BeingManagement Cloud Service Acceptable Use Policy
Article 1 (Application of the Policy)
1. Being Co., Ltd.(hereafter “Being”) offers “BeingManagement Cloud Service” (hereafter the “Service”) in accordance with this “‘BeingManagement Cloud Service’ Acceptable Use Policy” (hereafter the “Policy”). This Policy applies to all agreements between Being and you as Customer (hereinafter collectively the “Agreement for Use”) with respect to the use of the Service.
2. All explanations about the function of the Service, the methods of its use, the cautions regarding the Service, and the restrictions on the use of the Service and any other information, which are published by Being, on Being’s website, or individually notified or provided to the Customer, in connection with the Service, shall be applied to the use of the Service, together with this Policy.
3. The Customer is required to confirm the contents of this Policy, prior to submitting the application to the Service. Once the Customer submits its application to the Service, the Customer shall be deemed to agree to the contents of this Policy.
Article 2 (Changes of the Policy)
1. Being may revise the Policy at any time without any prior notice.
2. The Customer shall be deemed to agree to a change of the Policy, if Customers uses the Service after such change of the Policy without raising objection. In addition, Being shall post the latest Policy on the Being’s website.
Article 3 (Definitions)
The terms used in this Policy have the meanings defined below.
(1) The “Being Management Cloud Service” means the online service that Being offers to provide the function of the software “BeingManagement3” via a network.
(2) The “Customer” means an entity or an individual who subscribes to the Service.
(3) The “Service Fee” means the fee that the Customers shall pay to Being in consideration for use of the Service under the Agreement for Use, including initial fee, monthly fee, additional fee and any other fees concerning the Service.
(4) “Authentication information” means any codes which are required for the use of the Service to distinguish the Customer’s identification from the others’, such as a Log-in ID and a password.
(5) The “Equipment for Service” means both hardware etc. (including, but not limited to, computer server, storage, telecommunication equipment and any other equipment) (the same hereinafter), and any software etc. (including, but not limited to, operating system (OS), middleware, software, contents and databases) (the same hereafter), provided by Being in connection with provision of the Service.
(6) The “Customer’s Equipment” means any hardware etc. and software etc., installed by the Customer to use the “Service”.
(7) The “Data” means data and information etc. which are provided by, transmitted by or to, or registered by the Customer, including confidential information provided in Article 25 (Custody of Confidential Information), sub-section 1.
(8) The “Materials Provided by Being” means the documents (including operation manual provided together with the Equipment for Service), information materials, Equipment for Service and any other tangible and intangible goods and materials, supplied by Being to the Customer in connection with provision of the Service.
(9) The “Maintenance” means all works necessary for the maintenance, addition and preservation of the Service.
Article 4 (Execution of Agreement for Use)
1. The Agreement for Use shall be entered into upon acceptance by Being of an application for subscription by the Customer by a method prescribed by Being.
2. If there is any provision in the Agreement for Use which conflicts with the Policy, such provision in the Agreement for Use shall prevail.
3. Being may not accept the application for the subscription for the Service by the Customer, if the Customer falls under any of the following；:
(1) It is not possible to provide the Service pursuant to the Customers’ application due to any technical issue or some other reasons.
(2) A document submitted by the Customer contains any false statement, error and omission of information.
(3) The Customer falls under or, is likely to fall under, any of the events provided in Article 24 (Termination by Being), sub-sections 2 and 3.
(4) The Customer has subscribed to Being’s other services in the past, and such service was subsequently suspended or an agreement for such service was terminated or cancelled by Being.
(5) Being judges that the Customer is a competitor etc. of Being and/or contemplates to enter into the Agreement for Use for the purpose of researching the business secrets of Being.
(6) Being judges that the Customer is threatened to fail to perform any of its obligations under the Agreement for Use in the opinion of Being.
(7) Other than those provided in the above items, Being judges that it cannot provide the continued Service pursuant to the application by the Customer.
