End User License

THIS END USER LICENSE AGREEMENT shall constitute a legally binding agreement between customer and International Systems Research Co.

END USER LICENSE AGREEMENT

Last Updated: October 2017

THIS END USER LICENSE AGREEMENT (hereinafter referred to as “Agreement”) shall constitute a legally binding agreement between you (hereinafter referred to as “Customer”) and International Systems Research Co. (hereinafter referred to as “ISR”). This Agreement sets forth the terms and conditions concerning the use of CloudGate UNO (hereinafter referred to as “Service” in the singular and “Services” in the plural). By using Service, Customer accepts and agrees to be bound by the terms and conditions of this Agreement.

SCOPE OF TERMS OF USE
1. Customer on its own behalf, and on behalf of its affiliated companies (more than 50% owned by or under common ownership with Customer), agrees to purchase the non-exclusive, non-assignable license and restrictive rights to use Service, including the software, documents and incorporated images, under the conditions set forth in this Agreement. All rights not specifically and explicitly granted under this Agreement are reserved to ISR.
2. ISR shall retain ownership of all patents, copyrights, trademarks and other proprietary rights relating to Service, all of which are protected by the Intellectual Property Code, as amended, International Intellectual Property, copyright laws and applicable international treaties.

DEFINITION OF TERMS
1. “Effectivity Date” shall mean the established starting date contracted by Customer with ISR for using Service.
2. “Termination Date” shall mean the established ending date of Customer’s contracted use of Service.
3. “Term of the Agreement” shall mean that the length of total usage period contracted by Customer. In which case, minimum usage period shall be one year.
4. “Supplemental Application” shall mean the requirement for cases where Customer exceeds the initially contracted scope with ISR.
5. “Third Party” shall mean any person or entity that is not a party to this Agreement except the Customer’s affiliated company.
6. “Prohibited Acts” shall mean the listed acts/commissions that are prohibited while using Service under Section 10.1. Commission by the Customer on any of which gives ISR the right to suspend Customer’s usage of the Service without prior notice or advice. However, ISR will be sending a notice, indicating the cause, within 24 hours of the suspension.
7. “Retention Period” shall mean the 1 year allotted time for the data, Customer created on Service, to be retained after Termination Date.
8. “Confidential Information” shall mean any information related to this Agreement that ISR and Customer disclosed to each other, including but not limited to, technical information, marketing information, user information, Customer Data and business affairs.

CONDITIONS OF THE AGREEMENT
1. This Agreement shall commence on the contracted Effectivity Date and shall conclude on the contracted Termination Date, or earlier due to the provisions under Section 10, 11 and 12. However, in the conditions defined hereunder, ISR may refuse the application for Service or withdraw consent to Customer’s continued use of Services even after the acceptance of the application if:
  1. ISR determines Customer is likely to default on payment of contractual obligations regarding the current application; or
  2. Customer has entered false details in completing the application for this Agreement.
2. In the case of early termination for reasons attributable to Customer, ISR is not required to refund the usage fee for the services contracted by the Customer.
3. If Customer intends to renew the Agreement, Customer shall manifest its intention at least two calendar months before the Agreement’s termination date and enter the renewal procedure.Then this Agreement may remain valid for the next one calendar year, and it shall remain valid in the same manner thereafter.
4. Customer may utilize Service under ISR’s authorization and within the scope contracted by Customer with ISR. In the case that the number of users exceeds the contracted scope, and/or Customer requires various options to be added, Customer shall submit a supplemental application to ISR.
5. Service term for the users and/or options in the supplemental application shall be from the start date of the additional portion to the termination date of Service priorly contracted upon by Customer. Fees for the additional portion shall be prorated based on the annual subscription fee and paid to ISR according to the terms of this Agreement.

FEES AND CHARGES
1. Fees and charges related to Service (hereinafter referred to as “Fees”) consist of the following items:
  - Setup fee: one-time initial fee for setting up Service.
  - Annual subscription fee: fees paid by the customer for using Service for a period of one calendar year.

OBLIGATIONS FOR PAYMENT
1. Customer shall make payments to ISR within thirty (30) days of receipt of invoice from ISR, in a manner (check or bank transfer) requested by ISR.
2. Service shall be suspended in the case that payment is not made within thirty (30) days after the due date.

GUARANTEE ON DELIVERY OF SERVICE
1. Service is delivered for 24 hours a day, 365 days per year. However, under any of the following conditions ISR may suspend part or all of Service:
  - System inspection.
  - System failure that affects delivery of Service.
  - Unavoidable failure of ISR or telecommunication facilities used by ISR’s Service.
  - Measures that have to be taken to correct faults caused intentionally or unintentionally by a third party.
  - Interruption of service(s) from telecommunication carrier(s) that may cause difficulties for delivering Service herein.
2. ISR shall notify Customer through e-mail at least two weeks prior to the suspension of Service due to the condition under Section 6.1.a. However, situations under Section 6.1.b, c, d, e and other unavoidable emergency situations are exempt from the two-weeks-notice requirement for these are situations beyond ISR’s control.
3. ISR shall not be responsible for damages incurred by Customer and/or third parties due to the Service suspension caused by conditions under Section 6.1, except for those caused by ISR’s own negligence or willful misconduct.

