PURCHASE AGREEMENT AND TERMS OF USE FOR JINS MEME

CAREFULLY READ THIS PURCHASE AGREEMENT AND TERMS OF USE FOR JINS MEME (this “Agreement and Terms of Use”) before USING JINS MEME AND accessing jins meme SDK AND/OR DATA LOGGER. IF YOU DO NOT AGREE TO THIS AGREEMENT AND TERMS OF USE, YOU MAY NOT USE JINS MEME OR ACCESS THE SDK AND/OR DATA LOGGER. USING JINS MEME, OR USING, DOWNLOADING OR OTHERWISE ACCESSING THE SDK AND/OR DATA LOGGER OR ANY PART THEREOF, INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT AND TERMS OF USE AND YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT AND TERMS OF USE.

Article 1.  (Purpose)

  1. The purpose of this Agreement and Terms of Use is to set forth the conditions under which JIN Co.,Ltd. (“JINS”) will sell JINS MEME and license the SDK and Data Logger to the User.
  2. JINS MEME is not a medical product but a measuring instrument. The User should carefully read this Agreement and Terms of Use, and shall purchase and use JINS MEME and the SDK and Data Logger solely for the purpose of using JINS MEME to provide User services such as developing Apps and/or services with JINS MEME for consumer’s beneficiaries or using JINS MEME for academic and/or research purposes (collectively, the “Purpose”), in accordance with the conditions set forth herein. In addition, if the User uses items separately provided by JINS in connection with the User’s developing or developed Apps or services, or academic research, the User shall also comply with the terms of use and other restrictions and obligations applicable to such items. With regard to the use of the JINS MEME Official App, please confirm the Terms of Use for JINS MEME Official App (URL: https://jins-meme.com/en/terms/). The JINS MEME Official App may have restrictions on the countries and areas in which it can be downloaded or updated.

Article 2.  (Definitions)

In this Agreement and Terms of Use, the following terms shall have the following meanings, respectively:

  1. “JINS MEME” means the spectacles-look wearable device (measuring instrument) which will be sold by JINS.
  2. “SDK” means the software development kit which JINS will provide online to the User and includes programs for development of the App.
  3. “App” means the application software for smartphones for JINS MEME.
  4. “User” means non-consumers (i.e. any professional entity or individual that uses JINS MEME to provide User services such as developing the App and/or services with JINS MEME for consumer’s beneficiaries or using JINS MEME for academic and/or research purposes). By submitting the Purchase Application, you represent and warrant that you qualify as a User as defined herein and that you purchase JINS MEME and/or the SDK and/or Data Logger solely for the Purpose and not for personal use as an end consumer.
  5. “Developed App” means the application software for smartphones for JINS MEME that the User has developed.
  6. “Purchase Application” means the User’s application for the purchase of JINS MEME and the use of the SDK and Data Logger.
  7. “License Agreement” means a license agreement for the SDK and/or Data Logger formed between JINS and the User pursuant to the terms and conditions set forth in this Agreement and Terms of Use
  8. “Sales Agreement(s)” means agreement(s) regarding individual transactions for JINS MEME entered into between the User and JINS with regard to the sale and purchase of JINS MEME.
  9. “Instruction Manual” means an instruction manual for JINS MEME provided by JINS.
  10. “Data Logger” means software for viewing and storing, on a real-time basis, data output from the main body of JINS MEME provided by JINS to Users who have purchased JINS MEME.

Article 3. (Purchase Application)

  1. The User shall submit the Purchase Application after reading, fully understanding and agreeing to this Agreement and Terms of Use. If the User is composed of several individuals or groups, etc., an authorized representative of the User shall submit the Purchase Application. JINS may accept or reject any such Purchase Application at its sole discretion.
  2. Notwithstanding any submission of the Purchase Application by an authorized representative of the User, all users must also consent to this Agreement and Terms of Use and comply therewith.
  3. Persons under the age of 13 are not eligible to enter into this Agreement and Terms of Use.

Article 4. (Sales Agreement)

A Sales Agreement shall come into effect upon written notice by JINS of its acceptance of the Purchase Application.

Article 5.  (Payment)

User shall pay JINS the applicable fees by credit-card payment or according to the method separately defined by JINS.

