers of such Third-Party Products etc.  In addition, the customer shall bear the costs of system verification and other tasks implemented by the customer in connection with the provision of technical support.

 

Article 7   Proprietary Rights

The copyrights and all other intellectual property pertaining to the Service shall be held by WingArc or a third party who licensed the use of such intellectual property to WingArc (the “Original Right Holder”), and all rights except for those whose use were expressly permitted to the customer by WingArc under the Terms shall be retained by WingArc or the Original Right Holder.

 

Article 8   Limited Matters

Customers must not engage in the following acts, unless they are expressly permitted by these Terms or a prior written approval of WingArc:

(i) An act of using the Service for purposes other than the customer’s internal business operations;

(ii) An act of exercising the rights granted under the Terms in a way that goes beyond the scope authorized by these Terms;

(iii) An act of producing a copy of, permitting a third party other than the customer to re-use (use), re-selling, distributing or transferring, etc., the Service;

(iv) An act of posting a link to the Service on the internet, framing or mirroring the content that is accessible from the Service on a server or any other internet-based device;

(v) An act of defacing or deleting the Service, or modifying, improving, analyzing (including reverse engineering), disassembling or decompiling any of the programs constituting the Service;

(vi) The act of pretending to be another person and using the Service, or attempting an unauthorized access to the Service, another person’s account or computer system, or a network that is connected to the Service, by password mining or other means;

(vii) An act that obstructs or may obstruct the use or the operations of facilities of WingArc or others, or facilities for internet connection services, etc.;

(viii) An act of sending or posting hazardous computer programs, etc., such as viruses, etc.;

(ix) An act that infringes upon or may infringe upon the rights of WingArc or a third party, such as rights concerning the honor, privacy, trust or proprietary right;

(x) An act that breaches the laws, regulations or ordinances, etc., or acts that are against public order and morality;

(xi) An act that breaches the general handling guidelines such as the user manual, etc., set forth by WingArc, or the limitations regarding certain matters in connection with the use of the Service, that is notified to the customers by WingArc;

(xii) An act of obstructing the provision of the Service;

(xiii) An act that WingArc considers inappropriate, in connection with the purposes of the above provisions.

 

Article 9   Use of customer data etc.

9.1   WingArc may, without customers’ consent, back up as it sees fit contractual information, logs, and other usage conditions saved by customers and users on the Service (“Saved Data”) to be ready for recovery from server failures and downtime.  The customers shall agree that WingArc shall not be liable for any damages suffered by customers or third parties in connection with storage, backup, etc. of Saved Data.

9.2   WingArc may, without customers’ consent, use Saved Data for the purposes of provision of the Service, quality improvements, or improvements to the performance of the usage environment.

9.3   WingArc may not, without customers’ consent, disclose or release Saved Data, in whole or in part.  However, this does not include cases judged by WingArc to meet the following descriptions: (i) When necessary in response to a legal demand (including demands made through written inquiries regarding matters related to criminal investigations) and for legal procedures; and, (ii) When necessary to protect the rights of WingArc, its Partners (defined in the following paragraph), other customers, or third parties.

9.4   WingArc may partner to offer services (“Subject Services”) of its partner companies (including, but not limited to, companies and other organizations providing information and content included in the Service; “Partners”) as content included in the Service.  When a customer uses the Service including such Subject Services, then notwithstanding the provisions of the following article, information related to use of the Subject Services (including but not limited to records of use of Subject Services) may be provided to Partners.

 

 

Article 10   Confidentiality

10.1   Under these Terms, “Confidential Information” shall mean all non-public information which is disclosed by one party (the “Discloser”) to the other party (the “Recipient”), regardless of the form or media or the form of its disclosure, and which is clearly indicated or designated as confidential.

