This Dimare Service Agreement ("Agreement") applies to Customer's use of Dimare's software services ("Services") and related ancillary services ("Ancillary Services"). Wherever terms used herein are defined in this document, they shall have the meaning ascribed to them.
Customer agrees to the terms and conditions of this Agreement if Customer accepts this Agreement by any of the following actions (1) clicking the box indicating acceptance on the Dimare website; (2) signing or electronically signing the signature line attached to the end of this Agreement; or (3) signing or electronically signing the order form that references this Agreement ("Order Form").
The individual accepting this Agreement represents that he or she is authorized to agree to the terms of this Agreement on behalf of the company or other legal entity. If the individual accepting this Agreement does not have such authority or does not agree to the terms of this Agreement, such individual shall not accept this Agreement and may not use the Services.
The scope of use of the Services authorized by Dimare to Customer and the Ancillary Services that Dimare will provide to Customer will be described in the Order Form.
No direct or indirect competitor of Dimare may access the Services except with Dimare's prior written consent. In addition, you may not access the Services for the purpose of measuring the availability, performance, or functionality of the Services or for any other benchmarking or competitive purposes, except with Dimare's prior written consent.
This Agreement shall be effective as between Customer and Dimare as of the date of Customer's acceptance of this Agreement ("Effective Date").
"Agreement" means this Dimare Service Agreement.
"Services" means the software services provided to Customer by Dimare pursuant to the Subscription purchased under the Order Form.
"Ancillary Services" means those services provided by Dimare or its Affiliate under the Order Form as services incidental to the Services.
"Order Form" means the order form identifying the Services or Ancillary Services to be provided under this Agreement and executed as a contract between Customer and Dimare or its Affiliate, including any supplemental agreements and attachments thereto. This Order Form shall be deemed incorporated herein by reference or by being attached hereto as an Exhibit.
"Customer" means the company or other legal entity that accepted this Agreement.
"User" means an employee of the Customer who is authorized by the Customer to use the Services. "Customer Data" means electronic data and information stored by or for the Customer in the Services.
"Dimare" means Dimare Inc., a Japanese corporation with its principal place of business at VORT Suidobashi III 9F, 2-8-11 Kanda Sarugakucho, Chiyoda-ku, Tokyo 101-0064, Japan.
"Affiliate" means a corporation that directly or indirectly controls, is controlled by, or is under common control with the subject corporation.
"Brand" means a chain store of food and beverage belonging to the Customer or its Affiliate that uses the Services.
"Subscription" means the right to use the Services for a specified period of time under Order Form.
"Site" means a store, central kitchen, warehouse, supplier base, office, etc. of a Brand belonging to the Customer or Customer's Affiliate whose attribute information is registered with the Services for its management, and which is the unit of Subscription for the Services under this Agreement.
"Module" means an individual application or an individual set of software features that comprise the Services, and the modules provided to Customer are defined by the type of Subscription and described in the Order Form.
Dimare will provide the Services to the Customer in accordance with this Agreement and the Order Form. Dimare will make commercially reasonable efforts to continue to provide the Services except in the following circumstances (1) planned outages (Dimare shall provide advance electronic notice of planned outages); (2) outages caused by circumstances beyond Dimare's reasonable control (e.g., flood, fire, earthquake, riot, civil disturbance, act of terrorism, cloud service provider failure or delay)
During the contract period of the Services, Dimare will use commercially reasonable efforts to (1) maintain and improve administrative and technical safeguards to protect the security, confidentiality, and integrity of Customer Data; (2) not materially reduce the overall security of the Services; (3) not materially reduce the overall functionality of the Services; (4) maintain an annual uptime of 99.9% or more for the Services; (5) maintain Recovery Time Objective (RTO) of 4 hours or less between 8:00 to 20:00 in the time zone of the region in which the Customer's headquarters is located; (6) maintain Recovery Point Objective (RPO) of 1 minute or less.
Subscriptions to the Service are subject to usage limits for the Subscription type and number of Sites specified in the Order Form. Customer may not use the Services beyond the usage limits. If Customer exceeds the contractual usage limits, Customer shall pay the Subscription fee for the excess usage.
