TOCARO Cloud Computing Service Agreement (“Agreement”)

Chapter 1. General Rules

Article 1. Application Of Agreement And Priority

  1. If there is an inconsistency or difference between the provisions of this Agreement and the provisions of the Service Specifications with respect to a similar item, the provisions of the Service Specifications shall prevail and take precedence.

Article 2. Definitions Of Terms

The meaning of terms used in this Agreement shall be as set out in the following items:

(i) The service
This denotes the public cloud computing service by which customers can use a range of information systems and assets, such as software and hardware, through networks such as the Internet based on a service fee system through, for instance, payment of monthly or annual charges.
(ii) Customer
This denotes the other party to which the Company provides the service based on the Service Use Agreements.
(iii) Service Use Agreements
These denote Agreements that will be entered into by and between a customer who wishes to use the service and the Company as set out in Article 11 (Conclusion of the Service Use Agreements). The Service Use Agreements shall consist of an application made for the services, this Agreement, the service specifications, and other documents that will be referred to in the above documents.
(iv) Customer’s equipment
This denotes a computer, telecommunications equipment, other equipment and software that a customer will install at its own cost to receive provision of the service.
(v) Equipment used for the service
This denotes a computer, telecommunications equipment, other equipment and software that the Company will install to provide customers with the service.
(vi) Equipment, etc. used for the service
This collectively denotes equipment used for the service and telecommunications lines that the Company leases from telecommunications carriers to provide the service.
(vii) User ID
This denotes characters used to distinguish a customer from other parties.
(viii) Password
This denotes characters used to distinguish a customer from other partiesused in combination with a user ID.
(ix) Business day
This denotes a business day of the Company, excluding Saturday, Sunday, national holidays in Japan and Company holidays such as year-end and New Year holidays.
(x) Authorized user
This denotes an affiliated company of a customer (a company being a subsidiary or a related corporation of the customer or which provides or receives human resources, funding, technological, etc. support from or to the customer) or a client or supplier of a customer (an outsourced party or supplier of the customer or other parties having a continuous contractual relationship with the customer) whose use of the service is approved by the Company.

Article 3. Method Of Notification

  1. The Company shall issue notification to customers via e-mail or written notification to the designated addresses, posting the details of notification on the Company’s website, or via such other mode of communication which the Company deems appropriate, unless otherwise provided for in the Service Use Agreements.
  2. When the Company issues notification to customers via e-mail or using a method of posting on the Company’s website as set out in the preceding paragraph, the notification shall take effect at the time of the Company sending the e-mail or posting of the details of the notification on the Company’s website.

Article 4. Prohibition Of Transfer Of Rights And Obligations

Except as otherwise provided for in this Agreement, all parties shall refrain from any acts of transferring, assigning or pledging of the party’s own rights and obligations based on the Service Use Agreements to a third party without prior written approval of the other party.

Article 5. Relationship Between the Parties To The Service Use Agreements

The Company and customer shall be mutually independent contracting parties. The Service Use Agreements shall not form or create any partnership, merger, employment, franchise or agency relationship between the Company and customer. Neither the Company nor the customer shall have authority binding on the other party unless otherwise clearly provided for in the Service Use Agreements, nor may it create duties as the representative of the other party without the prior written approval of the other party.

Article 6. Use Of Trademark, Etc.

  1. If approved by the customer in writing in advance, the Company may display the existence of a business relationship with the customer on the Company’s website, in the Company’s other marketing materials, etc. and briefly introduce the details of the customer’s business. In this event, the customer hereby acknowledges and agrees that the Company may and is licensed to use the trade name and trademark of the customer to such extent as approved by the customer. The Company shall not assume or challenge the customer’s ownership of rights to the customer’s trade name and trademark.
  2. If approved by the Company in writing in advance, a customer may display the customer’s use of the service of the Company on the website of the customer, in the customer’s other marketing materials, etc. In this event, the customer may use the trade name and trademark of the Company to such extent approved by the Company. The customer shall not assume or challenge the Company’s ownership of rights to the Company’s trade name and trademark.

