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Empath Terms of use

Terms and Conditions Applicable for Use of Empath Web API

Each customer as a user (“User”) agrees to comply with all terms and conditions as stated below with regards to a receipt of API delivery service (“Service”) on Empath Web API (“Software”), a product of Smartmedical Corporation, Inc. (“LICENSOR”). For the purpose of the use of the Software, User is deemed to have agreed that he/she is binding on the provisions of the Terms and Conditions Applicable for Use of Empath Web API ("Terms of Use") upon installation or first use of the Software by User.

Section 1 – General Provisions

The Terms of Use define the terms and conditions on User’s application for the online Service of LICENSOR between LICENSOR and User to be registered as an applicant.

Section 2 – Application

1. If User wishes to make use of the Service, he/she is required to understand and accept the Terms of Use and make application for the Service in a manner as specified by LICENSOR.

2. If Licensor consents to the application by User as stated in the preceding paragraph, LICENSOR will notify User to that effect in a manner as specified by LICENSOR.

3. For the purpose of application for the Service as stated in the paragraph 1 above, User is required to register in advance the items listed below to LICENSOR, and the same applies for a change in the items below. Damages due to the absence of the registration will be solely borne by User.

(i) business name (trade name), name, representative's name and address;

(ii) name, e-mail address or telephone number of a person responsible for the use of the Service, or other matters as specified by LICENSOR;

(iii) purpose of using the Software; and

(iv) other matters related to the operations of User as specified by LICENSOR

Section 3 – Right to Use Software

In accordance with the terms and conditions specified in the Terms of Use, LICENSOR grants User the non-exclusive right to use Software within Japan, on a specified and pre-registered computer system, for the sole purpose of developing a user system that utilizes Software. Although Software is equipped with functionality to detect emotions, results of detection and recognition of emotions may differ depending upon the environment in which Software is used, and upon the operating system upon which Software is used.

Section 4 – Sales and Distribution of Development System

User may sell or distribute to a third party any systems created by himself/herself using the Software in accordance with Section 3. User may not, in any case, sub-license, distribute, lease or transfer the Software (see Section 7, item (ii)).

Section 5 – Protection of Intellectual Property Rights of Software

1. All intellectual property rights, including copyrights, patent rights, trademarks, and other similar rights, relating to the Software are attributable to Licensor.

2. User agrees that all such intellectual property rights relating to Software and copies thereof are not transferrable to User, pursuant to the provisions of the Terms of Use and other provisions of any related documents.

Section 6 – Confidentiality

User recognizes that Software is secret and confidential information owned by LICENSOR. User agrees to maintain secrecy and confidentiality by not allowing access to Software by parties other than employees and representatives of User who have a legitimate need to access Software to perform their official duties. User will implement all measures necessary to protect Software from unauthorized access and use.

Section 7 – Prohibited Acts

User is prohibited from performing any of the acts as specified in the items below:

(i) Using any computer system other than the designated computer system that has been registered in the Software;

(ii) In any case, sub-licensing, distributing, leasing or transferring the Software, and taking any action to infringe the rights of Licensor in connection with matters outside the scope that are explicitly stated in the Terms of Use, including but not limited to duplication, edition, modification, analysis, publication, broadcasting, exhibition, distribution, transfer, rental, translation, adaptation, transmission, reprint, recording, re-license, registration of rights, and application, etc.;

(iii) Attempting to derive or create the source program from the object program, regardless of whether by reverse compilation, disassembling, reverse-engineering or otherwise;

(iv) Copying, or otherwise reproducing Software onto a system or medium other than the specified computer system;

(v) Exporting Software to any foreign country;

(vi) Transferring, lending, or otherwise dispose in any manner of the Software to any third party;

(vii) Utilizing Software for the purpose of slandering, discriminating, or otherwise harming a third party;

(viii) Utilizing Software for the purpose of infringing on the privacy of a third party; and

(ix) Using Software for any other purpose that violates the law or public policy.

Section 8 - Liability

User agrees to use Software at User’s own risk. User will be held accountable for any damages suffered to LICENSOR caused by User using Software in violation of any part of the Terms of Use.

Section 9 – Acquisition of Voice Data

Licensor may use voice data sent from the development system created by User solely for the purpose of improving the accuracy of the Software. However, the voice data acquired by Licensor will never be disclosed to third parties for any reason.

Section 10 – Usage fees

The method of calculation and amounts of usage fees, optional fees and other fees and expenses payable for the Service, including those not specified in the Terms of Use, shall be as specified on LICENSOR's website for the Service (https://webempath.net) or as may be notified by Licensor to User from time to time.