10.2   The following shall not be included in the Confidential Information mentioned in the previous paragraph:

(i) Information that is already in the public domain or has entered the public domain without involving any breaches of obligations owed to the Discloser;

(ii) Information that the Recipient already knew before the disclosure by the Discloser, without involving any breaches of obligations owed to the Discloser or without having any confidentiality obligations or other limitations imposed;

(iii) Information that the Recipient uniquely developed, without involving any breaches of obligations owed to the Discloser or referring to the Confidential Information;

(iv) Information that the Recipient received from a third party without involving any breaches of obligations owed to the Discloser or without having any confidentiality obligations or other limitations imposed;

10.3   Except for cases in which the Discloser expressly consents in writing, the Recipient may, only within the scope necessary for the performance of this Agreement, use the Discloser’s Confidential Information during the Agreement Term and the two-year period after the termination of this Agreement, and shall not disclose or leak the same to any third party other than the Recipient (including its directors, board members, agents, employees and sub-subcontractors); provided, however, that the Confidential Information may be disclosed to and used by the Recipient’s legal, accounting and financial advisors (collectively, the “Disclosees”) within the scope truly necessary for purposes such as legal, accounting and tax-related purposes.  Please note that the Recipient shall have the Recipient and the Disclosees comply with the obligations that are equivalent to the confidentiality obligations set forth in the Terms, and shall be responsible to the Discloser for compliance with such obligations.

10.4   Notwithstanding the above paragraph, the Recipient may disclose the Discloser’s Confidential Information, in the event that it is required to do so by a valid order from a court with jurisdiction and authority or a government agency or any applicable law or ordinance; provided, however, that the Recipient shall reasonably notify the Discloser in advance of such disclosure (in the scope legally permitted), and shall reasonably support the Discloser, based on the Discloser’s request and at the cost of the Discloser, in preventing the future disclosure or use of the Discloser’s Confidential Information, or obtaining an order or other remedies which will limit the same,.

10.5   Each party understands and consents that in cases where the Recipient breaches or may breach any of the provisions in this Article, compensation for damages is not an adequate remedy for the Discloser, and therefore the Discloser has the right to pursue injunctive relief with regard to such breach or possibility of breach, in addition to the other possible remedies it may pursue.

10.6   Upon the written request of the Discloser at the time of the expiration or termination of this Agreement (or when there is a written request from the Discloser before such time), the Recipient bears the following obligations:

(a) Regardless of the form or media, the Recipient shall promptly deliver to the Discloser, all of the originals and copies of the Discloser’s Confidential Information and all documents, records, data and materials including such Confidential Information possessed or managed by the Recipient, and the Recipient shall delete any and all Confidential Information of the Discloser from all of the Recipient’s computer systems, search systems and data bases.

(b) The Recipient shall request all persons and entities to whom/which it provided the Discloser’s Confidential Information to comply with this Article 9.6.

 

Article 11   Discontinuance and Stoppage, etc., of the Service

11.1   In the event that a situation that falls under any of the categories below occurs, or any similar situation is recognized, WingArc may temporarily discontinue or stop all or part of the use of the Service, and shall not bear any responsibility whatsoever with regard to the same.

(i) In the event that a discontinuance of a project for the maintenance or construction, etc., or a malfunctioning of the Service system (meaning the facility necessary for the provision of the Service, installed by WingArc, and the same shall apply hereinafter) occurs, or when there are other inevitable causes;

(ii) In the event that a power/telecommunication business operator discontinues or stops its operations concerning power or telecommunication;

(iii) In the event that a situation that goes beyond the reasonable control of WingArc (force majeure, acts of the government, floods, fire, earthquakes, riots, acts of terrorism, strikes and other labor disputes) takes place;

(iv) In the event that there has been, or it is possible that there has been, an unauthorized access to WingArc’s facilities;

(v) In the event that any conditions for the discontinuance or stoppage, etc., of any services associated with the Service (including, without limitation, Article 24) are set, and such conditions are met; or

(vi) In the event that WingArc decides that the temporary discontinuance or stoppage of the Service is necessary in appropriately managing the Service.

11.2   In addition to the above paragraph, in the event of an emergency (including, without limitation, the content set forth in Article 10.1.(iii)), or when there is a possibility of such emergency occurring, WingArc may take measures such as discontinue or stop all or part of the availability of the Service, in order to handle with priority urgent matters such as disaster prevention or relief, securing transportation, telecommunication or power supply, or matters that are urgent in light of securing public interests, and WingArc shall not be responsible for any consequences whatsoever arising in connection with the above.

