Terms

T e r m s

License Agreement

This License Agreement (the “Agreement”) constitutes a valid and binding agreement between Fujidenolo Solutions Co., Ltd. (“FDS”) and you (the “Customer”) for the use of software developed by FDS (the “Product”), as the terms are defined below. By installing and using the Product, the Customer unreservedly enters into this Agreement and agrees to abide by all of its terms.

BY INSTALLING AND USING THE PRODUCT, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF THE CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE CUSTOMER IS NOT PERMITTED TO INSTALL OR USE THE PRODUCT.

  1. License GrantSubject to the terms of this Agreement, FDS hereby grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable license to install and use the Product. FDS and Customer will specify separately the price and requirements for use and Customer shall pay FDS the price. The payment is not refundable.
  2. License Restrictions
    1. Notwithstanding anything to the contrary, the Customer may not:
      1. use the Product for diagnostic purposes in any state, country or jurisdiction where pharmaceutical or other similar approvals such as those granted by bodies such as the FDA, CE, HIPAA, or other regulatory bodies of any kind are required in order to use Product for diagnosis without such approvals;
      2. permit or let any third person use the Product;
      3. remove any proprietary notices or any copy of such notices from the Product;
      4. cause, permit or authorize the modification, creation of derivative works, reverse engineering, decompiling, disassembling or hacking of the Product;
      5. sell, assign, rent, lease, act as a service bureau, or grant rights in or to the Product or any part of it, including, without limitation, through sublicense, to any other entity;
      6. use the Product for the benefit of any third person, or charge any person for the use of the Product;
      7. use the Product with the aim or intention to violate or act in any way that would constitute a violation or an attempt to violate any applicable law, statute, regulation, ordinance, or rule, whether legislative, administrative, decisional, or of any other kind;
      8. use any type of bot, computer virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, trap door, time bomb or any other code or instruction designed to be used to provide or that has the effect of providing a means of surreptitious or unauthorized access, or that is designed to distort, delete, damage or disassemble the Product. Furthermore, the Customer may not use the Product to develop, generate, transmit or store information that:
        1. infringes any third person’s intellectual property or other proprietary right or interest;
        2. is defamatory, harmful, abusive, obscene or hateful;
        3. in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Product;
        4. results in or contributes to the performance of any unsolicited commercial communication not permitted by applicable law;
        5. results in or contributes to any harassment or violation of privacy, or the threatening of other people or groups of people;
        6. results in or contributes to the impersonation of any other person, or the theft or assumption of any person’s identity;
        7. destroys or interferes with the function of computers or servers of FDS or a third person; or
        8. results in or contributes to the downloading or the uploading of large amounts of data that FDS determines cannot be covered by the planned server costs of FDS or beyond what is expected from normal use.
    2. The Product contains confidential and trade secret information owned or licensed by FDS, and the Customer agrees to take reasonable steps at all times to protect and maintain the confidentiality and secrecy of such information.
    3. All modifications or enhancements to the Product remain the sole property of FDS. FDS reserves the right to add additional features or functions to the Product with or without additional fees to be paid by the Customer to FDS.
    4. Unless otherwise agreed, a single license purchased from or provided by FDS or its Distributor grants Customer the right to install and use the Product only in one (1) business location and Customer may not install or use the Product in multiple business locations with a single license purchased from or provided by FDS or its Distributor.
    5. Unless otherwise agreed, a single license purchased from or provided by FDS or its Distributor grants Customer the right to install and use the Product only in one (1) operating system and Customer may not install or use the Product in multiple operating systems with a single license purchased from or provided by FDS or its Distributor.
  3. Proprietary Rights
    1. The Product contains proprietary and confidential information of FDS, including copyrights, trade secrets and trademarks contained therein. Title to and ownership of the Product, including, without limitation, all intellectual property rights in and to the Product, are and shall remain the exclusive property of FDS. Except for the limited license granted to the Customer, FDS reserves all right, title and interest in and to the Product. The Customer shall not take any action to jeopardize, limit or interfere with FDS’s ownership of and rights with respect to the Product. Customer acknowledges that any unauthorized copying or other unauthorized use of the Product is a violation of this Agreement, and of applicable copyright and other laws and is strictly prohibited.
