1.General
1.1Requesting User, Product and Related Service(s)
1.1.1These Terms is based on the assumption that the Data Holder is obliged under Article 5 of the Data Act to make data available to the Data Recipient when requested to do so by or on behalf of the user (‘Requesting User’) as identified on the SPEC (defined below) and that the Requesting User is a user (within the meaning of Article 2 (12) the Data Act) of:
- (a) the SUZUKI-brand automobiles, motorcycles and outboard motors (‘Products’) ; and/or
- (b) the related services for the Products such as connected services (‘Related Services’).
1.2Specific Terms and Conditions
1.2.1These Terms set forth the general terms and conditions applicable to all requests of data sharing by the Data Recipient. The specific terms and conditions applicable to each case of data sharing such as the subject product, data, user etc. shall be specified in the separate document called “Data Sharing Specification” (‘SPEC’) which will be prepared by the Data Holder and agreed by the Data Recipient in accordance with clause 9.3.4.
2.Fundamental declarations
2.1Quality of the user and existence of a valid request
2.1.1The Data Recipient declares that the Requesting User is a user (within the meaning of Article 2 (12) of the Data Act) of the Product and Related Service specified in in clause 1.1.1.
2.1.2The Data Recipient declares that the Requesting User has requested that the Data Holder makes available to the Data Recipient the Data specified in clause 3.1. The Data Recipient shall provide the evidence of such request as will be designated by the Data Holder if requested by the Data Holder.
2.1.3The Data Recipient declares that the party acting on behalf of the Requesting User has provided evidence that they have received the necessary authority from the Requesting User to submit this request in accordance with applicable law. Data Recipient shall provide the Data Holder the evidence of such request as will be designated by the Data Holder if requested by the Data Holder.
2.1.4The Data Recipient further declares that the request is valid under applicable law, has not been withdrawn and has not expired. In particular, the Data Recipient declares that it has not made the exercise of choices or rights under the Data Act by the Requesting User unduly difficult, including by offering choices to the Requesting User in a non-neutral manner, or by coercing, deceiving or manipulating the Requesting User, or by impairing the autonomy, decision-making or choices of the Requesting User, including by means of a user digital interface or a part thereof.
2.1.5If the Data Recipient makes a declaration referred to in clauses 2.1.1 to 2.1.4 in a fraudulent manner, especially by fabricating false evidence mentioned in clause 2.1.2, the Data Recipient shall compensate any and all loss or damage incurred by the Data Holder arising out of or in relation to such false declarations.
2.2Eligibility of Data Recipient
2.2.1The Data Recipient declares that they have entered into a contract with the Requesting User on the use of the Data. According to this contract, the Data will be used exclusively for the purpose as set forth on the SPEC.
The Data Recipient declares that the Data is strictly necessary for fulfilling this purpose.
2.2.2The Data Recipient declares that it does not qualify as an undertaking designated as a ‘gatekeeper’ under Article 3 of Regulation (EU) 2022/1925 (‘Digital Markets Act’).
2.3Compliance with data protection law
2.3.1As far as the Data qualifies as personal data, the Data Recipient declares that it complies with the Regulation (EU) 2016/679 (‘GDPR’) and, where relevant, Directive 2002/58/EC (‘ePrivacy Directive’).
2.3.2In particular, when the Requesting User is not the data subject, the Data Holder may only make the Data which are personal data available to the Data Recipient, to the extent permitted under GDPR and, where relevant, ePrivacy Directive.
2.4Incorrectness of fundamental declarations
2.4.1If the Data Recipient becomes aware that any declaration referred to in clauses 2.1 to 2.4 is not, or is no longer, correct, or will no longer remain correct in the foreseeable future, it must, without undue delay, notify the Data Holder.
2.4.2If the Data Holder becomes aware of a transfer by the Requesting User of (i) ownership of the Product, or (ii) its temporary rights to use the Product, and/or (iii) its rights to receive Related Services to a subsequent natural or legal person and loses the status of a user, the Data Holder may notify the Data Recipient.
