Article 1 (Purpose)
These Terms of Service (hereinafter referred to as "this Agreement") are set between ECPower, Inc. (hereinafter referred to as "we", “us”, or “our”) and the individual or legal entity you represent (hereinafter referred to as "you" or “your”) using "ECPower" (hereinafter referred to as "the Service") to define the conditions for using the Service. If you use the Service on behalf of your company, you represent that you have the authority to agree to these Terms on behalf of your company, and all references to "you" hereafter refer to your company.
Article 2 (Definitions)
In this Agreement, unless otherwise specifically provided, the meaning of each term is as follows:
"This Agreement" refers to the agreement related to the provision of the Service, concluded between you and us based on this ECPower Terms of Service.
"Account Information" refers to information about you that you provide to us for the creation or management of the account for the Service. For example, account information includes names related to the account of the Service, usernames, login credentials, phone numbers, email addresses, and billing information.
"Usage Data" refers to data related to your use of the Service, including but not limited to event data logs related to your service usage frequency and utilized features.
"Your Customer" refers to customers or end-users in your business or service.
"Customer Data" refers to the data about Your Customer that you upload or link to the Service. This does not include your own Account Information and Usage Data.
"Personal Data" refers to any information relating to an identified individual or an identifiable individual. In this DPA, Account Information and Usage Data may correspond to the Personal Data of you. Customer Data may correspond to the Personal Data of Your Customer.
"Sensitive Personal Data" refers to personal data including race, ethnic origin, social status, religious or philosophical beliefs, union membership, health data such as medical history or surgery history, genetic data, biometric data, and data about one's sex life.
"Intellectual Property Rights" refers to rights determined by applicable laws related to patents, utility model rights, design rights, trademark rights, copyrights, and other intellectual properties, or rights related to interests protected by law.
"Free Plan" refers to what we allow to use for free, with certain functional restrictions and usage period restrictions, in providing the Service. Details of the Free Plan are defined in Article 10 of this Agreement.
"Shopify App Store" refers to the App Store provided by Shopify Inc.
Article 3 (Application)
3.1 We provide the Service in accordance with the contents of this Agreement, and you will use it under the conditions stipulated in this Agreement.
3.2 The Service is provided by accessing the software placed by us at https://app.ec-power.jp via the internet, and this Agreement applies to its use.
Article 4 (Amendment)
4.1 We may amend the terms stipulated in this Agreement, including the price and plan of the Service, without obtaining your prior consent. The conditions for providing the Service after this Agreement has been changed will be in accordance with the amended Terms of Service.
4.2 When we make amendments as mentioned in the preceding clause, we will notify you of the contents of the amended Terms of Service or display them on the Service with a notice period of fourteen(14) days or more.
4.3 If you do not agree to the amended Terms of Service, regardless of the provisions of Article 13, you can terminate this Agreement by notifying us during the notice period mentioned in the preceding clause. In any case, continuing to use the Service after the effect of the amendment means that you have agreed to the amendment.
Article 5 (Offer and Acceptance)
5.1 The applicant (referring to those who wish to conclude this Agreement, the same applies hereinafter) will apply for the use of the Service by accessing it and in the method specified by us.
5.2 This Agreement is established when we accept the application through our prescribed procedure.
5.3 The applicant will apply after agreeing to the contents of this Agreement. When the applicant applies for the use of the Service, we assume that the applicant has agreed to the terms of this Agreement.
Article 6 (Provision of the Service)
6.1 Purpose of providing the Service: The Service is provided to assist in the processing and analysis of your Customer Data, supporting decision-making related to your business and marketing, among other things.
6.2 License of Use: We grant you the right to use the Service under the conditions stipulated in this Agreement. This right is non-exclusive, non-transferable and non-sublicensable.
6.3 Content of the Service:
(a) The content of the Service is as listed within the Service itself or within the "Shopify App Store". If there is any discrepancy between the two, the content listed within the Service shall take precedence in all cases.
