Last Updated: 15/Dec/2020
Article 1 Definition
- Definitions of this Terms in this Agreement are as follows.
- (i) “Customer” means a corporation or similar organization that signs to the application form for the use of the Service, and has been granted the use of the Service by WingArc.
- (ii) “Target Country” means the country where the Customer is established in accordance with the law.
- (iii) “Application User” means an individual configured by the Customer as a user of the Service under the control of the Customer.
- (iv) “User Account” means an ID and password configured for each Application User to use the Service.
- (v) “Order Form” means an order document (including the application form and other attached documents) for applying for the Service after agreeing to this Terms. This Order Form is deemed to be incorporated into this Agreement by reference to this Terms.
- (vi) “Paid Service” means the Service applied for by the Customer in accordance with this Order Form, as distinguished from the Service provided pursuant to the free trial (as described in Article 5).
- (vii) “Agreement” means an agreement concerning the Service concluded between the Customer and WingArc, based on this Terms.
- (viii) “Service system” means equipment that is necessary to provide the Service and installed by WingArc.
- (x) “Information Providing Service” means a service for browsing and referring to various types of information provided by WingArc (including, but not limited to, statistical data).
- (xi) "Reseller" means a corporation or organization that has concluded an agreement with WingArc to sell various cloud services provided by WingArc.
Article 2 Application
- 2.1 This Agreement shall become effective when the Customer applies for the Service (including cases where the Customer applies through a Reseller)(hereinafter referred to as “Signup”) according to the procedures prescribed by WingArc, and WingArc accepts the application. In the event that WingArc or Reseller do not send a notification to the Customer within 10 business days from the Signup, such Signup shall be deemed as having been rejected by WingArc.
- 2.2 The Customer shall print or input 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 Article 2.1, without the prior consent of WingArc. Further, after this Agreement is executed, the Customer may not cancel this Agreement during the Agreement term(as defined in Article 6.1), and cannot reduce the amount of the Service specified in this Agreement regardless of any acts or omissions.
Article 3 Grant of license
- 3.1 Subject to this Agreement, this Terms, Codes, and the Order Form and the content of the Service as separately notified by WingArc, WingArc grants to the Customer a non-exclusive, non-transferable right to use the Service only for Customer’s internal business purposes in Target Country.
- 3.2 WingArc will issue a User Account for each service according to the number of user IDs to the Customer. The Customer shall manage the User Account at its own risk, and shall not transfer, lend or otherwise make it available to a third party, or dispose of it in any way, including offering it as collateral. WingArc shall not be liable for any damages caused by the use of the Customer's User Account by a third party.
- 3.3 Unless otherwise specified in the Order Form, the Customer shall not allow more than the specified number of Users to access the Service. The Customer shall not allow more than two (2) users to share or use the User Account of the Service. Provided, however, that the Customer may reassign a new user to replace the former user when the former user no longer needs to continue using the Service.
- 3.4 In the event that the Customer use the Service in excess of the quantity of use of the Service purchased in accordance with the Order Form (hereinafter referred to as "Excessive Use"), the Customer shall purchase additional quantities of the Service (hereinafter referred to as "Additional Quantity Purchased").
- 3.5 WingArc may determine general handling methods and restrictions on use of the Service, including but not limited to the maximum number of days the Customer’s data will be retained by the Service, and may amend them at WingArc’s discretion as appropriate. The Customer 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 4 Application User
- 4.1 The Customer may set up User Accounts for Application User within the quantity of User Accounts the Customer has purchased from WingArc. Only the person who has been set up as a User Account shall be able to use each Service. Provided, however, that the Customer shall ensure that the Application User shall comply with this Terms, and the Codes, and shall manage the User account with the care required of a good manager. In the event that an Application User breaches this Terms or the Codes, WingArc shall be able to consider such breach as a breach by the Customer.
- 4.2 The Customer may not allow more than one (1) person to share a single User Account without WingArc's written consent.
Article 5 Free Trial
- 5.1 Unless otherwise agreed in writing with WingArc and the Customer, during the free trial period (30 days from the date of commencement of use described in the Order Form or until the date the Customer begin using the Paid Service described in the Order Form, whichever comes first), Wing Arc may offer the Service to the Customer as a free trial. If the Customer do not transfer to the Paid Service within the free trial period, this Agreement shall be terminated at the end of the free trial period.
