Digital Cloud Platform Terms of Use
1. Introduction
The Digital Cloud Platform (“DCP”) is an online platform for cloud and downloadable software applications, plugins and extensions (“Apps”).
This DCP Terms of Use (the "Terms of Use") are entered into by KYOCERA Document Solutions Australia Pty Ltd (ABN 77 003 852 444) of Level 3, Quarter One, 1 Epping Road, North Ryde NSW 2113 (in New Zealand: KYOCERA Document Solutions Australia Pty Ltd (Company Number 3896317; NZBN 9429030613317) trading as KYOCERA Document Solutions New Zealand) (“Kyocera” or “we”) and (a) the entity who entering service agreement with Kyocera or its Affiliate and registered as Customer on DCP (“Company” or “Customer”) and (b) person as a user of DCP, whether an employee, business partner, contractor, or agent of Customer, who is registered or permitted by Customer to use DCP in such Customer’s Tenant (“User”, Company and User are hereinafter referred to collectively as “you”), agreeing to this Terms of Use and govern your access to and use of the DCP. By activating, accessing or using an App, or accessing or using the DCP, you agree to be bound by this Terms of Use. If you do not agree to this Terms of Use, do not use or access the DCP. This Terms of Use takes effect when you click an “Accept”, “Agree” or similar language button or check box presented with these terms or, if earlier, when you use DCP (the “Effective Date”).
If you are accepting this Terms of Use on behalf of Company, you represent and warrant that:
(a) you have full legal authority to bind Company to this Terms of Use;
(b) you have read and understand this Terms of Use; and
(c) you agree, on behalf of Company, to this Terms of Use.
2. Account
2.1. Tenant
Kyocera, its Affiliate or authorised Dealer will provide Customer with its unique ID for use of DCP and create tenant for such Customer on DCP (“Tenant”).
2.2. Administrator Account
Customer may assign and expressly authorise a User(s) as its agent to manage its Tenant and User Accounts, and management of Tenant and User Accounts includes, without limitation, registering Users, configuring administration settings, assigning access and use authorisation of Apps, providing usage and performance records, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Administrator Account”). Administrator Account may use Tenant information to manage, use of and access of Users to the DCP and Apps. Customer may appoint an employee to act as its Administrator Account(s) and may change its designation at any time through its Account.
2.3. Account Registration
Any use of DCP and Apps may require you to obtain a User Account by completing a registration and designating a User ID and password. When registering a User account on the DCP, you must:
(a) provide true, current and complete information about yourself on the registration and
(b) maintain such information so it continues to be true, current and complete.
2.4. Account Information
A User is responsible for all activity that occurs via the User Account, even if that activity is not by you or is without your knowledge or consent. You may not
(a) share your Account information, such as Account login credentials (except with your Administrator Account (defined in Section 2.2)), whether intentionally or unintentionally; or
(b) use another user’s account. Your Administrator Account may use your Account information to manage your use and access to the DCP and App.
2.5. Account Security
You are responsible for taking reasonable steps to maintain the security and control of your Account. Kyocera may require you to enable multi-factor authentication and provide a phone number or an alternate email for security purposes. Kyocera assumes no responsibility for any loss that you may sustain due to a compromise of your Account login credentials, or your failure to follow or act on any notices or alerts that we may send to your email address or telephone number. You are responsible for keeping your email address and telephone number up to date in order to receive any notices or alerts that we may send you, and you are also responsible for carefully reviewing any messages purporting to be from Kyocera to ensure they are legitimate. We assume no responsibility if you are unable to access your Account because you cannot provide the appropriate login credentials, such as a password, email address, or telephone number. If you suspect that your Account or any of your login credentials have been compromised, please contact your Administrator Account.
2.6. Inactive Tenant
Customer is responsible for keeping your Users logging in DCP consistently. Kyocera may close Tenant and User Account of such Tenant, and delete User’s contents or information in whole or in part in case any of Users of the Customer has not logged in its User Account for 90 days . You acknowledge and understand that if your Tenant is closed, you may no longer access the content stored in that Account. Kyocera shall not be liable to the Customer or User for any damages incurred by closing such inactive Account.
3. Use of Apps
3.1. App Terms
Without limiting the disclaimers, restrictions or other provisions in this Terms of Use, usage of Apps is subject to the license or subscription terms, privacy policies and other applicable terms (“App Terms”) specified by Kyocera, its Affiliates or its business partners (“App Provider”), including any usage limits described therein. App Terms of an App are presented through the order process of such App or on its App. You may not use an App if you do not agree to the relevant App Terms.