(b) We may provide support or advice on setup, configuration, usage, content of data analysis, etc., as part of the Service. You agree that such support or advice is not professional advice guaranteeing accuracy, completeness, or timeliness, nor is it legal, financial, or tax advice.
6.4 Changes to the Service: We may add or modify parts of the Service for the purpose of adding features or improvements at our discretion. You agree that such additions or changes do not guarantee the maintenance of all features or performance of the Service as it was before the change.
6.5 Entrustment: We may entrust all or part of the work related to the provision of the Service to a third party without obtaining your consent. However, in such cases, we shall manage the outsourced party responsibly.
6.6 Service Integration:
(a) You may integrate the Service with other products or services not provided by us (hereafter, "Integrated Services") such as e-commerce platforms and email delivery tools. If you integrate the Service with an Integrated Service, you shall comply with the terms defining the rights relationship concluded between you and the provider of the Integrated Service.
(b) We do not guarantee the success of any integration between the Service and an Integrated Service, nor the suitability, accuracy, completeness, or continuity of the Integrated Service. We are not liable for any inability to use the Integrated Service due to updates or other issues with the Integrated Service. If you suffer any disadvantage or damage due to the use of an Integrated Service, you must resolve it with the provider of that service, and we bear no responsibility.
6.7 Suspending the Service: We may suspend or interrupt all or part of the Service without prior notice to you in the following cases: (i) For regular or emergency system maintenance or inspection. (ii) In the event of system failure or communication line malfunction. (iii) In case of force majeure like fire, power outage, natural disasters, etc. (iv) If there's an issue with the Integrated Service, such as a malfunction, service interruption, integration halt, specification change, etc. (v) Other cases where we reasonably deem it necessary to suspend or interrupt the Service. We are not responsible for any disadvantage or damage caused to you by the suspension of the Service based on this Article.
6.8 Termination of the Service:
(a)We reserve the right to terminate all or part of the Service at any time. If we decide to terminate all or part of the Service, we will notify you at least three(3) months in advance.
(b) If unforeseeable circumstances, legal regulations, natural disasters, etc., necessitate the immediate termination of the Service, and we are unable to provide three months' notice, we will notify you as soon as possible.
(c) We are not liable for any disadvantage or damage caused to you by the termination of the Service based on this Article.
(d) If the Service is completely terminated based on this Article, we will promptly delete your Customer Data, except as required by applicable law.
Article 7 (Use of the Service)
7.1 Purpose of Service Use: You agree to use the Service primarily for the purposes specified in Article 6.1.
7.2 Setup: You are solely responsible for setting up the Service for use. You will obtain and maintain all necessary communications, equipment, etc., for using the Service at your own expense and responsibility. While we will reasonably assist in your setup, either verbally or in writing, we are not liable if you are unable to use the Service, regardless of the reason.
(a) User IDs and passwords will be assigned by you in accordance with the methods and usage conditions stipulated by us.
(b) You are responsible for strictly managing your User ID and password to prevent unauthorized use.
(c) Under no circumstances may you disclose or lend your User ID and password to a third party.
(d)We may consider any action taken after authenticating with your User ID and password to be your action.
(e)We are not liable for any damage caused by unauthorized use of your User ID or password. If you discover any unauthorized use, you must immediately notify us and follow our instructions.
7.4 Prohibited Actions: When using the Service, you shall not engage in the following actions: (i) Actions violating or likely to violate laws and regulations. (ii) Actions contrary or likely contrary to public order and morals. (iii) Actions that interfere or potentially interfere with other users' use of the Service. (iv) Unauthorized access, hacking, repetitive connection attempts, or other actions causing disruption to the Service or its underlying hardware/software. (v) Any action that hinders or potentially hinders the provision of the Service. (vi) Using or attempting to use another user’s User ID and password. (vii) Viewing, modifying, or tampering with another user's data or potentially doing so. (viii) Actions that infringe or potentially infringe on our or a third party's intellectual property rights. (ix) Analyzing, reverse-engineering, or attempting to obtain the source code of the Service. (x) Copying, translating, adapting, modifying, reprinting, re-licensing, lending, transferring, or leasing the Service or potentially doing so. (xi) Using the Service for competitive analysis or benchmarking or potentially doing so. (xii) Managing or processing personal data obtained without the individual's consent or through fraudulent means using the Service. (xiii) Managing or processing personal data for purposes not consented to by the individual using the Service. (xiv) Managing or processing sensitive personal data using the Service. (xv) Any other action deemed inappropriate by us regarding the use of the Service.
