Article 1 (Consent to Terms of Service)
- Customer shall use the Services in accordance with the conditions as stated in these Terms of Service and shall not use the Services unless it agrees to these Terms of Services.
- Unless otherwise agreed upon in writing by the Parties, the Parties shall enter into the Agreement (as defined below) in accordance with the following procedure:
(a) Customer shall submit a complete HAKO-FLO REID service application form (or application form designated by TED) (hereinafter referred to as the “Application Form”) via TED’s website;
(b) TED shall issue a written confirmation with license information etc. to Customer or enable Customer to access such confirmation on the TED’s website (hereinafter referred to as the “TED’s Acceptance”). At the time of TED’s Acceptance, a service use agreement (hereinafter referred to as the “Agreement”) shall be deemed to have been concluded between the Parties under these Terms of Service.
- The term of this Agreement shall be as stated in the Application Form and shall be automatically renewed on the same terms and conditions unless a written notice is given by either Party not to renew this Agreement three months in advance, and the same shall apply thereafter.
- During the term of this Agreement, Customer shall pay to TED fees for the Services as described in Item 2. (Fees for the Services) in the Application Form and in the method described in Item 3. (Payment Method) in the Application Form. The remittance fee shall be borne by Customer. The Parties acknowledge and agree that fee for the Services stipulated in this article is based on functions and levels of Services as of the time of conclusion of this Agreement and shall negotiate in good faith the revision of fee for the Services when substantial additional functions are developed in the Services.
Article 3 (Revision and change of Terms of Service)
- In the event of any of the following, TED may change the Terms of Service from time to time. In the event these Terms of Service are changed, the Terms of Service as changed shall apply.
(1) When the change of these Terms of Service is in conformity with the ordinary interests of Customer
(2) When the change of these Terms of Service is not inconsistent with the purpose for which this Agreement was concluded, and is reasonable in light of the necessity of the change, the appropriateness of the content after the change, the content thereof, and other circumstances pertaining to the change
- TED will determine the effective date of the changed Terms of Service (hereinafter referred to as the “Updated Version”) and notify Customer, at least two weeks prior to the effective date, of the content of the Updated Version and the effective date by displaying it on the Services or by other means prescribed by TED.
- Notwithstanding the provisions of the preceding two paragraphs, after the notice set forth in the paragraph 3 of this Article 3, Customer’s continued use of the Services on or after the date the Updated Version is effective and binding or Customer’s failure to follow the procedures for cancellation within the period of time prescribed by TED constitute Customer’s acceptance of such Updated Version.
Article 4(Definition of Terms)
In this Agreement, the following terms shall have the following meanings:
(1) “Customer” shall mean any corporation, institution, etc. that applies to TED for the provision of the Services
(2) “Activation Code” shall mean software license code for RFID Reader
(3) “Affiliates” shall mean any company controlled by, controlling or under common control with Tokyo Electron Device America, Inc., “Control” shall mean direct or indirect ownership of at least 50% of the equity in a company.
Article 5 (Function of Services)
The Services are distribution warehousing services that use RFID readers and dedicated applications. Customer shall use the Services at its own discretion and liability in light of such characteristics of the Services.
Article 6(Late Payment Charge)
Any invoices paid after its due date shall accrue interest on a daily basis from the day following such due date to the day preceding the actual payment and shall be calculated at a rate of 14.6% per year.
- The Services are provided for use in Customer’s own business and shall not be used for commercial purposes, such as selling to third parties hardware or software provided by Services to Customer or users.
- Customer may allow only its directors or employees to use the Services and shall not allow third parties to use them.
- Customer shall inform its directors or employees who use the Services (hereinafter referred to as the “Users”) of the terms and conditions set forth in these Terms of Service and shall cause them to comply therewith.
Article 8 (Account Information)
- The license number and Activation Code shall be granted by TED in accordance with the methods and conditions of use specified by TED.
- Customer shall, at its own liability, manage the license numbers and Activation Code to prevent them from unauthorized use.
- In no event shall Customer disclose or lease the license number and Activation Code to any third party.
- TED shall not be liable for any damage to Customer caused by the unauthorized use of the license number or Activation code. All acts of use of Services that occur after Customer’s consent to these Terms of Service shall be deemed to belong to Customer.
