Please read through the following Terms and Conditions regarding DWINDEX2 Performance Management Software
When you install “DWINDEX2” software, it shall be considered that you have accepted all the terms and conditions. If you do not agree, you may not install “DWINDEX2” software. In order to use “DWINDEX2”, you need to obtain the license key from DGSHAPE Corporation or its affiliates and activate it.
Article 1 (Definitions)
1 “Licensor” shall mean DGSHAPE Corporation.
2 “Affiliates” shall mean the parent company of Licensor, Roland DG Corporation, any corporation controlled by Licensor or any corporation and entity under common control with Licensor. “Control” shall mean the holding, directly or indirectly, of a majority of the voting rights of such corporation or entity.
3 “Agreement” shall mean the license agreement for “DWINDEX2” subject to these terms and conditions.
4 “Software” shall mean computer programs of “DWINDEX2” provided to you together with these terms and conditions.
5 “Software, etc.” includes Software, software programs and related files offered in relation to Software and related programs, files, texts and all other materials provided through the internet or other services; provided, however, that the media and means of such offer shall not be restricted.
6 “Services” shall mean “DWINDEX2” services rendered in a cloud environment, the description of which is displayed on Software download site and will be subject to updates and changes.
7 “Consulting Services” shall mean advice provided by Licensor and/or Affiliates for the use of Services and include suggestions for improvements based on the results of Services or Your Data.
8 “Free License Key” shall mean a license key that allows you to use Software and Services for free.
9 “Paid License Key” shall mean a license key that allows you to use Software and Services for value.
10 “Your Data” shall mean any information, data, and materials provided by you under Agreement, and any data or information entered, created, submitted or uploaded by you in the course of using Services.
11 “Personal Information” shall mean personal information as defined in the Personal Information Protection Act of Japan and any other applicable laws and regulations.
Article 2 (License)
1 Licensor grants to you a non-exclusive, non-transferable license to use Software, etc. and Services for the purposes envisaged on “DWINDEX2”, such as managing the operation of Licensor products, provided that you obtain the license key from Licensor or Affiliates to activate “DWINDEX2” pursuant to Agreement.
2 You shall use “DWINDEX2” according to normal usage with Licensor products, computer terminals, webcams, CAM software, telecommunications lines, telecommunications facilities, etc. (which meet service environment specifications specified by Licensor) procured at your expenses and responsibilities.
Article 3 (Installation of Software)
You may install Software on any computer terminal connected to Licensor products, subject to your agreement with these terms and conditions. Types of Licensor products for which Software may be used are displayed on Software download site. You shall confirm such types of Licensor products. When you install, copy or use Software, it shall be considered that you have accepted all the terms and conditions.
Article 4 (New Application)
1 If you do not have a head office (or your place of business if there is no head office) in Japan, for new application for Services, you shall submit true, accurate and complete information to Licensor through Affiliates about your entity name, address, models and serial numbers of your Licensor products in the manner set forth by Licensor. In addition, for payment for Services, you shall provide Affiliates with true, accurate and complete information regarding your information (excluding your entity name and address) and the payment information in the manner set forth by the relevant Affiliates.
2 If you have a head office in Japan, for new application for Services as well as payment for Services, you shall provide Licensor with true, accurate and complete information regarding your information (including your entity name and address), models, serial numbers of your Licensor products and the payment information in the manner set forth by Licensor.
3 In the event of any of the followings, Licensor or Affiliates may deny or, even after her acceptance, cancel her approval at any time.
(1) If you are likely to fail to perform any of your obligations set out in Agreement;
(2) Where you make a false statement in applying for the use of Services; or
(3) If Licensor or Affiliates determines that you are not qualified for use of Services.
4 In the event of any change in the registered information after application, you shall promptly notify Licensor or Affiliates thereof in the manner set forth by Licensor or Affiliates.
Article 5 (Creation of Account by Acceptance of New Application)
1 When accepting a new application from you as set forth in the preceding Article, Licensor will create your original account for Services.
2 Licensor or Affiliate will issue your account ID and initial password in the manner set forth by Licensor or the relevant Affiliate.
3 Licensor or Affiliate will send Free License Key to you, in writing or by electromagnetic means, in the manner set forth by Licensor or the relevant Affiliate.
