Sakura Mobile Terms and Conditions of Service
For rental agreements, please refer to Rental Agreement
Revised Oct 24, 2016
Welcome to Sakura Mobile. We are pleased to be your wireless service provider. We reserve the right to change or modify these Terms and Conditions of Service (“Ts&Cs”) at any time, effective immediately when posted to Sakura Mobile’s website at www.sakuramobile.jp. Please check our website from time to time as these Ts&Cs may have changed.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND MAKE SURE THAT YOU UNDERSTAND EACH PROVISION AS THEY CONTAIN IMPORTANT INFORMATION ABOUT THE SERVICES PROVIDED TO YOU. THESE TERMS AND CONDITIONS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. THESE TERMS AND CONDITIONS LIMIT OUR LIABILITY AND THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
In these Ts&Cs the following terms have the following meanings: (a) “Sakura Mobile,” “we,” “us,” and “our” refer to Sakura Mobile where operated by Og inc. (Registered telecom license no. A-26-13840); (b) “you,” “your,” “user,” “subscriber,” or “customer” refer to the account holder or any other person who purchases, activates or uses the Wireless Services we provide; (c) “Device” means any phone, smartphone, tablet, SIM card, data card, and any other device, equipment, accessory, or other product that we provide or sell to you, or that is assigned to, activated on, or used with your account; (d) “Service(s)” or “Wireless Service(s)” means any wireless services we provide or that reference these Ts&Cs and includes, but is not limited to, our rate and service plans, billing services, offers, promotions, applications, programs, products, features, software, or any Device on your account; (e) “Charges” means any access and usage charges, taxes, surcharges, fees, including regulatory cost recovery fees, government fees (whether assessed directly upon you or upon Sakura Mobile) and other charges we charge you or that were accepted or processed through your Device as further defined below in the “Charges” section of these Ts&Cs.
Wireless Customer Agreement
Acceptance of the Ts&Cs
You represent that you are at least 18 years old and/or that you are legally authorized to accept these Ts&Cs and to enter into this Agreement. Your Agreement with Sakura Mobile begins when you accept these Ts&Cs by doing any of the following: (a) giving us a written or electronic signature or telling us orally that you accept, or by otherwise accepting through any other printed, oral, or electronic means; (b) paying for Service; (c) activating the Service; (d) using or attempting to use the Service in any way; (e) upgrading or modifying the Service; or (f) opening any Device packaging, or starting any application, program or software that states you are accepting. If you do not want to accept these Ts&Cs, do not take any of these actions.
Services are subject to our business policies, practices, and procedures (“Policies”), including our Acceptable Use Policy. You agree to follow our Policies when you use our Services. Our Policies are subject to change at any time and become effective when posted to Sakura Mobile’s website at www.sakuramobile.jp.
Other terms and conditions, including end user license agreements, apply to certain applications, software, products, programs, services, promotions, and features that we provide to you, that you obtain from a third party through us, or that you obtain directly from a third party. These other terms and conditions may be significantly different from the Ts&Cs that are part of your Agreement. It is your responsibility to read and understand any other terms and conditions before you accept them. We are not responsible for any third party terms and conditions.
Our Right to Change Terms and Rates
We may change any part of the Agreement at any time, including but not limited to these Ts&Cs, Supplemental Materials, rates, rate plans, features, products, fees, expenses, coverage areas, roaming partners, international calling plan destinations, provisioning technology, and Charges for your Service. Changes become effective when posted on Sakura Mobile’s website at www.sakuramobile.jp. We will attempt to provide you with notice of material changes by text message or by such other means practicable, as determined by Sakura Mobile, but do not guarantee that you will receive notice of any changes. If you continue to access or use our Services or increase your account balance on or after the effective date of a change, you accept any change. Do not access or use our Services after the effective date of a change if you decide to reject the change and cancel Service. You will not be entitled to any refund or credit for the unused portion of your account balance if you decide to cancel Service.