2.4.3On becoming aware of the situations in clauses 2.4.1 or 2.4.2, the Data Recipient must take appropriate action and cure the false or incorrect fundamental declaration, to the extent possible. Depending on the circumstances, this may include notifying the Requesting User or any protected third party who is affected or the temporary suspension of the making available of the Data by the Data Holder or the use of the Data by the Data Recipient, if making the Data available or the use of the Data is or has become unlawful.
2.4.4If the situation is not and cannot be cured, these Terms must terminate by means of a written termination notice mentioning the reasons of termination given by the Data Holder to the Data Recipient. The termination has immediate effect. Where the incorrectness affects only part of the data covered by these Terms, termination must take effect only for the relevant part.
Effects of termination are governed by clause 7.3.
3.Making the Data available
3.1Data covered by the Terms
3.1.1The data covered by these Terms consists of the readily available Product Data or Related Service(s) Data within the meaning of the Data Act identified in the request made by the Requesting User on the basis of Article 5 of the Data Act, as well as the relevant metadata necessary to interpret and use that data (‘Data’).
3.1.2The Data, which may be available to the Data Recipient, are the data owned by the Data Holder or its distributors and dealers of the Products and consists of those:
- (i) acquired by diagnostic tools of the Products at the distributors and dealers;
- (ii) acquired in compliance with applicable laws and regulations such as EU battery regulation;
- (iii) acquired through the Related Services; and
- (iv) acquired through satellite navigation system (including online type).
The details of the specific Data shared with the Data Recipient under these Terms shall be set forth in the SPEC.
3.2Data quality and access arrangements
3.2.1The Data Holder must make the Data available to the Data Recipient, with at least the same quality as it becomes available to the Data Holder, and in any case in a comprehensive, structured, commonly used and machine-readable format as well as the relevant metadata necessary to interpret and use those Data.
3.2.2The way and manner of providing Data (e.g. method of transmission, data format and frequency of access) shall be set forth on the SPEC.
3.2.3The Data Holder must provide to the Data Recipient the means and information strictly necessary for accessing or receiving the Data in accordance with Article 5 of the Data Act.
3.2.4The Data Holder undertakes not to keep any information on the Data Recipient’s access to the data requested beyond what is necessary for:
- (a) the sound execution of (i) the Requesting User’s access request and (ii) these Terms;
- (b) the security and maintenance of the data infrastructure;
- (c) compliance with legal obligations on the Data Holder to keep such information; and
- (d) improving operation of data sharing by the Data Holder.
The foregoing shall not prevent the Data Holder from keeping information on the Data Recipient’s access (i) which is subject to automatic backup or (ii) deletion of which is not technically feasible at the Data Holder’s or its system vendor’s environment.
3.2.5If any of the specifications agreed in accordance with clause 3.2 are impossible or unreasonable to achieve because of a change of circumstances, the Data Holder may change such specifications upon written notice to the Data Recipient.
3.3Warranty
3.3.1The Data Holder warrants that the Data has the quality as set forth in clause 3.2.1 above. This warranty is exclusive and in lieu of all other representations and warranties, express or implied, and the Data Holder disclaims and excludes any implied warranty of merchantability or implied warranty of fitness for a particular purpose, including, but not limited to, the purposes as specified in clause 5.1. or in the SPEC.
3.3.2The Data Recipient acknowledges and accepts that the Data is provided on an “as is” basis, and the Data Holder makes no warranty, express or implied, as to accuracy, completeness, reliability, relevance or up-to-dateness of the Data, beyond the extent to which such Data is available to the Data Holder. As the Data shared with the Data Recipient is basically a raw data extracted from devices of the Products without further processing or verification by the Data Holder, the Data may not reflect actual status of the Products and may contain false/error data and/or a part of the Data may be missing.
3.4Duration of data sharing
3.4.1In case of one-time data sharing, the Data Holder shall make available the Data to the Data Recipient within reasonable time after agreement of the SPEC, subject to clause 6.1.5 below.
