[email protected]
GENERAL TERMS OF CONDITIONS
1. Purpose
1.1 This General Terms and Conditions (the “GTC”) shall apply to any agreements
concluded by and between transcosmos inc. (3-25-18, Shibuya, Shibuya-ku, Tokyo
150-8530, Japan. “TCI”) and its customer (the “Customer”) in connection to the
usage of [email protected] by the Customer (the “Agreement”). [email protected] is a
software program for marketing or campaign activities utilizing email (the
“Program”), the copyright and any other intellectual properties of which belong to
TCI. TCI grants to the Customer a non-exclusive and non-assignable right to use of
the Program under the terms and conditions of this GTC (the “Service”).
2. Completion of the Agreement
2.1 When applying the Service, the Customer shall agree to all terms of this GTC and
provide purchase order designated by TCI or equivalent order form (the “Purchase
Order”) to TCI.
2.2 The Agreement shall be formed at the time when TCI issues written consent
(including consent by email) to the Purchase Order submitted to TCI by the
Customer.
2.3 The commencing date of the Service (the “Commencing Date”) shall be designated
by TCI after the formation of the Agreement described in section 2.2.
3. Period of the Service
3.1 The Service shall commence at the Commencing Date, separately designated by TCI
as per Clause 2.3. The period subject to billing of the Service shall be stated in the
Purchase Order as “Contract Period”, “Service Period” or other similar expression.
After expiration of such billing period, the Agreement shall be automatically be
renewed for successive one (1) year periods, unless either party notifies the other
party in writing of its intent to terminate all or part of the Agreement at least one
(1) month prior to its expiration, and the same shall apply for any renewed periods.
4. Preliminary Review of the Application
4.1 TCI will conduct a preliminary review of the Customer’s application for the Service.
Where any one or more of the following applies, TCI may refuse the application
without notice to the Customer.
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(1) Where the Customer has made any false statement on the Purchase Order;
(2) Where the Customer applies for the Service for any unjustified purpose
(including, but not limited to, the purpose of investigating secret information
relating to the Service for any competitors of TCI);
(3) Where the Customer has entered into the Agreement with TCI in the past, and
the Agreement has been terminated by TCI for reasons attributable to the
Customer;
(4) Where the Customer’s usage of the Service bears risk of breach of this GTC;
(5) Where the Customer is an individual person; or
(6) Where TCI considers that providing the Service will not be adequate for other
reasons.
5. Assignment of Rights and/or Obligations
5.1 The Customer shall not transfer any of its rights and/or obligations arising from the
Agreement to third parties without prior written consent of TCI.
6. Change of the Customer’s Registered Information)
The Customer shall immediately notify TCI in writing of any change in the company
name or address of the Customer.
7. Obligations, Representations and Warranties of the Customer
7.1 The Customer shall prepare email list (the “Email List”) and contents (the
“Contents”) for distribution, and set up the Contents in accordance with the manual
which TCI provides to the Customer, prior to the commencement of the Service in
accordance with the Agreement.
7.2 The Customer acknowledges and agrees that email delivery of the Service shall be
intended only for recipients who have expressly agreed in advance to receive the
Contents (the “Recipient”), and the Customer expressly warrants each of the following;
where TCI considers that the Customer has breached this section 7.2, TCI may
immediately suspend the Service without any liabilities on part of TCI:
(1) The Customer has a legitimate rights over the Email List and the Contents;
(2) The Customer has obtained prior express consent from all Recipients;
(3) The Recipients do not include persons who have voided his/her consent to receive
the Contents, or who has indicated his/her refusal to receive the Contents;
(4) The Customer complies with all applicable laws and regulations in relation to the
Service (including but not limited to collection and usage of information which is
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required to conduct the Service); and
(5) The Contents clearly show details of the procedure and method by which the
Recipient may refuse the receipt of the Contents.
7.3 Where TCI receives any of the following inquiries (the “Inquiries”) from the
Recipient, TCI shall forward the Inquiries to the Customer, and the Customer shall take
appropriate response within two (2) business days after the Customer receives the
Inquiries forwarded to the Customer by TCI. If the Customer receives any Inquiries
directly from the Recipient, the Customer shall take appropriate responses within two
(2) business days after the Customer receives the Inquiries.
(1) Any inquiry regarding refusal of the receipt of the Contents;
(2) Any inquiry regarding deletion of the Recipient’s email address from the Email
List; or
(3) Any inquiry regarding the reason for inclusion of the Recipient’s email address in
the Email List.
