Purchase Agreement of JINS MEME ES DEVELOPERS and Terms of Use for JINS MEME SOFTWARE DEVELOPMENT KIT

CAREFULLY READ THIS AGREEMENT AND TERMS OF USE BEFORE USING JINS MEME ES DEVELOPERS (“JINS MEME” as defined below) AND ACCESSING JINS MEME SOFTWARE DEVELOPMENT KIT (“SDK” as defined below). IF YOU, AS THE END USER AND DEVELOPER WHO IS PROFESSIONAL, DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE JINS MEME ACCESS THE SDK. USING JINS MEME, OR USING, DOWNLOADING OR OTHERWISE ACCESSING THE SDK OR ANY PART OF THE SDK INDICATES THAT YOU ACCEPT THESE TERMS OF USE AND YOU AGREE TO BE BOUND BY THIS AGREEMENT AND TERMS OF USE.

Article 1.  (Purpose)

  1. The purpose of the Purchase Agreement and these Terms of Use for JINS MEME and SDK (the “Agreement and Terms of Use”) is to set forth the conditions under which JIN Co., Ltd. (“JINS”) will sell JINS MEME (defined in Article 2) and license the SDK (defined in Article 2) to the Developer (defined in Article 2).
  2. The Developer should carefully read the Agreement and Terms of Use, and shall purchase and use the SDK solely for the purpose of developing the App for JINS MEME as professional business customer (the “Purpose”), in accordance with the conditions set forth in the Agreement and Terms of Use. In addition, in developing the App by using the items separately provided by JINS, the Developer shall comply with the terms of use, etc., that JINS sets forth in respect thereto.

Article 2.  (Definitions)

In these Terms of Use, the following terms shall have the following meanings, respectively:

  1. “JINS” stands for JIN Co., Ltd.
  2. “JINS MEME” means the spectacles-look wearable device which JINS will sell.
  3. “SDK” means the software development kit, which includes programs for the development of applications for smartphones for JINS MEME that JINS will provide online to the Developer.
  4. “App” means the application software for smartphones for JINS MEME.
  5. “Developer” means any professional entity or individual that develops the application software for smartphones for JINS MEME. By submitting the Application for Purchase, you represent and warrant that you qualify as the Developer as defined herein and purchase JINS MEME and the SDK solely for the Purpose and not for personal use as an end consumer.
  6. “Developed App” means the application software for smartphones for JINS MEME that the Developer develops.
  7. “Application for Purchase” means the Developer’s application for the purchase of JINS MEME and the use of SDK.
  8. “License Agreement” means a license agreement for the SDK formed between JINS and the Developer pursuant to the terms and conditions set forth in the Agreement and Terms of Use which shall be concluded by the Developer submitting the Application for Purchase to JINS and JINS accepting such Agreement and Terms of Use.
  9. “Sales Agreement(s)” means agreement(s) regarding individual transactions for JINS MEME entered into between the Developer and JINS with regard to the sale and purchase of JINS MEME.
  10. “Instruction Manual” means an instruction manual for JINS MEME provided by JINS.

Article 3.  (Application for Purchase)

  1. The Developer shall submit the Application for Purchase after reading, fully understanding and agreeing to the Agreement and Terms of Use. If the Developer is composed of several individuals or groups, etc., a representative shall be designated to make the Application for Purchase on behalf of the others.
  2. Even if the Developer is composed of several individuals or groups, etc., all of the individuals or groups must also consent to the Agreement and Terms of Use and comply therewith.
  3. The Developer (or its representative) shall accurately complete the Application for Purchase. In the event of there being any missing, misstated or inaccurate information provided in the Application for Use Purchase, such Application for Purchase may not be accepted, in JINS’s sole discretion.
  4. If a person who is a minor completes the Application for Purchase as the Developer or consents to the Agreement and Terms of Use as a representative member of the Developer, the minor must obtain the written consent of his or her parent or guardian and provide such consent to JINS upon request. Persons under the age of 13 are not eligible to enter into this Agreement.
  5. Any person who operates a business that competes with that of JINS, any person intending to use JINS MEME and/or the SDK in violation of the Agreement and Terms of Use, any person not intending or having the capacity to develop the App, and any other persons whom JINS considers inappropriate may not apply to use JINS MEME and/or the SDK or submit an Application for Purchase.
  6. JINS may decline the Application for Purchase for any reason including the country of residence of the Developer.

Article 4.  (Coming into the Effect of Sales Agreement)

A Sales Agreement shall come into effect when JINS sends notice to the effect that it will accept the Developer’s Application for Purchase and such notice reaches the Developer.

Article 5.  (Payment)

Pursuant to an invoice issued by JINS, the Developer shall pay the price required for a Sales Agreement by means designated by JINS.

Article 6.  (Delivery)

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

Article 7.  (Transfer of Title)

The title of JINS MEME shall be transferred from JINS to the Developer at the time when the Developer receives the product after the coming into effect of a Sales Agreement after JINS receives the payment from the Developer.