Article 7. Elimination Of Antisocial Forces

  1. During the term of this Agreement, the Company and the customer represent, warrant and undertake to the other the following items:
    1. The Company, customer, and/or their outsourced parties or suppliers are not, and were not, an organized crime group, a company being involved in an organized crime group and/or a member or part of an organized crime group, etc. (hereinafter “Antisocial Forces”), as provided in the Organized Crime Countermeasures Principles (see circular notice dated October 25, 2004 of the Deputy Commissioner General of the National Police Agency of Japan).
    2. The directors, statutory auditors, other similar officers and parties with control of management over the Company and customer are not, and were not, Antisocial Forces.
    3. The Company and customer, have made no use of, and are not using the services of, Antisocial Forces.
    4. Funds, etc., convenience, facilities and benefits shall not be provided, and are not being provided, to Antisocial Forces.
    5. The Company and customer, shall not permit a third party to damage or tarnish the honor and reputation of the other party or interfere with the business of the other party by means of violent acts, deception and/or threatening language directed toward the other party.
    6. None of the preceding items apply to the parent company or subsidiaries (based on the definition of the Japanese Company Act; to apply similarly hereinafter) of the Company and customer, and their officers, etc.
  2. If the Company and customer violates, or will possibly violate, one of the items of the preceding paragraph, the Company and customer shall immediately notify the other party in writing of such violation.

Article 8. Governing Law

The Service Use Agreements shall be governed, interpreted and construed under the laws, ordinances and regulations of Japan.

Article 9. Consultation And Jurisdiction

Any matter not provided in the Service Use Agreements and any uncertainty, ambiguity or dispute regarding interpretation of the Service Use Agreements shall be resolved through consultation between the Company and customer based on the principle of good faith. If an agreement through consultation cannot be reached and a lawsuit is required for a dispute concerning the Service Use Agreements, the lawsuit shall be exclusively brought before the Tokyo District Court of Japan.

Article 10. Entire Agreement

The Service Use Agreements shall constitute the entire agreement between both parties with respect to provision of the service, and supersede other agreements and contracts, whether oral or written, that were entered into before entering into this Agreement.

Chapter 2. Conclusion Of Agreement, etc.

Article 11. Conclusion Of The Service Use Agreements

  1. A customer shall apply for the use of the service by submitting an application in the form prescribed by the Company, which states matters necessary for specifying the details of the service as the object of the application, to the Company.When the Company approves the application set out in the preceding paragraph, the service use agreements shall be entered into by and between the Company and customer. If the Company provides no notification to the customer within five (5) business days (hereinafter “Deemed Approval Period”) of the date of the Company’s receipt of the customer’s application at the Company, the Service Use Agreements shall be deemed as entered into as of the date of expiration of the Deemed Approval Period.
  2. When the Company notifies a customer of a defect or deficiency in an application or other objections within the Deemed Approval Period, the customer shall resubmit its application for services to the Company in accordance with the Company’s instructions. The provisions of all the paragraphs of this article shall apply to the resubmission of an application.
  3. If a written order, etc. was already exchanged with respect to the service and as to the object of an application, the Service Use Agreements that will be entered into as set out in this Article shall supersede such parts of the written order, etc. concerning the service. If the Service Use Agreements were entered into, such parts of the written order, etc. concerning the service shall be superseded and cease to have any effect.

Article 12. Term of Agreement, Etc.

  1. The term of the Service Use Agreements (hereinafter “Term of Agreement”) shall be effective from the time the Service Use Agreements were entered into (or were deemed to be entered into) as set out in paragraph 2 of the preceding article to the such time when a customer (or the Company) terminates the use of the service (regardless of the cause of the termination).
  2. The Company shall notify the customer of the date of commencement or start of the service (hereinafter “Date of Start of Service”), which the Company shall determine after considering the customer’s desired date of start of the service, which is stated in the customer’s application set out in the preceding article, via a notice of the start of service issued to the customer by the Company. Unless the customer otherwise indicates in writing to the Company within five business days of the date of receipt of the above notification, the customer shall be deemed to have approved the Date of Start of Service, which is stated in the above notification.
  3. The period for the customer’s use of the service (hereinafter “Period of Use” that will commence or start from the Date of Start of Service), the conditions for the renewal of the Period of Use and the imposition of a minimum Period of Use shall be as set out in the Service Specifications.

Article 13. Initial Introductory Work

If initial introductory work is required to enable the Company to commence or start the provision of the service, the Company shall conduct the work in accordance with the provisions of the Service Specifications. In this event, the customer shall pay the Company the cost for the initial introductory work (hereinafter referred to as “Initial Cost”) in accordance with Article 21 (Payment Conditions And Method).

Article 14. Use By The Authorized User

Provided that the Company approves in advance in writing or via a method it prescribes, the customer may permit an authorized user to use the service. In this event, the customer agrees and acknowledges that the use of the service by such authorized user will be deemed as usage by the customer. In addition, an agreement shall be entered into by and between the customer and authorized user in accordance with Article 28 (Matters To Be Observed By The Authorized User, Etc.), and the customer shall assume any and all responsibility for use of the service by the authorized user.