Either party may terminate this Agreement (which will end your Service with Sakura Mobile) at any time and for any reason. You are responsible for all Charges until your account is cancelled. You may also request that we transfer (“port”) your number to another carrier and Service for that number will be cancelled when the porting is complete. We reserve the right to charge a fee if you request to port your number. You are responsible for all Charges until the port-out is complete. We do not guarantee that number transfers to or from us will be successful. You will not receive a refund or credit for the unused portion of your account balance if you decide to cancel Service.
You agree that we may, in our sole discretion, without limitation and without notice, limit, interrupt, suspend or cancel your Service for any reason, including, but not limited to, (i) any conduct that we believe violates the Agreement, these Ts&Cs, or our Policies, (ii) your failure to have or maintain an adequate account balance, (iii) if you behave in an abusive, derogatory or similarly unreasonable manner with any of our representatives, or (iv) if we have reason to believe that your Device is being used for an unlawful purpose or in a way that may adversely affect our Service.
Sakura Mobile offers monthly service plans for basic phones and smartphones (“Service Plans”). Unless otherwise prohibited by your specific plan terms or type of device, you may change your Sakura Mobile Service Plan twice in any billing cycle, although we may prohibit or restrict any plan change we believe is in violation of these Ts&Cs or any applicable Policy. In addition, we reserve the right to change the Service Plan you are on if your device is not supported by the Service Plan you selected. Some Service Plan changes may be conditioned on the payment of certain charges, and, depending on your plan, you may forfeit your remaining Service Plan balance if you change Service Plans. Information on our Service Plans is available at www.sakuramobile.jp.
You are responsible for paying all Charges for Services provided under this Agreement, including Charges made by any person you permit to have direct or indirect access to your Device even if you did not authorize its use. These include, but are not limited to, (a) monthly access charges; (b) usage charges (if your plan includes metered usage); (c) charges for features and add-ons; (d) taxes, fees and other assessments imposed by the government that we are required to collect and remit to the government (to determine your primary place of use (“PPU”) and which jurisdiction’s taxes and assessments to collect, you are required to provide us with your street address; if you do not provide an address or it is outside our Service area, we will designate a PPU within the Service area for you and we may terminate your Service); (e) other fees and charges including activation, reactivation, prepayment, convenience payment, restocking, Device unlocking, SIM replacement, number change, express delivery, upgrade, program, or other fees, including specific transaction fees, relating to Services and Devices purchased from us (for a current list of these fees, please see our charges and fees support page); and (f) surcharges that we collect and retain from our customers that include, but are not limited to, Federal or State Universal Service fees, regulatory charges, administrative fees, and government taxes or fees imposed on gross receipts, sales and/or property that we incur in providing Services to our customers. Surcharges are not taxes, and we are not required by the government to collect them from you. We determine the rate of these charges, and the amounts are subject to change.
You will not have access to detailed usage records for most Services, and we will not provide you with monthly bills. You may access your account on our website, on your Device, or by visiting a store. We will attempt to send you monthly SMS reminders of your account status, but we cannot guarantee that you will receive them or that you will receive them before your account is suspended or cancelled.
Payments and Account Balance
The availability of Services depends upon your payment in advance of all Charges when they are due. If you fail to make payments when due, the Services will be suspended and/or cancelled. By making a payment you will have access to Services for a limited amount of time and you must use the Services during the designated period of time; any unused allotment of Services from one designated period of time will not carry over to the next period (e.g., Services do not roll-over). Charges for our Services and the amount of time Services are available following activation may vary. If your account is deactivated for nonpayment it will be placed in suspend mode for 30 days. If your account is not replenished before the end of the 30 day suspend period, it will be cancelled. Amounts paid for Service Charges are non-refundable and account balances are not transferable, refundable, or redeemable for cash. If your account is suspended or cancelled, for any reason, any remaining balance in your account will be forfeited. When your account is cancelled we will re-assign the phone number associated with your account, and that phone number, identification number, or email address associated with your account may no longer be available to you. We may also charge you a fee to reactivate Service depending on when you reactivate.