    2. If the Customer provides FDS a file to translate the Product (the “Language File”), Customer shall assign and transfer copyrights and other intellectual property rights (including, without limitation, the rights with respect to Article 27 and 28 of Copyright Act in Japan, and similar rights throughout the world.; the same shall apply hereinafter) relating to the Language File without any fees, and Customer shall not assert moral rights relating the Language File.
  4. Terms and Termination
    1. This Agreement is effective as of the time and date the Customer accepts this Agreement by installing and/or using the Product.
    2. FDS may terminate this Agreement without reservation or penalty if it determines in its absolute discretion that the Customer has failed to comply with or has the intention to not comply with the strict terms and conditions of this Agreement.
    3. Upon termination of this Agreement for any reason, any and all of the Customer’s licenses and rights to use the Product shall terminate automatically.
  5. Support
    1. If the Customer purchases or is provided the Product by a Distributor (as defined below), any and all technical or product support provided for the Product will be provided by the Distributor, and support for the Product will not be provided directly by FDS. A “Distributor” is a person who has entered into a Distributor Agreement with FDS.
    2. If the Customer buys the Product from FDS, all and any technical or product support for the Product will be provided by FDS through e-mail communication only.
    3. FDS shall provide updates for the Product to the Customer without any additional charge; provided that such updates shall be limited to the same major version of the Product (for example, if the major version of the Product is version 2.0, updates of the Product to versions 2.1, 2.2, and all other subsequent sequential updates of that series, shall be provided to the Customer without any additional charge, however when the major version of the Product is upgraded to version 3.0, then it is considered to be a new Product and additional fees will be required to be paid by the Customer to FDS).
    4. If the present major version of the Product is upgraded to a new major version, support for any earlier versions will not be provided (for example, if the Product is upgraded to version 3.0, any older versions, such as 2.0, 2.1 and 2.2, will not be supported).
    5. FDS will provide support solely to the latest updated and upgraded version of the Product.
  6. Remedies
    1. The Customer agrees that its only remedy against FDS under this Agreement or otherwise for any claim of defects or alleged deficiencies in the Product shall be limited to the following paragraphs.
    2. FDS shall repair the defect by providing updates or otherwise within a reasonable period of time, to the extent that the defect comes within the definition of “Defects” expressly identified in the Product manual issued by FDS and which defect is caused by the ordinary use of the Product by the Customer according to the Product manual. Provided that, if the present version of the Product is upgraded to a new version, such repair for any earlier versions will not be provided.
    3. The Customer agrees that there are no other warranties, claims or representations made by FDS, either express or implied, with respect to the Product, including warranties of quality, merchantability, fitness for any purpose, or any other feature of the Product.
    4. FDS shall not be liable to the Customer or any party for any loss, damage, claim or demand whatsoever arising out of the use of the Product by the Customer or any other person, or by reason of the Customer’s use of the Product for diagnostic purposes in any country, state or other jurisdiction where pharmaceutical or other similar approvals are required in order to use the Product for diagnosis.
    5. In the case where Distributor (as defined below) or other third person makes or develops brochures, advertisements, Language Files, or any other documents relating to the Product, FDS gives no warranty of the accuracy of the content and translation. Otherwise notices in Japanese or English, notices relating to the Product in another language are not official, and FDS gives no warranty with respect to such notices.
  7. Medical devices
    1. In the case where the Product constitutes a medical device that receives approval under the law on securing quality, efficacy and safety of products including pharmaceuticals and medical devices in Japan, this Article applies.
    2. In a case referred to in preceding paragraph, Customer shall update the Product if FDS requests.
    3. In a case referred to in paragraph 1, Customer shall report whether it has updated the Product or not if FDS requests.
  8. Cloud Services
    1. In the case where the Product is used by the way of connecting to a server that is not in the control of Customer due to instruction by FDS or as agreed by the parties, this Article will apply.
    2. In a case under the preceding paragraph, Customer can use the Product only by connecting to a server instructed by FDS in compliance with the guidance and instructions by FDS on the internet.