Chapter 3. Service

Article 15. Acknowledged Matters About The Service

  1. The customer acknowledges that:
    1. There may be cases, including those as set out in paragraph 2 Of Article 44 (Force Majeure And Exemption From Responsibilities), where a problem that is not attributable to the Company will occur.
    2. The Company shall be exempted from all responsibilities and liabilities for problems with the service that are not attributable to the Company.
  2. The following services shall not be provided to customers unless explicitly added in the Service Specifications:
    1. Inquiries by the customer on the software and hardware that the Company uses to provide the service, and troubleshooting or providing solutions or measures to problems, errors or obstacles, etc.
    2. Inquiries by the customer on the details of data kept or relating to the service.
  3. The customer hereby agrees and acknowledges that all such intellectual property rights and other rights relating to the service solely belong to the Company or the Company’s clients and will not be vested in or transferred to the customer.

Article 16. Area Of Provision Of The Service

The area of provision of the service shall be limited to Japan unless otherwise provided in the Service Use Agreements.

Article 17. Outsourcing

The Company may outsource or assign the whole or part of the provision of the services to a third party based on the Company’s discretion. In this event, the outsourced party (hereinafter “Outsourced Party”) will have the obligations and duties similar to that of the Company under Article 32 (Preservation Of Confidentiality), Article 33 (Handling Of Personal Information), and the Service Use Agreements to implement the outsourced services.

Article 18. Suspension Of Provision Of Service

  1. If any of the following events occur, the customer agrees that the Company may and is entitled to temporarily suspend provision of the service with prior notice to customers. If prior notice cannot be sent in the case of an emergency, a notice shall immediately be issued ex post facto:
    1. Maintenance work is conducted or required to be conducted due to a failure, defect or potential failure or defect in any facility, network or equipment, etc. used for the provision of the service.
    2. Unforeseen or unavoidable action is needed due to an operational or technological reason
    3. The service cannot be provided due to a force majeure event such as a natural disaster
  2. If any of the items of paragraph 1 of Article 39 (Cancellation) apply to the customer, the Company may suspend the provision of the whole or part of the service without prior notice or a formal demand to the customer.
  3. The customer agrees that the Company shall not be liable to assume any liabilities for losses or damages incurred by a customer due to or in connection with the suspension of the provision of the service as set out in this article.

Article 19. Termination Of The Service

  1. The Company may terminate the whole or part of the service, and may cancel or terminate the whole or part of the Service Use Agreements as of the date of termination in the following circumstance:
    1. Not less than three months’ notice is given to the customer of the termination
    2. The service cannot be provided due to a force majeure event such as a natural disaster
  2. When the whole or part of the service is terminated as set out in the preceding paragraph, the Company shall return to the customer any such amount of the Use Fees (as defined in paragraph 1 of Article 20) already paid by the customer to the Company, which corresponds to the number of days which Use Fees have been paid for but which the service will not be provided as a result of the termination, calculated on a pro-rated basis.

Chapter 4. Fees, etc.

Article 20. Price

  1. The manner or mode of calculation of the fee system, etc. or the price payable by the customer to the Company for the service (hereinafter referred to as “Use Fee”; if initial introductory work is required, the Initial Cost shall be included) shall be as set out in the table of fees.
  2. When the table of fees needs to be changed during the term of agreement, the Company shall notify the customer thereof in advance, and the table of fees shall be revised through consultation between both parties.

Article 21. Payment Conditions And Method

The customer shall pay the Use Fee by remittance to a bank account maintained in a financial institution designated by the Company in accordance with separately agreed upon payment conditions.
Remittance fees, bank charges and other expenses necessary for payment shall be borne solely by the customer.

Article 22. Late Payment Charge

Payment of the Use Fee must be made by the customer to the Company on or before the date of payment stated in the bill given to the customer. If the customer does not pay the Use Fee on or before the date of payment stated in a bill, the customer shall pay the Company interest on any outstanding amount owing calculated at a rate of 14.6% per annum from the day following the date of payment to the day preceding the date when payment is received by the Company.

Chapter 5. Customer’s Duty, Etc.