11.3   In the event that WingArc wishes to discontinue or stop the availability of the Service under the previous two paragraphs, it must notify the customers in advance, by the means determined by itself in advance; provided, however, that in the event that such notification is virtually impossible or when WingArc decides that the situation is urgent and not giving the notification is inevitable, WingArc may discontinue or stop the availability of the Service without notifying the customers.

 

Article 12   Access authorization

Customers shall agree that WingArc may, in order to resolve technical issues or as based on requests from customers, use customers’ authentication information to access the Service (including but not limited to customers’ data) following the completion by the customers of the specified procedures.

 

 

Article 13   Discontinuance and Stoppage of the Service for Reasons on the Part of the Customers

13.1   In the event of any situation that falls under or is similar to the situations in the below categories, WingArc may discontinue or stop all or part of the availability of the Service with regard to the customers, limiting the time period, and WingArc shall not be responsible for any consequences whatsoever arising in connection with the above.

(i) In the event that it turns out that the customer printed or input false information at the time of the Signup for the Service or other procedures designated by WingArc;

(ii) In the event that the customer’s monetary obligation owed to WingArc is not performed;

(iii) In the event that the customer breaches the provisions in Article 8 (Limited Matters) setting forth the customers’ obligations;

(iv) In the event that the customer has been subject to a petition for provisional seizure, provisional disposition, seizure, auction, commencement of bankruptcy proceedings, commencement of civil rehabilitation proceedings, commencement of corporate reorganization proceedings, commencement of special liquidation or in the event that the customer himself/herself files a petition for the same;

(v) In the event that a disposition of delinquency or an enforcement is imposed upon the customer regarding taxes and public dues, or in the event that the customer is subject to other dispositions by a relevant authority or a disposition for trading suspension at a clearing house;

(vi) In the event that the customer has been subject to an operation suspension disposition or cancellation of its business license or business registration from a supervisory authority;

(vii) In the event that the customer passes a resolution to abolish its business or to dissolve;

(viii) In the event that there is a factor that indicates the worsening of the customer’s economic credit standing such as a payment suspension or the commencement of voluntary liquidation, or in the event that there is a factor that reasonably indicates the possibility of such worsening;

(ix) In the event that WingArc considers that the customer has engaged in an act that breaches the Terms, and that may obstruct the implementation of WingArc’s operations or the Service system;

(x) In the event that WingArc decides that the manner of use of the Service by the customer may do harm to the benefit of WingArc or the other customers, and when there are no other effective measures that can be taken in order to secure such benefits;

13.2   In the event that WingArc wishes to stop the availability of the Service under the provisions in the previous paragraph, it will notify the customers of the date and/or the period of the stoppage by the means designated by WingArc; provided, however, that in the event that it is virtually impossible to give such notification, or WingArc decides that the situation is urgent and it is inevitable, WingArc may discontinue or stop the availability of the Service without notifying the customers.

 

Article 14   Responsibility of the Customers

14.1   Customers must comply with the laws, treaties, rules and regulations relating to the use of the Service.

14.2   In the event that the customer finds out that there has been or there may have been a breach of the information security policy in connection with the use of the Service, he/she/it shall notify WingArc immediately.  In addition, customers shall consent that, in the event that they learn that there has been or there may have been an act of copying or distributing any of the modules or documents constituting the Service, they will make their best effort to have such act terminated immediately.  Please note that WingArc shall not in any way be responsible for the consequences of unauthorized access or modification to the customers’ telecommunication or data, information that is sent or received (regardless of whether WingArc actually receives it or not), data, transactions carried out through the Service, or the consequences resulting from a breach of the Terms.

14.3   Except when otherwise stipulated in the Terms, the customers shall resolve any disputes arising with a third party in connection with the use of the Service at their own responsibility, and shall not inflict any damage upon WingArc or any third party.

14.4  Notwithstanding the provisions of Article 8 (Limited Matters), customers may copy and distribute add-in programs (hereinafter this refers to .exe files) solely for use by executives and employees in their own internal organizations (collectively, “Employees etc.”).  Customers shall guarantee that when their Employees etc. have installed the Service from the add-in programs thus copied and distributed, such Employees etc. shall consent to all of the terms and conditions of this Agreement, and customers shall agree that all terms and conditions of this Agreement shall apply to use of the Service thus installed.