    3. In a case referred to in paragraph 1, Customer shall register an account in the way FDS instructs. Registration of such an account shall constitute the Customer’s acceptance of and agreement to this Agreement. Customer shall be responsible for proper management of information of the account, and shall not assign or loan the account or allow a third person to use it.
    4. In a case referred to in paragraph 1, Customer shall pay the user fee separately agreed between the Customer and FDS.
    5. In a case referred to in paragraph 1, FDS can refuse the use of the Product when the Customer violates this Agreement.
    6. In a case referred to in paragraph 1, FDS can stop the use of the Product without any prior notice to Customer and shall not be liable to the Customer for any loss, damage, claim or demand when (1) maintenance or renewal are being performed on the hardware, software, server, etc., related to the Product, (2) it is difficult to let Customer use Product because of force majeure, including natural disaster, acts of God or electric outage, (3) it is difficult to let Customer use Product because of operational or technical reason or unexpected condition, or (4) FDS otherwise decides it is necessary to stop use of the Product.
    7. In a case referred to in paragraph 1, FDS shall not be liable to the Customer a case where (1) suspension, stop or delay of use of the Product, or loss or leakage of data of Customer (including information of Customer), or damage relating to use of the Product happens, or (2) the information sent by Customer is not accepted in the server of the Product.
    8. In a case referred to in paragraph 1, Customer shall not allow unspecified or large numbers of people to access Customer files using the Product’s publish function. The Customer must ensure that third persons to whom the Customer makes files available for viewing through the publish function comply with the same obligations as in this License Agreement, and the Customer must prohibit multiple accesses and prohibit such third person from giving access to the file to any other third person.
    9. In a case referred to in paragraph 1, when the use of the Product is suspended or terminated and the data on the server instructed by FDS is to be moved to another server, the Customer shall contact FDS in advance and follow the instructions of FDS on how to move the data. FDS will charge a fee for this data transfer.
  9. Electronic Signatures and AgreementsThe Customer acknowledges and agrees that by clicking on the button labeled “I accept the agreement” or “Browse”, as may be designated by FDS to install or use the Product, it unreservedly accepts and agrees to all of the terms and conditions of this Agreement, and that the Customer is submitting a legally binding electronic signature and is entering into a legally binding contract. The Customer acknowledges that the Customer’s electronic submissions constitute agreement and intent to be bound by this Agreement and all of its terms. Pursuant to any applicable statues, regulations, rules, ordinances or other law, THE CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCT. Further, the Customer hereby waives any rights or requirement under any statutes, regulations, rules, ordinances or other laws in any jurisdiction that require an original signature, or delivery or retention of non-electronic records.
  10. DistributorIf the parties agree that FDS appoints Customer as a distributor (“Distributor”) of the Product, the provisions of the Distributor Agreement set out as Exhibit A will apply to the parties.
  11. Support and Upgrades AgreementIf the parties agree that FDS provides support, update and upgrade relating to the Product and Customer pays for such provision, the Support and Upgrades Agreement set out as Exhibit B will apply to the parties.
  12. GDPR ComplianceIn a case referred to in Article 8, paragraph 1, personal data stored by a customer on a server at the direction of FDS is subject to the EU General Data Protection Regulation (2016/679), and the Data Processing Agreement set out in Exhibit C will apply to the parties.
  13. General Provisions
    1. FDS may modify this Agreement in its absolute discretion by posting the revised Agreement on its website, located at https://fujidenolo-s.co.jp/terms/en/.
    2. The Customer’s continued use of the Product shall constitute the Customer’s acceptance of and agreement to any such revised Agreement and all of its terms.
    3. FDS manages the personal information of Customer according to FDS’s Privacy Policy. FDS observes applicable laws to protect the personal information of Customer.
    4. The Customer may not assign this Agreement or any rights under it.
    5. Nothing in this Agreement shall constitute a partnership, agency or similar relationship, or joint venture between the Customer and FDS.
    6. The Customer agrees that this Agreement shall be governed by and construed in accordance with the laws of Japan.
    7. The Customer further agrees that all disputes arising between the parties in regard to this Agreement or any issue arising under or from it shall be finally and conclusively settled by arbitration in Japan under the arbitration rules of the Japan Commercial Arbitration Association.
    8. When FDS and Customer enter into this Agreement and similar license agreement in Japanese, the similar license agreement in Japanese shall apply preferentially to a Customer located in Japan, and this Agreement shall apply preferentially to a Customer located outside Japan.

