Portal Service Agreement
Enforcement: December 23, 2021
This Portal Service Agreement (this "Agreement") contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between NEC Platforms, Ltd. (also referred to as "NECPF," "we," "us," or "our") and the entity you represent ("you" or "your"). This Agreement takes effect when you click "I Accept" button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the "Effective Date"). You represent to us that you are lawfully able to enter into contracts, and you have legal authority to bind that entity.
- Use of the Service Offerings.
- 1.1 General. You may access and use the Service Offerings in accordance with this Agreement. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Service Offerings.
- 1.2 Your Account. To access the Service Offerings, you must have a NECPF account associated with a valid email address. Unless explicitly permitted by us, you will only create one account per email address.
- We may change or discontinue any of the Service Offerings from time to time. We will provide you at least 3 months’ prior notice if we discontinue material functionality of a Service, except that this notice will not be required if the 3 month notice period (a) would pose a security or intellectual property issue to us or the Services Offering, (b) is technically burdensome, or (c) would cause us to violate legal requirements.
- Personal Information
- 3.1 General. We shall not use your Personal Information, which you submit for your access to and use of the Service Offering, for any purpose other than the Service Offerings and we shall not disclose or transfer it to any person or any party other than to you, except (i) transferring your Personal Information to our contractor who has an obligation to properly manage Personal Information under a valid agreement with us or to our affiliate for your use of the Service Offerings; (ii) conducting surveys and analysis, and analyze Service Offerings so as to improve our products and services; or (iii) disclose your Personal Information to a court or other competent tribunal pursuant to a warrant or writ.
- 3.2 Transferring Personal Information. Your Personal Information will be sent to Japan when you agree to the submission of Personal Information entered into forms for the Service Offerings. You acknowledge and agree that we may transfer your Personal Information within the purpose of (i), (ii) and (iii) of Section 3.1. Our contractors or affiliates may reside in Australia, Malaysia, the Netherlands and the United States.
- Your Responsibilities.
- 4.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees, and (b) we and our affiliates are not responsible for unauthorized access to your account.
- 4.2 Your Security. You are responsible for properly configuring and using the Service Offerings and otherwise taking appropriate action to secure and protect your accounts in a manner that will provide appropriate security and protection from unauthorized access.
- 4.3 Log-In Credentials and Account Keys. Log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
- Term; Termination.
- 5.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 5. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 5.2.
- 5.2 Termination.
- (a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Service Offerings. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you in order to comply with the law or requests of governmental entities.
- 5.3 Effect of Termination.
- (a) General. Upon the Termination Date:
(i) all your rights under this Agreement immediately terminate; and
(ii) Sections 4.1, 5.3, 6 (except the license granted to you in Section 6.1), 7, 8, 9, 11 and 12 will continue to apply in accordance with their terms.
- Proprietary Rights.
- 6.1 Service Offerings License. We or our licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: (a) copy and use the NECPF Content solely for with developing products, software or services to be used in conjunction with NECPF products or services; and (b) access and use the Services solely in accordance with this Agreement. Except as provided in this Section 6.1, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Service Offerings, including any related intellectual property rights. Some NECPF Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the NECPF Content or Third-Party Content that is the subject of such separate license.
- 6.2 License by you. In the event that you develop or devise any intellectual property right such as patent and industrial design related to NECPF Content during the term of this Agreement and three (3) years thereafter, you hereby agree to grant to NECPF and its licensees a non-exclusive, non-transferable, world-wide, royalty-free right (with a right to sublicense) under such intellectual property rights, without any restriction of, payment to and other impediments to you and any third party.
- 6.3 Infringement Claim. You hereby agree and covenant not to bring any demand, claim lawsuit or action against NECPF, its licensor and its related companies for infringement of any patent which is solely related to NECPF Content and you submitted and/or acquired before entering this Agreement.
- 6.4 License Restrictions. You will NOT use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Service Offerings (except to the extent Content included in the Service Offerings is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
- 6.5 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
- You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your use of the Service Offerings (including any activities under your NECPF account and use by your employees and personnel); or (b) breach of this Agreement or violation of applicable law by you. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates.
- THE SERVICE OFFERINGS ARE PROVIDED "AS IS." EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
- Limitations of Liability.
- WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, ACTUAL, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE OFFERINGS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS.
- Modifications to the Agreement.
- We may modify this Agreement (including any Policies) at any time by posting a revised version on the NECPF Site or by otherwise notifying you in accordance with Section 11.10. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the NECPF Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the top of this Agreement.
- 11.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement.
- 11.2 Entire Agreement. This Agreement incorporates the Privacy Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement.
- 11.3 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- 11.4 Governing Law. The validity, interpretation and implementation of this Agreement shall be governed by the laws of Japan. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
- 11.5 Disputes. Any dispute or claim relating in any way to your use of the Service Offerings, or to any products or services sold or distributed by NECPF will be adjudicated in the Tokyo District Court as the court of the first trial.
- 11.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations.
- 11.7 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
- 11.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
- 11.9 Confidentiality and Publicity. You may use NECPF Confidential Information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose NECPF Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of NECPF Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings.
- 11.10 Notice.
- (a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the NECPF Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the NECPF Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact NECPF by email to the following email:
Email to US: firstname.lastname@example.org
We may update the email address for notices to us by posting a notice on the NECPF Site. Notices provided by e-mail delivery will be effective upon sending a message to the abovementioned email address or its successor.
(ii) Sections 4.1, 5.3, 6 (except the license granted to you in Section 6.1), 7, 8, 9, 11 and 12 will continue to apply in accordance with their terms.
- 11.11 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
- 11.12 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
- "NECPF Confidential Information" means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. NECPF Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. NECPF Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the NECPF Confidential Information.
"NECPF Content" means Content we or any of our affiliates make available on the NECPF Site to allow access to, including application program interfaces; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). NECPF Content does not include the Services or Third-Party Content.
"NECPF Site" means https://www.univerge.nec.com/build/ (and any successor or related site designated by us), as may be updated by us from time to time.
"Content" means software (including machine images), specifications, data, text, audio, video or images.
"Losses" means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
"Personal Information" means information about a living individual that can identify the specific individual by name, date of birth or other description contained in such information (including such information as will allow easy reference to other information and will thereby enable the identification of the specific individual).
"Service" means each of the services made available by us or our affiliates, including those web services. Services do not include Third-Party Content.
"Service Offerings" means the Services, the NECPF Content, and any other service provided by us under this Agreement. Service Offerings do not include Third-Party Content.
"Suggestions" means all suggested improvements to the Service Offerings that you provide to us.
"Term" means the term of this Agreement described in Section 5.1.
"Termination Date" means the effective date of termination provided in accordance with Section 5, in a notice from one party to the other.