 

Article 15   No Warranty and Disclaimer

15.1   The Service shall be provided as is, and the customers shall use the same at their own responsibility.  WingArc does not make any warranties regarding the merchantability, reliability, timeliness, quality, compatibility, fitness for a particular purpose, truthfulness, constant availability, accuracy and completeness of the Service, that any errors or defects will be corrected, or that there are no viruses or other harmful factors with regard to the servers, etc., that are made available, etc., in connection with the Service.  In addition, WingArc will not be responsible for changing the specification of the Service.

15.2   Customers shall consent to the fact that the network used in the Service may be limited or delayed due to factors such as the usage rate of the network or the amount of data transmission such as electronic transactions.

15.3   Customers shall consent that WingArc shall not in any way be responsible to the customers or a third party, even if the customers’ data that the customers have forwarded to, sent through or accumulated in WingArc’s server is destroyed or lost for whatever reason or in cases such as destruction or loss of data in the Sandbox organization of SFDC related to this Service (defined in Article 26).  In addition, WingArc shall not in any way be responsible for any delays or damage/loss, etc., of data due to such delays under the previous paragraph.

15.4   WingArc shall not be responsible for the damage stated below.

(i) Damage incurred by the customers due to force majeure such as natural disasters, unrest and riots, etc.;

(ii) Damage incurred by the customers due to malfunctions of the customers’ telecommunication environment, such as the malfunction of the internet connection service used to connect to the Service system;

(iii) Damage incurred by the customers due to the malfunction of power or telecommunication services provided by a third party;

(iv) Damage incurred by the customers due to unauthorized access to the Service system or wiretapping through a telecommunication route that are unavoidable, even with the due care of a prudent manager;

(v) Damage incurred by the customers due to a product of a third party, such as hardware, software or a database, which are not developed or manufactured by WingArc;

(vi) Damage incurred by the customers due to an order of a government agency, etc. with authority or an enforced disposition based on a law or regulation; or

(vii) Damage incurred by the customers due to a matter that is not attributable to WingArc.

15.5   WingArc may from time to time provide links within the Service for the convenience of the customers.  In such case, WingArc shall not bear any responsibility whatsoever with regard to any linked websites on the internet, or the content, products or other features that are available through any such website.

 

Article 16   Limitation of Responsibility

16.1   WingArc shall be liable, in the event that any damage is incurred by the customer for reasons attributable to WingArc in connection with this Agreement, for the general and actual damages directly incurred by the customers for reasons attributable to itself; provided, however, that regardless of what theory of liability the case will be based on, whether it is responsibility based on an agreement or tort or any other theory, the scope of such liability shall not exceed a one-month’s Usage Fee that WingArc has received under this Agreement.

16.2   With regard to any lost profits/revenues, indirect damages, special damages, incidental damages, consequential damages, cover damages or punitive damages, regardless of the cause and what theory of liability the case will be based on, whether it is responsibility based on an agreement or tort or any other theory, and even if WingArc has been notified of the possibility of the occurrence of such damage from the customer or any third party, WingArc shall not be liable for the same.  The disclaimer in this paragraph shall not be applied in the event that the application thereof is prohibited by applicable laws or regulations.

 

Article 17   Termination of this Agreement due to Connections with an Anti-Social Force

17.1   The customers and WingArc warrant that they or any of their board members or employees do not apply at the time being to an organized crime group, a member of an organized crime group, a person that has withdrawn from an organized crime group within five years, a quasi-member of an organized crime group, an affiliate of an organized crime group, a corporate extortionist (“sokaiya”), a racketeer advocating a social movement, etc., (“shakaiundo-to-hyobogoro”) or a special intelligence organized crime group (“tokushuchinoboryokushudan”), etc., or any similar entity (“Anti-Social Force, etc.”), and ensure that they do not fall and will not fall in the future under any of the categories below.

(i) Having a connection with an Anti-Social Force, etc., in that it is recognized that its management is controlled by an Anti-Social Force;

(ii) Having a connection with an Anti-Social Force, etc., in that it is recognized that an Anti-Social Force, etc., is virtually involved in its management;

(iii) Having a connection with an Anti-Social Force, etc., in that it is unjustly using an Anti-Social Force, etc., for purposes such as bringing unjust profits to itself or a third party or inflicting harm upon a third party;

(iv) Having a connection with an Anti-Social Force, etc., in that it is providing cash, etc., or benefits to an Anti-Social Force, etc.; or

(v) Its board member or anyone who is virtually involved in its management having a connection with an Anti-Social Force, etc., that should be socially accused of.