Article 6.  (Delivery)

All deliveries of JINS MEME shall be conducted on the basis of DDU (Incoterms 2000).  This means that the User shall bear the costs and risks involved in bringing the JINS MEME to their destination including the risks of the carrying out of customs formalities and the payment of such formalities, customs duties, taxes and other charges for importation in the country of destination.

Article 7.  (Transfer of Title)

Title to JINS MEME shall be transferred from JINS to the User upon the User’s receipt of the JINS MEME and payment therefor.

Article 8. (License to SDK)

  1. The User is granted a non-exclusive right and license to use the SDK in accordance with this Agreement and Terms of Use.
  2. The User may download and install updates to the SDK made available from JINS via its website at no additional cost.
  3. The User must keep the ID and password issued in connection with the Purchase Application in strict confidence, and must not allow any third party to use the same.
  4. There may be instances where JINS will conduct a version update of the SDK at JINS’ determination. In such instance, JINS may discontinue support for the old versions of the SDK.

Article 9. (Licensing of Data Logger)

  1. In accordance with the conditions set forth in this Agreement and Terms of Use, JINS shall license for a consideration the non-exclusive and non-sublicensable right to use Data Logger.
  2. The User may download Data Logger from the JINS website and install Data Logger onto the User’s computer by using a security key number which JINS provides to the User individually.
  3. The User must keep the security key number of Data Logger issued by JINS in strict confidence, and must not cause any third party to use the same.
  4. JINS may, at its own discretion, distribute updated versions of Data Logger. In this case, customers may download the updated Data Logger from the JINS website. JINS may discontinue its support for old versions of Data Logger.

Article 10. (Intellectual Property Rights)

Except as explicitly set forth in this Agreement and Terms of Use, JINS does not assign, license or otherwise transfer any copyright, patent, trademark or other intellectual property rights relating to JINS MEME, Data Logger and/or the SDK to the User.

Article 11. (Method of Using JINS MEME)

The User shall comply with the Instruction Manual at all times, in connection with its use of the JINS MEME.

Article 12. (Warranty, Disclaimer)

  1. During the one (1) year period after the User’s purchase of JINS MEME, upon written notice by the User to JINS of the failure of JINS MEME to conform with the specifications, JINS shall replace such product.
  2. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 12.1, JINS MEME AND THE SDK AND DATA LOGGER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND JINS MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO JINS MEME OR THE SDK OR DATA LOGGER, AND JINS DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE USER’S USE OF THE SDK IS AT ITS OWN DISCRETION AND RISK, AND THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF JINS MEME AND/OR THE SDK AND/OR DATA LOGGER, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO THE USER’S COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA.
  3. The User makes the Purchase Application upon understanding and agreeing that JINS provides no warranty as to JINS MEME’s, Data Logger’s and the SDK’s completeness, accuracy, utility and/or non-infringement upon the rights or interests of any third party, and the User shall not bring any claims regarding any of the matters set forth in the foregoing.
  4. If the User discovers that there is any defect in JINS MEME, Data Logger and/or the SDK, or any possibility of infringement upon the rights or interests of any third party by JINS MEME, Data Logger and/or the SDK, the User shall immediately inform JINS thereof.

Article 13. (App Development Requirements)

  1. The User represents and warrants that the Developed App is developed independently by the User and that the use of the Developed App will not infringe upon the rights and interests of third parties or constitute a breach of contract with a third party.
  2. The User represents and warrants that the Developed App is not in violation of any laws and regulations or the public order and morals, does not slander or defame any third parties, and does not interfere with the proper management of JINS’ business, nor that it contains anything that is likely to do so.
  3. The User represents and warrants that the Developed App does not contain any harmful codes such as viruses intended to obstruct other hardware, software or network functions and other computer programs or data and that such harmful codes will not be incorporated in the future.
  4. The User may not produce, sell or distribute an App that may obtain personal information (including live data detected by JINS MEME) without taking all necessary steps to ensure that such information collection is fully compliant with any and all applicable laws and this Agreement and Terms of Use.
  5. The User shall securely maintain and appropriately manage any personal information obtained by the Developed App, as well as any live data and other information detected by JINS MEME, and shall comply with all applicable laws, regulations and guidelines, including, without limitation, the implementation of a privacy policy applicable to such App.
  6. The User shall, to the fullest extent of the law, defend, indemnify and hold harmless JINS, its affiliates and vendors and their respective directors, partners, shareholders, officers, agents and employees (each an “Indemnified Party”), from and against all loss, damage, liability and expense (including court costs and reasonable attorneys’ fees) (collectively, “Losses”) for which any Indemnified Party becomes liable due to or arising out of User’s use of JINS MEME, Data Logger or the SDK, or the fault or negligent acts or omissions, whether active or passive, of the User, except to the extent caused by the willful misconduct or gross negligence of JINS or the Indemnified Party. User shall defend, indemnify and hold harmless any Indemnified Party from and against any Losses arising from third party claims, suits or proceedings based on a claim that the Developed App infringes upon or violates a patent, copyright, trademark or other right of such third party.