7.5 Account Suspension/Restriction: We may suspend or restrict your right to use the Service immediately under the following circumstances: (i) If the Service is being used in violation of applicable laws, regulations, or this Agreement. (ii) If the Service is being used fraudulently, inappropriately, or in a deceptive manner. (iii) If we determine there is or may be unauthorized use of your User ID or password. (iv) If your use of the Service negatively impacts our infrastructure or the Service provided to other users. (v) If an event affecting the security of the data you manage/process on the Service occurs. (vi) If any amount due to us under this Agreement is not paid within fifteen(15) days of its due date. (vii) If you're using the "Free Plan" and have shown no activity for more than twelve(12) months. (viii) If you engage in any of the prohibited actions mentioned above. We are not liable for any disadvantage or damage caused to you by the suspension or restriction of your Service use rights based on this Article.
Article 8 (Data Management)
8.1 Ownership of Customer Data:
(a) You retain and possess all rights related to the data you input into the Service. This agreement does not transfer any rights regarding your Customer Data to us.
(b) Notwithstanding the above, you grant us the right to use your Customer Data only as necessary to provide the Service and as permitted under this Agreement.
(c) We will only use your Customer Data for the purpose of providing the Service. We will not directly collect or use data related to Your Customers.
8.2 Data Preservation:
(a) You are responsible for preserving any data you input into the Service that you deem necessary.
(b) While we store a record of the data you use for a certain period with the intention to restore it in case of system failures or similar issues, we are not obligated to restore such data.
(c) We provide a feature, as defined by us, for you to save your inputted data to prepare for potential losses due to system malfunctions or errors. However, we do not guarantee that all data will be saved through this feature.
8.3 Protection of Personal Data:
(c) In the context of the aforementioned situation, the provision of Personal Data to us is considered not as a third-party provision but as an entrustment of Personal Data processing to us. You also agree that our processing of your Customer Data is considered to be conducted solely based on your instructions.
Article 9 (Intellectual Property)
9.1 the Service: All intellectual property rights related to the Service belong to us and any legitimate third-party rights holders. Through this Agreement, no rights are transferred to you. Only the usage rights based on Article 6.2 are granted to you.
9.2 Service Updates: While the Service may undergo additions or changes as stipulated in Article 6.4, all intellectual property rights related to such additions or changes belong to us.
9.3 Feedback on the Service: When you provide comments or suggestions related to the Service to us (whether in writing or verbally, hereinafter referred to as "Feedback"), we reserve the right to use this Feedback freely, indefinitely, and without any charge. Any Feedback provided will not be treated as confidential by you. We will utilize the Feedback from you for the improvement of the Service, the development of other products and services, and for the growth and development of our business.
9.4 Use of Usage Data and Customer Data by Us:
(a) We can collect aggregated data, which does not identify Your Customer or any individual, from Usage Data or Customer Data and use or disclose it for our legitimate business purposes. This includes, but is not limited to, business planning, improving the Service, developing new services and products, and marketing. You grant us the right to use this aggregated data for the aforementioned purposes.
(b) You also grant us the permission to reference your name, logo, and trademarks in our marketing materials and on our website.
Article 10 (Subscription Fees and Payment)
10.1 Definition of Subscription Fees: You shall pay to us the subscription fees for using the Service as currently listed in the "Account" section within the Service. Until all amounts are fully paid, we reserve the right to suspend or interrupt the Service to you. Even if access to the Service is temporarily stopped due to this, the usage fees will continue to accrue.