Article 6 (License Unit)
1 One (1) license is granted per one (1) Licensor product. You may use Services for one (1) Licensor product under one (1) license.
2 The minimum unit for the license application is one (1) license; provided, however, that at the time of the new application, you may apply for a minimum of two (2) license units (for two (2) Licensor products) unless otherwise authorized by Licensor or Affiliate.
Article 7 (Account-ID/Password)
1 An account is created on a customer-by-customer basis.
2 You shall be solely responsible for the use and management of the issued Account ID and password, and you shall not disclose or divulge to any third party any and all information relating to the Account, whether intentionally or negligently, and/or whether before or after termination of Agreement.
3 Licensor shall not be liable for any damage caused to you by the unauthorized use of account ID and password. Any use of Services following account ID and password certification may be considered as used by you.
Article 8 (License Key)
1 The number of the license key is determined not on an account-by-account, license unit or Licensor product-by-product basis, but on the basis of rules established by Licensor, depending on the circumstances at the time of the issuance of such license key.
2 You shall be solely responsible for the use and management of the issued license key and shall not disclose or divulge to any third party any and all information relating to the license key, whether intentionally or negligently, and/or whether before or after termination of Agreement.
3 Licensor shall not be liable for any damage caused by the unauthorized use of your license key. Any use of Services following license key authorization may be considered as used by you.
Article 9 (Free Service Period)
1 If you use Services for the first time, you will be granted a one-time free service period to use Services free of charge unless otherwise agreed with Licensor or Affiliate.
2 The free service period shall be three (3) months from the date when the Free License Key is issued; provided, however, that in the event Licensor or Affiliates designates a different period, such period shall be deemed as the said period.
3 During the free service period, the purpose of the license shall only be trial use of “DWINDEX2”.
4 You may not change the Licensor products for which the license was granted during free service period.
5 Free License Key shall in no event be reissued during free service period.
Article 10 (Switching from free service period to paid period)
1 Licensor or Affiliate will send you a Paid License Key at least seven (7) days prior to the end of free service period. There is no change to your account at this time. This provision, however, shall not apply where Licensor or Affiliate separately prescribes the methods of issuing Paid License Key.
2 Notwithstanding the preceding paragraph, in the event you notify Licensor in the manner set forth by Licensor one (1) month prior to the end of the free service period and thereby cancel the automatic switching to paid period, Agreement shall terminate when the free service period ends.
3 If you wish to increase the numbers of Licensor products for which your account is licensed at the time of switching from the free service period to paid period, unless otherwise agreed upon, you shall submit to Licensor or Affiliate the types and serial numbers of relevant new Licensor products in the manner set forth by Licensor. Licensor or Affiliate will send you an additional Paid License Key in addition to the Paid License Key for the automatically switched licenses.
Article 11 (Paid Period)
1 Unless otherwise specified in writing, paid period shall commence on the effective date of the Paid License Key and end on the end date of the month of one (1) year anniversary date.
2 You shall be entitled to make Services available to your officers and/or employees; provided, however, that you shall ensure that all officers and/or employees using Services comply with Agreement.
3 For paid period, you may change the Licensor product for which the license is granted only once per one (1) license by applying for a change of the serial number of the Licensor product in the manner set forth by Licensor.
4 If you wish to increase the numbers of Licensor products for which your account is licensed during paid period, unless otherwise agreed upon, you shall submit to Licensor or Affiliate the types and serial numbers of relevant new Licensor products in the manner set forth by Licensor. Licensor or Affiliate will send you an additional Paid License Key.
Article 12 (Payment of Fees)
1 In consideration for the use of Services, you shall pay the amount agreed upon with Licensor or Affiliate at the time of purchasing Paid License Key. The number, date, methods and other matters of the payment shall also be separately agreed upon.
2 Except as otherwise provided for in Agreement, Licensor will not refund any fees and other compensation paid by you for Services for any reason whatsoever.
3 The licenses increased during paid period shall be effective and in force until the end of the paid period of the license for which the application was made firstly, and the fees for such increased license shall be paid on a monthly basis irrespective of the number of days of your actual use unless otherwise agreed by Licensor or the relevant Affiliate.