17.2   In the event that it turns out that any of the customer or the customer’s board member or employee is an Anti-Social Force, etc., or falls under any of the categories in the previous paragraph, in breach of the representation and warranty made under the previous paragraph, WingArc may immediately terminate this Agreement without giving any notice.

17.3   The provisions in Articles 19.2 and 19.3 shall be applied mutatis mutandis to cases where WingArc terminates this Agreement under the previous paragraph.

 

Article 18   Termination of the Service

18.1   In the event that a customer breaches any of the provisions of the Terms, WingArc may stop or terminate the customer’s usage right of the Service at its discretion, by notifying the customer.  In the event that the customer receives such notification, the customer shall promptly discontinue the use of the Service, and delete its registration.

18.2   In the event that WingArc falls under any of the categories below, it may abolish all or part of the Service:

(i) In the event that it notifies the customer of the abolishment two months or more prior to the abolishment date; or

(ii) In the event that the Service is no longer available by force majeure, such as natural disasters.

 

Article 19   Indemnification by the Customer

In the event that any claims, fees, damages, losses, obligations or costs (including attorney’s fees) arise from the fraudulent use of the Service or a breach of these Terms, or in connection with the forgoing, customers shall indemnify WingArc of the same, and shall not let any damage occur upon WingArc.

 

Article 20   Infringement upon a Third Party’s Rights

20.1   In the event that a third party makes a judicial or non-judicial claim to any of the customers, alleging that the content of the Service or the means of use, etc., infringes upon or has infringed upon a third party’s intellectual property right in Japan, such customer shall promptly notify WingArc (and any third party designated by WingArc) of the fact that the claim has been made and the content thereof, virtually grant an opportunity to participate in the proceedings of the negotiation or lawsuit with such third party and all decision making rights (including, without limitation, the decision right regarding the appointment of an attorney, etc.), and on the condition that the customer provides necessary cooperation to WingArc, WingArc shall resolve the claim at its own cost and responsibility, and shall compensate for the damages incurred by the customer in connection thereto, to a reasonable extent.

20.2   In the event that the cause of the claim in the previous paragraph is a matter not attributable to WingArc, WingArc will not bear the liability set forth in the previous paragraph.

 

Article 21   Termination

21.1   In the event that any of the following occurs with regard to any of the customers, WingArc may terminate this Agreement without giving any notification or demand:

(i) In the event that the customer breaches any of the provisions of the Terms, and such breach is not corrected even after a demand for the correction thereof is made with an appropriate time window;

(ii) In the event that the customer is subject to a petition for provisional seizure, provisional disposition, seizure, auction, commencement of bankruptcy proceedings, commencement of civil rehabilitation proceedings, commencement of corporate reorganization proceedings, commencement of special liquidation or in the event that the customer himself/herself/itself files a petition for the same;

(iii) In the event that a disposition of delinquency or an enforcement is imposed upon the customer regarding taxes and public dues, or in the event that the customer is subject to other dispositions by a relevant authority or a disposition for trading suspension at a clearing house;

(iv) In the event that the customer has been subject to an operation suspension disposition or cancellation of its business license or business registration from a supervisory authority;

(v) In the event that the customer passes a resolution to abolish its business or to dissolve;

(vi) In the event that there is a factor that indicates the worsening of the customer’s economic credit standing such as a payment suspension or voluntary liquidation, or in the event that there is a factor that reasonably indicates the possibility of such worsening; or

(vii) In the event that the customer grossly breaches these Terms or engages in an act that ruins the relationship of mutual trust.

21.2   The termination set forth in the previous paragraph shall not obstruct the claim for compensation for damages by WingArc to its customers, and in the event that any customer falls under any of the categories in the previous paragraph, such customer shall lose its benefit of time regarding all of its obligations owed to WingArc.