10.2 Service Plan:
(a) To cater to the various needs of users, we offer multiple plans that vary based on available features, usage limits, etc.
(b) Specifications of the service plans are posted either within the Service or in the "Shopify App Store". In the event of any discrepancies or contradictions between the two, the content posted within the Service shall always prevail.
(c) If you switch service plans, payments due to such a change will be made in accordance with the stipulations of the "Shopify App Store". You must follow the procedures set by us within the Service to request a change in the service plan.
10.3 Increase in Subscription Fees and Changes in Plan Specifications:
(a) We shall notify you fourteen(14) days in advance of any changes to the Service's subscription fees. Changes in fees will be applied as set out in the "Shopify App Store" regulations. Continued use of the Service after a fee change implies your agreement to the changed fee.
(b) We shall notify you fourteen(14) days in advance of any changes to the specifications of the service plans. Changes may include the introduction or removal of features, or limits on usage, among others. Continued use of the Service after such changes implies your agreement to the changed specifications.
10.4 Billing and Payments:
(a) We will bill you in advance for each billing period, on the first day of the billing period or the day after. All service fees are payable in US dollars and are non-refundable.
(b) Late Payment Fees: If you fails to complete payment for the Service's usage fees by the specified payment due date, you shall pay a late fee calculated at an annual interest rate of 14.6% for the number of days from the day after the due date, to the day before the actual payment date.
Article 11 (Representation, Warranty, and Disclaimer)
11.1 Representation and Warranty by You:
(a) You represent and warrant that you use the Service primarily for the purposes mentioned in Article 6.1.
(b) You represent and warrant the compliance with all applicable laws concerning the handling of Your Customer's Personal Data.
(c) You represent and warrant that the Personal Data upload or link to the Service has been lawfully acquired in accordance with applicable laws.
11.2 Limitation of Warranty by Us:
(a) We warrant that the Service will function essentially as long as it is used under the conditions of this Agreement. This warranty does not apply to the performance of the Service.
(b) We do not guarantee that the Service is free of bugs or defects, or that it will meet your specific intended use.
(c) In the event that the Service is found to have significant defects, our responsibility shall be limited to commercially reasonable efforts to correct or eliminate the defect.
(d) This clause describes the sole warranty concerning the Service. Except as explicitly stipulated in this Agreement, the Service is provided "as is," and we make no written, oral, express, or implied warranties.
11.3 Disclaimer and Limitation of Liability:
(a) Our liability regarding the Service is limited to the extent restricted by the terms of this Agreement. We will not be liable for matters not warranted in this Agreement, matters for which liability is disclaimed, and matters deemed the responsibility of you.
(b) Even if damage occurs to you due to the Service and it's attributed to us, unless there's intentional misconduct or gross negligence by us, its liability for damages shall not exceed the subscription fees paid by you to us over the past six months.
(c) Even when we are liable, it shall not bear any liability for lost business opportunities, lost profits, or damage arising from data loss or damage, regardless of the cause of the claim, whether it be contractual liability, tort liability, or any other cause.
Article 12 (Confidential Information)
12.1 In relation to the Service, any information, whether disclosed in writing, verbally, electronically, or in any other tangible or intangible form, that is provided or made known by us based on this Agreement, including technical, operational, business-related, or any other work-related information, shall be considered "Confidential Information." You shall not disclose, provide, or leak any Confidential Information to third parties. However, the following information shall be exempted from this restriction: (i) Information already possessed without an obligation to maintain confidentiality. (ii) Information lawfully obtained from a third party without an obligation to maintain confidentiality. (c) Information independently developed without using the provided information. (iii) Information that becomes public knowledge regardless of this Agreement, whether before or after its receipt.