Article 8.  (Provision of the SDK)

  1. JINS shall license a non-exclusive right to the Developer to use the SDK in accordance with the Agreement and Terms of Use upon receipt of the payment for JINS MEME.
  2. The Developer may download and install the most up to date SDK from JINS’s website for the Developer for free.
  3. The Developer must keep in strict confidence the ID and password issued in connection with the Application for Purchase and must not cause any third party to use the same.
  4. There may be instances where JINS will conduct a version upgrade of the SDK at JINS’s determination. In such instance, JINS may discontinue support for the old versions of the SDK.

Article 9.  (Intellectual Property Rights relating to JINS MEME and the SDK)

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

Article 10.  (Method of Using JINS MEME)

In using JINS MEME, the Developer shall comply with the Instruction Manual, without fail.

Article 11.  (JINS’s Responsibilities)

  1. If there is any latent defect in JINS MEME, as long as the Developer discovers such defect and informs JINS thereof in a manner designated by JINS within one (1) year after his/her/its receipt of JINS MEME, JINS shall replace such product. For further details, please see the JINS website.
  2. Except in cases of wilful intention or gross negligence on the part of JINS, JINS shall not assume any liability for any direct, indirect, incidental, consequential, or special damages, or lost profit or other damages (whether foreseeable or not) caused to such Developer by the fact that the Developer has used JINS MEME.
  3. The Developer makes the Application for Purchase upon understanding and agreeing that JINS provides no warranty as to JINS MEME’s and the SDK’s completeness, accuracy, utility and non-infringement upon the rights or interests of any third party, and the Developer shall not bring any claims, etc., regarding any of the matters set forth in the foregoing.
  4. If the Developer discovers that there is any defect in JINS MEME and/or the SDK, or any possibility of infringement upon the rights or interests of any third party by JINS MEME and/or the SDK, the Developer shall immediately inform JINS thereof.
  5. JINS MEME AND/OR THE SDK IS PROVIDED “AS IS” AND “AS AVAILABLE”, AND JINS MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO JINS MEME AND/OR THE SDK, AND JINS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. DEVELOPER’S USE OF THE SDK IS AT ITS OWN DISCRETION AND RISK, AND DEVELOPER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF JINS MEME AND/OR THE SDK, INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO DEVELOPER’S COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA.

Article 12.  (Matters to be Complied with in Development)

  1. The Developer represents and warrants that the Developed App was developed independently by the Developer and that the use of the Developed App does not infringe rights and interests of third parties and does not constitute a breach of contract with a third party.
  2. The Developer 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’s business, nor that it contains anything that is likely to do so.
  3. The Developer 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 Developer may not produce, sell or distribute the App that may obtain personal information (including live data detected by the JINS MEME) without taking appropriate steps to make such information collection fully in compliance with any and all applicable laws.
  5. The Developer shall securely maintain and appropriately manage the personal information obtained by the Developed App and live data and other information detected by the JINS MEME by complying with the relevant laws and regulations and guidelines, etc., including implementing and disclosing a privacy policy applicable to such App.
  6. If there is any claim brought by any third party in relation to the Developed App or due to the Developer’s violation of the Agreement and Terms of Use, the Developer shall resolve such claim at its own expense and responsibility. If JINS suffers any damage as a result thereof, the Developer shall immediately compensate such damages to JINS, and shall not cause any inconvenience to JINS. To the fullest extent of the law, the Developer shall defend, indemnify and hold harmless JINS, its affiliates and vendors and their respective directors, partners, shareholders, officers, agents and employees (each one an “Indemnified Party”), from and against all loss, damage, liability and expense (including court costs and reasonable attorneys’ fees) (“Losses”) resulting from injury or death of persons, and from loss to or damage of property, for which any Indemnified Party becomes liable caused by or arising out of the fault or negligent acts or omissions, whether active or passive, of Developer, except such loss, damage or expense as may be caused by the willful misconduct or gross negligence of JINS or the Indemnified Party. Developer 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 or violates a patent, copyright, trademark or other right of the third party.

Article 13.  (Matters to be Complied with concerning the Expression on the Developed App)

  1. The Developer shall comply with all design and trademark usage guidelines established by JINS (the “Design Guidelines”).
  2. All displays of the name “JINS MEME” in the Developed App, the Developer shall comply with the Design Guidelines. The use of any other indication (for example, indications of only “MEME” or “J!NS MEME”) is prohibited.
  3. The Developer 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 received JINS’s authorization.
  4. The Developer may not make any excessively violent expressions, openly sexual expressions, expressions tied to discrimination due to race, nationality, belief, sex, 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 cause offense to others in the Developed App.