Article 13 (Automatic Renewal of Paid Period)
1 During paid period, Agreement will be automatically renewed on an annual basis unless otherwise specified in Agreement or separately agreed with Licensor or Affiliate.
2 If paid period is automatically renewed, Licensor or Affiliate will issue a new Paid License Key to you no later than seven (7) days prior to the end of the current paid period. If there is more than one (1) Paid License Key issued in the previous paid period, then all Paid License Keys shall be bundled in one (1) Paid License Key, which will result in the same contract period.
3 When you wish to cancel the automatic renewal of Agreement, you need to notify Licensor thereof in the manner set forth by Licensor at least one (1) month prior to the date of the automatic renewal and Agreement will be terminated thereby. Any cancellation notice that Licensor receives within one (1) month of the automatic renewal date shall be considered as an automatic renewal cancellation notice for the renewal period following the next renewal period.
4 You hereby acknowledge and agree that you may not cancel the automatic renewal of Agreement in any manner other than as specified herein and that, after termination, you may neither access to Service nor view Your Data accumulated prior to such termination. You also acknowledge and agree that Agreement will not be automatically terminated by discontinuing the use of Software, uninstalling or removing it from your computer.
Article 14 (Consulting Services)
1 Licensor or Affiliates may propose or provide Consulting Services to you.
2 A separate consulting agreement shall be, as required, concluded with Licensor or Affiliate when you wish to use Consulting Services.
Article 15 (Retention of Intellectual Property Rights)
1 Any and all copyrights, trademarks, and other intellectual property rights in and to logos, documents, data (including, without limitation, samples, photographs, clip arts, templates, etc.) and other information and/or any media thereof pertaining to Software, etc., Services, Consulting Services shall belong to Licensor or its licensors. No intellectual property rights are granted to you unless otherwise set out herein.
2 Licensor shall retain sole and exclusive ownership of and all right, title and interest in and to any and all intellectual property rights of all deliverables created, conceived, created, discovered, invented or reduced to practice in the performance of Services and Consulting Services.
Article 16 (Support)
1 If you do not have a head office (or place of business if there is no head office) in Japan, support for use of Services shall be based on a contract with Affiliate, your license key supplier.
2 If you have a head office in Japan, support for use of Services shall be subject to the support for Licensor products to which Services applies.
Article 17 (Confidentiality)
1 Neither you nor Licensor shall divulge the Confidential Information of the other party to a third party or use such Confidential Information for purposes other than Agreement during or after the term of Agreement.
2 Confidential Information shall mean any technical, business or management information of the other party disclosed in connection with Software, etc., Services, or Consulting Services, whether in writing, electromagnetic data, oral or in any other form, or regardless of the indication or mark of confidential information or whether or not the scope of such information is specified. Licensor’s confidential information shall include, but is not limited to, information you receive in Software, etc., Services and Consulting Services, information about Licensor business strategies, methods, know-how, pricing information, techniques, product plans, Licensor’s employees, clients and distributors; provided, however, that any part or portion of Software, etc. and Service inconsistent with any term of general public license incorporated thereto shall not constitute Confidential Information.
3 The confidential information in the preceding paragraph shall not apply to any of the following cases:
(1) Information that is publicly known or becomes publicly known through no fault of the receiving party;
(2) Information lawfully obtained from a third party;
(3) Information in the possession of the receiving party at the time of disclosure;
(4) Information independently developed by the receiving party without use of or reference to the other party’s Confidential Information; or
(5) Information that is required to be disclosed by law, government agency, or court order.
4 Unless otherwise agreed between you and Affiliate, this Article shall also apply mutatis mutandis to the handling of confidential information between you and the relevant Affiliate.
Article 18 (Your Data available for Services)
1 You shall provide Licensor with only such data as may be lawfully available to Licensor under paragraph 1 of Article 20.
2 You shall not enter, create, submit or upload the following information in Software, etc. and Services:
(1) Personal medical information (including, but not limited to, patient name, clinic name, doctor name, and any information that could identify them);
(2) Personal Information about third parties other than you;
(3) Information related to any of the acts set forth in each item of Paragraph 1 of Article 23; or
(4) Other information deemed inappropriate by Licensor.