Article 5 (Specification of Service and Environment of Use)
1. The detailed specifications of the Service will be posted separately at Being’s website etc.
2. The Customer shall be responsible for arranging at its expense an environment necessary for the use of the Service, including procurement of hardware, such as terminal equipment and other Customer’s Equipment, such as internet connection service.
Article 6 (Change of Specification of Service)
The specification of service may be changed without any prior notice, in which case Being will provide the Service in accordance with the changed specification.
Article 7 (Consignment)
1. Being may consign to a third party all or part of its tasks necessary for providing the Service, such as fault monitoring task.
2. Where the preceding sub-section is applicable, Being shall appropriately control such consignee and shall impose the same obligations on the consignee as Being owes under this Policy with respect to the consigned task.
Article 8 (Temporary Suspension and Discontinuation of Service)
1. Being may temporarily suspend or discontinue the provision of the Service where any of the following items are applicable:
(1) Being conducts the scheduled Maintenance and backup operation.
(2) Being conducts the Maintenance for any failure in Equipment for Service.
(3) It is necessary to temporarily suspend or discontinue the Service for operational or technical reasons.
(4) Being is unable to provide the Service due to force majeure such as natural disasters etc.
(5) It is required to temporarily suspend or discontinue the Service by any provision of laws and regulations.
2. If the preceding sub-section is applicable, Being shall give prior notice to the Customer with respect to the temporary suspension or discontinuation of the Service, except where any emergent circumstance arises. In addition, the timing of the temporary suspension or the discontinuation of the Service shall not be limited to night time.
3. Being shall not be held liable for any loss or damage suffered by the Customer due to Being’s inability to provide the Service, if any of the items provided in sub-section 1 of this Article are applicable.
4. The Customer shall not be released either in whole or in part from its obligation to pay the Service Fee, if Being suspends or discontinues to provide the Service pursuant to sub-section 1 of this Article 8.
Article 9 (Notice of Name of Person in Charge)
1. The Customer shall appoint a person in charge of the use of the Service in advance and notify Being of the name of such person by a method prescribed by Being.
2. In general, communication and confirmation etc. between Being and the Customer with respect to the use of the Service shall be made through the person in charge.
Article 10 (Customer’s Information and the Notice of its Changes)
1. The Customer shall submit to Being its corporate name, address, name of the person in charge and e-mail address by a method prescribed by Being when entering into this Policy.
2. If there is any change of the matters submitted to Being pursuant to the preceding sub-section, the Customer shall notify Being of such change without any delay.
3. If Being requests, the Customer shall submit to Being a document in which the methods or purposes of the use of the Service by the Customer are specifically stated or a certificate or any other document specified by Being, issued by a government or local government to prove the existence and identification of the Customer.
4. The Customer shall ensure that the e-mails from Being will be received at the e-mail address submitted to Being and if Being requests, the Customer shall reply to it without delay.
Article 11 (Prohibited Matters)
1. The Customer shall be prohibited to do the following matters when using the Service:
(1) an act of tampering or erasing the contents of the Service or information which can be used by the Service.
(2) an act of letting a third party use the Service without the consent by Being regardless of the purpose of the act, either for commercial, non-commercial or any other purpose.
(3) an act of infringing or threatening to infringe the rights of the intellectual property such as copyrights and trademarks and any other rights, of Being or a third party.
(4) an act of obstructing or threatening to obstruct the use or operation of a third party’s equipment or Equipment for Service.
(5) Any act of analyzing the Materials Provided by Being, including reverse engineering, decompiling, disassembling and etc.
(6) Any act of violating applicable domestic or foreign laws or regulations or the public policy, or act of causing any nuisance or loss to Being or a third party.
(7) Any other act of the Customer which is inappropriate for the use of the Service, in the judgment by Being.
2. If Being finds that an act of the Customer falls under any of the acts set forth in the section 1 of this Article 11 or that information provided by the Customer concerns any of the acts set forth in section 1 of this Article, then Being may temporarily suspend the provision of the Service in whole or in part or erase or delete any information which may be related to the act falling under section 1 of this Article 11 without any prior notice.