Article 23. Principle Of Own Responsibility

  1. If a third party objects to, or makes any claim against, the customer or the Company resulting from business that the customer conducts using the service, the customer shall be solely responsible to handle and solve it at the customer’s own responsibility and expense. In this event, the customer shall be liable to indemnify the Company in full from and against any losses or damages incurred by the Company (including a reasonable amount of attorney fees incurred by the Company, if any).
  2. Information, data, contents, etc. that the customer will provide or transmit using the service (including deemed usage by the customer; this shall similarly apply hereinafter) shall be provided and transmitted at the customer’s sole responsibility. The Company shall neither guarantee nor warrant the content thereof, nor assume any or all responsibilities and liabilities for any such losses and damages thereby suffered or incurred. The customer shall be solely responsible in ensuring that any data transmitted or transferred through its usage of deemed usage of the service does not contravene any applicable laws including but not limited to laws on data protection, confidentiality, official secrets, electronic commerce, money laundering/terrorism financing, communication and multimedia laws and the customer shall take all such steps as may be necessary to ensure that its employees, agents, suppliers or authorized users shall not cause the Company to be in breach of any such laws through the usage or deemed usage of the service failing which the customer shall be liable to indemnify and render harmless the Company in full from and against any loss or damage which the Company or its employees or agents may suffer or incur and/or any such action, claim or prosecution which may be brought by a third party against the Company or its employees or agents by reason of any breach by the customer of its obligations herein. The customer further agrees that it shall obtain all necessary consent from third parties as may be required for the transmission or transfer of any personal data of third parties to be kept, collected, processed, disclosed or used by the Company at an overseas jurisdiction in which the Company operates in compliance with existing data protection laws.
  3. With respect to data, etc. that exceeds the scope of backup provided by the Company for the service, the customer shall be responsible to save the same data as backup at the customer’s own cost. The Company shall not assume any responsibility or liability for losses incurred by the customer due to loss of data because the customer did not store, save and/or make a backup of, such data, etc.

Article 24. Person Responsible For Use

  1. The customer shall nominate a person responsible for usage of the service as the representative of the customer, and notify the Company thereof by stating in the application set out in Article 11 (Conclusion of The Service Use Agreements) particulars of such person. Such person shall be duly authorized by the customer and be responsible to communicate with and provide confirmation on behalf of the customer to the Company concerning the customer’s use of the service, in principle.
  2. If there is a change in particulars of the customer’s representative from that as set out in the application, then the customer shall immediately notify the Company in writing thereof.

Article 25. Installation And Maintenance Of Equipment To Use The Service

  1. The customer shall install the customer’s equipment in accordance with the conditions set out in the service specifications at the customer’s own responsibility and expense, and maintain the environment to use the customer’s equipment and the service.
  2. The customer shall procure telecommunications services of telecommunications carriers, etc., which are necessary to use the service, at the customer’s own responsibility and expense, and connect the customer’s equipment with the internet.
  3. If it is impossible to provide the service due to a defect or failure in the customer’s equipment or connection to the Internet as set out in the preceding paragraph, the Company shall not assume any responsibility or liability for losses the customer thereby incurs.
  4. When the Company deems it necessary at its discretion for the maintenance, operation and/or upgrade of technologies of the service, the Company may implement necessary acts such as monitoring, analysis or investigation with respect to information, data, content, etc. that the customer will provide or transmit via the service.

Article 26. User ID And Password

  1. The customer shall not disclose, lease and/or share the customer’s user ID and password to or with any unauthorized third party, and shall impose strict controls relating to the use of the same (including regular and secure changes of passwords) to avoid any unauthorized usage or access by any third party. The Company shall not assume any responsibility or liability for losses incurred by the customer or other parties due to negligence, insufficient control, mistakes in use, or a third party’s use of a user ID and password. All usage and other acts using the user ID and password of the customer shall be deemed as usage carried out by the customer.
  2. When a third party uses the service using the user ID and password of the customer, the third party’s act shall be deemed as the customer’s act. The customer shall pay the Use Fee and assume all other liabilities for such use. If the Company incurs a loss due to such act, the customer shall be liable to compensate or indemnify the Company in full from and against such loss. However, this shall not apply if a user ID and password is used by a third party due to the actions or negligence of the Company.