3.4.2In case of continuous data sharing, the Data Holder shall make available the Data to the Data Recipient for the duration set forth on the SPEC, subject to clause 6.1.5 below.
3.5Unilateral changes by the Data Holder
3.5.1The Data Holder may unilaterally change details regarding the specifications for the Data characteristics and access arrangements if this is objectively justified by the general conduct of business of the Data Holder – for example by a technical modification in the line of the Products or the Related Service or a change in the Data Holder’s infrastructure. In such case, the Data Holder shall not be required to bear any cost or expenses incurred by the Data Recipient in relation to such change nor shall be liable for any interruption in providing Data by the Data Holder and/or in receiving the Data by the Data Recipient in order to adopt to the changed specifications.
4.Trade secrets
4.1Applicability of trade secret arrangements
4.1.1The protective measures agreed in clauses 4.2. and 4.3. of these Terms, as well as the related rights agreed in clauses 4.4, apply exclusively to data or metadata included in the data to be shared by the Data Holder with the Data Recipient, which are protected as trade secrets (as defined in Article 2 (1) of the Trade Secrets Directive (EU) 2016/943), held by the Data Holder or another Trade Secret Holder (as defined in Article 2 (2) of said Directive).
4.1.2The Data Holder may, at its sole discretion, decline sharing of data protected as trade secrets (hereafter these will be referred to as ‘Identified Trade Secrets’).
Notwithstanding the foregoing, if the Data Holder decides to share the Identified Trade Secrets, the data treated as the Identified Trade Secrets will be designated in the SPEC.
4.1.3The declarations and obligations set out in clauses 4.2 and 4.3 remain in effect after any termination of the Terms, unless otherwise agreed by the Parties.
4.2Protective measures taken by the Data Recipient
4.2.1The Data Recipient must apply the protective measures set out in the SPEC (hereafter these are referred to as ‘Identified Trade Secrets DR Measures’).
4.2.2If the Data Recipient is permitted to make Data protected as trade secrets available to a third party, the Data Recipient must inform the Data Holder of the fact that Identified Trade Secrets have been or will be made available to a third party, specify the data in question, and give the Data Holder the identity and contact details of the third party.
4.2.3In order to verify if and to what extent the Data Recipient has implemented and is maintaining the Identified Trade Secrets DR Measures, the Data Recipient agrees to either, at the Data Holder’s option, (i) annually obtain, at the Data Recipient’s expense, a security conformity assessment audit report from an independent third party chosen by the Data Recipient, or (ii) to annually allow, at Data Holder’s expense, a security conformity assessment audit from an independent third party chosen by the Data Holder. The results of the audit reports will be submitted to both Parties without undue delay.
4.2.4The Data Recipient hereby acknowledges that the trade secrets mentioned in this clause 4 may include the trade secrets held by third-party trade secret holders other than the Data Holder, for example, its affiliates, suppliers, system vendors and other business partners. Unless otherwise agreed between the Parties, the Data that constitutes a trade secret of such third parties shall be protected in a same way as a trade secret of the Data Holder, and the Data Recipient shall be liable for the loss or damages incurred by such third parties arising out of or in relation to failure of implementation and maintenance of the Identified Trade Secrets DR Measures.
4.3Protective measures taken by the Data Holder
4.3.1The Data Holder may apply the measures set out in detail in the SPEC to preserve the confidentiality of the shared and otherwise disclosed Identified Trade Secrets (hereafter these are referred to as ‘Identified Trade Secrets DH Measures’.
4.3.2The Data Holder may also add unilaterally appropriate technical and organisational protection measures, if they do not negatively affect the access to and use of the Data by the Data Recipient under these Terms.
4.3.3The Data Recipient undertakes not to alter or remove such Identified Trade Secrets DH Measures unless otherwise agreed by the Parties.
4.4Right to refuse, withhold or terminate
4.4.1Where the Identified Trade Secrets DR Measures and the Identified Trade Secrets DH Measures do not materially suffice to adequately protect a particular Identified Trade Secret, the Data Holder may, by giving notice to the Data Recipient with a detailed description of the inadequacy of the measures:
- (a) unilaterally increase their Identified Trade Secrets DH Measures regarding the specific Identified Trade Secret in question, or
- (b) request that additional, necessary technical or organisational measures to be taken by the Data Recipient.