An account password or PIN may be assigned to you. In order to protect the security of your account, you should change this password or PIN as soon as possible after your account is activated. If you do not change your password or PIN, your account may not be secure. You agree to protect your password or PIN, and other account access credentials from loss or disclosure. You authorize us to provide information about and to make changes to your account, including the purchase of products and/or Services, upon the direction of any person able to provide information we deem sufficient to identify you. You consent to the use by us or our authorized agents of regular mail, predictive or autodialing equipment, email, text messaging, facsimile or other reasonable means to contact you to advise you about our Services or other matters we believe may be of interest to you. We may contact you by any means regarding customer service-related notifications, or other such information.
Sakura Mobile does not manufacture any Device that we sell or that can be used with our Services and we are not responsible for any defects, acts, or omissions of the manufacturer of any Device. The only warranties on your Device are the limited warranties provided by the manufacturer (WITH RESPECT TO WHICH WE HAVE NO LIABILITY WHATSOEVER). Your Device must be compatible with and not interfere with our Services, and must comply with all applicable laws, rules, and regulations. You may use your own Device with our Service (“Own Device”), but it must be compatible with and must not harm our network; if you use your Own Device, certain network and Device features and functionality may not be available and/or may not function properly with your Own Device. We reserve the right to prevent you from using any Device on our network. Device performance may vary based on your Device specifications including processor capabilities, software, memory and storage, and Device performance may impact access to all of our Services. We may periodically program Devices on our network remotely with software, system settings, applications, features or programming, without notice, either prior to, during or after service activation. These changes will modify your Device and may affect or erase data you have stored on your Device, the way you have programmed your Device, or the way you use your Device. You may be unable to use your Device until the remote programming is complete, even in an emergency. Devices purchased from Sakura Mobile or from any Sakura Mobile authorized retail location are sold exclusively for use with Sakura Mobile Service, are designed for use only on Sakura Mobile’s network, and no other, and may not function on other wireless networks. By purchasing a Sakura Mobile Device you agree to activate and use it with Sakura Mobile Service. You also agree that you will not make, nor will you assist others to make, any modifications to any Sakura Mobile Device or programming to enable it to operate on any other system or network. You understand and acknowledge that Sakura Mobile Devices are sold solely for use with our network and that we will be significantly damaged if you use or assist others to use our Devices for any other purpose. You also agree not to take any action to circumvent limits on the quantity of Sakura Mobile Devices that may be purchased. You will be liable to Sakura Mobile for any damages resulting from conduct prohibited in this section.
Information on Your Device
Your Device and SIM card may contain sensitive personal information (such as financial, healthcare, social security numbers, credit card numbers, pictures, videos) that you may wish to protect and not disclose to others. Sakura Mobile is not responsible for any of the information on your Device. You must remove any sensitive personal information from your Device before you return, exchange, recycle, or otherwise give up control of your Device. Information may remain on your device even if you remove the SIM card. Information left on your Device will be accessible to others who use your Device.
Lost or Stolen Devices
You must contact us immediately to report a Device that is lost or stolen. You are responsible for all Charges incurred on your phone number until you report the theft or loss to us. After you report the theft or loss, you remain responsible for complying with your obligations under this Agreement including the payment of any monthly Service fees. You further agree to cooperate in the investigation of fraud or theft and to provide us with such requested information and documentation (including any proof of loss and police reports) as we may reasonably request.
Availability of Service and Coverage
Services may be interrupted, delayed, or otherwise limited for a variety of reasons, including environmental conditions, unavailability of radio frequency channels, system capacity and constraints, priority access by National Security and Emergency Preparedness personnel in the event of a disaster or emergency, coordination with other systems, equipment modifications and repairs, and problems with the facilities of interconnecting carriers. We do not guarantee the availability of the wireless network or any Wireless Services. You will not have access to our network outside of our coverage areas. Coverage maps, available on our website or in store, show a high-level approximation of wireless coverage and there are gaps in coverage not shown by this approximation; actual coverage may vary and be affected by terrain, weather, foliage, buildings, signal strength, high-usage periods, customer equipment and other factors. We do not guarantee coverage and our maps do not show actual network coverage or performance.