- 5.2 In the event that the Customer use the Service on a free trial basis, WingArc may delete some or all of the data stored in the Service due to improvement of the Service or other reasons without the Customer’s consent.
- 5.3 In the event that the Customer use the Service on a free trial basis, WingArc shall have no obligation to store the stored data as set forth in Article 14 and to provide technical support as set forth in Article 8, and WingArc shall not be liable to the Customer for any damage caused by any cause attributable to WingArc in connection with this agreement, regardless of contract, tort or any other theory of liability.
Article 6 Agreement Term
- 6.1 The term of this Agreement (hereinafter referred to as "Agreement Term") shall be the period set forth by the Customer in the Order Form. However, unless otherwise specified in the Order Form, this Agreement shall be automatically renewed for one(1) year if the Customer or WingArc does not indicate an intention to terminate it to the other party at least 30 days prior to the expiration of the term of the Agreement, and the same shall apply thereafter.
- 6.2 Notwithstanding the Article 6.1, in the event that the Agreement Term of the first year set forth in the Order Form is less than twelve (12) months, the term of this Agreement after the first year shall be renewed for one (1) year.
Article 7 Usage Fee of the Service
- 7.1 The Customer shall pay WingArc for the usage fee of the Service (hereinafter referred to as “Usage Fee”) based on this Agreement in accordance with the Order Form. The Customer's obligation to pay the Usage Fee is based on the Signup for the Service and not on the actual use of the Customer. In addition, the Usage Fee paid by the Customer to WingArc shall not be refunded to the Customer for any reason whatsoever.
- 7.2 Unless otherwise specified in this Order Form, WingArc will invoice the Customer for the Usage Fee after the date of commencement of use set forth in the Order Form. The invoiced Usage Fee will be due and payable at the end of the month following the Customer's Commencement Date, and the same shall apply to any renewal of the Agreement Term. The Customer will be responsible for providing and retaining complete and accurate billing and contact information to WingArc during the Agreement Term. The Customer shall pay the additional Usage Fee for the Additional Quantity Purchased by the date separately notified by WingArc.
- 7.3 In the event that WingArc does not receive the Usage Fee or Additional Purchase Amount 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 Article 7.2 as a condition for the future renewal of the Agreement term.
- 7.4 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 suspend the Service until such obligations are paid in full.
- 7.5 Notwithstanding the foregoing, in the event that the Customer pays the Usage Fee, or Additional Purchase Amount through the Reseller, that payment condition shall be negotiated between the Customer and the Reseller, and the Reseller and WingArc. Provided, however, that the obligation to pay the Usage Fee or Additional Purchase Amount by the Customer shall be fulfilled when their fees are paid to WingArc.
Article 8 Technical Support
- 8.1 WingArc shall provide the technical support for the Service to the Customer in accordance with WingArc's separately specified support policy (including the contents of the website (URL : https://docs.google.com/viewerng/viewer?url=https://wingarc.com.au/wp-content/uploads/2020/05/WingArc-Customer-Support-Guide-Cloud.pdf ) and the sites related to the website, hereinafter collectively referred to as “Support Policy”). WingArc may change the Support Policy at its discretion, and technical support provided by WingArc will be subject to the latest version of the Support Policy in effect at the time it is provided (In the event that WingArc changes the URL address of the Support Policy, WingArc will display the changed URL (link) on the Support Policy to the Customer prior to the change). The Customer 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, but not limited to the separation of the cause of the bugs).
- 8.2 The technical support provided by WingArc is subject to the following conditions;
- (i) the operating system (OS) and the software of the Customer's computer, which is the prerequisite for using the Service, are normally and standard supported by the manufacturer.
- (ii) If it is necessary to isolate whether a problem is caused by a WingArc product/service or another product/service (hereinafter referred to as "Third Party Product"), the Customer shall cooperate with WingArc as necessary to isolate the problem (including, but not limited to, contacting the manufacturer of such Third Party Product). In addition, in connection with such responding to the problems, WingArc shall not bear any cost such as a system verification that Customer carry out in connection with such system verification.