4.4.2The Data Holder is entitled to withhold or suspend the sharing of the specific Identified Trade Secrets if:
- (a) the Data Recipient fails to implement and maintain such additional technical or organisational measures;
- (b) in exceptional circumstances, the Data Holder is able to demonstrate that they are highly likely to suffer serious economic damage from disclosure of a particular Identified Trade Secret to the Data Recipient despite the Identified Trade Secrets DR Measures and, if applicable, the Identified Trade Secrets DH Measures having been implemented; or
- (c) the Data Recipient fails to implement and maintain their Identified Trade Secrets DR Measures and if this failure is duly substantiated by the Data Holder e.g. in a security audit report from an independent third party.
5.Use of the Data and sharing with third parties
5.1Permissible use by Data Recipient
5.1.1The Data Recipient undertakes to process the data made available to them under these Terms only for the purposes and under the conditions agreed with the Requesting User.
5.1.2The Data Recipient must erase the Data when they are no longer necessary for the agreed purpose, unless otherwise agreed with the Requesting User in relation to Data that are non-personal data.
5.2Sharing of Data with third parties
5.2.1The Data Recipient must not make the Data available to another third party, unless it is contractually agreed with the Requesting User, compatible with any protection measures agreed with the Data Holder and compatible with applicable EU or national law.
The Data Recipient must in any case not make the data they receive available to an undertaking designated as a gatekeeper under Article 3 of Digital Markets Act.
5.2.2Where the Data Recipient is permitted to make data available to a third party, the Data Recipient must take appropriate contractual, technical and organisational measures to make sure that:
- (a) (if applicable) the third party applies at least the same technical and organisational protection measures as the Data Recipient must apply under clause 4.2 and respects the protection measures taken by the Data Holder under clause 4.3;
- (b) the third party uses the data exclusively in a way compatible with clause 5.1 and 5.3; and
- (c) the Data Holder has at least the same remedies against the third party as against the Data Recipient for use or disclosure of data prohibited under clause 5.3 and that the third party is liable towards the Data Holder for any harm caused by such unauthorised use or disclosure of the data.
5.2.3The Data Holder may always use processing services, e.g. cloud computing services (including infrastructure as a service, platform as a service and software as a service), hosting services, or similar services to achieve the agreed purposes under clause 5.1.
5.3Unauthorised use or sharing of data
5.3.1The Data Recipient must not:
- (a) (for the purposes of obtaining data) provide false information to the Data Holder, deploy deceptive or coercive means or abuse gaps in the Data Holder’s technical infrastructure designed to protect the data; or
- (b) fail to maintain the protective technical or organisational measures agreed under clause 4.2; or
- (c) alter or remove, without the agreement of the Data Holder, any protective measures applied by the Data Holder under clause 4.3; or
- (d) use the data they received for unauthorised purposes, in violation of clause 5.1; or
- (e) use the Data to develop, manufacture and sell a product or related services that competes with the Products or the Related Services;
- (f) use the Data to derive insights about the economic situation, assets and production methods of the Data Holder, or their use of the Data;
- (g) use the Data in a manner that adversely impacts the security of the Product or any Related Service;
- (h) notwithstanding Article 22 (2) points (a) and (c) of the GDPR, use Data for the profiling of natural persons, unless this is necessary to provide the service requested by the Requesting User.
- (i) disclose the data to another third party unlawfully or in violation of clauses 5.2.1 and 5.2.2.
- (j) input the Data to an AI system for the purposes mentioned in point (d) to (i) above.