Voice Services are provided primarily for live dialog between two individuals. If Sakura Mobile determines that you are using our Voice Services for other than live dialog between two individuals, we may terminate your Service. Voice Services are subject to our Acceptable Use Policy at www.sakuramobile.jp/aup.
If your Service includes measured voice usage, your airtime is charged in full-minute increments, and actual usage is rounded up to the next full-minute increment at the end of each call. We charge a full minute of airtime usage for every fraction of the last minute of airtime used. Airtime begins for outgoing calls when you press SEND (or similar key) and for incoming calls when a signal connection from the caller is established with our facilities. Airtime ends after you press END (or similar key), but not until the disconnect signal is received by our facilities and confirmed. All outgoing calls for which we receive answer supervision or which have at least 30 seconds of airtime, including ring time, will incur a minimum of one minute airtime charge. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Airtime may include time for us to recognize that only one party has disconnected from the call, time to clear the channels in use, and ring time. Airtime may also occur from other uses of our facilities, including voicemail deposits and retrievals, and call transfers. Calls that begin in one rate period and end in another rate period may be charged during the period in which the call began.
Data Services – Permitted Uses
Sakura Mobile provides wireless data and messaging Services, including, but not limited to, features that may be used with data services and wireless content and applications (“Data Services”). Our Data Services are intended to be used for the following permitted activities: (a) web browsing; (b) email; (c) internet access; (d) uploading and downloading ordinary applications and content to and from the Internet; and (e) using applications and content without excessively contributing to network congestion. You agree that Sakura Mobile may engage in any reasonable network management practice and that you will use Sakura Mobile’s Data Services only for these permitted activities. Data Services are subject to our Acceptable Use Policy at www.sakuramobile.jp/aup. Sakura Mobile’s network management practices are available at https://www.sakuramobile.jp/legal-info/mobile-broadband-information.html.
Data Services – Applications and Content
Our Data Services may allow you to access the Internet where you will have access to text, pictures, video, games, graphics, music, email, applications, sound, and other materials primarily from third party content providers unaffiliated with Sakura Mobile (“Data Content”) and where you will have the ability to send, receive and share Data Content. You may also purchase Data Content with your Device from us or from third parties. Sakura Mobile is not a publisher of third party Data Content and is not responsible for any opinions, advice, statements, or other information, services or goods provided by third parties. Third party Data Content may among other things be offensive, indecent, violent, pornographic, inappropriate, false and misleading, inaccurate, unreliable, and unsuitable for children and minors – you are solely responsible for any third party Data Content accessed through our Data Services. The accuracy, appropriateness, content, completeness, timeliness, usefulness, security, safety, merchantability, fitness for a particular purpose, transmission or correct sequencing of any application, information or downloaded data is not guaranteed or warranted by Sakura Mobile or any content providers or other third party. Neither Sakura Mobile nor its content providers, service providers or other third parties shall be liable to you for any loss or injury arising out of or caused, in whole or in part, by your use of any information, application or content, or any information, application, or other content acquired through our Data Services. Third party Data Content may harm your Device and its software, and we are not responsible for any third party Data Content that you download, install, or use with our Data Services.