Article 9 Proprietary Rights
- 9.1 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 (hereinafter referred to as “Original Right Holder”), and all rights except for those whose use were expressly permitted to the Customer by WingArc under this Terms shall be retained by WingArc or the Original Right Holder.
- 9.2 “MotionBoard” is a trademark or registered trademark of WingArc.
Article 10 Template Program
- 10.1 The Customer may duplicate and change Template Programs within scope of the Service. The Customer agrees to the following;
- (i) WingArc may not be able to respond when problems such as the bugs occur with respect to the Template Program duplicated and changed by the Customer.
- (ii) WingArc shall not be liable for any damage caused to the Customer by the Template Program (including duplicates and modifications); and
- (iii) In the event that there are Codes, the Customer shall comply with the Codes of the Template Program.
- 10.2 The warranty for the Template Program is as set forth in Article 19.
- 10.3 When the Customer uses programs or hardware provided by a third party (hereafter collectively referred to as “Third-Party Program”) in conjunction with the Service (including, but not limited to the Customer’s data stored in a Third-Party Program), WingArc will not be liable for any damages and cost incurred by the Customer in connection with the use of Third-Party Program by or in conjunction with the Service.
- 10.4 Notwithstanding Article 12 (Restrictions), the Customer may only reproduce and distribute the client programs (including tools) provided by WingArc to its officers and employees (hereafter collectively referred to as "Employees"). In the event that the Employees install such copied and distributed client programs, the Customer warrant to WingArc that the Employees have agreed to all the terms and conditions of this Terms.
Article 11 Information Providing Service
- 11.1 The Customer may browse and refer to the Information Provision Service within the scope of use in the Service. Provided, however, if there are the Codes or explicit written permission from WingArc, the Customer shall use the Information Providing Service in accordance with the Codes or the content of that permission.
- 11.2 The warranty for the Information Provision Service is as set forth in Article 19.
- 11.3 Notwithstanding any other provision of this Agreement, if the Customer breaches any of the provisions of this Terms in relation to the information provision service, WingArc may, at its discretion, immediately suspend or discontinue this Service or terminate this Agreement, and the Customer shall be liable for any damage to WingArc due to such breach.
Article 12 Restrictions
- The Customer shall not conduct any act of the following, unless expressly permitted by Terms or WingArc through prior written consent.
- (i) Act of using the Service for purposes other than the Customer’s internal business operations;
- (ii) Act of Using, licensing, duplication (including but not limited to downloading of information or content contained in the Service), modification, permission for reuse to a third party, resale, distribution or transfer of the Service or the rights granted under this Terms beyond the scope of the license.
- (iii) 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;
- (iv) Act of defacing or deleting the Service, or modifying, improving, analyzing (including but not limited to reverse engineering), disassembling or decompiling any of the programs constituting the Service;
- (v) 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;
- (vi) Act that obstructs or may obstruct the use or the operations of facilities of WingArc or others, or facilities for internet connection services;
- (vii) Act of sending or posting hazardous computer programs, such as viruses;
- (viii) 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;
- (ix) Act that breaches the laws, regulations or ordinances, or acts that are against public order and morality;
- (x) Act that breaches the general handling guidelines such as the user manual, set forth by WingArc, or the limitations regarding certain matters in connection with the use of the Service;
- (xi) Act of obstructing the provision of the Service; and
- (xii) Act that WingArc considers inappropriate, in connection with the purposes of the above provisions.
Article 13 Access Right
WingArc may access the Service (including, but not limited to, Customer’s data) through Customer’s User Account to solve technical problems or provide solutions based on Customer’s requests. In the event that WingArc goes beyond the Support Policy at the request of the Customer, the Customer shall pay WingArc the costs associated with such support.
Article 14 Use of Customer’s Data
- 14.1 During the Agreement Term of the Service, the Customer shall take, at own risk and expense, necessary measures such as taking a backup all data and information that have stored on this Service (hereinafter referred to as "Stored Data") in order to respond to the loss of data due to equipment failure of WingArc or other reasons.
- 14.2 If the Customer need to return the Stored Data after the termination of this Agreement, the Customer shall download or otherwise save the Stored Data from the Service for a period of 30 days from the day after the termination of this Agreement (excluding Free Trial) (hereafter referred to as "Return Period"). WingArc will delete or delete the Stored Data after the Return Period has expired and within 180 days of the termination of this Agreement. WingArc shall not be liable for any damage to the Customer or any third party in connection with the storage, deletion or backup of Stored Data.