3. Being shall not be responsible for monitoring the acts of the Customer or information provided, transmitted, received or registered by the Customer, irrespective of whether such acts or information is for Customer’s use or not. Further, after the act which falls on any of the acts provided in section 1 of this Article 11 ceases to exist, Being shall not be responsible for recovering information erased or deleted by Being pursuant hereto.
Article 12 (Responsibility regarding the use of Service)
1. The Customer shall take care of the Materials Provided by Being with a due care of a prudent manager.
2. The Customer shall assume all responsibilities for all of its acts in connection with the use of the Service and results from such acts, and shall hold Being harmless for any damage that may result from such acts.
3. If Being suffers any damage due to the breach by the Customer of its obligations under the Agreement for Use or this Policy, Being has a right to indemnification from the Customer for such damages.
Article 13 (Custody of Authentication Information)
1. The Customer shall not disclose to, lend or share with a third party Authentication Information, except that the Customer is required to disclose it to Being pursuant to the Policy, and shall keep Authentication Information (including the change of a password) in its strict custody, so that it will not be leaked to a third party. If Authentication Information is leaked, lost or misused by a third party, the Customer shall promptly report such leakage, loss or misuse to Being.
2. Being shall not be held responsible for any damages caused by the leakage, loss or misuse of Authentication Information.
3. The Customer shall agree and consent that the use of the Service by a third party through misuse of Authentication Information shall be deemed to be the legitimate use of the Service by the Customer and consequently the Customer shall assume all obligations under the Agreement for Use including the obligation of paying the Service Fee, for the unauthorized use of the Service by the third party. Further, if Being suffers any damages by such misuse by the third party, the Customer shall indemnify Being for such damages.
4. In order to ensure the security for the use of the Service by the Customer, Being will not reply to the request by telephone communication for confirmation or reissue of Authentication Information, regardless of whether an emergent circumstance exists or not. Where it is necessary for the Customer to request confirmation or reissue of Authentication Information due to the loss of it etc., the Customer shall do so by the method prescribed by Being.
Article 14 (Rights of Intellectual Property)
1. Being owns all of the intellectual property rights concerning the Materials Provided by Being including , but not limited to, patent rights, copyrights, know-how etc.
2. The Customer may use the Materials Provided by Being only for the purpose of and to the extent of using the Service.
3. The Customer shall acknowledge and agree in advance that the Customer will neither acquire nor be granted any intellectual property rights concerning the Materials Provided by Being, by or for the use of the Service.
Article 15 (Data Capacity)
Being may place any limit on the capacity of the Data which the Customer is entitled to use for the Service.
Article 16 (Backup etc.)
1. As a part of the Service, Being will conduct scheduled backups of the Data periodically. The schedule of the scheduled backups and the storage periods of the backed up Data etc. shall be set forth in the specification of the Service.
2. The Customer shall preserve the Data at its own risk and responsibility by making backups of its Data. Except the scheduled backups of the Data pursuant to the preceding section 1 of this Article 16, Being shall not be responsible for any damages suffered by the Customer (including, without limitation, lost profits, loss of the Data, interruption of the business, mental damage and indemnification and compensation of the loss suffered by a third party) with respect to storage, preservation and backups of the Data. Nor shall Being be responsible with respect to the backed-up Data after the expiry of its storage period.
Article 17 (Data etc. after Termination of Agreement for Use)
After the termination of the Agreement for Use, regardless of the reason for such termination, Being shall erase and delete the Data stored or registered in the data storage area of the Equipment for Service without notice to the Customer. Further, Being shall not held liable to the Customer for any damage caused by such erase or deletion.
Article 18 (Term)
The Customer must elect whether the Agreement for Use will be a fixed-term agreement (under which the service will be provided for a term prescribed by the Customer) or a monthly basis agreement (which term is one month and automatically renewed unless the Customer give notice of not renewing to Being). Under both agreements, a minimum unit of the term must be one month. Being shall inform Customers of the term of the Agreement for Use, by notice which Being givnes upon the completion of server setting.