Article 14.  (Rights relating to the Developed App)

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

Article 15.  (Measures to be Taken upon Violation of the Agreement and Terms of Use)

If JINS reasonably determines that the Developer or the Developed App violated any part of the Agreement and Terms of Use, JINS may instruct the Developer to take any or all of the following measures, and the Developer must comply therewith:

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

Article 16.  (Discontinuation of Use and Discontinuation of Delivery)

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

Article 17.  (Limitation of Liability)

  1. JINS shall in no way be liable for any damage caused to the Developer due to the use of the SDK, regardless of the cause thereof, except for damage caused by the wilful intention or gross negligence of JINS.
  2. Even if JINS becomes liable to provide any compensation for damage, the scope of the damage for which JINS shall be liable shall be limited to the normal and direct damage actually caused to the Developer due to the use of the SDK by the Developer. Irrespective of whether or not there is any foreseeability by JINS and the Developer, as stated further below, JINS shall not be liable for any indirect damage such as damage caused by special circumstances, lost profits and other damage incurred by the Developer under claims for compensation for damage by a third party.
  3. JINS shall in no way be liable for any damage caused to the Developer by way of using the SDK in violation of the Agreement and Terms of Use and the instructions provided by JINS.
  4. JINS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM USE OF THE SDK OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO USE OF THE SDK, 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 OF ITS ESSENTIAL PURPOSE. JINS’S ENTIRE LIABILITY SHALL BE LIMITED TO US$100.
  5. Notwithstanding the foregoing, nothing in the Agreement and Terms of Use shall exclude or limit JINS’s liability to the Developer for personal injury or death resulting from JINS’s negligence or defects in JINS MEME.

Article 18.  (Prohibited Acts)

The Developer may not engage in any of the following acts:

  1. Use for a purpose other than the Purpose, especially, JINS MEME shall not be used for any medical acts;
  2. Duplication, alteration, reverse engineering, reverse compiling or reverse assembly of JINS MEME and/or the SDK, or other acts similar thereto;
  3. Assigning, leasing or providing as collateral to a third party or having a third party accept JINS MEME and/or the SDK and the rights and obligations under this Agreement and Terms of Use, whether with or without compensation;
  4. Sublicensing to a third party the rights to use JINS MEME and/or the SDK set forth in the Agreement and Terms of Use;
  5. 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 intent to damage the life, body or property of any person;
  6. Using the SDK and/or the JINS MEME in a manner that infringes upon the legal interests of other persons or violates the public order or morals;
  7. 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;
  8. Disposing of the rights and obligations in accordance with the 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
  9. Other the foregoing items, engaging in any acts deemed inappropriate by JINS.

Article 19.  (Elimination of Anti-Social Forces)

  1. The Developer 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”) or a special intelligence organized crime group (“tokushuchinoboryokushudan”) or any other anti-social force equivalent to any of the foregoing (hereinafter collectively called “Anti-Social Forces”) and that it does not directly or indirectly engage in any negotiations with any Anti-Social Forces.
  2. The Developer affirms that it shall not engage in or cause any third party to engage in any of the following acts:
    • ・A violent act of demand;
    • ・An unjust act of making a demand going beyond legal responsibility;
    • ・An act of using intimidating words or actions or violence, in connection with transactions;
    • ・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
    • ・Any act equivalent to any of the foregoing.

Article 20.  (Termination)

If the Developer is violating or has violated the Agreement and Terms of Use, or if JINS reasonably judges that the Developer is violating or has violated the Agreement and Terms of Use, JINS may terminate the Agreement and/or the Terms of Use, without advance notice and in its sole discretion. In such case, JINS may instruct the Developer to take the measures set forth in Article 14., and the Developer must comply therewith. Even if the Developer suffers any damage due to termination in accordance with this paragraph, JINS shall not, in any way, be liable therefor.

Article 21.  (Personal Information)

Personal information provided by the Developer in relation to the Application for Purchase shall be handled in accordance with the JINS MEME Privacy Policy (URL : jins-meme.com/en/purchase/policy/). The Developer is required to agree in advance with the JINS MEME Privacy Policy in order to make an Application for Purchase, 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 22.  (Amendment to the Agreement and Terms of Use)

  1. JINS may amend the Agreement and Terms of Use in its sole discretion pursuant to this Article 21.
  2. JINS shall inform the Developer in advance of the contents of the amendment to the Agreement and Terms of Use by way of sending explanation via email. After the date designated by such notice, the amendment shall be enforceable and Developer shall follow the post-amendment contents of the Agreement and Terms of Use.
  3. If the Developer does not agree with the amended Agreement and Terms of Use in accordance with the preceding paragraph, the Developer may terminate the 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 Developer to take the measures set forth in Article 14.

Article23.  (Severability)

Even if a part of the Agreement and Terms of Use is held invalid by the laws or ordinances or by a decision of a court, etc., the remaining part of the Agreement and Terms of Use shall continue to remain in effect.

Article 24.  (Survival)

Even if the Agreement terminates, regardless of the reason therefor, Articles9, 11, 14 to 19, and 23 to 26 of the Agreement and Terms of Use shall validly survive the termination hereof.

Article 25.  (Governing Law)

ANY DISPUTES RELATING TO THE AGREEMENT AND TERMS OF USE, THE AGREEMENT, THE SALES AGREEMENT, AND THE APP SHALL BE GOVERNED BY THE LAWS OF JAPAN.

Article 26.  (Jurisdiction)

ANY DISPUTES RELATING TO THE AGREEMENT ANDTERMS OF USE, THE SALES AGREEMENT, AND THE APP SHALL BE EXCLUSIVELY SUBMITTED TO THE TOKYO DISTRICT COURT IN THE FIRST INSTANCE.

(Effective Date: June 20, 2016)