7.4 The Customer warrants that the Customer holds all necessary rights to deliver the
Contents, and grants TCI the rights relating to delivery of the Contents to the extent
necessary to conduct the Service. The Customer shall indemnify and hold TCI and any
third parties harmless against any claim, damage, loss, liability or expense arising out
of, relating to or in connection with conducting of the Service (including but not limited
to collection of information, the Contents to deliver, or website of the Customer),
provided that TCI gives the Customer full authority, and assistance for the defense of
the same within a reasonable range.
7.5 The Customer warrants that the Contents do not contain any of following; where
TCI considers that the Contents contain any of following, TCI may refuse to deliver
such Contents:
(1) Potential cause of fraud, obscenity, libel, blackmail, defamation, violation of rights,
or violation of privacy, contents which violate laws or regulations, which are
offensive to public order or morals, or which promotes prejudice or discrimination;
(2) Misleading advertisement or advertisement which induces misunderstanding;
(3) Junk mail, spam, chain mail, or items which are prohibited by Endless Money
Chain Prevention Act; and
(4) Items which may intercept, disrupt, or destroy any computer systems (including
but not limited to computer virus, worms, Trojan horses, or time bombs).
7.6 The Customer warrants that all personal information which is collected or used in
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relation to the Service shall be collected, used and protected in compliance with
applicable laws and regulations. The Customer shall establish its privacy policy which
clearly shows the purposes for collection and intended use of such personal information,
and the Customer shall place such privacy policy on all websites directly linked from the
Contents.
7-.7 TCI may engage third parties to conduct the TCI’s business at the TCI’s own
responsibility, in relation to utilizing the Service.
7.8 Notwithstanding section 7.6 or section 10, where the TCI engages third parties in
accordance with section 7.7, the TCI may disclose confidential information and/or
personal information to such third parties to the extent necessary to conduct theTCI’s
business in relation to utilizing the Service, and the TCI shall ensure that such third
parties are under confidentiality obligation at least as strict as that which the Customer
owes to TCI under this Agreement.
7-9. The Customer declares and warrants that neither the Customer itself nor any of
their directors or representatives are Anti-Social Forces or any members thereof.
8. Prohibited Matters
The Customer shall not alter, translate, compile, reverse-engineer, reverse-compile,
disassemble or create any derivative works of the Service (including but not limited to
the Program and documents relating to the Service).
9. Log in ID and Password
9.1 The Customer shall be liable for managing log-in ID and password which are issued
by TCI to the Customer. In the event of loss or theft of the log-in ID and/or the password,
the Customer shall immediately report to TCI.
9.2 TCI assumes no responsibility whatsoever for any damages caused by unauthorized
use of the log-in ID and/or the password regardless of whether it is caused by the
Customer’s willfulness or negligence.
10. Confidentiality
10.1 TCI and the Customer shall not disclose or permit disclosure of any confidential
information of the other party (hereinafter, the party disclosing information shall be
referred to as the “Disclosing Party” and the party receiving the same shall be referred
to as the “Receiving Party”), including but not limited to business information and
technical information of the Disclosing Party which may come to the knowledge or
possession of the Receiving Party, without prior written consent of the Disclosing Party.
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In addition, the Receiving Party shall not use such confidential information for any
purpose other than the purpose set forth in section 1 of this GTC
10.2 Any information which proven by the Receiving Party to fall under any of the
following shall not be confidential information.
(1) Information which is publicly known or available at the time of disclosure;
(2) Information which has become publicly known after the time of disclosure
through no fault of the Receiving Party;
(3) Information which was known by the Receiving Party prior to the disclosure;
(4) Information which the Receiving Party obtained from a rightful holder without
any duty of confidentiality after the time of disclosure;
(5) Information which is require to be disclosed by any laws, regulations or court
order (provided, however, that the Receiving Party shall give the Disclosing Party
a written notice to that effect, and discuss and cooperate in response to such
requirement with the Disclosing Party); or
(6) Information which is invented, created or developed independently by the
Receiving Party without relying on the confidential information of the Disclosing
Party.
10.3 The confidential obligation set forth in this section 10 shall survive the termination
of all or part of the Agreement and remain valid and binding, regardless of whether the
termination is due to expiration, early termination or any other causes.
11. Statistical Data
11.1 TCI may use statistical data regarding the email transmission as part of the
Service for promotion purposes without having to obtain prior consent of the Customer.
However, TCI shall combine such statistical data with other statistical data for use, in
order not to allow identification that such statistical data derives from the email
transmission of the Customer.
12. Payment
12.1 The Customer shall pay the fees for the Service (the “Service Fee”) in accordance
with the conditions of the Purchase Order.