Apps are subject to the App Terms as may be modified from time to time. By ordering, installing or enabling any App, you are entering into the App Terms directly with the applicable App Provider. In event of a conflict between this Terms of Use and the App Terms, the App Terms will control as to each party’s rights and responsibilities related to the App itself, while this Terms of Use will control as to the DCP generally. Any technical support and maintenance for Apps will be provided by the App Provider only to the extent described in the App Terms agreed between the App Provider and Customer.
3.2. Reservation of Rights
Except for the rights explicitly granted to you in this Terms of Use, all rights, title and interest (including intellectual property rights) in the DCP are reserved by Kyocera.
4. Data Collection and Sharing/ Personal Data
4.1. Privacy.
The access or use of the DCP requires processing of personal data. You can find further information on how the DCP processes your personal data in the DCP Privacy Statement available at: https://www.kyoceradocumentsolutions.com.au/legal-centre
4.2. Kyocera’s Use of Data
Kyocera may collect any kind of data (“Data”), including Personal Data, from you based on your use of the DCP or Apps on your behalf. Kyocera processes Personal Data in the Data subject to the DCP Privacy Statement. Kyocera may share the Data with its Affiliates and its contractors.
5. Your Responsibilities
5.1. Compliance
Customer shall (a) ensure that Customer and its Users' use of the DCP complies with this Terms of Use, and (b) promptly notify Kyocera of any unauthorised use of, or access to, the DCP.
5.2. Restrictions
Customer shall not, and shall not allow Users to, (a) copy, modify, or create a derivative work of the DCP; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the DCP (except to the extent such restriction is expressly prohibited by applicable law); (c) transfer Apps outside the DCP without specific authorisation to do so; or (d) tamper with or circumvent any controls or make unauthorised copies of the DCP.
6. Modifications
6.1 To the DCP
Kyocera may make updates to the DCP at its sole discretion from time to time. Kyocera will notify Customer of any material changes to the DCP.
6.2 To the Terms of Use
Kyocera may make changes to this Terms of Use at its sole discretion from time to time. Kyocera will provide notice of the changes by notifying Customer such changes will become effective immediately. For clarity, changes to this Terms of Use do not result in changes to any App Terms. If you do not agree to the changed Terms of Use, you must stop using the DCP and Apps. Your continued use of the DCP after such change will constitute your consent to such changes.
7. Suspension
7.1 Suspension with notice
In the event that it becomes necessary to maintain, inspect, repair or update DCP, Kyocera may, at its sole discretion, suspend or restrict your access to or use of DCP in whole or in part after notifying you in advance.
7.2 Suspension without notice
Notwithstanding Section 7.1, Kyocera may suspend your access or use of DCP in whole or in part without prior notice to you in any of the following cases:
(a) if you are in breach of this Terms of Use;
(b) if you cause a serious trouble to DCP, including, but not limited to, damage to data contained in DCP;
(c) if unauthorised access, cracking, attack, unauthorised relay, or any other wrongful act is carried out on DCP by you or through PCs, mobile devices, software and other means managed by the User, regardless of whether you intentionally or negligently act;
(d) if you or Kyocera terminate this Terms of Use;
(e) if natural disaster, war, riot, civil disturbance, revision or abolition of laws or regulations, disposition of orders by a court or administrative agency, act of dispute, power failure (including rolling blackout), or any other emergency has occurred or is likely to occur;
(f) if a failure occurs or is likely to occur in DCP or other facilities or communication lines;
(g) if a telecommunications services, including internet connection line, for DCP is ceased or suspended;
(h) if it is unavoidable for reasonable and urgent reasons, including operational or technical reasons, to discontinue the provision of DCP;
(i) if you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding;
(j) if a cyber or other security incident significantly affecting, or in Kyocera's reasonable opinion, likely to significantly affect the provision of DCP or harm Customers, to disable access to DCP for such period required for the incident to be contained;
(k) if any other cause not attributable to Kyocera.
7.3 Suspension with announcement
Kyocera may suspend or restrict your access to or use of all or part of DCP at any time without prior notice to you but by announcement of such suspension or restriction.
7.4 No liability
Kyocera shall not be liable for any damages caused by the suspension or restriction of DCP set forth in this Section 7.
