This Agreement sets forth the terms and conditions for the use of the software "Fixstars AIBooster" (hereinafter referred to as "the Software") provided by Fixstars, Inc. (hereinafter referred to as "the Company").
Customers must read the full text of this Agreement and agree to it before using the Software. If the Customer clicks to indicate consent to this Agreement on the Company's website, or otherwise completes the procedures specified by the Company, a usage agreement for the Software shall be established, and the Customer shall be deemed to have fully agreed to this Agreement.
1. Applicable Relationship
- If the Company posts rules regarding the use of the Software on its website, such rules shall constitute a part of this Agreement.
- If there is a conflict between the content of this Agreement and the rules mentioned in the preceding paragraph, the provisions of this Agreement shall prevail.
- The Company may modify this Agreement if deemed necessary. In the event of modifying this Agreement, the Company shall make known the content of the modified Agreement and its effective date by posting on its website or by other appropriate means, or shall notify the Customer.
- When using server equipment or other programs provided by third parties other than the Company in connection with the use of the Software, the Customer shall comply with the terms of use, etc., stipulated by such third parties. The Company shall not be involved in disputes between the Customer and such third parties, and such disputes shall be resolved at the Customer's own expense and responsibility.
2. License Grant, etc.
- The Company grants the Customer a non-exclusive and non-sublicensable license to use the Software for its own use under the terms and conditions set forth in this Agreement.
- The Company shall only provide the Software, and the server on which the Software is to be installed shall be prepared by the Customer. The Customer shall install the Software on the server prepared by itself at its own expense and responsibility.
- The Software includes programs developed by third parties. When the Customer uses the Software, the license conditions for these programs (which are included within the Software) shall also apply.
- All intellectual property rights, including copyrights (including rights from Article 21 to Article 28 of the Copyright Act), related to the Software (and related images, videos, audio, text, programs, ideas, know-how, designs, algorithms, data, etc.) belong to the Company or to third parties who have licensed their use to the Company, and shall not be transferred to the Customer by agreeing to this Agreement.
- The Company may modify the Software for purposes such as adding functions, improving performance, or correcting defects, without prior notice to the Customer. If the Software is modified, the Customer may use the modified version of the Software. However, the Company shall not be obligated to perform modifications to the Software.
3. Usage Fees
- In using the Software, the Customer shall pay the usage fees stipulated by the Company by the method stipulated by the Company. Regardless of the reason, except as otherwise provided in this Agreement, the Company shall not be obligated to refund usage fees paid by the Customer.
- The Performance Observability function of the Software may be used free of charge in accordance with this Agreement.
- The Performance Intelligence function of the Software may be used free of charge in accordance with this Agreement for a period specified by the Company (usually one month) from the start of use of the Software. If the Customer wishes to use the Performance Intelligence function beyond the period specified by the Company, the Customer shall pay the usage fees stipulated by the Company in accordance with the provisions of Paragraph 1.
- The Customer shall, in accordance with the tax laws of each country, pay on its own behalf any taxes, customs duties, value-added taxes, or similar taxes, and other fees levied by countries that should be paid due to the Software, including usage fees. If the Company pays these taxes on behalf of the Customer, the Company may claim reimbursement from the Customer.
4. Prohibited Matters
- The Customer may not perform the following acts without the prior consent of the Company: (1) Using the Software for purposes other than software development or research and development. (2) Committing acts contrary to public order and morals. (3) Allowing third parties other than the Customer (including, if the Customer is a corporation, officers and employees other than those designated as users) to use the Software. (4) Backing up or duplicating all or part of the Software or other deliverables provided by the Company. (5) Using the Software to develop malware or other programs that are contrary to public order and morals or illegal. (6) Using the Software in a manner that violates laws or regulations, constitutes a criminal act, or infringes upon the rights of the Company or third parties. (7) Modifying or altering all or part of the programs or other deliverables provided by the Software. However, modifications or alterations may be made within the scope of the terms and conditions included with them. (8) Analyzing the structure, functions, processing methods, etc., of the Software by means of tracing, debugging, disassembling, reverse engineering, decompiling, or other methods, or attempting to obtain the source code of the Software (limited to those for which the Company has not provided source code). (9) Assigning, renting, leasing, sublicensing, or providing as collateral to third parties the rights granted to the Customer under this Agreement. (10) Making reproductions of the Software or other deliverables of the Company available on a network accessible by third parties. (11) Committing acts that interfere with the operation of the Company's services. (12) Illegally accessing the Company's network or systems. (13) Using the Software beyond the scope permitted by this Agreement.