3 Licensor may, at its discretion, delete all or part of any Your Data that is in conflict with each item of the preceding paragraph without notice to or approval of you; provided, however, that Licensor shall not be obliged to monitor your conduct or Your Data trends.
4 You shall be responsible for the preservation of necessary Your Data you enter, create, provide, or upload in connection with the use of Software, etc. and Services.
Article 19 (Protection of Your Data)
1 In view of the fact that You Data contains important information, such as business know-how, Licensor shall treat Your Data as your Confidential Information.
2 Licensor shall make efforts to secure that any unauthorized third party may not have access to You Data in any way. Should your data be divulged to any unauthorized third party, you will be notified promptly.
3 After termination of Agreement, at the discretion of Licensor or when you wish to dispose of You Data, Licensor will dispose of it, or process and edit You Data as statistical information in forms that cannot be identified as your data.
4 Licensor shall not be obliged to compensate for any loss or damage incurred by you due to the disposal of Your Data pursuant to the preceding paragraph.
5 In order to facilitate recovery in the event of a system failure or a failure in the telecommunications facilities, Licensor may confirm, duplicate or reproduce Your Data; provided, however, that restoration of each of Your Data shall not be guaranteed for any reason whatsoever and that in no event shall Licensor be liable for any disadvantage due to the loss of Your Data and so on.
Article 20 (Limited Use of Your Data by Licensor)
1 You grant Licensor a non-exclusive, transferable, free-of-charge license worldwide to use, host, transmit, display, sublicense, duplicate and reproduce all Your Data required for Licensor to perform its obligations under Agreement.
2 Licensor may use Your Data, bug reports, suggestions, recommendations, function requests, questionnaire results, and other feedbacks and Services statistics (including, but not limited to, statistical data such as your status of use of Services and frequency of use of screens and items) (collectively, “Your Data, etc.” for this Article) for the purposes set forth in any of the following items:
(2) Provision, operation, and understanding of the status of use of Services
(3) Software, etc. and Services improvement, maintenance, etc.
(4) Proposal and implementation of Consulting Services
(5) Development of new services
3 In order to achieve the purposes set forth in each of the items of the preceding paragraph, Licensor may provide Your Data, etc. to the following parties:
(1) Affiliates (including Roland DGA Corporation, USA corporation)
(2) Distributors that sell products of Licensor or Affiliates
(3) Business partners that provide maintenance services concerning products of Licensor or Affiliates
(4) Business partners who have concluded Personal Information protection contracts with Licensor or Affiliates
Licensor shall be responsible for the use of Your Data, etc. by each of the aforementioned parties.
Article 21 (Update)
1 Licensor may, at the discretion of Licensor, add, change, repair, modify, change the specifications, update or upgrade Software, etc. and Services (hereinafter referred to as the “Update”) without notice to or approval of you for the purpose of adding or improving the functions of Software, etc. and Services. Licensor does not guarantee that the Update maintains the full functionality and performance of Software, etc. and Services prior to the Update. In addition, Licensor shall not be obliged to implement the Updated based on your request.
2 With respect to any Update that may have a material impact on your use, Licensor shall use its reasonable efforts to notify you of the Update in advance in such manner as Licensor deems appropriate.
3 Suspension or discontinuation of Services due to the Update shall be subject to Article 24.
4 In the event of an Update with respect to your use conditions or environment, you shall promptly accept the Updated and keep Software up-to-date.
Article 22 (Amendment to these Terms and Conditions)
1 In order to add new functions to or improve Software, etc. and Services, Licensor may, at its discretion, amend these terms and conditions without prior notice to or approval of you.
2 In the event of any amendment to these terms and conditions, Licensor will disclose the amended terms and conditions on Licensor website. At the time of such disclosure, the amended terms and conditions shall apply irrespective of whether or not you confirm the amended terms and conditions.
Article 23 (Prohibition)
1 In no event shall you engage in any of the following acts for the use of Software, etc. and Services, whether before or after the termination of Agreement.