5.3.2The Data Recipient must comply, without undue delay, with requests by the Data Holder, the holder of the relevant trade secret (if this is not the same as the Data Holder) or the Requesting User to:
- (a) inform the Requesting User of the unauthorised use or disclosure of the data and measures taken to put an end to this;
- (b) erase the data made available by the Data Holder under these Terms, or obtained in an unauthorised or abusive manner, and any copies of it;
- (c) compensate the Data Holder, the Requesting User or protected other third party for any harm suffered from the unauthorised use or disclosure; and
- (d) end the production, offering, placing on the market or use of goods, derivative data or services produced on the basis of knowledge obtained through this data, or the importation, export or storage of infringing goods for those purposes;
- (e) destroy any infringing goods.
6.Compensation for providing data access
6.1(Applicable if the Data Recipient qualifies as an SME/non-profit research organisation)
6.1.1The Data Recipient declares that they are an SME, as defined in Recommendation 2003/361/EC or a non-profit research organisation. They further declares that they do not have partner or linked companies (‘enterprises’) as defined in Article 3 of the Annex to Recommendation 2003/361/EC which do not qualify as an SME.
The Data Recipient shall provide the evidence of the foregoing to the Data Holder if requested by the Data Holder.
6.1.2The Data Recipient shall compensate the Data Holder for providing data access in accordance with the terms and conditions designated by the Data Holder on the SPEC.
6.1.3The Data Holder declares that the compensation does not exceed the costs directly related to making the data available to the Data Recipient and which are attributable to the request. These costs include the costs necessary for data reproduction and dissemination via electronic means and storage, but not of data collection or production.
6.1.4The Data Recipient will inform the Data Holder immediately of any changes that call into question their categorisation as an SME.
Where the Data Recipient ceases to qualify as an SME, the Data Recipient shall compensate the Data Holder in accordance with the terms and conditions as will be designated by the Data Holder. If the Data Recipient does not provide such compensation within the due date as will be designated by the Data Holder, the Data Holder may suspend the sharing of the Data by giving notice to the Data Recipient.
The Data Recipient must compensate the Data Holder for any economic harm suffered because the Data Recipient failed to inform the Data Holder.
6.1.5The Data Holder will provide access to the Data after the Data Holder confirms receipt of payment of the compensation by the Data Recipient and such timing may be affected by holidays of the Data Holder or the receiving bank.
6.1.6The compensation paid by the Data Recipient shall be non-refundable after the Data Recipient receives all or part of the Data that it has requested unless there is a reasonable ground for a refund, including where quality or content of the Data does not meet the quality as set forth in clause 3.2.1 or as expressly agreed in the SPEC. For avoidance of doubt, the Data Recipient shall have no right to a refund by reason of (i) any allegation that the quality or content of the Data fails to meet the Data Recipient’s expectations, (ii) the Data Recipient’s decision not to use the Data, or to cease using, all or part of the Data; or (iii) any claimed incompleteness of the Data as mentioned in clause 3.3.2.
6.1.7In case of delay with payment of the compensation, the Data Recipient should pay the Data Holder interest of three (3) percent per annum on overdue compensation from the time when payment is due to the time of payment.
6.2(Applicable if the Data Recipient does not qualify as an SME/non-profit research organisation)
6.2.1The Data Recipient declares that they do not qualify as a micro, small or medium enterprise (SME) under Recommendation 2003/361/EC. The Data Recipient is aware that, if they meet the qualifications to be classed as an SME at some point in the future, this may influence the compensation due under these Terms.
In this case, it is the responsibility of the Data Recipient to inform the Data Holder and to provide evidence that they meet the criteria relevant for being an SME.
6.2.2The Data Recipient shall compensate the Data Holder for providing data access in accordance with the terms and conditions designated by the Data Holder on the SPEC.
6.2.3The clauses 6.1.5 to 6.1.7 shall apply mutatis mutandis to this clause 6.2.
7.Date of application, duration of the Terms and termination
7.1Date of application and duration
7.1.1These Terms shall come into effect on the following date whichever earlier:
- (i) the date the Data Recipient agrees to these Terms by clicking checkbox or “agree” button or otherwise and requested data sharing by submitting a request form at the Data Holder’s website; or
- (ii) if the Data Recipient did not use the request form mentioned above, the date the Data Recipient agrees to the first version of the SPEC in accordance with the procedure set forth in clause 9.3.4.