Article 27. Prohibited Acts

  1. The customer shall refrain from the acts set out in the following items (hereinafter “Prohibited Act”). The customer shall be liable to compensate or indemnify Company in full from and against losses incurred by the Company due to the occurrence of a Prohibited Act including indemnifying the Company for the Company’s cost to remedy, address, cure, manage or remove, etc. a Prohibited Act (including a reasonable amount of attorney fees incurred by the Company, if any):
    1. Infringement, or possible infringement, of intellectual property rights, such as copyrights and trademark rights, of the Company, an Outsourced Party and/or other third parties
    2. Alteration of, illegal access to and/or deletion of the contents of the service and information usable through the service
    3. Permitting a third party to use the service in violation of the Service Use Agreements
    4. Discrimination, malicious slander, defamation and/or causing damage to the honor, reputation and/or credit of other companies
    5. Aiding or abetting a criminal acts such as fraud
    6. Transmitting or posting images, documents, etc., that qualify as sedition, obscenity, pornography or child abuse
    7. Opening of, and/or solicitation for, pyramid schemes
    8. Use of the service by posing as a third party
    9. Transmission and/or posting of harmful computer programs, etc. such as viruses
    10. Transmission of advertisements and/or unsolicited email to third parties without permission and/or email (nuisance mail) that evoke, or possibly evoke, ill will of a third party or constitute an act of harassment
    11. Causing, or possibly causing, a problem with or affecting the efficiency of the use or operation of the service or the equipment, etc. used for the service
    12. Placing the Company or a third party at a disadvantage by violating laws and/or ordinances or public order and/or morals
    13. While knowing the occurrence of any of the preceding acts, acting in such manner with an aim of promoting the above acts.
  2. When the customer is aware of the occurrence of a Prohibited Act or a threatened or imminent occurrence of a Prohibited Act, the customer shall immediately notify the Company thereof, and follow the Company’s instruction.
  3. When, with regard to use of the service, the Company knows that an act of the customer corresponds to one of the items in paragraph 1, or information provided by the customer is information relating to an act that corresponds to one of the items of paragraph 1, the Company is entitled at its sole discretion to and may temporarily suspend provision of the whole or part of the service or delete information relating to an act that corresponds to one of the items of paragraph 1 without prior notification to the customer. However, the Company shall not be construed as having the duty of observing and monitoring the act of the customer or information, data, contents, etc. provided or transmitted by the customer.

Article 28. Matters To Be Observed By The Authorized User

  1. When the Company approves use of the service by an authorized user as set out in Article 14 (Use by the Authorized User), the customer shall enter into an agreement with the authorized user to give effect to the following and to ensure that the authorized user observe the following matters:
    1. The authorized user shall acknowledge the provisions of the Service Use Agreements and observe them to the same extent as the customer would. However, the provisions of the Service Use Agreements, such as those relating to the duty to pay the Use Fee, which cannot be applied to the authorized user due to its nature, shall be excluded.
    2. If the Service Use Agreements between the customer and Company are terminated, irrespective of the reason, the service to the authorized user shall immediately and automatically terminate, and the authorized user may not use the service.
    3. The authorized user shall not permit any third party to use the service.
    4. When the Company deems it necessary to provide the service, the customer shall immediately disclose to the Company any or all confidential information of the authorized user required by the Company. The customer shall procure the prior approval of the authorized user from such disclosure. The Company may disclose the above confidential information to the Outsourced Party set out in Article 17 (Re-outsourcing) to the extent necessary for outsourcing the service or any part thereof without prior written approval of the customer.
      However, the Company shall have the duty to control the above confidential information in the same manner as the confidential information provided in the Service Use Agreements.
    5. (v) The authorized user shall have no claim against the Company and shall not be entitled to pursue any or all of the Company’s responsibilities or liabilities, including claims for compensation against the Company relating to the service, regardless of the cause of claim.
  2. The customer shall provide the Company with a copy of the agreement entered into between the customer and an authorized user immediately upon request by the Company. The customer shall immediately convey notices and other matters requiring notification concerning the service, which were received from the Company, to the authorized user.

Article 29. Measures To Be Taken If The Authorized User Violates Or Breaches Or Cause The Customer To Violate Or Breach This Agreement

  1. If the authorized user violates or breaches or causes the customer to violate or breach provisions of the items of paragraph 1 of the preceding article, the customer shall procure the authorized user to immediately correct, cure or rectify the violation or breach.
  2. If the authorized user does not correct, cure or rectify a violation or breach within seven (7) days of the date of violation or breach of the provisions of the items of paragraph 1 of the preceding article, the Company may take the measures set out in the following items:
    1. Suspension of provision of the service to the authorized user and customer
    2. Cancellation of the whole or a part of the Service Use Agreements with the customer including provisions concerning use of the service by the authorized user and customer
  3. If the Company incurs a loss due to violation of the provisions of the items of paragraph 1 of the preceding article by the authorized user, the customer shall be liable to compensate and indemnify the Company in full from and against such loss (including a reasonable amount of attorney fees incurred by the Company, if any).

Chapter 6. Company’s Duties, etc.

Article 30. Duty Of Care Of A Good Manager

The Company shall provide the service with the same level of care as a reasonable service provider during the term of agreement.

Article 31. Problems With Equipment, Etc. Used For The Service, Etc.