(1) Acts that infringe or are likely to infringe upon the copyrights, patents, trademark rights, or other intellectual property rights of Licensor or Affiliates, or a third party (including duplication or reproduction of Software, etc. not permitted under Agreement);
(2) Acts of transferring, assigning, leasing the rights and/or granting a sublicense to use Software, etc., Services and license key to a third party, in whole or in part;
(3) Acts to allow a third party to use Software, etc., Services, and license key, in whole or in part (except as otherwise approved by Licensor or Affiliates);
(4) Acts that violate or are suspected of violating laws and regulations;
(5) Acts that violate public order and morals;
(6) Acts that cause or threaten to cause any disadvantage or damage to Licensor, Affiliates, or a third party;
(7) Acts that interfere with or threaten to interfere with the operation of all services provided by Licensor or Affiliates;
(8) Acts that defame or threaten to defame the reputation or reputation of any service provided by Licensor or Affiliates;
(9) Modifications, translations, reverse engineering, decompiling or disassembly of Software, etc. or license key;
(10) Creation of secondary works using Software, etc.;
(11) Acts of transmitting information including harmful computer programs such as computer viruses;
(12) Unauthorized access to Services and other acts that interfere with the facilities such as cracking;
(13) Acts that use or attempt to use another person’s account;
(14) Use of Software, etc. or Services among Licensor products with different serial numbers by way of time-sharing or other sharing methods; or
(15) Any other acts deemed inappropriate by Licensor.
2 Where you come to know that any of each item of the preceding paragraph has been committed or is deemed likely to commit any of the applicable acts, you shall immediately notify Licensor thereof.
3 This Article shall not restrict you from exercising any additional or different rights on open source software contained in Software, etc. and Services.
Article 24 (Suspension or Discontinuation of Services)
1 Licensor may temporarily suspend Services after giving prior notice to you when implementing periodic or temporary maintenance of systems, facilities, etc., for Services.
2 Licensor may temporarily suspend Services and notify you promptly afterward, without prior notice to you, in the event of emergency maintenance of systems, facilities, etc., for Services.
3 In the event of any of the followings, Licensor may discontinue Services without notice to or approval of you.
(1) In the event of any cause of termination set forth in paragraph 2 of Article 25;
(2) When it is determined that the discontinuance is required for maintenance or construction due to material failure or fault of systems, facilities, etc., for Services;
(3) When it is determined that it is hard to provide Services normally due to significant burdens to systems, facilities, etc., for Services;
(4) When it is determined that the Services may threaten to cause significant damage to you or a third party; or
(5) When a natural disaster or any other event of force majeure beyond the reasonable control of Licensor occurs or is likely to occur.
4 Licensor shall not be responsible for any lost and/or damages incurred by you with respect to suspension or discontinuance set forth in each item of the preceding paragraph.
Article 25 (Termination of Agreement)
1 You may not cancel or terminate Agreement. If you wish to terminate Agreement, you shall cancel automatic switching or automatic renewal pursuant to paragraph 2 of Article 10 or paragraph 3 of Article 13.
2 Licensor shall be entitled to terminate Agreement without notice to or approval of you in the event of any of the followings, where you shall immediately stop using Services, uninstall or delete Software, etc., and dispose of all copies thereof:
(1) if you fail to comply with any of the provisions of Agreement;
(2) if you file a petition for bankruptcy, special liquidation, civil rehabilitation, corporate reorganization or corporate consolidation, or if such petition is filed by any other party;
(3) if you become subject to a provisional seizure, provisional disposition, auction, or disposition for the collection of tax delinquency;
(4) if you become subject to the disposition of dishonor of checks or to the disposition of suspension of bank transactions; or
(5) if Licensor determines that it is inappropriate for you to continue using Services.
3 Licensor may abolish Software, etc., Services and/or Consulting Services for any reason whatsoever. In this event, Licensor shall be entitled to terminate the relevant provisions of Agreement by notifying you in the manner set forth by Licensor no later than three (3) months prior to the date of the abolishment of the applicable service and then by abolishing the applicable service on such date.
4 When you enter into more than one (1) Agreement, if one of them is subject to suspension or discontinuance of Services, or if one of them is terminated, Licensor shall be entitled to take measures corresponding to the aforementioned with respect to the other Agreements.
5 Notwithstanding this Article, Article 15, the obligations of confidentiality set forth in Article 17 and Articles 19, 20, 27, 29, and 30 shall survive termination of Agreement.