Article 9 (Additional Contracts for HAKO-FLO RFID Services)
- Customer may enter into additional Agreement for Services as set forth in paragraph 2 of Article 1 of these Terms of Service by applying to TED in a manner specified by TED.
- In the event TED accepts the application set forth in the preceding paragraph, Customer shall pay fee for the Services for the additional Agreement based on the service fee table specified by TED.
Article 10 (Supervisory Responsibility)
- Customer shall supervise the use of Services by the Users to ensure that the Users comply with these Terms of Service and shall be responsible for any manifestation of intention, notice, or any other action to the Users.
- Customer shall promptly notify TED of breach if it becomes aware that the Users have violated Terms of Service.
Article 11 (Maintenance of the Operating Environment)
- Customer shall, at its own expense and liability, provide the User’s equipment and maintain the environment for Services use, upon the terms and conditions specified by TED,
- Customer shall use telecommunications services of telecommunications carriers to connect the Users’ equipment to the Internet at its own expense and liability when using the Services.
- In the event of any failure in the User’s equipment, Internet access as set forth in the preceding paragraph, or the environment for Services use, TED shall not be obliged to provide the Services to the Users.
Article 12 (Handling of Personal Information)
- TED will promptly destroy any personal information that is no longer necessary for the provision of the Services at its own liability without retaining any copies thereof.
Article 13 (Prohibited Acts)
- In connection with the use of the Services, Customer shall not perform or shall not permit a third party to perform any of the acts listed in the following:
(1) acts that infringe the intellectual property rights, portrait rights, privacy rights, reputation, or other rights or interests of TED or other customer or other third parties (including acts that directly or indirectly cause such infringement);
(2) acts related to criminal acts or acts contrary to public policy;
(3) acts that violate any applicable laws and regulations or the internal rules of the trade association to which TED or Customer belongs;
(4) acts that obstruct or are likely to interfere with the use of other customers;
(5) acts of transmitting information, including computer viruses and other harmful computer programs
(6) unauthorized access to the hardware or software that constitutes the Services, cracking, or other acts that are likely to interfere with the facilities, etc.;
(7) acts of altering information available concerning the Services;
(8) conducting reverse engineering, decompiling, or disassembling in connection with the Services, etc.;
(9) acts that are likely to interfere with the operation of the Services by TED;
(10) acts of using or attempting to obtain another person’s software license;
(11) provision of benefits to Anti-social Forces (defined in Article 21); or
(12) any other act that TED determines to be inappropriate.
- In the event TED determines that the transmission of information by Customer in the Services falls under or is likely to fall under any of the items in the preceding paragraph, TED may delete all or part of such information without prior notice to Customer. TED shall not be liable for any damages caused to Customer based on measures taken by TED under this section.
Article 14 (Measures against Violation of the Covenant, etc.)
- TED may temporarily suspend the use of Services for Customer or terminate this Agreement (including additional Agreement set forth in Article 9) without prior notice or demand in the event that Customer falls under any of the following conditions:
(1) In the event of Customer’s breach of any of the provisions of these Terms of Services;
(2) In cases where the performance of the obligation in whole or in part is impossible or where Customer expressly manifests its intention to refuse performance of the obligation in whole or in part;
(3) In case where part of the obligation cannot be performed or where Customer expressly manifests its intention to refuse to perform part of the obligation, and the purpose of the contract cannot be achieved only with the remaining part;
(4) In the event that the purpose of this Agreement cannot be achieved unless performance of the obligation is made on a specified date and time or within a specified time (“Performance Period”), and the Performance Period has elapsed without such performance by Customer;
(5) In addition to the cases listed in the preceding items, in cases where it is obvious that Customer has not perform its obligations or is unlikely to perform sufficiently to achieve the purpose of this Agreement;
(6) When it is found that there is a false fact in the information provided to TED in the course of using the Services or the information requested by Customer by TED;
(7) When Customer uses or intends to use the Services for a purpose or method that may cause damage to TED, other customers or other third parties;
(8) Customer’s interference with the operation of Services by any means whatsoever;
(9) If Customer suspends payment or become unable to pay debts, or if a petition for commencement of bankruptcy proceedings, civil rehabilitation proceedings, or any other proceedings similar thereto is filed;
(10) In cases where Customer has been dishonored with regard to a draft or check drawn or accepted by Customer or where Customer has been subject to a disposition by suspension of trade by a clearinghouse or any other similar measure(11) In cases where a petition for seizure, provisional seizure, provisional disposition, compulsory execution, or auction has been filed
(12) In the event of a disposition for failure to pay taxes and other public charges
(13) If no response by Customer to any contact from TED
- TED shall not be liable for any damages suffered by Customer as a result of actions taken by TED under this Article.