12.2 The Customer shall pay the Service Fee via direct deposit by the payment date and
to the bank account which are specified in billing statement.
12.3 The Service Fee shall be exclusive of any and all taxes and duties, including
consumption tax, value-added or withholding taxes, if any. The Customer shall pay such
taxes and bank transfer fee in addition to the Service Fee.
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12.4 In case the Customer fails to make full payment of the Service Fee to TCI by the
payment date, the Customer shall pay an overdue interest on such overdue amount for
each day at the rate of fourteen point six percent (14.6%) per annum for the period from
and including the day following the payment date up to and including the date the
payment is completed.
13. Technical Support
13.1 TCI shall provide technical support to the Customer relating to following items (the
“Technical Support”) by means which TCI specifies (email, telephone, or support site) on
week days (Monday through Friday except public holidays and the year change period )
Japan standard time.
(1) Replies to the inquiries relating to operation of the Service;
(2) Supports relating to find cause and verification of the subjects which are
suspected to be defects of the Service.
(3) Providing solutions against defect of the Service.
13.2 The Customer shall agree that defect analysis of the Service may be conducted in a
manner to on-line access by TCI.
14. Exception of the Technical Support
14.1 TCI has no responsibility to provide Technical Support in relation to any of the
following:
(1) Defects which TCI is not able to recreate;
(2) Defects attributable to alteration of operating systems or operating environment
which may affect the Service.
(3) Defects attributable to alteration or functional addition to the Service provided by
a third party.
(4) Defects attributable to usage of the Service outside the scope of its intended use.
(5) Defects attributable to interconnection of the Service (or the Program) and other
software product not provided by TCI.
(6) Defects attributable to the use of the Service under operating environment other
than those recommended by TCI.
15. Training and Preparation
15.1 Employees of the Customer may participate in the training program conducted by
TCI in relation to the Service.
15.2 Such training program shall be conducted in a manner that TCI designates.
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15.3 For the first transmission of the Contents, transmission of new Contents, or
transmission to a new Email List, the Customer shall provide written notice describing
the necessary information for such transmission (including but not limited to DNS
configuration) to TCI at least ten (10) days prior to the intended commencement date
of such transmission.
16. Service Outage
16.1 TCI may suspend provision of the Service in the event of any of the following cases:
(1) Where maintenance or equipment work is required for any telecommunications
facilities which TCI utilizes for the Service;
(2) Where provision of the Service became difficult due to discontinuation of
telecommunications service provided by telecommunications carrier or other third
parties;
(3) Where TCI releases upgraded version of the Service due to repair, improvement or
update of any major functions of the Service (or the Program); or
(4) Any other inevitable cases.
16.2 TCI shall provide prior notice to the Customer in the event of discontinuation of the
Service due to the cases set forth in section 16.1. However, in case of emergency, the
Customer acknowledges and agrees that TCI may forego providing such notice except in
case of (3) of section 16.1.
16.3 TCI may limit the Customer’s use of the Service if TCI considers that the
Customer’s usage of the Service affects other customer’s usage of the Service.
16.4 TCI may immediately suspend the provision of the Service without notice if the
Customer falls under any of the following:
(1) The Customer fails to make full payment of the Service Fee or overdue interest by
the payment date;
(2) The Customer has used the Service for any purpose which violates laws or
regulations, or which is offensive to public order and morals;
(3) The Customer has infringed the intellectual property rights, proprietary rights,
privacy or any other rights of TCI, or any third parties; or
(4) The Customer is in breach of any other provisions of this GTC.
16.5 TCI shall not be held liable in any way for damages suffered by the Customers due
to the suspension of all or part of the Service.
17. Change , Expansion or Discontinuation of the Service
17.1 TCI may change, expand, or discontinue all or part of the Service at any time.
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17.2 Where TCI discontinues the Service, TCI shall provide notice to that effect to the
Customer no later than six (6) months prior to such discontinuation.
17.3 TCI shall not be held liable in any way for damages suffered by the Customers due
to the change, expansion or discontinuation of all or part of the Service.
18. Data Deletion
18.1In the event of termination of all or part of the Agreement (whether the termination
is due to expiration, early termination or any other causes), TCI shall delete the data,
relating to the applicable part of the Service used by the Customer, which is
accumulated in the system of the Service.
18.2 TCI may delete the applicable data (including but not limited to Contents, delivery
reports, Email List) accumulated in the system of the Service, even during the effective
period of the Agreement as long as it is two (2) years or more after the registration date
of the applicable email transmission.
19. Termination of the GTC by TCI
19.1 TCI may terminate all or any part of the Agreement where the Customer does not
promptly cure the breach after suspension of the Service in accordance with section
16.4.