Article 14.(Additional Obligations and Restrictions)

  1. The User shall comply with all design and trademark usage guidelines established by JINS (the “Design Guidelines”).
  2. The User shall comply with the Design Guidelines for any and all displays of the name “JINS MEME” in the Developed App. The use of any other indication (for example, indications of only “MEME” or “J!NS MEME”) is prohibited.
  3. The User may not make any representations, designations or other indications, such as “official,” that would cause a misunderstanding about the origin of or authorization for the App, or misrepresent that the Developed App is an app issued by JINS or is an app that has received JINS’ authorization.
  4. The User shall not make any excessively violent expressions, openly sexual expressions, expressions tied to discrimination due to race, nationality, belief, gender, social status or lineage, expressions that induce or encourage suicide, acts of self-harm and drug abuse, or other expressions that contain social content and may cause offense to others in the Developed App.

Article 15.(Rights Relating to the Developed App)

  1. The copyright in and to the Developed App shall be owned by the User.
  2. The User may sell or distribute the Developed App, consistent with this Agreement and Terms of Use and subject to JINS’ right to terminate this Agreement and Terms of Use and the User’s right to distribute the Developed App.

Article 16.(Measures to be Taken upon Violation of this Agreement and Terms of Use)

If JINS determines that the User or the Developed App violates any part of this Agreement and Terms of Use, JINS may instruct the User to take any or all of the following measures, and the User shall comply therewith:

  1. Discontinue the sale or distribution of the Developed App;
  2. Revise the Developed App so that the contents no longer violate this Agreement and Terms of Use;
  3. Discontinue the use of the SDK and destroy all copies thereof; and
  4. Destroy or delete any information concerning the SDK that is in the User’s possession and any deliverables obtained by using the SDK (including, without limitation, the Developed App), and promptly deliver a document to JINS certifying such destruction or deletion.

Article 17.(Discontinuation of Use and Discontinuation of Delivery)

  1. If any defect is discovered in the Data Logger or the SDK, or if any possibility of infringement in the rights or interests of any third parties is discovered, or if JINS deems it advisable, JINS may demand the User to discontinue its use of the Data Logger or the SDK. In such case, the User shall promptly discontinue its use of the Data Logger or the SDK. JINS shall not be liable in any way for damage arising in connection with the discontinuance of use of the Data Logger or the SDK in accordance with this section.
  2. If any defect or failure is discovered in the website delivering the Data Logger or the SDK, if maintenance or inspection will be conducted for such website, if it becomes difficult to deliver the Data Logger or the SDK due to any force majeure event, including earthquake, lightning, fire, flood, natural disaster, war and terrorism, or if JINS deems it advisable, JINS may discontinue all or part of the delivery of the Data Logger or the SDK without the need to provide prior notice to the User. JINS shall in no way be liable for any damage caused to the User due to any discontinuation of the delivery of the Data Logger or the SDK in accordance with this section.

Article 18.(Limitation of Liability)

  1. JINS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM USE OF THE SDK, THE DATA LOGGER OR JINS MEME, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO USE OF THE SDK, THE DATA LOGGER OR JINS MEME, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, EVEN IF JINS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL JINS’ ENTIRE LIABILITY EXCEED US$100.