- Customer shall compensate TED for any damage caused to TED by breach of these Terms of Service or in connection with the use of the Services.
- In the event Customer receives a claim from other customer or any other third party in connection with the Services or any dispute arises between the Customer and such parties, Customer shall promptly notify TED of the content thereof, settle such claim or dispute at Customer’s own expense and responsibility, and report the progress and outcome thereof to TED at the request of TED.
- If, in connection with the use of the Services by Customer, TED receives any claim for any reason, including, but not limited to, infringement of rights of a third party, from any other customer or any other third party, Customer shall compensate for the amount that TED was compelled to pay to such third parties on the basis of such claim; provided, however, that the provisions set forth in this paragraph 5 shall not apply to cases caused by willful misconduct or negligence of TED.
Article 15 (Damages)
- IN THE EVENT TED CAUSES DAMAGE TO CUSTOMER DUE TO ANY BREACH OF THESE TERMS OF SERVICE, TED WILL COMPENSATE CUSTOMER FOR SUCH DAMAGE UP TO THE AMOUNT OF FEE FOR THE SERVICES RECEIVED BY TED DURING TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE HAS OCCURRED.
- NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING PARAGRAPH, IN NO EVENT TED SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF REVENUE, OR LOSS OF PROFIT, EVEN IF TED HAD BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Article 16 (Confidentiality)
- Customer and TED shall not disclose or divulge to any third party any Confidential Information disclosed by the other party in connection with the use of Services. In this Agreement, “Confidential Information” shall mean the technical, business or management information of the other party disclosed with regard to the use of the Services regardless of the form of disclosure (i.e., whether it is in writing, electromagnetic data, oral or other form), or whether or not it is clearly marked or otherwise identified as confidential or the scope of the confidentiality is specified.
- Information listed in the following items shall not fall under the category of Confidential Information:
(1) Information already in possession at the time of disclosure
(2) Information that was already in the public domain at the time of disclosure, or information that subsequently became publicly known due to causes not attributable to the receiving party.
(3) Information lawfully obtained from a third party after disclosure
(4) Information independently developed or created not based on the disclosed confidential information
(5) Information that is required to be disclosed pursuant to the provisions of laws and regulations or an order of the court
- Customer and TED shall only disclose Confidential Information to officers and employees (referring to those who are engaged in their own work irrespective of the form of contract, such as employment contract, delegation contract, or contract of service outsourcing contract), joint researchers, outsourcees, or outside advisors, who need to know for the purpose of providing or improving the Services and have agreed in writing to non-disclosure obligations as strict as contained hereunder Customer and TED shall not use such Confidential Information for any purpose other than the purpose of disclosure.
- In the event this Agreement is terminated due to termination of the Services, cancellation of this Agreement, or for any other reason, Customer and TED shall promptly return or dispose of the Confidential Information in accordance with the instructions of the other Party. When disposing of the Confidential Information, Customer and TED shall adopt a method that prevents the reuse of the Confidential Information.
Article 17 (Attribution of Intellectual Property Rights)
- Customer and TED acknowledge and agree that all inventions, devices, designs, works (including works made by TED for Customer at the request of Customer), trademarks, trade names, and other designations and indicia which could be used in connection with the products or services of TED, as well as any and all rights relating to trade secrets and other technical or business information useful for business activities, including, but not limited to, patent rights, utility model rights, design rights, copyrights , trademark rights, and other similar intellectual property rights which may be protected by registration or any other procedure under the applicable law belong to TED.
- Customer shall authorize TED to reproduce and utilize information created by Customer in connection with the Services for service-improvement purposes and shall not exercise the moral rights of author with respect to such information.