Customer shall not (1) make the Services available to the Users other than the Customer; (2) use the Services for the benefit of anyone other than the Customer; (3) sell, resell, license, sublicense, distribute, rent or lease the Services; (4) make the Services a part of outsourcing services; (5) use the Services to store or transmit any infringing, libelous, or otherwise illegal or unlawful content, or any content that violates the privacy rights of any third party; (6) attempt to gain unauthorized access to the Services or any system or network related thereto; (7) access the Services to benchmark the Services; (8) use the Services, directly or indirectly, in a manner that circumvents contractual usage limits; (9) modify, copy, or create derivative works of the Services or any part thereof, its features, functions, or user interface; (10) reverse engineer the Services; (11) create competing products or the Services.
Dimare may revise the Services at any time to improve the Services.
Dimare may provide a new Module of the Services that is not included in the Order Form as beta software services to Customer, free of charge. Customer may choose, at its own discretion, whether or not to try the beta software services. The beta software services are intended for evaluation purposes only, and Dimare may discontinue providing the beta software services at any time. The free Beta Software Services are provided on an "AS IS" basis without warranty of any kind.
Customer is responsible for User's compliance with the terms and conditions of this Agreement and the Order Form when using the Services. Customer is responsible for the legality of the means by which the User obtains Customer Data and shall make commercially reasonable efforts to improve the accuracy and completeness of the Customer Data handled by the User.
The Services may include features designed to interoperate with third party systems. In order to use these features, Customer shall grant Dimare the necessary access rights to the applicable third party systems, and if the provider of the third party systems ceases to provide the corresponding service or its access rights, the provision of such features will also cease.
If the Customer wishes to interoperate the Services with third party systems and Dimare grants the necessary access rights to the applicable third party systems, Dimare shall not be liable for any damage to Customer Data resulting from access to the Services by the third party systems.
Subject to the limited rights expressly granted under this Agreement, Dimare or its Affiliates reserves all of its own rights and interests in the Services, including all related intellectual property rights of the above parties. No rights are granted to Customer hereunder other than those expressly set forth in this Agreement.
Customer grants Dimare or its Affiliates a worldwide, time-limited license to store, reproduce, transmit and display Customer Data within the Services for Dimare to provide the Services in accordance with this Agreement.
Customer grants Dimare or its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use all suggestions, improvement requests, bug reports, and other feedback from Customer on the Services to improve the Services.
Customer shall pay the fees for the Services as set forth in the Order Form. Fees for the Services are based on the purchase of a subscription to the Services and not on actual use. Customer's obligation to pay for the Services is irrevocable and any fees paid for the Services are non-refundable.
If Customer use the Ancillary Services, Customer shall pay the fees for the Ancillary Services set forth in the Order Form.
Fees for the Services and for any Ancillary Services shall be billed to Customer in accordance with the billing frequency and timing set forth in the Order Form. Unless otherwise specified in the Order Form, fees shall be due and payable thirty (30) calendar days after the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Dimare and for notifying Dimare of any changes in such information.
If Dimare fails to receive any invoice amount by the due date, Dimare may, without limiting its other rights and remedies, take either or both of the following actions (1) charge interest on such invoiced amount at the rate of 1.5% per month on the monthly unpaid balance from the due date until the date it is paid, or the maximum rate allowed by law, whichever is less, or (2) make the payment terms shorter than those set forth in the "Billing and Payment" Section above.
If Customer's performance of any financial obligation under any contract for the Services or Ancillary Services is delayed for more than thirty (30) days, Dimare may, without limiting Dimare's other rights and remedies, accelerate the maturity of the Customer's outstanding fee payment obligations under such contract, and all such obligations shall become immediately due and payable. In addition, Dimare may suspend the provision of the Services and Ancillary Services to Customer until all such amounts are paid.
Dimare shall not exercise its rights under the preceding "Late Payment" or "Suspension of Services and Forfeiture of Benefit of Term" Sections if Customer is reasonably and in good faith in dispute as to the amount of the applicable claim and is cooperating in good faith to resolve such dispute.
Except as expressly provided in the applicable Order Form, the fees for the Services and Ancillary Services do not include any taxes, dues, duties, or similar governmental assessments of any kind (such as sales, value-added, sales, use, or withholding taxes imposed by any national or regional governmental agency) (collectively, "Taxes"). Customer is responsible for payment of all Taxes, etc. related to Customer's purchases hereunder. If Dimare has a legal obligation to pay or collect any Taxes, etc. for which Customer is liable under this Section, such amount shall be invoiced to Customer and Customer shall pay such amount. In addition, Dimare shall be liable only for taxes imposed on Dimare based on Dimare's revenues, assets and employees.