12.2 Notwithstanding the provisions of the previous paragraph, if you are legally required to disclose Confidential Information to laws, courts, investigative agencies, or other third parties, you shall notify us in advance before such disclosure. However, if prior notification is difficult, you shall notify us promptly afterward.
12.3 You shall, upon the termination of this Agreement, when the Confidential Information is no longer needed, or upon request from us, return, dispose of, or delete the Confidential Information and any copies thereof, in accordance with our instructions.
12.4 The provisions of this Article shall remain effective and binding for two(2) years after the termination of this Agreement.
Article 13 (Term and Termination)
13.1 Term: The term of this Agreement is thirty(30) days from the date of the Agreement's establishment. However, if neither party expresses any intent five(5) days before the expiration of the term, the Agreement will be renewed under the same conditions for another thirty(30) days, and this will continue in the same manner.
(a) You can terminate this Agreement by uninstalling or deleting the Service. Also, if the Service is uninstalled or deleted for any reason, the Agreement will be deemed terminated at that point.
(b) If you violate this Agreement and the violation is not resolved even after seven(7) days from receiving a written notice from us, we can immediately terminate this Agreement.
(c) We can also terminate this Agreement by notifying you in the following cases: (i) If you have been using the "Free Plan" and have shown no activity for over twelve(12) months. (ii) If you engage in fraudulent activities disrupting our regular business. (iii) If third parties impose any liens or provisional measures. (iv) If you become insolvent or initiate private arrangements, bankruptcy procedures, rehabilitation procedures, civil rehabilitation procedures, specific mediation, or special liquidation. (v) If your public taxes are overdue and receive a notice or preservation seizure. (vi) If you intend to dissolve without merging or transferring all or a significant part of the business. (vii) If regulatory authorities impose business cancellations or suspensions. (viii) If facing criminal prosecution or significantly losing social credibility. (ix) If there are significant deteriorations in financial conditions or potential risks.
13.3 Effect of Termination:
(a) Upon termination, all rights and obligations of both parties (including usage rights based on Article 6.2) will immediately terminate.
(b) You will adhere to the obligation to return or destroy all of our confidential information as defined in Article 12.
(c) After the termination of this Agreement, we are not obligated to retain Customer Data and can delete all data, except when required by applicable laws.
13.4 Surviving Clauses: All obligations arising before the termination date of this Agreement and the following clauses will survive regardless of the reason for termination of this Agreement: (i) Article 9 (Intellectual Property), (ii)Article 11 (Representations, Warranties, and Disclaimer) (iii)Article 12 (Confidential Information), (iv)Article 14 (Prohibition of Transfer of Rights and Obligations), (v)Article 15 (Miscellaneous)
Article 14 (Prohibition of Transfer of Rights and Obligations)
14.1 You are prohibited from transferring, moving, securing, or disposing of their position under this Agreement or rights or obligations based on this Agreement to a third party without prior written consent from us.
14.2 In the event we transfer its business related to the Service to a third party (regardless of the manner, such as business transfer, company split, etc.), we may transfer its position under this Agreement, rights and obligations based on this Agreement, and other Account Information to the transferee, and you are deemed to have consented to such transfer in advance under this clause.
Article 15 (Miscellaneous)
15.1 Exclusion of Anti-Social Forces: [Remarks: Translation is omitted as this is specific clause in Japan]
15.2 Force Majeure: We will not be liable for any damages incurred by you due to natural disasters, enactment or abolition of laws/regulations, or other force majeure events that prevent the fulfillment of the Service, regardless of any other provision in this Agreement or other regulations.
15.3 Export Control: You agree not to directly or indirectly export, re-export, or transfer the service, software, technology, or information that constitutes part of the Service, violating export controls or other laws and regulations of Japan or other relevant jurisdictions.
15.4 Governing Law and Venue: Any litigation related to this Agreement will be under the exclusive jurisdiction of the Tokyo District Court as the court of first instance. This Agreement will be governed by Japanese law.
This Agreement is in effect from September 1, 2023.