Article 19 (Modifications of the contents of the Service)
If the Customer wishes to change the contents of the Service, the Customer shall request Being of the change of the contents of the Service by sending a notice in a method prescribed by Being. If the contents of the Service are changed, Being will apply the revised Service Fees based on the changed contents of the Service from the month following the month in which the contents of the Service is changed.
Article 20 (Termination of the Agreement for Use)
If the Customer wishes to terminate the Agreement for Use, the Customer shall notify Being of the termination in a method prescribed by Being. If Being receives the notice of the termination by the Customer on or prior to the day designated by Being, the termination of the Service by the Customer shall become effective as on the last day of the month in which the termination notice is received by Being and if Being receives the notice of the termination after the said day designated by Being, the termination shall become effective in the month following the month in which the notice of the termination is received by Being.
Article 21 (Service Fee)
1. The Service Fee shall be charged on a monthly (from the 1st to the end of the month) basis and the Customer shall pay the Service Fee by the due date and in the method prescribed by Being; provided that all expenses or charges regarding ancillary to the payment of the Service Fee shall be borne by the Customer.
2. Being shall not lose any rights to claim the Service Fee and any other charges corresponding to the period during which the Service is suspended or discontinued pursuant to the section 1 of Article 8 (Temporary Suspension and Discontinuance of Service).
3. Unless otherwise provided in this Policy, once the use of the Service is commenced, no refund of the Service Fee received by Being shall be made for any reason.
4. If Being conducts, upon the request of the Customer or for any other reason which is attributable to the Customer, any work, job or any act necessary for providing or maintaining the Service or any other service, Being may invoice a reasonable charge on the Customer for such work, job or act, where there is no provision for such charge in the Agreement for Use.
Article 22 (Default Interest)
1. If the Customer fails to perform any payment obligation for the Service Fee and any other obligations under the Agreement for Use by the due date, the Customer shall pay a default interest calculated at a rate of 14.5% per year for a period between the due date of such obligation (exclusive) and the day of the payment (exclusive), together with the Service Fee or any other amount due by the Customer, on or before the date and in the manner specified by Being.
2. The bank charges and any other expenses for the payment of the default interest payable pursuant to the preceding section 1 of this Article 22 shall be borne by the Customer.
Article 23 (Termination by Customer)
Unless otherwise provided in the Agreement for Use or this Policy, the Customer may not cancel the Service or the Agreement for Use once it has been executed nor terminate this Agreement for Use during its term. Nor may the Customer reduce the number of licenses during the term.
Article 24 (Termination by Being)
1. Being may terminate the Agreement for Use of the Service, at any time, by giving 50 days prior notice to the Customer.
2. Being may suspend the Service or terminate the Agreement for Use in whole or in part without prior notice or demand to the Customer, if:
(1) The Customer breaches this Policy and is unlikely to correct the breach, in the reasonable judgment of Being, or despite the demand by Being of correcting the breach within a reasonable period, does not correct the breach or fulfill its obligation within such period.
(2) An act of the Customer falls under any of the provisions of section 1 of the Article 11 (Prohibited Matters) in the judgment of Being.
(3) The Customer suspends its payment or is unable to pay debts as they become due.
(4) A check or a note issued or endorsed by the Customer is dishonored.
(5) A motion to an attachment, provisional attachment or public auction is filed against the Customer or a disposition of delinquency of tax and public duty is commenced against the Customer.
(6) An application for commencement of bankruptcy proceeding, corporate reorganization proceedings or civil rehabilitation proceeding is filed by or filed against the Customer.
(7) There is a serious concern with respect to the Customer’s credit standing.
(8) The Customer is ordered the cancellation or suspension of its business license by the supervisory authority.
(9) The resolution of dissolution, decrease of capital or transfer of all or a material portion of the business of the Customer is passed by the general shareholder’s meeting or board of directors of the Customer.