We measure data usage by the kilobyte or the megabyte or gigabyte, where 1000 kilobytes equals 1 megabyte, and 1000 megabytes equals 1gigabyte. To determine your data usage, we calculate in full-kilobyte increments, and actual usage is rounded up to the next full kilobyte increment at the end of each data session. Data usage occurs whenever your Device is connected to our network and is engaged in any data transmission. This includes among other things, sending and receiving email, texts, documents and content; accessing websites; and downloading and using applications and content. Some applications, content, programs and software that you download or that come pre-loaded on your Device automatically and regularly send and receive data transmissions without any action by you and without your knowledge. For example, applications that provide real-time information and location-based information connect to our network and continuously send and receive updated information. In addition, advertisements or advertiser-related messages or data delivered to your Device, even if delivered to an application, as well as any messages or content initiating a response to an advertisement, will count toward your data usage. Network overhead, software update requests, email notifications, and resend requests caused by network errors can increase data usage. You will be charged for all data usage when your Device is connected to our network, whether you initiate the connection or it runs automatically in the background and whether successful or not.
Sakura Mobile’s Wireless Service rate plans offer voice call, sms, and data service unlimited domestic voice and text or voice, text and data, depending on your plan and device type (feature phone or smartphone). Sakura Mobile’s ¥2980, ¥3980, ¥4980, ¥6480 plans include a 3GB, 5GB, 7GB or 10GB high-speed data access allowance, respectively. After your high speed data access allowance is used (if applicable), your data download speeds will be reduced to a maximum 200Kbps for the rest of your billing cycle. For all Sakura Mobile plans, high-speed data access allows download speeds of a maximum of 20 Mbps for compatible 4G LTE devices and 3 Mbps for compatible 4G HSPA+ devices.
You agree that “unlimited” means you pay a single monthly flat rate that includes wireless data service regardless of how much data you use in a billing cycle. You further agree that “unlimited” does not mean that you can use Sakura Mobile?s wireless data service in any way that you choose or for any prohibited uses, and that if you use your unlimited data plan in any manner that is prohibited, Sakura Mobile can limit, interrupt, suspend or cancel your Service. Any unlimited plan we may offer is subject to these Ts&Cs, including the restrictions against prohibited uses and misuse and abuse of our Services and Devices, any reasonable network management practices, and our Acceptable Use Policy at www.sakuramobile.jp/aup. For information on current network management practices and network performance, please visit our Mobile Broadband Information Page at www.sakuramobile.jp/mobilebroadband.
The software, interfaces, documentation, data, and content provided for your Device may be updated, downloaded, or replaced by feature enhancements, software updates, system restore software or data generated or provided subsequently by Sakura Mobile (hereinafter “Software”) is licensed, not sold, to you by Sakura Mobile and/or its licensors/suppliers for use only on your Device. You are not permitted to use the Software in any manner not authorized by this license. You may not (and you agree not to enable others to) copy, decompile, reverse engineer, disassemble, reproduce, attempt to derive the source code of, decrypt, modify, defeat protective mechanisms, combine with other software, or create derivative works of the Software or any portion thereof. You may not rent, lease, lend, sell, redistribute, transfer or sublicense the Software or any portion thereof. You agree the Software contains proprietary content and information owned by Sakura Mobile and/or its licensors/suppliers. Sakura Mobile and its licensors/suppliers reserve the right to change, suspend, terminate, remove, impose limits on the use or access to, or disable access to, the Software at any time without notice and will have no liability for doing so. You acknowledge Sakura Mobile’s Software licensors/suppliers are intended third party beneficiaries of this license, including the indemnification, limitation of liability, disclaimer of warranty provisions found in this Agreement.
You must respect the intellectual property rights of Sakura Mobile, our third-party content providers, and any other owner of intellectual property whose protected property may appear on any website and/or dialogue box controlled by Sakura Mobile or accessed through Sakura Mobile’s websites. Except for material in the public domain, all material displayed in association with our Services are copyrighted or trademarked. Except for personal, non-commercial use, trademarked and copyrighted material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner.