CUSTOMER SUPPORT
1. Maintenance
  ISR will provide free of charge maintenance and/or bug fixes and updates except for feature add-ons to the Customer’s current subscription to Service. The content, method and date of maintenance and/or release shall be notified in advance through e-mail. Since Service is a web-based software, ISR shall make its best commercial efforts to resolve compatibility problems with computer operating systems and browsers.
2. Inquiry Response
  ISR shall respond to inquiries via the e-mail address and/or telephone line. For further details, Customer may refer to Section 5 “Support Inquiry Method” of “CloudGate UNO Service Support Specifications”.
3. Troubleshooting
  ISR shall, before implementing troubleshooting procedures, shall inform Customer through the email address. For further details, Customer may refer to Section 6 “Issues and Disaster Support Method” of “CloudGate UNO Service Support Specifications”.

LIMITATIONS ON SERVICE
1. Customer shall not copy, distribute, loan, transmit (including automatic public transmission or making it transmittable), lease or collateralize any documents of Service, nor permit any other party to do any of the foregoing. The right to use Service, provided based on Agreement, shall not be transferred, resold or assigned to a third party. A Customer’s affiliated company as described under Section 1.1 shall not be considered a “third party”.
2. Customer shall not modify, translate, adapt, reverse-engineer, decompile or disassemble documents of Service, nor shall Customer create any derived product based on documents of Service. Service is licensed as a single service; Customer shall not isolate and use components.

CHANGES TO SPECIFICATIONS
1. ISR may make changes to specifications, including but not limited to: release of successor, migration to successor, alteration of name and alteration of customer data specifications.
2. ISR shall make appropriate judgment and notify Customer about specification changes.

PROHIBITED ACTS AND SUSPENSIONS OF USE
1. Customer shall not knowingly commit any of the Prohibited Acts provided hereunder when using Service. In addition, ISR may claim compensation for damages, in the event that one has been incurred, from Customer’s commission.
  - Violation of applicable laws.
  - Acts that wrongfully and intentionally injure a third party.
  - Criminal behaviors or involvement in crimes.
  - Acts that impede operation of Service.
  - Running or providing harmful programs such as computer viruses, that connects to Service or incorporate with Service.
  - Leaking business information of ISR or a third party acquired through Service in violation of one’s obligations of confidentiality.
  - Providing ISR with materially false information.
  - Violation of copyright or other rights that belong to ISR or a third party.
  - Material violation of this Agreement.
2. ISR shall not be held responsible for Customer’s commission of any of the Prohibited acts under Section 10.1.

CANCELLATION OF AGREEMENT
1. In the case that Customer requires midterm cancellation or termination of this Agreement with ISR, Customer shall provide written notice to ISR two calendar months (one calendar month in the event of default or breach of this Agreement by ISR) prior to the desired cancellation date; ISR shall fulfill such request and cancellation shall become effective on desired date. In the case that there is no desired cancellation date or written notice is sent less than two calendar months before desired cancellation date, cancellation shall be deemed to be two calendar months after the date that ISR receives the written notice. In addition, unless such cancellation or termination is due to default or breach on the part of ISR, ISR is not required to refund Customer any of the payment made upon such cancellation or termination.
2. ISR may cancel all or part of this Agreement for reasons falling hereunder and shall not be held responsible for any damages incurred from the cancellation.
  - Customer fails to fulfill the obligation set forth in this Agreement, and such failure persists without correction for thirty (30) days, despite notification from ISR.
  - Involvements in Prohibited Acts set forth in Section 10.
  - Customer receives an order of revocation or cancellation of business from the competent authorities.
  - Provisional seizure, provisional injunction, or compulsory execution that originates from a third party and results in difficulties in fulfilling this Agreement.
  - Bankruptcy or civil rehabilitation proceedings.

TERMINATION OF SERVICE
ISR may terminate Service with three (3) months’ prior written notice, without cause. In such case, ISR shall be liable to refund Customer if there are prepaid annual usage fees, and the refund shall correspond to the cancellation period. For cancellation of Service due to reasons attributable to ISR, ISR shall take responsibility for associated damages. The scope shall be based on the factual and direct damage, and limited to a refund of the whole amount of the contract.

Data Retention Period
1. Master data that Customer registered on Service shall be stored and retained until termination of Service and thereafter, as provided hereunder.
2. Data created on Service (hereinafter referred to as “Data”) will be stored and retained only within the Retention Period, and thus Data shall be erased completely. A written notification will still be provided.
3. Customer and ISR consents to erase personal information used for authentication in compliance with Personal Information Protection Laws.

OWNERSHIP OF CUSTOMER’S DATA
Customer shall retain ownership of Data registered by Customer on Service, including but not limited to, user accounts information, access logs and administration configuration data.