8. Term and Termination.
8.1 Term
The term of this Terms of Use (the "Term") will begin on the Effective Date and continue until the Terms of Use is terminated as stated in this Section 8.
8.2 Termination For Cause
Your rights hereunder will automatically terminate upon your failure to comply with any of the provisions in this Terms of Use. In case of such termination, you must cease all use of the DCP, and Kyocera may immediately revoke your access to the DCP without notice to you.
8.3 Discontinuation of DCP
Kyocera may terminate these Terms of Use with one (1) month prior notice to you if Kyocera, in its sole discretion, discontinues the DCP.
8.4 Effect on Apps
If these Terms of Use terminate, you may no longer access the DCP or use any previously obtained Apps.
8.5 Survival
The following Sections will survive any termination or expiration of these Terms of Use: 3.2 (Reservation of Rights), 4 (Data Collection and Sharing) and 5 (Your Responsibilities) and 8 (Term and Termination) through 13 (Miscellaneous).
9. Confidentiality
You may use Kyocera Confidential Information only in connection with your use of DCP as permitted under this Terms of Use. You shall not disclose Kyocera Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You shall take all reasonable measures to avoid disclosure, dissemination or unauthorised use of Kyocera Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.
10. Intellectual Property Rights
Except as expressly stated in this Terms of Use, this Terms of Use does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Kyocera owns all Intellectual Property Rights in the DCP.
11. Important Disclaimers and Limitations of Liability
11.1 Removal of Apps
At any time, Kyocera may remove an App from the DCP in accordance with its applicable policies, and App Provider may also update, modify or remove their own Apps at any time.
11.2 Interoperability
Kyocera makes no guarantee that any Apps will work properly with DCP or that Apps will continue to work with DCP as they change over time. Some Apps rely on hosting service or cloud services provided by the App Provider or third parties, and these Apps may not function properly or may become inoperable if those services are discontinued.
11.3 Disclaimer of Warranties
To the maximum extent permitted by law, Kyocera offers the DCP and all Apps “AS IS” and “AS AVAILABLE”, and Kyocera hereby disclaims all warranties, whether express, implied or statutory, including but not limited to any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose, relating to the DCP or this Terms of Use. You may have other statutory rights, in which case the duration of any statutory warranties will be limited to the maximum extent permitted by law.
11.4 Limitations of Liability
To the maximum extent permitted by law, in no event will Kyocera be liable for any direct, indirect, consequential, special, exemplary, punitive or other liability related to the DCP or any Apps, including for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business or costs of delay. Further, neither Kyocera nor any of its Affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with:
(a) your inability to use DCP and/or Apps, including as a result of any (i) termination or suspension of this Terms of Use or your use of or access to DCP and/or Apps, (ii) our discontinuation of any or all of DCP and/or Apps, or, (iii) without limiting any obligations under the service level agreements, 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;
(c) any investments, expenditures, or commitments by you in connection with this Terms of Use or your use of or access to DCP and/or Apps; or
(d) any unauthorised access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of your content or other data. If the foregoing disclaimer of direct damages is not enforceable at law for any reason, in no event will Kyocera’s aggregate liability to you under this Terms of Use exceed fifty dollars (US$50).
11.5 Disclaimers and Limitations of Liability for Kyocera Apps
Section 11.3 (Disclaimer of Warranties) and 11.4 (Limitations of Liability) do not alter the disclaimers or limitations of liability for Kyocera Apps in the terms of such Kyocera Apps, which continue to fully apply.
11.6 Basis of Bargain
Failure of Essential Purpose. Kyocera entered into these Terms of Use relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk herein, and you agree that such provisions are an essential basis of the bargain between the parties. You agree that the waivers and limitations specified in this Section 11 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Terms of Use is found to have failed of its essential purpose.
11.7 Kyocera Affiliates and Contractors
You acknowledge and agree that Kyocera’s Affiliates, contractors and service providers may exercise all rights of Kyocera under these Terms of Use, and that all limitations of liability and disclaimers in these Terms of Use apply fully to and benefit Kyocera’s Affiliates.