Article 18 (Cancellation of Contract)
Customer may terminate this Agreement by giving prior written notice to TED no later than three months in advance. In such case, Customer shall pay TED 50% of fee for the Services incurred prior to the terminate of this Agreement in a lump sum, and shall not be entitled to demand the return of any and all expenses including fee for the Services paid in advance by Customer to TED.
Article 19 (Change, Suspension of Services)
- TED shall be entitled to change or add the content of the Services in whole or in part without prior notice to Customer. However, TED does not guarantee that all functions and performance of Services prior to the change or addition will be maintained by such change or addition.
- TED shall be entitled to suspend the use of the Services for Customer in whole or in part in the event of any of the following, provided, however, that in such event, TED shall endeavor to notify Customer in advance as much as possible :
(1) Periodic or urgent inspection or maintenance of the systems related to Services;
(2) In cases where a computer or communication line, etc. has been stopped due to an accident;
(3) When the Services cannot be operated due to force majeure such as fires, power outages, or natural disasters; or
(4) In the event TED reasonably determines that the suspension of the Services is necessary.
- TED shall not be liable for any disadvantage or damage suffered by Customer under this Article.
Article 20(Limitations and Disclaimers of Warranties)
- TED warrants that the Services will be, in material respects, provided substantially and normally.
- Customer shall use Services at its own liability and TED shall not be liable for any damages suffered by Customer arising from the Customer’s use of the Services.
Article 21 (Elimination of Antisocial Forces)
- Each Party warrants to the other Party that it is not an organized crime group, a related organizations of an organized crime group, a member of an organize crime group, a related person of an organized crime group, or other antisocial forces (hereinafter referred to as “Antisocial Forces”), and it has not become part of any Antisocial Forces in the past.
- In the event that a Party breaches the preceding paragraph, the non-breaching Party may unilaterally terminate this Agreement without giving any notice or demand to the breaching Party, such non-breaching Party shall be entitled to claim damages incurred by such breach.
Article 22 (Contact and Notice)
Any notice required or permitted by these Terms of Service, including but not limited to, notice about the Services from Customer to TED and notices of changes of these Terms of Service to Customer, shall be given by e-mail or otherwise in the manner prescribed by TED, . Notices shall become effective upon origination from TED.
Article 23 (Assignment of Status, etc.)
Customer and TED shall not, without the prior written consent of the other party, set, transfer, pledge, or otherwise dispose of all or any part of their status under these Terms of Service or their rights or obligations under these Terms of Service to any third party; Provided, however, that this shall not apply to transfer of shares, transfer of business, merger, company split, or any other organizational restructuring.
Article 24 (Severability)
- If any provision of these Terms of Service or any part thereof is held to be invalid or unenforceable, such determination shall not affect the other part and the remainder of these Terms of Service shall remain valid and enforceable. TED and Customer shall endeavor to ensure the same effectiveness and shall agree to be bound by the amended these Terms of Service in accordance with the purport of such invalid or unenforceable clause or part.
- Even if any provision of these Terms of Service or any part thereof is held to be invalid or unenforceable in relation to a certain Customer, its validity in relation to other Customer shall not be affected.
Article 25 (Survival Provisions)
Even in the event of termination or expiration of this Agreement, Article 12 (Handling of Personal Information), Article 15 (Damages), Article 16 (Confidentiality), Article 17 (Attribution of Intellectual Property Rights), this Article (Survival Clause), and Article 28 (Governing Law and Agreed Jurisdiction) shall remain in full force and effect.
Article 26 (Force Majeure)
TED shall not be liable to Customer for any failure to perform all or part of the Service of this Agreement due to acts of God, war, riot, civil commotion, accidents during transportation or communications lines or custody, amendments to laws and regulations, outbreak of epidemic or infectious disease, or other events that constitute force majeure.
Article 27 (Consultative Settlement)
TED and Customer shall promptly resolve any matters not stipulated in Terms of Service or any doubtful point arising in the interpretation of these Terms of Service after due consultation in accordance with the doctrine of good faith and fair dealing with each other.
Article 28 (Governing Law and Agreed Jurisdiction)
These Terms of Service shall be governed by the laws of the State of California, USA. In the event any and all disputes arising out of or related to this Agreement cannot be settled through consultation as set forth in the preceding article, such dispute shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) before a tribunal of one (1) arbitrator appointed by the ICC. The arbitration shall be held in the State of California.