- 14.3 WingArc may back up Stored Data and data such as logs recorded in this Service for recovery in the event of server failure or outage without the consent of the Customer.
- 14.4 WingArc will not monitor and access the Stored Data unless WingArc considers it necessary for the following purposes;
- (i) To ensure the safe operation of the Service system;
- (ii) To prevent system problems related to the Service or the Service;
- (iii) To resolve any problems when requested by the Customer in relation to technical support problems with the Service.
- 14.5 WingArc will not disclose or release all or part of Stored Data without the Customer’s consent. Provided, however, in the following cases, WingArc may disclose or release all or part of the Stored Data without the consent of the Customer.
- (i) When requested in accordance with laws or regulations (including requests through an investigation matter inquiry form) or by decree procedure; and
- (ii) When necessary to protect rights of WingArc or third parties.
- 14.6 The Service may be linked to the services of WingArc's partner companies (including but not limited to, the providers of the information and contents included in the Service, hereinafter referred to as “Partners”). When the Customer uses that Partner’s service including the Service, regardless of the following Article 15, WingArc may provide data related to the use of such services (including, but not limited to, the actual use of such services) to its partners.
- 14.7 WingArc may use the log of Customer access to the Service for the purpose of improving the quality of the Service, improving the performance of the usage environment, and responding to and providing the Customer's inquiries.
Article 15 Confidentiality
- 15.1 “Confidential Information” means all non-public information disclosed by one party ("Discloser") to the other party ("Recipient"), regardless of the form of disclosure, that has been designated as confidential or should reasonably be understood to be confidential given of the nature of the information and the circumstances of the disclosure. Confidential Information shall include, but is not limited to, the following information and shall not require a designation of confidentiality; (i) the terms and conditions of this Agreement; (ii) the Discloser's business, marketing plans, technology and technical information, product design, financial information and business processes; (iii) the Service; and (iv) Customer’s data.
- 15.2 Information that falls under the following categories shall not be considered confidential to the extent that they apply;(i) information that is or becomes public knowledge without breach of any obligation to the Discloser; (ii) information that was known to the Recipient prior to disclosure by the Discloser without breach of any obligation to the Discloser and without any obligation of confidentiality or other restriction; (iii) information developed independently by the recipient without breach of any obligation to the discloser and without reference to confidential information; (iv) information received by the recipient from a third party without breach of any obligation to the discloser and without any confidentiality obligation or other restriction.
- 15.3 Subject to the Article 14.4 and Article 14.5, and unless the Discloser expressly agrees otherwise in writing, the Recipient shall have the following obligations.
- (i) Use the discloser’s confidential information only to the extent necessary to fulfill the Recipient’s obligations under this Agreement;
- (ii) Disclose the Discloser’s confidential information only to the Recipient's directors, officers, agents, employees to the extent necessary for the Recipient to fulfill its obligations under this Agreement and exercise its rights, and do not disclose to others;
- (iii) During the Agreement Term and for two years after its termination, keep confidentiality of the Discloser’s confidential information strictly and prevent illegal use or disclosure of the Discloser’s confidential information with due care of a prudent manager.
- (iv) Confirm that a person to whom the Recipient discloses the Discloser’s Confidential Information complies with requirements and restrictions defined in the above items (i), (ii) and (iii) (on conditions of the Article 15.4 and Article 15.5), and is subject to a confidentiality obligation at least as strict as stipulated in this Agreement on conditions of employment or reception of Confidential Information.
- 15.4 Notwithstanding restrictions set forth in the preceding section, the Recipient may disclose the Discloser’s Confidential Information when required by valid orders of courts or administrative agencies with jurisdiction and authority or by applicable laws and regulations; provided, however, that the Recipient shall give reasonable advance notice (as far as legally permissible) of the disclosure to the Discloser, and based on the Discloser’s request, at the Discloser's expense, reasonably support the Discloser to prevent future disclosure or use of the Discloser’s Confidential Information or to gain orders to provide limitations or other remedies.