12. Dispute Resolution; Governing Law.
12.1 Informal Resolution
In the event of any controversy or claim arising out of or relating to this Terms of Use, the parties will consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Terms of Use pursuant to Section 12.2. All negotiations pursuant to this Section 12.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
12.2 Governing Law; Jurisdiction
This Terms of Use will be governed by and construed in accordance with the applicable laws of the New South Wales, Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Terms of Use must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, New South Wales, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of New South Wales, Australia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
12.3 Injunctive Relief
Enforcement. Notwithstanding the provisions of Section 12.1 and 12.2, nothing in this Terms of Use will prevent Kyocera from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
13. Miscellaneous
13.1 Notices
Under this Terms of Use, notices to you must be sent to the email address you registered (“Notification Email Address”) and notices to Kyocera must be sent to legal@dau.kyocera.com Notice will be treated as received when the email is sent. You are responsible for keeping its Notification Email Address current.
13.2 Emails
The parties may use emails to satisfy written approval and consent requirements under this Terms of Use.
13.3 Assignment
You may not assign or transfer rights obligation under this Terms of Use. Kyocera may freely assign, transfer and delegate its rights and obligations under this Terms of Use.
13.4 Change of Control
If Customer experiences a change of Control other than as part of an internal restructuring or reorganisation (for example, through a stock purchase or sale, merger, or other form of corporate transaction), Customer shall give written notice to Kyocera within 30 days after the change of Control.
13.5 Force Majeure
Kyocera and its Affiliates shall not be liable for any delay or failure to perform any obligation under this Terms of Use where the delay or failure results from any cause beyond our reasonable control, including acts of God, labour 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.
13.6 Representations and Warranties
Each party represents and warrants that (a) it has full power and authority to enter into this Terms of Use, and (b) it will comply with all laws applicable to its provision, receipt, or use of the DCP, as applicable.
13.7 Subcontracting
Kyocera may subcontract obligations under this Terms of Use but will remain liable to Customer for any subcontracted obligations.
13.8 No Agency
This Terms of Use does not create any agency, partnership, or joint venture between the parties.
13.9 No Waiver
Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Terms of Use.
13.10 Severability
If any part of this Terms of Use is invalid, illegal, or unenforceable, the rest of the Terms of Use will remain in effect.
13.11 No Third-Party Beneficiaries
This Terms of Use does not confer any benefits on any third party unless it expressly states that it does.
13.12 Equitable Relief
Nothing in this Terms of Use will limit either party's ability to seek equitable relief.
13.13 Amendments
Except as stated in Section 6, any amendment must be in writing, signed by both parties, and expressly state that it is amending this Terms of Use.
13.14 Entire Agreement
This Terms of Use sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Terms of Use, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Terms of Use. Kyocera may provide an updated URL in place of any URL in this Terms of Use at any time.
13.15 Headers
Headings and captions used in the Terms of Use are for reference purposes only and will not have any effect on the interpretation of the Terms of Use.
13.16 Conflicting Languages
If this Terms of Use is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.
14. Definition
“Account” means account of DCP, which consists of Tenant and User Account.
“Account Administrator” has the meaning set forth in Section 2.1.
“Apps” has the meaning set forth in Section 1.
“App Provider” has the meaning set forth in Section 3.1.
“App Terms” has the meaning set forth in Section 3.1.
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, is under common Control with the Party.
“Company” or “Customer” has the meaning set forth in Section 1.
“Control” means possessing more than 50% of shares in an entity or the right to direct the management of entity.
“Data” has the meaning set forth in Section 4.2.
“DCP” has the meaning set forth in Section 1.
“Effective Date” has the meaning set forth in Section 1.
“Kyocera“ or “We” has the meaning set forth in Section 1.
“Kyocera Apps” means Apps provided by Kyocera or its Affiliates.
“Kyocera Confidential Information” means all nonpublic information disclosed by Kyocera, its Affiliates, business partners, or its 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. Kyocera Confidential Information includes:
(a) non-public information relating to Kyocera or its Affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
(b) third-party information that Kyocera is obligated to keep confidential; and
(c) the nature, content and existence of any discussions or negotiations between you and Kyocera or its Affiliates. Kyocera Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Terms of Use; (ii) can be shown by documentation to have been known to you at the time of your receipt from Kyocera; (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 Kyocera Confidential Information.
"Tenant" has the meaning set forth in Section 2.1.
"Terms of Use" has the meaning set forth in Section 1.
“User” has the meaning set forth in Section 1.
“User Account” means account of DCP for User’s use or manage of DCP and Apps and is made under the Customer Account to which the User belongs.
“You” has the meaning set forth in Section 1.