  1. When the Company is aware of a problem with the equipment, etc. used for the service, the Company shall immediately notify customers thereof.
  2. When the Company is aware of a problem with the equipment, etc. used for the service, the Company shall repair and restore the equipment, etc. used for the service.
  3. When the Company is aware of a problem with telecommunications lines, etc. that the Company leases for connection to the equipment used for the service, the Company shall instruct a telecommunications carrier that provides the telecommunications lines, etc. to repair or restore them.
  4. Besides the preceding paragraphs, when there is a problem with the service, the customer or Company, as the case may be, shall immediately notify the other party thereof, decide on measures to be taken by each party through mutual consultation and implement such measures.

Chapter 7. Handling Of Confidential Information, Etc.

Article 32. Preservation Of Confidentiality

  1. Except as otherwise provided in this Agreement, the customer and Company shall neither disclose nor divulge to any third party the other party’s confidential technological, sales and other business information that comes into its possession relating to the service without prior written approval of the other party. When the customer or Company disclose confidential information to the other party using a document, the customer and Company shall indicate that the information is confidential, and the date of disclosure on the document. When confidential information is disclosed orally to the other party, the customer and Company shall prepare a document summarizing the details of the confidential information so disclosed within one month of the date of oral disclosure, and provide the other party with the document. The customer and Company shall not use confidential information for purposes other than exercising of rights and fulfillment of obligations under the service use agreements.
  2. The customer and Company shall not have a duty of preservation of confidentiality as set out in this article for information that corresponds to one of the following items:
    1. Is already publicly known or used at the time of disclosure or became publicly known or used information after disclosure without being attributable to a party that received the information
    2. Was already known, held or obtained by the recipient at the time of initial disclosure by the other party
    3. Was lawfully obtained from a third party without having a duty of preservation of confidentiality
    4. Was independently and originally developed without using information disclosed by the other party
    5. Must be disclosed based on laws and ordinances
  3. The customer and Company shall return, destroy or delete all of the other party’s confidential information, which is retained as of the time of the termination of the service use agreements, within one month of the termination of the service use agreements due to the expiration of the term of agreement or cancellation. The customer and Company shall neither prepare nor keep any copy of the confidential information.

Article 33. Handling Of Personal Information

  1. If the Company collects personal information when carrying out the service, the Company shall clearly indicate its purposes and the scope of use to the customer in advance, and use within the purposes and scope of use that were approved by the concerned individual.
  2. When carrying out the service, the Company shall keep personal information handled by the Company under strict control, and implement proper measures to prevent and correct illegal access to, and loss, alteration and divulgation of, personal information handled by the Company.
  3. When carrying out the service, the Company shall observe laws and ordinances for the protection of personal information and other standards.

Chapter 8. Revision Of Agreement, Etc.

Article 34. Revision Of Agreement

  1. The Company may revise the provisions of this Agreement at its sole discretion. In this event, the Company shall notify the customer thereof in writing.
  2. Unless the customer indicates a special intent within five (5) business days (hereinafter “Notification Period”) of a date following the date of arrival of the notification set out in the preceding paragraph at the customer’s premises, the customer shall be deemed to have acknowledged and agreed to the revision of this Agreement. The revised Agreement shall be applied to the service on and after the date of expiration of the Notification Period.
  3. If the customer indicates a special intent to the revision of this Agreement during the Notification Period, both parties shall consult about the details of the revision of this Agreement. An agreement that is reached as a result of the consultation shall be separately prescribed in writing.

Article 35. Revision Of The Service Specifications

  1. The Company may revise the Service Specifications without the approval of the customer. In this event, the Company shall immediately submit the revised Service Specifications to the customer that uses the service. The revised Service Specifications shall apply from the time of the submission (hereinafter “Effective Date of Revision”).
  2. If conditions for the provision of the service became unfavorable to the customer as a result of the revision of the Service Specifications as set out in the preceding paragraph, the customer may cancel the Service Use Agreements with a notice to the Company within one month of the Effective Date of Revision. In this event, the Company shall return to the customer the Use Fee (or part thereof) already paid for the period on and after the Effective Date of Revision on a per diem basis.

Article 36. Change Of An Application

The customer may change details stated in a past application by notifying the Company using an application for change prescribed by the Company in accordance with conditions set out in the service specifications during the term of agreement.

Article 37. Succession of a contracting party’s position

If the customer merges with another corporation, spins off its divisions, is acquired, etc., it shall immediately notify the Company thereof, sending the Company documents proving the fact. The Company will reserve a right to cancel the Service Use Agreements without being obliged to provide the service to the new entity, corporation, or a surviving corporation which was established as a result of the merger, acquisition, etc.