- 15.5 Notwithstanding the Article 15.3, the Recipient may disclose the Discloser’s Confidential Information to the Recipient’s legal, accounting, or financial advisors to the extent necessary for genuine legal, accounting and tax purposes; provided, however, that the Discloser shall confirm that such persons comply with requirements and restrictions set forth in (i), (ii) and (iii) of the Article 15.3.
- 15.6 Each party shall comply with the laws and regulations relating to the protection of personal information and privacy, and shall ensure that its own directors, officers, agents, and employees comply with such laws and regulations.
- 15.7 Each party shall agree that damage compensation is not sufficient relief for the Discloser if the Recipient breaches or might breach any of the provisions of this Article; therefore, in addition to remedy available to the Discloser, the Discloser has a right to seek remedy by injunction against the breach or the breach risk.
- 15.8 The Recipient shall have the following obligations by the Discloser’s written request at expiration or termination of this Agreement (or upon the Discloser’s written request prior thereto); (i) The Recipient shall, irrespective of form or medium, promptly deliver to the Discloser all Discloser’s Confidential Information and all originals and copies of all documents, records, data and materials containing such confidential information under the Recipient’s ownership or control, and erase the Discloser’s confidential information from the Recipient’s computer systems, search systems and database; (ii) The Recipient shall request observation of this section to those whom the Recipient provided the Discloser’s confidential information.
- Notwithstanding the preceding section, WingArc’s obligation concerning return or disposal of Stored Data after expiration, termination or cancellation of this Agreement shall comply only with the Article 14.4.
Article 16 Temporary Suspension, Stoppage of Service
- 16.1 WingArc reserves the right to temporarily suspend or stop all or part of the Service in any of the following cases, and shall bear no responsibility whatsoever. In this case, WingArc shall notify the Customer of the time of suspension or termination of the Service at least 6 hours prior to the occurrence of the reason. Provided, however, this shall not apply in the case of urgent and unavoidable reasons.
- (i) In case of planned maintenance or construction stoppage of the service system, communication failure or other unavoidable reasons;
- (ii) Interruption or suspension of telecommunications services by telecommunications carriers;
- (iii) In the event of circumstances beyond the reasonable control of WingArc (force majeure, acts of governance, floods, fires, earthquakes, riots, acts of terrorism, strikes or other labor disputes, pandemic);
- (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 the Partner sets separate conditions for suspension or stoppage and such conditions occur; and
- (vi) In the event that WingArc decides that the temporary suspension or stoppage of the Service is necessary in appropriately managing the Service.
- 16.2 In addition to the Article 16.1, in the event of an emergency, or when there is a possibility of such emergency occurring, WingArc may take measures such as suspend 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.
- 16.3 In the event that WingArc intends to discontinue or stop the Service in accordance with the Article 16.1and 16.2, WingArc notifies Customer in a manner defined by WingArc in advance. However, when notification is virtually impossible or WingArc judges it urgent and unavoidable, WingArc may suspend or stop Service without notifying Customer. In the event that the Service is to be suspended or stopped in accordance with the provisions of the previous two sections, WingArc will notify the Customer of the implementation date and period in advance in a manner determined by WingArc. Provided, however, in cases where notification is practically impossible or when it is judged to be urgent and unavoidable, WingArc may suspend or stop the Service without notice to the customer.
Article 17 Suspension and Stop of Service by Customer's reasons
- 17.1 WingArc reserves the right to temporarily suspend or stop all or part of the Service to the Customer for a specified period of time if any of the following items apply to the Customer or any other situation similar to the following is recognized, and shall bear no responsibility whatsoever.
- (i) When the Customer fills out a false statement on the Signup or other procedures designated by WingArc;
- (ii) In the event that the Customer breaches the provisions in Article 12 (Restrictions);
- (iii) When a petition for provisional seizure, provisional disposition, foreclosure, auction, commencement of bankruptcy proceedings, commencement of civil rehabilitation proceedings, commencement of corporate reorganization proceedings, or commencement of special liquidation is filed, or when a petition is filed by the applicant;
- (iv) When the Customer receive any disposition of delinquent taxes and public dues, compulsory execution, or any other disposition by public authority or suspension of transactions at a clearing house;
- (v) When a supervisory authority has suspended your business or revoked your business license or business registration;
- (vi) When a resolution is passed to abolish or change the business or to dissolve the company;
- (vii) When there is an event that indicates a deterioration of your economic credit standing, such as the suspension of payments or the initiation of voluntary liquidation, or when there are reasonable grounds that indicate the possibility of such a deterioration;
- (viii) In addition to the cases listed in the preceding items, when WingArc judges that the Customer has committed an act in breach of this Terms that may interfere with the execution of WingArc's business or WingArc's service system, or when WingArc judges that the Customer's use of the Service may be detrimental to the interests of WingArc or other customers and there are no other effective measures that can be taken to protect those interests.