Article 19.(Prohibited Acts)

The User shall not engage in any of the following acts:

  1. Duplication, alteration, reverse engineering, reverse compiling or reverse assembly of JINS MEME, the Data Logger and/or the SDK, or other acts similar thereto;
  2. Assigning, leasing or providing as collateral to a third party or having a third party accept JINS MEME, the Data Logger and/or the SDK and the rights and obligations under this Agreement and Terms of Use, whether with or without compensation;
  3. Sublicensing to a third party the rights to use JINS MEME, the Data Logger and/or the SDK set forth in this Agreement and Terms of Use;
  4. Developing an App for JINS MEME by using the SDK in violation of applicable laws, ordinances or regulations, or the guidelines of administrative offices; or developing the App with the intent to damage the life, limb or property of any person;
  5. Using the SDK, the Data Logger and/or JINS MEME in a manner that infringes upon the legal interests of other persons or violates the public order or morals;
  6. Engaging in any act which infringes or may infringe upon the honor, reputation, rights, or property, etc., of JINS or any third party, or any act in violation of the public order or morals by using the SDK, the Data Logger and/or JINS MEME;
  7. Disposing of the rights and obligations in accordance with this Agreement and Terms of Use, including by assigning or lending such rights and obligations to any third parties, collateralizing the same, or causing any third parties to assume the same; and
  8. Other than the foregoing items, engaging in any acts deemed inappropriate by JINS.

Article 20. (Elimination of Anti-Social Forces)

  1. The User represents that it does not, and affirms that it will not hereafter, fall under any of the following: an organized crime group, a member of an organized crime group, a quasi-member of an organized crime group, a company affiliated with an organized crime group, a corporate extortionist (“sokaiya”), a racketeer advocating a social/political movement (“shakaiundo/ seijikatsudo-hyobogoro”), a special intelligence organized crime group (“tokushuchinoboryokushudan”), or any other anti-social force equivalent to any of the foregoing (collectively, “Anti-Social Forces”) and that it does not directly or indirectly engage in any negotiations with any Anti-Social Forces.
  2. The User affirms that it shall not engage in or cause any third party to engage in any of the following acts:
    1. A violent act of demand;
    2. An unjust act of making a demand going beyond legal responsibility;
    3. An act of using intimidating words or actions or violence, in connection with transactions;
    4. An act of undermining the honor or credibility of, or interfering with the business of, another person by spreading rumors or using fraudulent means or force; or
    5. Any act equivalent to any of the foregoing.

Article 21. (Termination)

If the User is violating or has violated this Agreement and Terms of Use, or if JINS reasonably judges that the User is violating or has violated this Agreement and Terms of Use, JINS may terminate this Agreement and Terms of Use with respect to such User in writing, without advance notice and at its sole discretion. In such case, JINS may instruct the User to take the measures set forth in Article 15, and the User must comply therewith. Even if the User suffers any damage due to termination in accordance with this Article, JINS shall not, in any way, be liable therefor.

Article 22.(Personal Information)

Personal information provided by the User in relation to the Purchase Application shall be handled in accordance with the JINS MEME Privacy Policy (URL: jins-meme.com/en/purchase/policy/).The User is required to agree in advance with the JINS MEME Privacy Policy in order to make a Purchase Application, so please do not fail to check and confirm such Privacy Policy. The act of purchasing or using JINS MEME and/or the SDK shall be deemed to constitute agreement with the JINS MEME Privacy Policy.

Article 23.(Amendment to this Agreement and Terms of Use)

  1. JINS may amend this Agreement and Terms of Use in its sole discretion pursuant to this Article 23.
  2. JINS shall inform the User in advance of the contents of the amendment to this Agreement and Terms of Use by way of posting a notice on the Internet. After the date designated by such notice, the amendment shall be enforceable and the User shall follow the post-amendment contents of this Agreement and Terms of Use.
  3. If the User does not agree with the amended Agreement and Terms of Use in accordance with the preceding paragraph, the User may terminate this Agreement and Terms of Use at the date designated in the notice by sending a written notice to JINS. In such case, JINS may instruct the User to take the measures set forth in Article 15.

Article 24. (Severability)

Even if part of this Agreement and Terms of Use is held invalid, the remaining parts of this Agreement and Terms of Use shall continue in effect.

Article 25. (Survival)

Even if this Agreement and Terms of Use terminates, regardless of the reason therefor, Articles 10, 12, 15 to 20, and 24 to 27 of this Agreement and Terms of Use shall survive the termination hereof.

Article 26. (Governing Law)

Any disputes relating to this Agreement and Terms of Use, the License Agreement, the Sales Agreement, and the App shall be governed by the laws of Japan.

Article 27. (Jurisdiction)

Any disputes relating to this Agreement and Terms of Use, the License Agreement, the Sales Agreement, and the App shall be exclusively submitted to the Tokyo District Court in the first instance.

Effective Date: 10 February, 2017