Section 11 – Payment Method of Fees

User is required to pay fees in the manner as prescribed in the respective items below:

(i) If opting to pay on invoice, User pays the fees by the date specified by Licensor to the bank account specified by Licensor. Transfer charges shall be borne by User. When payment is made on invoice, fees shall be payable on the last day of the month following the month in which the use of Service commences.

(ii) If paying by credit card or PayPal, User will pay the fees pursuant to the contract with a credit card or PayPal company. In the event of any dispute between or among User, the relevant credit card or PayPal company, a collection agency, a financial institution and/or other party involved, such dispute will be resolved by and among/between the parties involved, without causing Licensor any liability whatsoever. When payment is made by credit card or PayPal, one month's fee shall be paid in advance upon commencement of the use of the Service.

(iii) In the event of change in the fee rates as provided for in Section 10 in accordance with the utilization situation, the mount charged will also change automatically.

Section 12 – Applicable Term of the Agreement

1. Unless a fixed term is agreed upon for the use of Service, the term of the Agreement in respect of the Service commences on the day on which User's registration is completed and the Service is made available to User.

2. Unless a fixed term is agreed upon for the use of Service, the term of the Agreement in respect of the Service ends on the last day of the month following the month in which User notifies Licensor of its intention to terminate the use of the Service in the case of payment under the preceding Section, item (i), or ends on the day on which User withdraws from the use of the Service in the case of payment under the preceding Section, item (ii).

3. If a fixed term is agreed upon for the use of Service and neither Licensor nor User notifies the other party of its intention not to renew the term with respect to the Service by the last day of the month preceding to the month in which the term expires, the Agreement shall be deemed to have been renewed with respect to the Service at User's own will and the fees for the renewed term shall become payable and are not refundable.

Section 13 – Default Interest

1. In the event that User fails to pay usage fees or any other monetary obligations payable by it on their due dates, User shall pay default interest on any overdue amount at the rate of 14.6% per annum. The amount of the default interest shall be paid in a lump sum together with usage fees and other amounts payable by User on or prior to the date and in the manner specified by Licensor.

2. Transfer and other charges necessary for the payment under the preceding paragraph shall be solely for the account of User.

Section 14 – Notification of Fee Rate Revision

Licensor may, by making notification to User in a manner specified in Section 21 not later than thirty (30) days prior to such date, increase or decrease the fees of the Service, add a fee of the similar service, or impose a fee for service previously free of charge.

Section 15 – Suspension, Restricted Use or Other Conditions of Service Due to Licensor's Reason or Force Majeure

Licensor may, when falling under any of the following items, suspend the provision of Service or restrict the use thereof without prior notice:

(i) When unavoidable for maintenance or construction of Licensor’s equipment;

(ii) When unavoidable for occurrence of or the prevention against failure or other problems of equipment of Licensor and/or telecommunications operator;

(iii) In the event of actual or suspected actions, including unauthorized access, cracking or attack to Licensor’s equipment;

(iv) When Licensor determines that the use of the Service (including the misuse of a third party) could potentially cause adversely affects on the Service, contents of User, third parties and others;

(v) In the event of natural disaster or other unavoidable circumstances; or

(vi) When Licensor determines otherwise as may be necessary for the conservation of the Service due to inevitable reasons.

Section 16 – Suspension, Restricted Use or Other Conditions of Service Due to User's Reason

When User falls under any of the following items, Licensor may, without prior notice or demand, suspend the provision of Service or restrict the use thereof. In these cases, Licensor is not required to disclose the reason to User.

(i) When User has failed or potentially will fail to perform his/her obligations under this Agreement;

(ii) When User has interfered with the operations of the Service;

(iii) When User has declared a false fact for the use of the Service;

(iv) When User has committed any of the Prohibition Acts as defined in Section 7;

(v) When User’s specified credit card is no longer available for use, including due to invalidity thereof; or

(vi) When User has been terminated by Licensor due to his/her breach of the contract on other services provided by Licensor

Section 17 – Abolition of Service

Licensor may, at its own discretion, abolish all or part of the Service by notifying User to that effect via e-mail at the registered e-mail address of User, not later than ninety (90) days prior to the abolishment date. In this case, upon notification sent to User from Licensor, this Agreement will be terminated. In addition, in the event that User, its client or any third party incurs damages by the abolition of the Service based on this Section, Licensor will not be liable for such damages.

Section 18 – Compensation for Damages

In the event that User or its client causes damage to Licensor due to a reason listed in the respective following items, Licensor may claim compensation for the damage from User.