- 17.2 In the event that WingArc intends to suspend or stop all or part of the Service in accordance with the provisions in Article16.1, WingArc will notify the Customer in a manner defined by WingArc in advance. Provided, however, when notification is virtually impossible or WingArc judges it urgent and unavoidable, WingArc may suspend or stop the Service without notifying the Customer.
- 17.3 In the event that the period of suspension or stoppage of the Service based on this Article exceeds 30 days, WingArc shall bear no liability for loss of Stored Data.
Article 18 Responsibility of the Customer
- 18.1 The Customer must comply with the laws, treaties, rules and regulations relating to the use of the Service.
- 18.2 The Customer shall immediately notify WingArc of any unauthorized use of User Account, or any breach or suspected breach of information security. In addition, In the event that the Customer become aware of any copying or distribution, or suspected copying or distribution of any software, content, or documentation that constitutes the Service, the Customer shall use your best efforts to stop such activity immediately. WingArc shall not in any way be responsible for the consequences of unauthorized access or modification to the Customer’ 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 this Terms.
- 18.3 Except when otherwise set forth in the Terms, the Customer 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.
- 18.4 In the event that the Customer breaches any one of the articles of this Terms, in addition to the cases separately set forth in this Terms, WingArc may immediately suspend this service and terminate this Agreement, and in the event that WingArc incurs damages as a result, WingArc shall have a claim for damages against the Customer.
Article 19 No Warranty and Disclaimer
- 19.1 The Service shall be provided as is, and the Customer shall use the Service at Customer’s 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, that are made available, in connection with the Service. In addition, WingArc will not be responsible for changing the specification of the Service.
- 19.2 The Customer 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.
- 19.3 The Customer shall consent that WingArc shall not in any way be responsible to the Customer or a third party, even if the Customer’ data that the Customer have forwarded to, sent through or accumulated in WingArc’s server is destroyed or lost for whatever reason. In addition, WingArc shall not in any way be responsible for any delays, damage, and loss of data due to such delays under the previous paragraph. WingArc will not be liable to the Customer or any third party for any damage or loss of Stored Data for any reason. In addition, Wing Arc shall not be liable for any damage or loss of Stored Data (including, but not limited to, damage or loss of data at the Sandbox organization of SFDC (as defined in Article 31) in relation to the Service) due to delays or delays in accordance with the Article 19.3.
- 19.4 WingArc shall not be responsible for any damages caused by any of the following; (a) damage incurred by the Customer due to force majeure such as natural disasters, unrest and riots; (b) damage incurred by the Customer due to malfunctions of the Customer’ telecommunication environment, such as the malfunction of the internet connection service used to connect to the Service system; (c) damage incurred by the Customer due to the malfunction of power or telecommunication services provided by a third party; (d) damage incurred by the Customer 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; (e) damage incurred by the Customer due to a product of a third party, such as hardware, software or a database, which are not developed or manufactured by WingArc; (f) damage incurred by the Customer due to an order of a government agency with authority or an enforced disposition based on a law or regulation; or (g) damage incurred by the Customer due to a matter that is not attributable to WingArc.
- 19.5 WingArc may from time to time provide links within the Service for the convenience of the Customer. 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 20 Limited Liability
- 20.1 In connection with this Agreement, WingArc shall be liable for normal and actual damage caused to the Customer directly by reasons attributable to WingArc when damage to the Customer is caused by reasons attributable to WingArc; provided, however, that the scope of such damage liability shall not exceed the Usage Fee of the previous six months paid by the Customer pursuant to this Agreement (excluding the first-year expenses and other fees), whether based on contract liability, tort liability, except where excluded by laws and regulations.