DAMAGES AND INDEMNIFICATION
1. Unless specified in this Agreement, ISR shall not take responsibility for damages to Customer not attributable to ISR, damages due to circumstances beyond its reasonable control, damages due to loss of profit, or claim of damages by a third party other than claims of infringement of such third party’s intellectual property rights.
2. In the case that Customer causes damages to ISR or a third party when using Service, and the damages are attributed to Customer’s negligence or willful misconduct, Customer shall compensate ISR or indemnify ISR against the claims by such third party for such damages.
3. ISR shall not be held liable for deficiencies in security or performance, or deficiencies in any other specifications, of third party software that is used with Service.

DISCLAIMERS
1. In the case that ISR is prevented from implementing the obligations defined in this Agreement, by events such as Force Majeure, natural disaster, conflagration, disturbance, incompatibility with telecommunication services from carriers, or other causes that cannot be attributed to ISR, ISR shall not be held liable.
2. ISR warrants that Service may be used in such operating systems, browsers and other environments as designated by ISR substantially in accordance with such specifications and documentation as provided by ISR to Customer.
3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, ISR DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE.

OBLIGATION OF CONFIDENTIALITY
1. Confidential Information disclosed to each other by ISR and Customer, related to this Agreement shall be kept confidential by both parties. ISR and Customer shall retain in strictest confidence that either of the parties shall not furnish, make available or disclose any Confidential Information to a third party (except in cases when such information is necessary for the fulfillment of the terms of this Agreement) without prior written consent from of the other party. Confidentiality shall be made clear to the third party upon disclosure.
2. Notwithstanding the provisions under Section 17.1, informations that falls under any of the following shall not be treated as confidential:
  - Information that has been made public, which is not attributable to the receiving party, before the disclosure to the receiving party.
  - Information proved to be acquired legally by the receiving party or a third party, but without obligation of confidentiality.
  - Information proved to be developed by the receiving party independently by persons who have not had access to the disclosing party’s Confidential Information.
  - Information proved to have been possessed by the receiving party before being disclosed by the disclosing party.
3. ISR shall protect and keep in confidence Customer’s communication when using Service, and use such information appropriately and exclusively for the operation of Service.

PERSONAL INFORMATION PROTECTION
1. ISR shall comply with Personal Information Protection Laws and protect personal information obtained from Customer’s authentication during delivery of Service.
2. ISR may use Customer’s personal information only for the following purposes:
  - Delivery of Service or related services.
  - Management of contents of transactions such as renewal, suspension, cancellation of Service, or add-ons to Service.
3. ISR may disclose Customer’s personal information to a third party under any of the following conditions:
  - ISR acquired Customer’s consent beforehand.
  - Information is required to be disclosed in compliance with applicable laws and regulations, provided that the Customer is given prior notice and advance opportunity to respond to court orders, subpoenas, etc. before such Confidential Information is disclosed.

PROHIBITION ON TRANSFER OF RIGHTS AND OBLIGATIONS
Customer or ISR shall not assent, transfer, or pledge as collateral, all or any of its rights under this Agreement to a third party, or let any third party inherit all or any of its obligations, without the prior written consent of the other party.

CONSIGNMENT TO A THIRD PARTY
ISR may consign its expenses and responsibility for the provision of Service to a third party. In this case, ISR shall provide guidance and supervision to the third party to comply with terms of this Agreement; the third party shall be responsible to Customer for its acts related to Service. In the event of such consignment, ISR shall retain its obligations to Customer under this Agreement.

ENTIRE AGREEMENT
This Agreement is set forth entirely by and between Customer and ISR on the terms of use; both parties are authorized to sign and seal this Agreement. This Agreement may be amended or supplemented only by a written instrument that refers specifically to this Agreement and is signed by duly authorized representatives of both parties.

SETTLEMENT WITH CONSENT
Customer and ISR shall comply with the terms defined under this Agreement. The parties shall use their reasonable commercial efforts to resolve terms of this Agreement that may cause ambiguities of interpretation or implementation, by mutual consent based on good faith and honesty.

GOVERNING LAW, JURISDICTION AND LANGUAGE
This Agreement is subject to and shall be governed by and construed in accordance with the laws of Japan without giving effect to the conflict of laws doctrine thereof. Any and all actions and proceedings arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue in Tokyo District Court. The language of this Agreement shall be English.

SURVIVAL
In the case that this Agreement is cancelled due to the reasons defined under this Agreement, in addition to those terms which are agreed to become automatically effective, the following terms remain effective after the termination of this Agreement.
Section 15 – Damages and Indemnification
Section 17 – Obligations of Confidentiality
Section 18 – Personal Information Protection
Section 19 – Prohibition on Transfer of Rights and Obligations
Section 23 – Governing Law, Jurisdiction and Language
Section 24 – Survival

PROVIDING NOTICE
Should you wish to or are required to notify ISR under this Agreement, use the contact information provided on the ISR website (https://www.isrglobal.com).

End User License

END USER LICENSE AGREEMENT

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