7.1.2These Terms shall continue in force and effect until the following date whichever later:
- (i) in case of one-time data sharing, the date the Data Recipient receives all Data specified in the SPEC;
- (ii) in case of continuous data sharing, the end date of the duration of data sharing as specified in the SPEC; or
- (iii) if applicable, the date of full payment of the compensation in accordance with clause 6 above.
7.2Termination
7.2.1Irrespective of the effective period agreed under clause 7.1, and without prejudice to clause 2.4.3, these Terms terminates:
- (a) upon the destruction of the Product or permanent discontinuation of the Related Service, or when the Product or Related Service is otherwise put out of service or loses its capacity to generate the Data; or
- (b) when both Parties so agree, with or without replacing these Terms by a new Terms.
7.2.2The Data Recipient may terminate these Terms at any time during the effective period by giving the Data Holder a prior written notice of sixty (60) days. The Data Recipient must notify the Requesting User that these Terms has been terminated.
Where the Data Recipient terminates these Terms under this clause before the end of the effective period agreed under clause 7.1.2, they must (i) compensate the Data Holder for the costs incurred by the Data Holder for making the data available, and (ii) pay the compensation for the Data which they have received by the time of such termination.
7.3Effects of expiry and termination
7.3.1Expiry of the effective period or termination of these Terms releases both Parties from their obligation to effect and to receive future performance but does not affect the rights and liabilities that have accrued up to the time of expiry or termination.
Expiry or termination does not affect any provision which is to operate even after these Terms has come to an end, in particular any limitations on the permissible use and sharing of the Data by the Data Recipient under clause 5, clause 4 on trade secrets, clause 9.1 on confidentiality, clause 9.2 on applicable law and clause 9.4 on dispute resolution.
8.Remedies for breach of contract
8.1.1In case of a breach or non-performance by the Data Recipient, the Data Holder can:
- (a) request that the Data Recipient comply, without undue delay, with its obligations under these Terms, unless it would be unlawful;
- (b) withhold their own performance under these Terms;
- (c) terminate these Terms in case the Data Recipient fails to remedy the non-performance within thirty (30) days after the Data Holder gives written notice to the Data Recipient of such non-performance;
- (d) claim damages for pecuniary loss caused to the Data Holder by the non-performance.
8.1.2In case of a breach or non-performance by the Data Holder, the Data Recipient can:
- (a) withhold payment and/or request reimbursement of the compensation for the Data which the Data Recipient has not received due to such non-performance;
- (b) terminate these Terms in case the Data Holder fails to remedy the non-performance within thirty (30) days after the Data Recipient gives written notice to the Data Holder of such non-performance;
- (c) claim damages for pecuniary loss caused to the Data Recipient by the non-performance.
To the extent permitted by the applicable law, the liability of the Data Holder to the Data Recipient under these Terms in respect of breach or non-performance of these Terms or for any reasons whatsoever shall be limited to the amount equal to the compensation for the Data that the Data Recipient has paid to the Data Holder. Further, the Data Holder’s total liability under these Terms shall exclude indirect or consequential damages including but not limited to business interruption, loss of profits, loss of market opportunity.
9.General provisions
9.1Confidentiality
9.1.1The following information must be considered confidential:
- (a) any information which the Data Holder disclosed to the Data Recipient in the course of consultation for arrangement of the data access, including, but not limited to, categories and contents of the data that the Data Holder retrieves from the Products or Related Services, data security measures taken by the Data Holder;
- (b) information referring to the trade secrets or any other aspect regarding the operations of the other Party unless the other Party has made this information public;
- (c) the terms and conditions for data sharing agreed in the SPEC, including but not limited to, amount of the compensation and the basis for the calculation, the nature and contents of the data, the method of access to the data and any security requirements requested by the Data Holder;
- (d) information referring to the Requesting User; and
- (e) information referring to the performance of these Terms and any disputes or other irregularities arising in the course of its performance.