19.2 Notwithstanding section 19.1 above, where the Customer falls under any
subsection of section 16.4, and such situation is deemed to be an obstacle to TCI’s
business operation, TCI may terminate all or any part of the Agreement immediately,
without having to suspend the Service in accordance with section 16.4 and without any
notice to the Customer.
19.3 TCI may immediately terminate all or any part of the Agreement without any
notice if the Customer falls under any of the following:
(1) Where the Customer is in breach of any part of the Agreement, and the breach is
not remedied within fourteen (14) days after the Customer receives a notification
to cure such breach from TCI;
(2) Where any bills of exchange or checks of the Customer are dishonored;
(3) Where the Customer is subject to attachment, provisional attachment, provisional
disposition, petition for auction, demand for levy, or any other compulsory
execution applied for by any third party;
(4) Where any of bankruptcy, corporate reorganization, civil rehabilitation, or any
other legal liquidation has been declared or applied for by TCI or by any third
party against the Customer;
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(5) Where any of dissolution, transfer of whole or important part of business, merger,
acquisition or any other event where the Customer discontinues to exist as the
same business entity;
(6) Where business license of the Customer is suspended or revoked;
(7) Where the Customer causes serious damage to TCI’s social credibility;
(8) Where the Customer is in breach of section 7.9; or
(9) Where TCI considers that it is inadequate to continue all or any part of the
Agreement due to change of control (including but not limited to change of major
shareholders or management of the Customer) in the Customer, or where TCI has
any reasonable reason to believe that the Customer is unable to fulfil their
obligation under this Agreement.
19.4 The Customer’s payment obligations shall not be disclaimed by the termination of
the Agreement.
19.5 TCI may terminate all or any part of the Agreement with one (1) month prior
written notice to the Customer.
20. Termination of the GTC by the Customer
20.1 The Customer may terminate all or any part of the Agreement with one (1) month
prior written notice (format of such notice is specified by TCI) to TCI.
20.2 Where the Customer terminates all or any part of the Agreement during the period
of the Service, the Customer shall be liable for the remaining Service Fee for remaining
period of the Service.
20.3 The Customer’s obligations set forth in this GTC or any Purchase Order shall
survive the termination of the Agreement and remain valid and binding until all such
obligations are fulfilled.
21. Indemnification and disclaimer
21.1 TCI assumes no responsibility whatsoever for any infringement of rights of third
parties caused by the Customer’s use of the Service. Similarly, TCI assumes no
responsibility whatsoever for any damages or expenses suffered by any party occurring
in relation to the Service, the Contents or any other data in relation thereto, computer
system, troubles relating to internet, or loss of data (including but not limited to the
Contents).
21.2 The Customer shall indemnify and hold TCI harmless against any claims, damages,
loss, liability or expenses arising out of, relating to or in connection with the Customer’s
breach of all or any part of the Agreement, or any laws or regulations.
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21.3
For all claims arising out of or in connection with the Agreement, TCI will not
be liable to the Customer for any amount in excess of the amount actually paid by the
Customer to TCI under the applicable Purchase Order of the one (1) month period
immediately preceding the event giving rise to the claim for damages.
22. Amendments to the GTC
TCI may amend this GTC without approval of the Customer, and such amended GTC
shall be applied from the date of revision.
23. Damages
TCI may make claims for damages against the Customer in following cases:
(1) The Customer operates deliberately for the purpose of placing extra burden on the
facilities for the Service;
(2) The Customer’s unauthorized use of the Service, including but not limited to
analysis of system used for the Service.
(3) TCI suffers damage caused by any other breaches of this GTC by the Customer .
24. Precedence over other Documents
If there is any conflict between any terms of this GTC and those of the Purchase Order
or any other documents, the terms and conditions of the Purchase Order shall take
precedence at all times. Furthermore, any matters not dealt with in this GTC shall be
construed in accordance with the terms and conditions of the Purchase Order.
25. Dispute Resolution
25.1 If any dispute arises in relation to or arising out of the Agreement, the Customer
and TCI shall first endeavor in good faith to discuss and resolve the dispute between the
parties.
25.2 If the dispute cannot be resolved in good faith between the parties within a
reasonable time, either party may refer the dispute to a court of law subject to section
26.2.
26. Governing Law and Jurisdiction
26.1 This GTC and the Agreement shall be governed by and interpreted in accordance
with the laws of Japan.
26.2 Subject to section 25, any court proceedings of first instance shall be subject to the
exclusive jurisdiction of the Tokyo District Court.
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