This Agreement shall commence in force on the Effective Date and shall continue in force until terminated in accordance with this Article.
The term of each Subscription shall be set forth in the applicable Order Form. Unless otherwise specified in the Order Form, Subscriptions shall automatically renew for the same period after the expiration of the original term and thereafter in the same manner, unless either party gives the other written notice (which may be by e-mail) more than thirty (30) days prior to the end of the applicable term. Except as expressly provided in the applicable Order Form, renewal of promotional or limited time price Subscriptions shall be at Dimare's applicable list price in effect at the applicable renewal time. Notwithstanding anything to the contrary, renewals for any decrease in the quantity of subscriptions for the Services or shortening of the subscription term from the period prior to renewal shall be repriced at the time of renewal, regardless of the unit price in the prior period.
One party may terminate this Agreement if. (1) the other party is notified in writing of a material breach with a time limit of 30 days and such breach has not been corrected at the expiration of such time limit; (2) the other party becomes subject to bankruptcy or other proceedings for suspension of payments, administration of property by a receiver, liquidation, or transfer of property for the benefit of creditors; (3) the counterparty is found to be in violation of any of the representations set forth in the Section of "Exclusion of Anti-Social Forces" below.
If Customer terminates in accordance with the provisions of "Termination" Section above, Dimare will refund to Customer a prepaid fee equal to the remainder of the term of all orders after the effective date of termination. If Dimare terminates pursuant to the "Termination" Section above, Customer will pay, to the extent permitted by applicable law, all outstanding fees for the remainder of the term of all orders after the effective date of termination. No termination shall relieve Customer of Customer's obligation to pay any fees owed to Dimare for any period prior to the effective date of termination.
Upon Customer's request within thirty (30) days of the expiration or termination of this Agreement, Dimare will make Customer Data available for export or download. After such thirty (30) day period, Dimare shall have no obligation to maintain or provide Customer Data and will delete all copies of Customer Data under Dimare's control.
The clauses entitled "Property Rights and Licenses," "Fees and Payments," "Refund or Payment upon Termination," "Portability and Deletion of Customer Data," "Survival Clauses," "Limitation of Liabilities," "Confidentiality," and "General Provisions" shall survive the expiration, termination, or cancellation of this Agreement.
In no event shall the total liability of each party and all of its Affiliates arising out of or relating to this agreement exceed the total amount paid by the customer and its Affiliates under this agreement for the services giving rise to such damages during the twelve (12) months preceding the first incident giving rise to such damages. The aforementioned limitation shall apply to any claim brought by the other party, whether in contract or tort, and regardless of any theory of liability. However, it shall not limit the payment obligations of Customer and its Affiliates as set forth in the preceding "Fees and Payments" Article.
In no event shall either party or its Affiliates be liable for any lost profits or loss of business goodwill, or for any indirect, special, incidental or consequential damages, compensatory damages, business interruption damages or punitive damages arising out of or in connection with this Agreement. The aforementioned exemption shall apply to any claim brought by the other party, whether in contract or tort, and regardless of any theory of liability, even if the party or its affiliates have been advised of the possibility of such damages or if the remedy by the party or its affiliates would otherwise fail of its essential purpose. However, this exemption shall not apply to the extent prohibited by law.
"Confidential Information" means all information disclosed orally or in writing by one party ("Discloser") to the other party ("Recipient") that is designated as confidential or is reasonably understood to be confidential based on the nature of the information and the circumstances of disclosure. Customer's Confidential Information includes Customer Data, and Dimare's Confidential Information includes the Services, Ancillary Services, and the terms and conditions of this Agreement and all Order Forms (including pricing). Each party's Confidential Information includes business and marketing plans, technology and technical information, product and merchandise plans and designs, and non-public financial information disclosed by such party. Confidential Information does not, however, include the following information (1) information that is or becomes publicly known without breach of any obligation to the Discloser; (2) information that was known to the Recipient prior to disclosure by the Discloser without breach of any obligation to the Discloser; (3) information that the Recipient receives from a third party without knowledge of a breach of any obligation to the Discloser; (4) information independently developed by the Recipient (5) data collected or compiled in the course of providing the Services that cannot be used to identify Customer or any individual associated with Customer.