Notwithstanding the effective date of these Terms set forth in clause 7.1.1, information disclosed before the same date shall also be treated as confidential information under this clause 9.1 as far as such information is related to the subject matter of these Terms.
9.1.2Both Parties agree to take all reasonable measures to store securely and keep in full confidence the information referred to in clause 9.1.1 and not to disclose or make available such information to any third party, unless one of the Parties, either (a) has obtained the prior written consent from the other Party or (b) is entitled to do so under these Terms. Notwithstanding the foregoing, both Parties may disclose the confidential information to (i) system vendors to whom such Party entrusts processing of the data or development of the system, (ii) suppliers of its products or services (for the Data Holder, it includes, btu not limited to, manufacturer of onboard computers and diagnostic tools for the Products), (iii) professional advisors such as lawyers and consultants, on condition that such Party shall be liable for the other Party for protection of confidential information by such third parties.
9.1.3In any case, the Data Holder may disclose or make available these Terms and the terms and conditions set forth in the SPEC to the Requesting User.
9.1.4These confidentiality obligations remain applicable after the termination of these Terms for (i) a period of five (5) years for the confidential information other than the Identified Trade Secrets, and (ii) an indefinite period for the Identified Trade Secrets.
9.2Applicable law
9.2.1These Terms must be governed by the law of Japan except its choice of law rules.
9.3Entire Contract, modifications and severability
9.3.1These Terms (together with the SPEC) constitutes the entire contract between the Parties with respect to the subject of these Terms and supersedes all prior contracts and understandings between the Parties, oral or written, as regards the subject of these Terms.
9.3.2In the case of conflicts between the terms and conditions stipulated in these Terms and those in the SPEC, the latter shall prevail.
9.3.3The Data Holder may make changes to these Terms at any time at its sole discretion. The Data Holder will inform the Data Recipient about the intended changes by email prior to the date on which the changes shall become effective, if such updates have a significant impact on the Data Recipient. If the Data Recipient does not agree to an updated Terms, it shall terminate these Terms in accordance with clause 7.2.2 above. If the Data Recipient does not so terminate these Terms on and after the effective date of such change, it shall constitute acceptance by the Data Recipient of any new or amended Terms.
9.3.4The SPEC may be agreed and modified from time to time by confirming agreement to it by the Data Recipient using email in accordance with the following procedures:
- (i) the Data Holder sends a draft of newly prepared or modified SPEC to the Data Recipient by e-mail;
- (ii) the Data Recipient expresses agreement to such draft of SPEC by replying to the e-mail; and
- (iii) the Data Holder assigns a version number and the effective date of such agreed SPEC and send it to the Data Recipient.
The foregoing shall not prevent the Parties from confirming agreement to the SPEC using electronic signature service such as Docusign.
9.3.5If any provision of these Terms is found to be void, invalid, voidable or unenforceable for whatever reason, and if this provision is severable from the remaining terms of these Terms, these remaining provisions will be unaffected by this and will continue to be valid and enforceable.
9.4Dispute settlement
9.4.1The Parties agree to use their best efforts to dissolve disputes amicably and, before bringing a case before a court or tribunal, to submit their dispute to the dispute settlement body in a Member State that meets the conditions of Article 10 of the Data Act.
9.4.2Submission of a dispute to a dispute settlement body according to clause 9.4.1 does not, however, affect the right of the Data Recipient to lodge a complaint with the national competent authority designated in accordance with the Data Act; nor the right of any Party to seek an effective remedy before a court or tribunal in a Member State.
9.4.3For any dispute that cannot be settled according to clause 9.4.1, it shall be determined by arbitration in Tokyo, upon written request of such Party, in accordance with the then prevailing Commercial Arbitration Rules of Japan Commercial Arbitration Association by three (3) arbitrators appointed in accordance with such Rules. The arbitration proceedings shall be conducted in English language. The arbitrators may decide the procedures for such arbitration if such Rules are silent. The decision of such arbitrators shall be final and binding upon Parties participating in arbitration, and judgment thereon may be entered in any court for enforcement thereof.