- The Customer agrees to audits conducted by the Company or a third party commissioned by the Company to confirm compliance with the provisions stipulated in this Agreement and shall provide necessary cooperation. The cost of the audit shall be borne by the Company, except in cases where a violation of the provisions stipulated in this Agreement is found.
- If the Company determines that the Customer is engaging in any of the acts listed in 4.1 or other acts that violate this Agreement, the Company may restrict or suspend the use of the Software without prior notice. The Company shall not be liable for any damages incurred by the Customer as a result thereof.
5. Usage Environment
When using the Software, the Customer shall, at its own expense and responsibility, prepare the server, computer terminals, communication lines, and other computer environments. The Company shall not be liable for defects, etc., in the Customer's usage environment or in equipment, software, etc., not under the Company's control.
6. Limitation of Warranty
- The Company makes no warranty that the use of the Software will be suitable for the Customer's specific purpose, will have the expected functions, commercial value, accuracy, completeness, usefulness, that processing results will be accurate, that it can be used continuously, or that defects will not occur.
- The Company shall not be liable if the Customer incurs damages or the Software malfunctions due to earthquakes, lightning, fire, wind and flood damage, power outages, acts of God, acts by third parties or other accidents, the Customer's intentional or negligent acts, misuse, or use under other abnormal conditions.
7. Limitation of Liability
- Except in cases of willful misconduct or gross negligence on the part of the Company, the Company shall not be liable for any damages (including loss of profits, loss or damage to data, other monetary damages, damages caused to third parties, etc.) arising from the use or inability to use the Software.
- If the Customer incurs damages due to the Company's willful misconduct or gross negligence, the Company's liability for compensation shall not exceed the total amount of usage fees paid by the Customer to the Company in the past six months. Furthermore, the Company shall not be liable for incidental, indirect, special, or consequential damages, or for loss of profits.
- The provisions of the preceding paragraphs shall not apply if the agreement between the Company and the Customer under these Terms constitutes a consumer contract as defined in the Consumer Contract Act (Act No. 61 of 2000; hereinafter referred to as "Consumer Contract"). However, even if this paragraph applies, the Company's liability for default or tort due to its negligence (excluding gross negligence) shall not cover indirect damages, special damages, loss of profits, or other damages arising from special circumstances, regardless of whether such damages were foreseeable, and shall be limited to damages incurred directly and ordinarily, up to the limit specified in 7.2 as the total amount of compensation to the Customer.
8. Support
- The Company will provide technical support to the Customer regarding the Software. However, this support will be provided online, and the Company is not obligated to respond to all Customer inquiries and requests within a certain period of time.
- The Company may provide paid support separately to Customers who request support exceeding that specified in this Article.
- The Company will, at its discretion, provide program updates, bug fixes, and upgrades for the Software. These are limited to efforts to provide such updates, bug fixes, and upgrades within a commercially reasonable scope, and do not impose an obligation on the Company to do so. Furthermore, such updates, bug fixes, and upgrades do not guarantee that all functions and performance of the pre-modification Software will be maintained.
9. Termination of Agreement
- The Company may terminate the usage agreement for the Software if any of the following events occur: (1) When there is a violation of any provision of this Agreement. (2) When payments are suspended or become impossible, or when a petition for bankruptcy proceedings, civil rehabilitation proceedings, corporate reorganization proceedings, special liquidation proceedings, or similar proceedings is filed. (3) When there is no response for 30 days or more to inquiries or other communications from the Company requesting a response. (4) When any other serious act of bad faith occurs.
- If the Company determines that it is difficult to continue providing the Software, it may terminate the provision of the Software and the usage agreement by announcing it on its website at least one month in advance.