Prohibited Uses and the Misuse and Abuse of Services and Devices
When you purchase, activate or use our Services or Devices you agree that you will not misuse or abuse our Services or Devices by doing, among other things, any of the following: (a) purchasing a Device without intending to activate or use it on our network; (b) reselling or rebilling our Services, or reselling Sakura Mobile Devices; (c) modifying your Device from its manufacturer’s specifications; (d) activating a Device on a Service Plan or with a feature or product not designated for its use; (e) using our Services or Devices for any fraudulent or unlawful purpose; (f) using voice services as monitoring services, for data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of uninterrupted live dialog between two individuals; or (g) using any Service in a manner that is burdensome or unusually excessive when compared to other customers in your area on similar plans.
You agree that you will not use Data Services in any manner which: Conflicts with applicable law; compromises network security or capacity; adversely impacts network service levels or legitimate data flows; degrades network performance; causes harm to the network or other customers; is resold either alone or as part of any other good or service; tethers a wireless Device to a computing device (such as a computer, Smartphone, eBook or eReader, media player, laptop, or other devices with similar functions) through use of connection kits, applications, devices or accessories (using wired or wireless technology) and you have not subscribed to a Service Plan or feature designed for this purpose; or there is a specific Service Plan or feature for a particular use and you have not subscribed to that Service Plan or feature. Sakura Mobile’s Data Services may not be used in any manner that defeats, obstructs or penetrates, or attempts to defeat, obstruct or penetrate the security measures of our wireless network or systems, or another entity’s network or systems; that accesses, or attempts to access without authority, the accounts of others; or that adversely affects the ability of other people or systems to use Sakura Mobile’s wireless services or other parties’ Internet-based resources. For example, this includes, but is not limited to, malicious software or “malware” that is designed, intentionally or unintentionally, to infiltrate a network or computer system such as spyware, worms, Trojan horses, rootkits, and/or crimeware; “denial of service” attacks against a network host or individual user; and “spam” or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email). Sakura Mobile’s Data Services may not be used in any manner that has the effect of excessively and disproportionately contributing to network congestion, hindering other customers’ access to the network, or degrading network performance by maintaining a sustained or continuous wireless data service connection or active wireless Internet connection. For example, this includes, but is not limited to, server devices or host computer applications such as continuous Web camera posts or broadcasts, automatic data feeds, or automated machine-to-machine connections; “auto-responders,” “cancel-bots,” or similar automated or manual routines that generate excessive amounts of traffic or that disrupt user groups or email use by others; use of data services as a substitute or backup for private lines or full-time or dedicated data connections; peer-to-peer (P2P) file sharing services; and software or other devices that maintain continuous active Internet connections when a connection would otherwise be idle or any “keep alive” functions. Sakura Mobile’s Data Services may not be used with high bandwidth applications, services and content not optimized to work with Sakura Mobile’s wireless data services and, therefore disproportionately and excessively contribute to network congestion. This includes, but is not limited to, redirecting television signals for viewing on computing devices, web broadcasting, and/or the operation of servers, telemetry devices, or supervisory control and data acquisition devices.
You agree not to engage in conduct toward our employees, customers, or others that involves the use of abusive, derogatory, insulting, threatening, vulgar, offensive or similarly unreasonable language or behavior; engage in conduct that is harmful to, interferes with, damages, or adversely affects our network and infrastructure, property, Services, Devices, operations, customers, reputation, intellectual property rights, or that results in the publication of threatening, offensive or illegal material, or generates spam or other abusive messaging or calling, a security risk, or a violation of privacy; or violate, in any way, these Ts&Cs, the Agreement, or our Policies.
Network and Service Protective Measures
We may, at our sole discretion, take any action to protect and maintain the integrity of our network, our rights and property, our Services, or the rights and interests of others, including, but not limited to (a) modifying, without advance notice, the permitted and prohibited data activities, and the optimization requirements for your Data Services; (b) engaging in any reasonable network management practice to enhance customer service, to reduce network congestion, to adapt to advances and changes in technology, and/or to respond to the availability of wireless bandwidth and spectrum; (c) reducing your data throughput speeds at any time or place if your data usage exceeds an applicable usage threshold; (d) using reasonable methods to monitor and collect customer usage information to better optimize the operation of the network; (e) changing the Service Plan you selected to a Service Plan identified by Sakura Mobile as appropriate for the device being used; (f) interrupting, suspending, canceling or terminating your Wireless Services without advance notice; (g) blocking access to certain categories of numbers (e.g., 976, 900, and international destinations) at our sole discretion. Sakura Mobile’s network management practices are available at https://www.sakuramobile.jp/legal-info/mobile-broadband-information.html.