Article 26 (Limited Warranty)
1 Licensor will use commercially reasonable efforts to maintain 24 hours/7 days Services under the recommended environments, except as set forth otherwise hereunder.
2 Licensor and Affiliates do not guarantee that Software, etc. and Services have the integrity, accuracy, certainty, usefulness, error-free use, non-interruption of use, merchantability or fitness for your particular purpose.
3 No oral or written information or advice by Licensor or Affiliates shall make any new warranty, express or implied, or otherwise extend any duties, obligations, and warranty in connection with Agreement in any way.
Article 27 (Disclaimer)
1 In no event shall Licensor be liable, express, implied, statutory or any other warranty or contractual liability, or any other liability, to the extent permitted by applicable law, for any damages arising out of the use of Software, etc. and/or Services, including in the event of any Services being fully unavailable (including in the event of suspension or discontinuance) during the term of Agreement. In the event of any damage incurred by you due to the willful misconduct or gross negligence of Licensor, Licensor shall be liable for actual and direct damage only to the extent of your payment amount that Licensor or Affiliates received for the immediate one (1) year, and Licensor shall NOT be liable for any other damage or loss (including, but not limited to, any other indirect damage, special damage, incidental damage, consequential damage, loss of profit, loss of data).
2 You hereby acknowledge and agree that you will be liable for any and all risks and damages (including damages, direct or indirect, such as data losses, business interruptions, claims from third parties, etc.) in connection with the use of Software, etc. and Services.
3 Licensor shall not be liable for any damage caused to you by unauthorized use of Services by a third party, for example, through unauthorized use of license key.
4 In the event you cause any damage to any third party due to the use of Services, you shall be responsible for resolving such damage and shall not assume any liability to Licensor.
Article 28 (Export control)
1 You shall comply with the applicable export control regulations, laws, and orders (hereinafter collectively referred to as the “Export Laws”). You may not export or re-export software that contains cryptographic technology subject to U.S. Export Administration Regulations (hereinafter referred to as “EAR”) to any country to which the U.S. Government prohibits export. In addition, you shall not export or re-export to any person or entity whose transactions are prohibited by the United States.
2 If Software contains EAR-regulatory cryptography, you represent and warrant that you are not a national of, and reside in, any country for which the U.S. government prohibits exports, such as Iran, Syria, Sudan, Cuba, and North Korea, and that you are not prohibited by Export Laws from receiving Software.
Article 29 (Miscellaneous)
1 Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, and negotiations, both written and oral, between the parties with respect to the subject matter hereof.
2 Agreement may not be assigned or transferred by you without the express prior written consent of Licensor.
3 The waiver by Licensor of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of such provision itself.
4 You acknowledge and agree that monetary relief would not be an adequate remedy for a breach or threatened breach by you of the provisions of Agreement and that Licensor shall be entitled to the enforcement of Agreement by injunction, specific performance or other equitable relief, without prejudice to any other rights and remedies that Licensor may have.
5 Nothing in Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties, or constitute or be deemed to constitute any party the agent or employee of the other party for any purpose whatsoever and neither party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.
6 If any provision of Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid. Rather, Agreement shall be construed as if not containing the particular invalid or unenforceable provision, and the rights and obligations of each party shall be construed and enforced accordingly.
7 Any notice, instruction, direction or demand under the terms of Agreement required to be in writing will be duly given upon the receipt, if delivered by hand, facsimile transmission, registered or certified mail, return receipt requested, postage prepaid, to the following addresses or telecopy numbers or to such other addresses or telecopy numbers as may be specified by like notice to Licensor or Affiliates.
Article 30 (Governing Law and Dispute Resolution)
1 These terms and conditions shall be construed in accordance with and governed by the laws of Japan, without reference to the principle of conflict of laws.
2 If you do not have a head office (or your place of business if there is no head office) in Japan, all disputes, controversies or differences arising out of or in connection with Agreement shall be finally settled by arbitration in Tokyo in accordance with the Commercial Arbitration Rules of The Japan Commercial Arbitration Association.
3 If you have a head office in Japan, all disputes, controversies or differences arising out of or in connection with Agreement shall be subject to the exclusive jurisdiction of Tokyo District Court.
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