Chapter 9. Termination Of Agreement

Article 38. Cancellation

The customer may cancel the Service Use Agreements by notifying the Company using an application for cancellation prescribed by the Company in accordance with conditions set out in the service specifications at any time during the term of agreement.
However, when a minimum period of use is prescribed for the service, and the date of cancellation is before the expiration of the minimum period of use, the customer shall pay the Company, in a lump sum, an amount equivalent to the Use Fee payable for the remaining unexpired period of the minimum period of use by a date to be separately determined by the Company at the Company’s discretion.

Article 39. Cancellation

  1. When either one of the parties commits any of the following acts, the non-defaulting party may cancel the whole or part of the Service Use Agreements without notice and/or formal demand:
    1. The party does not fulfill duties based on the Service Use Agreements and, despite a written formal demand requiring such duties to be performed or fulfill within a specified period (such period to be reasonable), does not perform or fulfill the duties within the specified period
    2. The party fails to pay or is unable to meet its debt obligations or is insolvent or a petition or proceeding is brought for the winding up of the party or has liabilities in excess of its assets, or is subject to compulsory execution, provisional attachment, provisional disposition, public sales disposition, disposition for failure to pay taxes, and/or whose assets is subject to public auction
    3. The party is subject to suspension of transactions by a clearinghouse
    4. The party is subject to bankruptcy procedures, civil rehabilitation procedures, corporate rehabilitation procedures, special liquidation procedures, and/or voluntary liquidation procedures (including business restoration ADR)
    5. The party’s business permit or license or registration is cancelled or revoked or suspended by governmental or supervisory authorities
    6. The party reduces its capital, discontinues or changes its business, is dissolved, or transfers the whole, a substantial or an important part of business to a third party
    7. The party violates Article 7 (Elimination of Antisocial Forces)
    8. One of the items of paragraph 1 of Article 27 (Prohibited Acts) applies to the party
    9. Besides the preceding items, it is judged that there is uncertainty about the credit conditions of the other party
  2. When one of the preceding items applies to the customer and the Company cancels the Service Use Agreements, the provision of the proviso of the preceding article shall apply mutatis mutandis.
  3. If the Service Use Agreements are cancelled based on one of the items of paragraph 1, the defaulting party shall immediately pay to the non-defaulting party any such outstanding amount owed to the other party or remained unpaid under the terms of this Agreement.

Article 40. Measures After Termination Of Agreement

  1. When the Service Use Agreements are terminated due to expiration of the term of agreement or cancellation, the customer shall immediately return to the Company or destroy or delete materials relating to the service that were provided by the Company at the time of use of the service.
  2. When the Service Use Agreements are terminated due to expiration of the term of agreement or cancellation, the Company shall delete the customer’s information, data, contents, etc. recorded in the equipment used for the service.

Article 41. Subsequent Effects

Even if the Service Use Agreements are terminated due to expiration of the term of agreement or cancellation, the provisions of Article 4 (Prohibition Of Transfer Of Rights And Obligations), Article 8 (Governing Law), Article 9 (Consultation And Jurisdiction), Article 10 (Entire Agreement), Article 23 (Principle Of Own Responsibility), Article 27 (Prohibited Acts), Article 32 (Preservation Of Confidentiality), Article 33 (Handling Of Personal Information), Article 40 (Measures After Termination Of Agreement), Article 42 (Compensation For Losses), Article 43 (Infringement On Third Parties’ Rights) and Article 44 (Force Majeure And Exemption From Responsibilities And Liabilities) shall remain in effect. However, Article 32 (Preservation of Confidentiality) shall remain in effect only for a period of three (3) years after the termination of the Service Use Agreements.

Chapter 10. Compensation For Losses, Etc.