(10) Other than those set forth in the above items, there is any event which may impede the performance by the Customer of its obligations under the Agreement for Use.
3. Being may terminate the Agreement for Use without prior notice or demand, if any of the provisions of the items set forth below is applicable to the Customer in the judgment of Being:
(1) The Customer is or used to be an organized crime group (boryokudan), organized crime group member (boryokudan-in), quasi-member of such group (boryokudan-jun-kosei-in), organized crime group associated company (boryokudan kankei kigyo) or any other group or person considered to be analogous to any of foregoing groups or person (hereinafter, collectively, “Anti-Social Force”).
(2) The Customer has committed any of the acts set forth below by themselves or through a third party:
① Any illegal or unjust demands which lacks reasonableness
② Any violent action including but not limited to a demonstrative action regardless of whether any tangible force is used or not
③ Any other acts prohibited by ‘Act on Prevention of Unjust Acts by Organized Crime Group Members’
(3) The Customer indicates to Being that the Customer belongs to or is affiliated with an Anti-Social Force.
4. If the Agreement for Use is terminated pursuant to the preceding sections 2 and 3 of this Article 24, the debts owed by the Customer to Being under the Agreement for Use, such as outstanding Service Fees, shall be accelerated and become due and payable immediately.
Article 25 (Custody of Confidential Information)
1. In this Policy, “Confidential Information” means any information which has come to the knowledge of Being or the Customer (as applicable) in the course of performance of the Agreement for Use, such as internal information, technical information and information concerning system or know-how, irrespective of whether it has been expressly indicated as confidential information or not and irrespective of whether such information is recorded in any medium (such as document, photograph, film, magnetic tape and magnetic disk) or not.
2. Notwithstanding the preceding section 1 of this Article 25, information falls under any of the following items shall not be regarded as Confidential Information.
(1) Any information which was in the public domain prior to the receipt of information by the other party.
(2) Any information which has been in possession of one party without breaching any confidential obligation, prior to the receipt of information from the other party.
(3) Any information which enters the public domain after the receipt of information by the other party through no fault of that party.
(4) Any information which was legitimately acquired from a third party without confidentiality obligation being imposed.
(5) Any information which was independently developed without the use of Confidential Information of the other party.
3. Being and the Customer (as applicable) shall strictly control and keep in its strict custody Confidential Information with a due care of a prudent manager, and may disclose Confidential Information only to its officers and employees (including, but not limited to, full-time employee, contracted employee and dispatched employee) who are involved in the use of the Service and need to know Confidential Information, (“Employees in Charge”) only to the extent that the disclosure is required. Further, Being and the Customer (as applicable) shall impose on the Employees in Charge the same obligations as Being and the Customer (as applicable) owes under the Agreement for Use ensuring that the Employees in Charge observe such obligations, and shall be responsible for all acts by such Employees in Charge.
4. Being and the Customer (as applicable) shall not disclose Confidential Information to a third party, unless it obtains a prior written consent by the other party and imposes on such third party confidential obligation no less lenient than Confidential Obligation under this Policy.
5. If Being or the Customer (as applicable) discloses Confidential Information to a third party pursuant to the preceding section 4 of this Article 25, Being and the Customer (as applicable) shall supervise the third party’s compliance with the confidential obligation set forth in the preceding section 4 of this Article 25, and shall be responsible, jointly and severally with the third party, for the performance of confidential obligation by the third party.
6. Being and the Customer (as applicable) shall use Confidential Information only for the purpose of the supply of the Service and shall not use it for any other purposes.
7. Being and the Customer (as applicable) shall not reproduce or copy Confidential Information in whatever forms and in whatever methods, without a prior consent by the other party, except for the backups permitted by Article 16 (Backup etc.).
8. After the termination of the Agreement for Use or upon the request from the other party, Being and the Customer (as applicable) shall immediately return or destroy (including deletion and erasion from the electric-magnetic storage medium or other media) Confidential Information, and its reproductions and copies according to the instruction by the other party and notify the other party of the result in writing.