- 20.2 WingArc shall not be liable to the Customer for any lost profit / income, or indirect, special, accidental, consequential, compensatory or punitive damages for any cause, even based on contract, tort, or even if WingArc has been told by the Customer or any other third party about the possibility of such damages. When application of this Article is prohibited by laws and regulations of the Target Country, it shall not apply to that extent.
Article 21 Termination
- 21.1 In the event that any of the following occurs with regard to any of the Customer, WingArc may terminate this Agreement without giving any notification or demand: (a) 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; (b) 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; (c) 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; (d) 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; (e) in the event that the Customer passes a resolution to abolish its business or to dissolve; (f) 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 (f) in the event that the Customer grossly breaches this 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 Customer, 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 20.1, WingArc shall not bear the duty to refund the Usage Fee of the Service that it has received from the Customer.
Article 22 Anti-Corruption
- 22.1 Each party shall comply with all applicable anti-corruption laws and regulations, including the United States Foreign Corrupt Practices Act (“FCPA”), the United Kingdom Bribery Act 2010 (“UKBA”), the Japanese Unfair Competition Prevention Act (“JUCPA”) and any corresponding laws of all countries where business or services will be conducted or performed pursuant to this Agreement, and shall not, directly or indirectly through a third party, pay, offer, promise to pay, or give anything of value to any person, including an employee or official of a government, government controlled enterprise or company, or political party, for the purpose of or knowing that it will be used for obtaining any improper benefit or to improperly influence any act or decision by such person or party for obtaining, retaining, or directing business.
- 22.2 Each party as of the effective date of the Agreement, represents and warrants that: (a) it has not violated, nor has been found by any governmental authority to have violated, the FCPA, the UKBA, the JUCPA or any other applicable anti-corruption laws and regulations, and (b) it has no knowledge or reason to believe that any governmental authority is considering any proceeding related to any of the foregoing.
- 22.3 In the event that the party comes to have knowledge of any potential violation of the FCPA, the UKBA, the JUCPA or any other applicable anti-corruption laws and regulations, it shall immediately notify the other party thereof in writing.
- 22.4 Each party may terminate the Agreement, without penalty, if it reasonably believes that the other party is in violation of the FCPA, the UKBA, the JUCPA or other applicable anti-corruption laws and regulations.
Article 23 Termination of the Service
- 23.1 In the event that the Customer violates this Terms, WingArc may, at its discretion, deactivate the Customer's user account or suspend or terminate the use of the Service and delete and destroy the data in the Service.
- 23.2 In the event that WingArc falls under any of the following categories, it may abolish all or part of the Service: (a) in the event that it notifies the Customer of the abolishment two months or more prior to the abolishment date; or (b) In the event that the Service is no longer available by force majeure, such as natural disasters.
Article 24 Indemnification by the Customer
- The Customer shall indemnify and hold WingArc harmless for any claims, costs, damages, losses, obligations or expenses (including attorneys' fees) arising out of or in connection with any violation of the Service or breach of this Terms.
Article 25 Infringement of Third Party's Rights
- 25.1 In the event that a third party makes a judicial or non-judicial claim to any of the Customer, alleging that the content of the Service or the means of use, infringes upon or has infringed upon a third party’s intellectual property right in Japan, such the 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), 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.
- 25.2 In the event that the cause of claim in the preceding section is not attributable to WingArc, WingArc will not bear liability with regard to the preceding section.
Article 26 Change of the Terms
- WingArc may change the contents of this Terms and the Service at any time. In the event that the contents of this Terms and the Service are changed, WingArc shall post the timing of the change and the contents of the changed Terms on the website of WingArc, and shall notify the Customer's administrator of the change by e-mail. In this case, when the Customer uses the Service after the time of the change, the Customer shall be deemed to have agreed to the changes to this Terms and the Service.
Article 27 Subcontract
- WingArc may subcontract all or part of the Service to a third party. In this case, WingArc shall subcontract at its own risk and expense, and shall ensure that the subcontractor complies with all obligations under this Terms.
Article 28 Feedback
- WingArc shall hold a free, global, transferrable, sublicensable, 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 Customer in connection with the operation of the Service.
Article 29 Survival
- Articles 9, 12, 13, 14, 15, 18, 19, 20, 24, 25, 28, and 30 shall survive the termination or expiration of this Agreement.