Disclaimer of Warranties
SAKURA MOBILE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (TO THE EXTENT ALLOWED BY LAW), WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, ACCURACY, SECURITY, OR PERFORMANCE REGARDING OUR WIRELESS SERVICES, DEVICES, APPLICATIONS, SOFTWARE, OR OTHER SERVICES SUBJECT TO THIS AGREEMENT. WE DO NOT PROMISE OR GUARANTEE UNINTERRUPTED OR ERROR FREE SERVICE OR COVERAGE. AND WE CANNOT ASSURE YOU THAT IF YOU PLACE A 110 CALL YOU WILL BE FOUND.
Limitations on Service and Liability
You agree that, unless prohibited by law, the following limitations of service and liability apply and that neither we nor our parent companies, subsidiaries, affiliates, vendors, suppliers, or licensors are responsible for any damages resulting from: (a) any act or omission of a third party; (b) mistakes, omissions, interruptions, errors, failures to transmit, delays, or failures or defects in the Services or Software or Devices provided by or through us; (c) damage or injury caused by the use of Services, Software, or Device, including while used in a vehicle; (d) claims against you by third parties; (e) damage or injury caused by a suspension or termination of Services or Software; (f) damage or injury caused by an interruption or failure in accessing or attempting to access emergency services from a Device, including through 110 or any other emergency service; (g) any health-related claims relating to our Services or Devices; (h) data content or information accessed while using our Services; (i) loss or disclosure of any sensitive information you transmit; (j) interrupted, failed, or inaccurate location information services; (k) information or communication that is blocked by a spam filter; (l) damage to your Device or any computer or equipment connected to your Device, or damage to or loss of any information stored on your Device, computer, equipment, or Sakura Mobile storage space, including damage or loss from your use of the Services or from viruses, worms, or downloads of malicious content, software, materials, data, text, images, video, or audio; or (m) things we cannot control, including acts of God (such as hurricanes, tornados, fire, earthquake, etc.) riot, strike, war, terrorism, or government action.
Limitation of Liability – No Consequential Damages
UNLESS PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES IS SAKURA MOBILE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, MULTIPLE, SPECIAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE WHATSOEVER YOU OR ANY THIRD PARTY MAY SUFFER BY USE OF, OR INABILITY TO USE, SERVICES, SOFTWARE, OR DEVICES PROVIDED BY OR THROUGH Sakura Mobile, INCLUDING LOSS OF BUSINESS OR GOODWILL, REVENUE OR PROFITS, OR CLAIMS OF PERSONAL INJURIES. THIS LIMITATION AND WAIVER ALSO APPLIES IF YOU BRING A CLAIM AGAINST ONE OF OUR SUPPLIERS IF WE WOULD BE REQUIRED TO INDEMNIFY THE SUPPLIER FOR THE CLAIM.
You agree to indemnify, defend and hold Sakura Mobile (including its officers, directors and employees) and our parent companies, affiliates, vendors, suppliers and licensors harmless from and against any and all claims for damages of any nature arising in any way from or relating to, directly or indirectly, the Services or Devices provided by Sakura Mobile or any person’s use thereof (including, but not limited to, vehicular damage and personal injury), INCLUDING CLAIMS ARISING IN WHOLE OR IN PART FROM SAKURA MOBILE’S ALLEGED NEGLIGENCE, or any violation by you of this Agreement.