Article 42. Compensation For Losses

  1. If the customer is unable to use the service due to the fault of the Company (hereinafter “Impossible Use”), for a period of 24 hours or more per occurrence, the customer may claim compensation for loss, which is an amount calculated by multiplying 1/30 with an amount equivalent to the Use Fee per month of the service and further multiplied by the number of days of the Impossible Use (provided that each day of such Impossible Use shall be subject to multiples of 24 hours), against the Company. However, the amount of compensation shall be limited to the amount equivalent to the Use Fee of the service for one month.
  2. With the exception of the case set out in the preceding paragraph, the scope of liabilities of the Company to the customer due to a default or unlawful act, liabilities to compensate for losses, and/or other liabilities regardless of legal causes of action thereof that the Company owes to the customer relating to the Service Use Agreements, shall be limited only to ordinary direct losses actually incurred by the customer due to the fault of the Company. The amount of compensation for losses recoverable by the customer shall be limited by and not exceed the amounts set out below. The Company shall not be liable to compensate for indirect, derivative, contingent, consequential, pure economic and special losses and loss of earnings incurred by the customer.
    1. verage of amounts equivalent to the Use Fee of the service that paid to the Company for the previous 12 months before the end of a month preceding the month when a cause of action for compensation for losses arises
    2. If the period up to the end of a month preceding the month when a cause of action for compensation for losses arises from the Date of Start of Service is more than one month but less than 12 months, the average of amounts equivalent to the Use Fee of the service paid to the Company, for the above period (if the period is less than one month, no compensation shall be payable)
    3. If none of the preceding items apply, amounts equivalent to the Use Fee of the service paid for a period from the Date of Start of Service to a date when a cause for compensation for losses arises. However, with respect to compensation for losses relating to initial introduction work before the Date of Start of Service, the amount of compensation shall be equivalent to the Initial Cost.
  3. The scope of compensation for losses and the ,limitation of compensation payable, which are set out in the preceding two paragraphs, shall not apply to losses incurred due to gross negligence of the Company, losses incurred due to violation of Article 32 (Preservation Of Confidentiality) or Article 33 (Handling Of Personal Information) by the Company, and losses to be compensated by the Company based on Article 43 (Infringement On Third Parties’ Rights).
  4. If the authorized user incurs a loss relating to the service due to a reason attributable to the Company, the customer agrees and acknowledges that the Company shall be exempted from and shall not be liable to the customer for any losses suffered by the authorized user. The customer shall be liable to account to the authorized user at the customer’s own responsibility and cost.

Article 43. Infringement On Third Parties’ Rights

  1. When the Company is of the view that the provision or use of the service infringes, or will possibly infringe, on a third party’s rights, the Company shall notify the customer thereof immediately, and solve it at the Company’s own responsibility and expense.
  2. If an objection, claim etc. to infringement on a third party’s rights as set out in the preceding paragraph is made by a third party against the customer, the Company shall solve it at the Company’s own responsibility and expense on the condition that the customer shall (1) immediately notify the Company of the fact of the above objection, claim etc. in writing, (2) give the Company the rights necessary to solve the objection, claim etc., and (3) fully cooperate to solve the objection, etc. as requested by the Company.
  3. If infringement on a third party’s rights as set out in the preceding two paragraphs arises due to a reason attributable to the customer or an authorized user, the Company shall not assume any liability as set out in this article.
  4. The obligations set forth in this Article 43 shall constitute Company’s entire liability and Customer’s sole remedy for any actual or alleged infringement.

Article 44. Force Majeure And Exemption From Responsibilities And Liabilities

  1. Neither party shall assume any and all responsibility or liability for non-fulfillment of obligations, or a delay in fulfillment of obligations, under the Service Use Agreements, that is attributable to force majeure such as natural calamity, disturbance, riot, contagious and/or infectious disease, and/or other reasons beyond either party’s control. However, a party that does not perform its obligations or delays in the fulfillment of its obligations pursuant to a force majeure event shall (1) immediately notify the other party thereof and (2) make commercially reasonable efforts to immediately fulfill the obligations.
  2. The Company shall not be liable for losses incurred by the customer relating to the service due to the following reasons:
    1. Breaking into or hacking of the equipment, etc. used for the service by types of computer virus for which virus patterns and virus definition file, etc. are not provided with regard to antivirus software
    2. A third party’s illegal access to or attack of the equipment, etc. used for the service, and interception of communication lines, that cannot be reasonably prevented.
    3. Losses incurred because the customer did not comply with procedures, security means, etc. prescribed by the Company
    4. Losses arising from business conducted by the Company in accordance with the direction, instruction, etc. of the custome
    5. Losses caused by a problem with telecommunications services provided by a telecommunications carrier
    6. Compulsory disposition based on the Code of Criminal Procedure and the Act on Communications Interception during Criminal Investigations, and other compulsory disposition based on an order of a court or laws and ordinances
    7. Accidents or loss of a delivered article during conveyance due to a reason not attributable to the Company
    8. Problems with the customer’s connection environment such as with the customer’s equipment, or a problem with Internet connection service for the equipment used for the service
    9. Losses arising from the performance of Internet connection service such as response time from the equipment used for the service
    10. Losses incurred by the customer due to the Company’s cancellation of the whole or part of the Service Use Agreements based on Article 19 (Abolition of the service)
    11. Other reasons not attributable to the Company

Supplementary regulations
Enforced on June 30, 2011