Article 30 General
- 30.1 This Agreement shall be governed by the laws of Japan, regardless of any provisions regarding the conflict of laws in any jurisdiction.
- 30.2 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. The seat of the arbitration shall be Tokyo, Japan. The language of the arbitration shall be Japanese. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
- 30.3 Except in cases that it is otherwise stated in this 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 Customer will not have the effect of making additions or modifications to the provisions or conditions of the Terms.
- 30.4 In the event that any of the provisions of this 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.
- 30.5 Except in cases that it is otherwise stated in this 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 Customer will not have the effect of making additions or modifications to the provisions or conditions of the Terms.
- 30.6 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 Customer 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.
- 30.7 This Agreement constitutes the whole agreement of the Customer and WingArc, with respect to the subject matter hereof, and shall supersede all previous or contemporaneous negotiations, discussions and agreements, whether written or oral.
- 30.8 The Customer and WingArc shall 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.
- 30.9 Even if the Customer enters into an agreement between the Customer and a third party regarding the Service, all claims and disputes regarding the Service shall be resolved between the Customer and WingArc under the terms of this Agreement, and WingArc assumes no responsibility except for the terms of this Agreement and agrees that the agreement between the Customer and such third party shall not affect WingArc.
Article 31 Special Provisions for MotionBoard Cloud for Salesforce
- In the event that the Customer uses the "MotionBoard Cloud for Salesforce" ("MBSF") of the Service, the following terms and conditions apply;
- 31.1 MBSF is provided in conjunction with "force.com" (the "SFDC Platform"), a platform provided by salesforce.com, Inc. The Customer agrees that an agreement may be required between SFDC and the Customer with respect to the SFDC Platform, and that this Agreement is a contract between the Customer and WingArc and does not create any contractual relationship between the Customer and SFDC.
- 31.2 With respect to the SFDC Platform, the Customer agrees that if SFDC asks WingArc to provide the Customer's information to WingArc to respond to the Customer, WingArc will provide SFDC with the Customer's relevant information.
- 31.3 MBSF is provided by Wing Arc pursuant to a contract between WingArc and SFDC, and if such contract is terminated, this Agreement shall also be terminated. However, Wing Arc shall notify the Customer of the termination of this Agreement as far in advance as possible, and shall discuss subsequent actions with the Customer.
- 31.4 The Customer shall not develop an application for internal use with the SFDC Platform, unless it is contracted directly with SFDC. However, this does not apply in the case of a direct contract between the Customer and SFDC.
- 31.5 The Customer agrees that Customer's use of the SFDC Platform is limited to the objects and functions contained in the Services and the functions absolutely necessary for the operation of the Services, and that Customer may not extend the SFDC Platform to make use of additional custom objects Customer may not add the rights to the Services to an existing SFDC organization. In addition, the rights to the Services cannot be added to an existing SFDC organization, and if such a combination is required, you must procure the necessary rights directly from SFDC to support, operate and run the Services.
- 31.6 Customer must ensure that the number of users of the Service is less than or equal to the number of users of the Service that are contracted with SFDC.
- 31.7 The Customer agrees not to contact third parties such as SFDC for technical inquiries regarding the Services. In addition, you agree that you shall contact SFDC directly for technical support for services provided by SFDC other than the SFDC Platform (hereinafter referred to as the "SFDC Services"), and that WingArc will not provide technical support for the SFDC Services, nor will it be responsible for any such services.
- 31.8 The Customer agrees that SFDC may access the Service or the SFDC Platform using the Customer's User Account, after the procedure prescribed by the Customer, in order to solve technical problems or provide solutions based on the Customer's request.
- 31.9 Confidential Information shall include SFDC's web-based on-demand platform and SFDC Services (including their underlying technology and architecture).
Article 32 Special provisions under the agreement with WingArc Singapore
- 32.1 If the Customer and WingArc Singapore Pte. Ltd ((Registration No. 201405950N), a company incorporated under the laws of Singapore with its registered address at 20 Collyer Quay #23-01, Singapore 049319) have entered into the agreement regarding to the “MotionBoard Cloud”, then the following provision applies, notwithstanding anything stated to the contrary in this Agreement.
- (i) This Agreement shall be governed by the laws of Singapore.
- (ii) Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The language of the arbitration shall be English.