Article 26 (Custody of Customer’s Information)
1. Being shall handle the Customer’s personal information that has come to knowledge of Being in the course of the provision of the Service in accordance with the Personal Information Protection Guidelines provided separately by Being.
2. Being may use Customer’s information to the extent necessary for the response to the Customer’s inquiry, the user management and the direct mail service to inform Customer’s of its new services and new projects.
3. If Being receives, by e-mail etc., the notice of requesting the stop of providing information pursuant to the preceding section 1 of Article 26, or the notice of declining the receipt of the direct mails or messages set forth in the preceding section 1 of Article 26, Being will, after the receipt of such notice, cease sending direct mails of the announcements of new services or new projects etc. and any other messages of which the Customer has declined the receipt, to such Customer.
Article 27 (Disclaimer)
1. The Customer acknowledges that the operating conditions of the Service differ depending on the environment in which the Service is used, such as the computer’s performance, memory capacity and the communication lines, and Being shall have not be held liable for any failure or defect caused by such environment in which the service in used.
2. It is the Customer’s responsibility to take any countermeasures against unauthorized access and computer viruses. Being may provide advice on such countermeasures but shall not be held liable to the Customer if any failure or defect should occur.
3. Being shall not be held liable for the damages or loss etc. of the Data caused by the change or cancellation of the Service by the Customer.
4. Being shall not be held liable for consequential damages, incidental damages and indirect damages such as loss of profits suffered by the Customer or a third party while using the Service, whether such damages were predicted or predictable or not.
Article 28 (Limitations of Amount of Damages)
If Being is held liable to the Customer in connection with the use of the Service, the maximum amount of Being’s liability shall be the amount equal to the monthly Service Fee for the Service.
Article 29 (Assignment)
1. Except in the case of inheritance or merger of the Customer, the Customer shall not assign, lend or create any security interest in the rights or obligations of the Customer under the Agreement for Use to any third party.
2. If the rights and obligations of the Customer under the Agreement for Use is succeeded by inheritance or merger, the person or entity who has succeeded such rights and obligations shall promptly give Being a notice of succession.
3. Being may assign its rights or obligations under the Agreement for Use with prior notice to the Customer.
Article 30 (Notice)
1. Notice from Being to the Customer under this Policy shall be given by appropriate and reasonable method such as announcement in Being’s website, e-mail and/or letter.
2. All notices made pursuant to preceding section 1 of Article 30, and any other communications shall be addressed to the address submitted to Being by the Customer. If such notices and any other communications shall not be received by the Customer due to the incorrect contact information submitted by the Customer, such notices etc. shall be deemed to have been received at the time when they should have been received by the Customer if the correct address was provided.
3. Notices and the other communications which have been sent by Being addressed to the address submitted by the Customer by e-mail shall be deemed to have been received by the Customer when such notices and communications are transmitted by Being, and if such notices and communications are posted on Being’s web-site, the notices and communications shall be deemed to have been received by the Customer when the notices and communications are posted.
Article 31 (Jurisdiction)
If any legal proceeding is to be commenced between Being and the Customer, the court having jurisdiction over the principal place of business of Being shall have exclusive jurisdiction in the first instance with respect to such legal proceeding.
Article 32 (Governing Law)
The validity, performance, fulfillment and construction of the Agreement for Use shall be governed by Japanese law.
Article 33 (Consultation etc.)
Both parties shall, in good faith, consult and resolve any issues arising as to matters not provided in this Policy or interpretations of any of the provisions of this Policy. Further, if any part of this Policy is held invalid, it shall not affect the validity of this Policy in the whole, and the invalidated part shall be replaced with the valid provision that has the closest meaning to the invalidated part.
The Policy shall enter into force as of 20th January, 2014.
This Policy shall be executed in the English and Japanese languages, each of which shall be considered an original. However, the parties hereto agree that the Japanese version shall be the governing version.