WITHIN 100 DAYS OF THE DATE OF ANY EVENT GIVING RISE TO A DISPUTE, YOU MUST NOTIFY US IN WRITING AT OFFICE OF DISPUTE RESOLUTION, SAKURA MOBILE, SHINJUKU PARK TOWER N30, 3-7-1 NISHI-SHINJUKU, SHINJUKU, TOKYO 1631030 OF SUCH DISPUTE, INCLUDING ANY DISPUTE OVER CHARGES OR SERVICE WE PROVIDED, OR YOU WILL HAVE WAIVED YOUR RIGHT TO DISPUTE THE CHARGES OR SERVICES AND TO BRING OR PARTICIPATE IN ANY LEGAL ACTION RAISING SUCH DISPUTE.
Dispute Resolution by Binding Arbitration
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting our customer service department at email@example.com. In the unlikely event that Sakura Mobile’s customer service department is unable to resolve a complaint you may have to your satisfaction (or if Sakura Mobile has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, Sakura Mobile will pay all costs of the arbitration. Moreover, in arbitration you are entitled to recover attorneys’ fees from Sakura Mobile to at least the same extent as you would be in court. In addition, under certain circumstances (as explained below), Sakura Mobile will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) twice his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what Sakura Mobile has offered you to settle the dispute.
- Sakura Mobile and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement.References to “Sakura Mobile,” “you,” and “us” include our respective subsidiaries, affiliates, agents, dealers, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Services or Devices under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court (for customers in Puerto Rico, “small claims court” should be understood to mean the Puerto Rico Telecommunications Regulatory Board). This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Sakura Mobile are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Sakura Mobile should be addressed to: Office of Dispute Resolution, Sakura Mobile, Shinjuku Park Tower N30, 3-7-1 Nishi-Shinjuku, Shinjuku, Tokyo 1631030, (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Sakura Mobile and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Sakura Mobile may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Sakura Mobile or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Sakura Mobile is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.sakuramobile.jp/arbitration-forms.
- After Sakura Mobile receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee currently is $200 but is subject to change by the arbitration provider. If you are unable to pay this fee, Sakura Mobile will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers about the arbitration process at www.sakuramobile.jp/arbitration-information. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless Sakura Mobile and you agree otherwise, any arbitration hearings will take place in the county (or parish) of the address associated with your phone number. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, Sakura Mobile will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Sakura Mobile for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
- If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of Sakura Mobile’s last written settlement offer made before an arbitrator was selected, then Sakura Mobile will pay you the amount of the award or $10,000 (“the alternative payment”), whichever is greater; and pay your attorney, if any, twice the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”). If Sakura Mobile did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- The right to attorneys’ fees and expenses discussed in paragraph (4) supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs. Although under some laws Sakura Mobile may have a right to an award of attorneys’ fees and expenses if it prevails in an arbitration, Sakura Mobile agrees that it will not seek such an award.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND Sakura Mobile AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Sakura Mobile agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
- Notwithstanding any provision in this Agreement to the contrary, we agree that if Sakura Mobile makes any future change to this arbitration provision (other than a change to the Notice Address) during your Service Commitment, you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
Other Important Terms and Provisions
ASSIGNMENT: Sakura Mobile may assign this Agreement; but, you may not assign this Agreement without our prior written consent. SEVERABILITY: If any provision of this Agreement is found to be unenforceable by a court or agency of competent jurisdiction, the remaining provisions will remain in full force and effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void. CHOICE OF LAW: The law of Japan shall govern this Agreement. In the event of a dispute between us, the law of Japan, whether in litigation or arbitration, shall govern. ENGLISH LANGUAGE: The original version of this Agreement is in the English language. Any discrepancy or conflicts between the English version and any other language version will be resolved with reference to and by interpreting the English version. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between you and Sakura Mobile, and supersedes any and all prior agreements and understandings relating to the subject matter of this Agreement. SURVIVAL: Those provisions of these Ts&Cs that would, by their very nature, continue beyond the termination of Services (including dispute resolution by binding arbitration, warranty disclaimers, limitations on liability), shall survive termination of Services.