Each party retains all rights to its own Confidential Information. The Recipient shall take the following actions with the care of a good manager. (1) Do not use the Discloser's Confidential Information for any purpose outside the scope of this Agreement; (2) Limit access to the Discloser's Confidential Information to those of its own and its Affiliates' employees and trustees who need access for the purposes of this Agreement, and have them agree to confidentiality agreement that provides substantial protection no less than this Article; (3) Do not disclose the terms of this Agreement or the Order Form to any third party other than its own Affiliates, its own attorneys, accountants, tax accountants, correspondent banks, venture capitalists, and potential or actual investors in itself without the prior written consent of the Discloser. Notwithstanding the above, Dimare may disclose the terms and conditions of this Agreement and any applicable Order Form to its subcontractors and cloud service providers to the extent necessary to perform Dimare's obligations under this Agreement, provided that such subcontractors and cloud service providers enter into confidentiality agreement that provides substantial protection no less than this Article.
The Recipient may disclose the Discloser's Confidential Information if compelled to do so by law. However, the Recipient shall provide prior notice to the Discloser of such compulsory disclosure.
Each party represents that it has validly executed this Agreement and has the legal authority to validly execute it.
Except as expressly provided in this Agreement, neither party makes any warranty of any kind, whether expressed or implied, statutory or otherwise. Each party disclaims any and all liabilities and indemnification obligations for damages caused by third parties.
Each party represents that (1) Neither itself nor any of its directors, officers, persons effectively controlling its management, or employees engaged in its management (collectively, "Itself and Directors") is a crime syndicate, a company affiliated with a crime syndicate, an extortionist, an antisocial-mobility group, a special intelligence crime group, a terrorist, a terrorist organization, or a person equivalent to any of these (collectively, "Anti-Social Forces"), and has not been Anti-Social Forces or their members for the past five years; (2) Itself and Directors do not have any socially reprehensible relationship with Anti-Social Forces; (3) Itself and Directors do not provide funds to, or provide favors to, Anti-Social Forces; (4) Itself and Directors do not allow Anti-Social Forces to use its name to enter into this Agreement or the Order Form; (5) Itself and Directors will not, by itself or by using a third party, commit any of the following acts against the other party (a) Violent demanding behavior (b) Unreasonable demanding behavior beyond legal responsibility (c) Acts of threatening language or violence (d) Acts of spreading rumors, obstructing business, or defaming credibility by means of deception or force. In no event shall either party be liable to the other party for any damages arising out of or in connection with termination due to the other party's violation of this Section.
This Agreement constitutes the entire agreement between Dimare and Customer regarding Customer's use of the Services and Ancillary Services. It supersedes all prior or contemporaneous agreements, proposals, or representations, whether written or oral, regarding the subject matter hereof. In the event that Subscription to the Services was purchased by the Customer prior to the acceptance of this Agreement, the Customer agrees that the terms and conditions of this Agreement applies to such Subscription as if it had been ordered on the date of this Agreement's acceptance, except as otherwise specified in the applicable Order Form. In the event of any inconsistency or discrepancy between the documents listed below, the order of precedence shall be as follows: (1) The applicable Order Form; (2) This Agreement. The title and heading of each provision of this Agreement are for convenience only and shall not affect the interpretation of any provision of this Agreement.
The parties are independent contractors. This Agreement does not create a joint venture or employment relationship between the parties.
There are no third party beneficiaries to this Agreement.
Failure by either party to exercise or delay in exercising any right under this Agreement shall not be deemed a waiver of such right.
In the event that any provision of this Agreement is found to be in contravention of the law by a court of competent jurisdiction, that provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in full force and effect.
Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement and all Order Forms without the other party's consent in the event of a merger, acquisition, demerger, or other comparable corporate reorganization or business transfer of itself or its Affiliates.
Each party agrees that any dispute or action arising out of or relating to this Agreement shall be governed by the laws of Japan without regard to conflict of laws principles and that the courts located in Tokyo shall have exclusive jurisdiction over such dispute or action.