(i) Violating this Agreement or the laws and regulations; or

(ii) Infringing on the intellectual property rights, including the use of the trademark of Licensor, without obtaining any explicit consent thereof.

Section 19 – Limitation of Liability

1. Licensor will not, in any case, be liable to User for any kind of direct, special, consequential, ancillary or indirect damages (including lost profits, loss of data, and procurement cost of replacement equipment). The limitation of liability will not be affected irrespective of whether Licensor has received a notice of the likelihood of the damage or not, or whether or not the occurrence of such damage is attributable to violation or contradiction of any contract, fraudulent act, breach of warranty, negligence, unusable software and any other causes. In addition, if Licensor shall compensate for any damage suffered by User, regardless of the legal nature of the damage, the amount of compensation shall not exceed the amount of usage fees actually paid by User for the six (6) month period immediately preceding the month in which the cause of the damage occurs.

2. Notwithstanding the disclaimer clauses contained in the preceding paragraph and elsewhere in the Terms of Use, in cases where User falls under the category of "Consumer" defined in Article 2, paragraph 1 of the Consumer Contract Act, Licensor's liability against damages falling under each of the items listed below shall be as follows:

(i) If Licensor causes damage (except those defined in the following item) to User (deemed as "Consumer") due to its failure to perform its obligation, Licensor is liable to pay the amount of direct and ordinary damage, which amount shall not exceed the amount of fees paid by User.

(ii) If Licensor causes damage to User (deemed as “Consumer”) due to its failure to perform its obligation (Licensor’s liability for such failure is limited to gross negligence or intentional misconduct of itself, its representative and/or its employees), Licensor is liable to pay the amount of such damage actually incurred by User.

(iii) Licensor’s liability under the provisions of the Civil Code to compensate for damages caused to User (deemed as “Consumer”) due to its illegal act on the fulfillment to offer Software, Licensor is liable to pay the amount of direct and ordinary damage, not exceeding the amount of fees paid by User as the upper limit.

(iv) Licensor’s liability under the provisions of the Civil Code to compensate for damages caused to User (deemed as “Consumer”) due to its illegal act on the fulfillment to offer Software (Licensor’s liability for such failure is limited to gross negligence or intentional misconduct of itself, its representative and/or its employees), Licensor is liable to pay the amount of such damage actually incurred by User.

(v) In the case where the provision of the Software is under an onerous contract and there is any defect hidden in the subject product(s), the damage caused to User (deemed as “Consumer”) by the defect will be replaced with the those with no defect. However, if they are not available, Licensor is liable to pay the amount of damage, not exceeding the amount of fees paid by User as the upper limit.

Section 20 - Limitation of Utilization Area and Scope

The utilization area and scope of the Software specified by Licensor are subject to change from time to time depending on the contract(s) that may be entered into by and between Licensor and a third party. As of December 1, 2016, the Software is available for use in all specified regional areas except the United Arab Emirates; in the United Arab Emirates, the Software is not available for use irrespective of its scope of use. If there is any change in the specified regional areas and scope of the Software in the future, Licensor will notify User in a manner specified in Section 21.

Section 21 - Method of Notification, Etc.

1. Any notice, demand or other communication from Licensor to User shall be given from time to time in a manner that Licensor may deem appropriate including via e-mail, in writing or through publication on the website for the Service (https://webempath.net).

2. The notices via e-mail under the preceding paragraph shall be given to User at its registered e-mail address.

3. If the notices etc. under the preceding paragraphs shall be given through publication on the website for the Service, the notices etc. shall be deemed to have been delivered to User on the day on which they are published on the website. If the notices etc. shall be given via e-mail, the notices etc. shall be deemed to have been delivered to User upon transmission of the e-mail.

Section 22 – Revision of Terms of Use

1. Licensor may revise the Terms of Use at any time, and User agrees to in advance acknowledge this.

2. When revising the Terms of Use, Licensor will notify User of such revision in a manner specified in Section 21.

Section 23 – Compliance

In addition to the conditions outlined in the Terms of Use, User agrees to comply with all applicable laws, statues, regulations, and ordinances when using Software.

Section 24 – Governing Law and Competent Court

The Terms of Use will be interpreted under and governed by the laws of Japan. The Tokyo District Court will be the exclusive court of first instance with respect to all disputes arising from or in relation to the Terms of Use and the offer of the Software.

Supplementary provision

The Terms of Use will be implemented from January 1, 2017.

Smartmedical Corporation, Inc. 

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