21.3   In the event that this Agreement is terminated under Article 19.1, WingArc shall not bear the duty to refund the Usage Fee of the Service that it has received from the customer.

 

Article 22   Modification of the Terms

WingArc may at any time modify the Terms or the content of the Service.  In the event that WingArc wishes to modify the Terms or the content of the Service, WingArc shall post on its website, etc., for the customers, the timing of such modification and the content of the Terms after the modification.  In such case, if the customers continue their use of the Service after the time of such modification, the customers will be deemed as having consented to the modification.

 

Article 23   Feedback, etc.

WingArc shall hold a free, global, transferrable, sublicenseable, irrevocable and permanent license under which it may use and incorporate into the Service, any proposals, requests for improvement, suggestions or any other feedback provided by the customers in connection with the operation of the Service.

 

Article 24   Survival

Articles 3.2, 4, 7, 8, 10, 15, 16, 17.3, 19, 20, 21.3, 23, 25 and 26 shall survive the termination or expiration of this Agreement.

 

Article 25   General Provisions

25.1   This Agreement shall be governed by the laws of Japan, regardless of any provisions regarding the conflict of laws in any jurisdiction.

25.2   All disputes, controversies or differences which may arise between the parties hereto, out of or in relation to or in connection with this Agreement shall be finally settled by arbitration in Tokyo, in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association.

25.3   Except in cases that it is otherwise stated in the Terms or there is a written agreement signed by both the customer and WingArc, the letters or information stated in printed forms or documents, such as the order forms designated by the customers, etc., will not have the effect of making additions or modifications to the provisions or conditions of the Terms.

25.4   In the event that any of the provisions of the Terms is ruled as invalid or unenforceable by a court with jurisdiction, the provision shall be construed in the way that best reflects the intent of the provision which has been ruled as invalid or unenforceable, and the other provisions shall remain valid.

25.5   This Agreement or the use of the Service does not constitute a joint venture relationship, partnership, employer-employee relationship or an agency relationship between the customers and WingArc.  In addition, even if WingArc does not enforce the rights under or the provisions of this Agreement, such fact does not indicate that WingArc has waived such right or provision, unless WingArc consents in writing.

25.6   This Agreement constitutes the whole agreement of the customer(s) and WingArc, with respect to the subject matter hereof, and shall supersede all previous or contemporaneous negotiations, discussions and agreements, whether written or oral.

25.7   Customers and WingArc must not transfer to a third party or let any third party take over all or part of any rights or obligations arising under this Agreement, without obtaining the prior written consent of the other party.

25.8   With regard to any and all claims or disputes, etc., concerning the use of the Service, customers shall resolve the same with WingArc under the conditions of this Agreement, and shall consent to the fact that WingArc will not bear any responsibility except for those stated in the Terms, and that any agreements between the customer and any third party will not affect WingArc.

 

Article 26   Special Provisions Provided by SFDC, etc.

26.1   Customers shall consent to the fact that since the Service is a program which is provided in collaboration with the service provided by Salesforce.com, Inc (including its affiliates, the “SFDC”), there may be cases where the Service is not available where the relevant service of SFDC is not provided to the customers, that in the case that the customers send any electronic data or information that they have saved in SFDC’s system (the “Information, etc.”) outside SFDC’s system, the Information, etc., is sent outside the system of SFDC, and that in such case and to such extent, SFDC will not be responsible for the protection, safety or completeness of personal information regarding the Information, etc.

26.2   The customers shall consent to the fact that in connection with the use of the Service, the execution of a usage agreement concerning the service provided by SFDC between SFDC and the customers, and the obtaining of the license of software provided by Microsoft Corporation (including its affiliates) by the customers may be necessary.  In addition, the customers shall understand that the responsibility concerning the results of any changes to information such as any data, etc., on SFDC’s system using the Service will be borne by the customers.

26.3   The customers consent to the fact that WingArc may provide SFDC with information relating to the customers, in order to respond to the customer’s needs.

26.4   The Service is provided by WingArc based on the agreement between WingArc and SFDC, and in the event that the said agreement is terminated, this Agreement will also be terminated; provided, however, that WingArc shall make its best effort to notify the customers of the termination of this Agreement in advance, and discuss its future support with its customers.

 

End of document

Established on December 1, 2017