- The Customer may terminate the usage agreement for the Software by completing the procedures prescribed by the Company. However, if the Customer has outstanding debts to the Company at the time of termination, the Customer shall immediately lose the benefit of time for all debts owed to the Company and must immediately pay all such debts to the Company.
- Regardless of the reason, when the usage agreement for the Software is terminated, the Customer shall delete the Software and may not use the Software thereafter.
10. Exclusion of Anti-Social Forces, etc.
- The Company and the Customer represent and warrant to each other, now and in the future, that: (1) They themselves, their officers (including de facto officers and those with substantial management rights, the same applies hereinafter), agents, or intermediaries are not Anti-Social Forces. (2) They themselves and their officers do not use Anti-Social Forces. (3) They themselves and their officers do not provide funds or other conveniences to Anti-Social Forces, or otherwise cooperate with or engage in the maintenance and operation of Anti-Social Forces. (4) They themselves and their officers do not have socially reprehensible relationships, close ties, or exchanges with Anti-Social Forces. (5) They themselves or third parties will not use violent acts, fraud, or threatening language towards the other party, nor will they state that they or their affiliates are Anti-Social Forces or related thereto, nor will they commit acts that damage or are likely to damage the honor or credibility of the other party, nor will they commit acts that obstruct or are likely to obstruct the business of the other party.
- If the Company or the Customer violates, or is found likely to violate, any of the items in the preceding paragraph, they shall immediately notify the other party.
- If circumstances arise where one party, either the Company or the Customer, is reasonably suspected of violating any of the items in Paragraph 1, and no reasonable explanation is provided in response, the other party may terminate all agreements or understandings between the Company and the Customer, including the usage agreement, without any demand.
- If the agreement between the Company and the Customer is terminated pursuant to the provisions of the preceding paragraph, the terminating party shall compensate the other party for all damages incurred by the other party.
11. Notice to U.S. Government End Users
The licensed program is a "Commercial Item" as defined in 48 C.F.R. § 2.101 and consists of "Commercial Computer Software" and "Commercial Computer Software Documentation" as used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202. Pursuant to 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 through § 227.7202-4, "Commercial Computer Software" and "Commercial Computer Software Documentation" are licensed to U.S. Government end users (a) only as "Commercial Items" and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
12. Compliance with Export Controls
- The Customer shall comply with the laws, orders, or regulations and other controls related to export control of Japan and other applicable countries (hereinafter referred to as "Export Controls") concerning the Software, and shall not use the Software in a manner that violates Export Controls.
- The Company shall not be liable if the Customer receives any claim or lawsuit from a third party, or suffers any hindrance or damage, due to the Customer's use violating Export Controls.
13. Assignment of Contractual Status, etc.
- The Customer may not assign, transfer, create security interests in, or otherwise dispose of its contractual status under this Agreement or its rights or obligations under this Agreement to a third party without the prior written consent of the Company.
- If the Company transfers the business related to the Software to another company, the Company may, in connection with such business transfer, assign its contractual status under this Agreement, its rights and obligations under this Agreement, and the Customer's registration information and other customer information to the assignee of such business transfer, and the Customer shall be deemed to have agreed in advance to such assignment in this Article. The business transfer stipulated in this Article shall include not only ordinary business transfers but also company splits and any other cases where business is transferred.
14. Severability
Even if any provision of this Agreement or part thereof is determined to be invalid or unenforceable by laws or regulations, the remaining provisions of this Agreement and the remaining parts of any provision determined to be partially invalid or unenforceable shall continue in full force and effect.
15. Miscellaneous
- The Japanese version of this Agreement shall be the authentic text. In the event of any conflict or discrepancy between translated versions in other languages and the Japanese version, the Japanese version shall prevail.
- The governing law of this Agreement shall be the laws of Japan.
- Any litigation arising from or related to matters stipulated in this Agreement or the Software shall be subject to the exclusive agreed jurisdiction of the Tokyo District Court as the court of first instance.
Established: August 2, 2024
Revised: December 26, 2024
Revised: May 27, 2025
This Agreement is a translation of the original Japanese version. In the event of any discrepancy between the English version and the Japanese original, the Japanese original shall prevail.