Distributor Agreement

Exhibit A

This Agreement (the “Agreement”) is entered into between Fujidenolo Solutions Co., Ltd. (“FDS”) and the Distributor, as follows:

  1. BackgroundFDS has developed, owns, and licenses software specified separately (the “Product”), and the Distributor wishes to resell the Product to Users and Sub-distributors. Therefore, the parties agree as follows:
  2. Appointment
    1. The Distributor is hereby appointed as a non-exclusive distributor of the Product in the area specified separately (“Territory”) pursuant to this Agreement.
    2. The Distributor accepts the appointment referred to in the preceding paragraph, and agrees to serve as a distributor of the Product to the end user of the Product (“Users”) and other third persons (“Sub-distributors”) located in the Territory as provided herein.
    3. The Distributor understands and shall inform each User that the use of the Product is dependent upon each User and Sub-distributor agreeing and adhering to a License Agreement with FDS, where applicable. The Distributor must inform each User that the Product should not be used for diagnostic purposes in any state, country or jurisdiction where pharmaceutical or other similar approvals (such as those granted by bodies such as the FDA, CE, HIPAA, or other regulatory bodies of any kind; the same shall apply hereinafter), are required in order to use the Product for diagnosis.
    4. If the parties agree that FDS appoints Distributor as a sole distributor of the Product in the Territory, during the term of this Agreement, FDS shall not appoint any third person having its head office in Territory as a distributor of the Product and the Distributor shall not sell or license to use any other third person software (including software developed by Distributor) that has the same or similar functions as the Product.
    5. If the parties agree that FDS appoints Distributor as a sole distributor of the Product in the Territory, during the term of this Agreement, in the case where FDS knows that a third person has the intention to resell a Product to Users or Sub-distributors located in the Territory, FDS shall not accept the order for the Product from such third person, provided that, FDS reserves the unrestricted right to sell and license the Product to Users directly.
    6. Except as set forth in the preceding paragraphs 4 and 5, this Agreement is not exclusive to the Distributor, and FDS reserves the unrestricted right to sell, license, market and distribute the Product and to grant such right to persons other than the Distributor in its absolute discretion anywhere in the world.
    7. Notwithstanding any provisions in this Article, if any prospective User contacts FDS directly, then FDS may introduce that User to the Distributor in FDS’s absolute discretion.
    8. Before the Distributor resells the Product to a Sub-distributor, the Distributor shall send FDS a document that is specified by FDS and can prove the Sub-distributor’s agreement to bear the same obligations as those of this Agreement.
    9. When the Distributor sends to FDS the document prescribed in the preceding paragraph, FDS shall not prevent the Sub-distributor from reselling the Product to end users in the Territory.
  3. License
    1. The Distributor is hereby authorized to grant to Users a limited, non-exclusive, non-transferable, and non-assignable license to download the Product from the website specified by FDS. The Distributor shall have the right to sub-license the Product to Users pursuant to the terms and conditions of this Agreement. Each sub-license granted by the Distributor shall also be subject to the provisions of a License Agreement between FDS and the User.
    2. The Distributor is prohibited from and shall not have any right to create any derivative works of the Product, in whole or in part, and shall not upload, disassemble, decompile, reverse assemble, reverse compile, recompile or make extracts from the Product.
    3. No License is granted for any use or reproduction of the Product, in whole or in part.
  4. Order and Payment
    1. Before the Distributor resells the Product to Sub-distributors or sub-licenses the Product to Users, the Distributor shall order the Product by using the format specified by FDS.
    2. FDS shall send the Distributor an invoice promptly and within a reasonable time when FDS accepts the received Distributor order.
    3. When FDS sends the invoice according to the prior paragraph, an individual contract is established, and payment specified in such individual contract shall be made by the Distributor to FDS. After the individual contract becomes effective, payment is not refundable.
    4. FDS shall issue a password to the Distributor promptly after confirming payment for the Product and receiving necessary information and a request to issue a password by using the format specified by FDS.
  5. Covenants of Distributor
    1. The Distributor understands that the Product shall not be used for diagnostic purposes in any state, country or jurisdiction where pharmaceutical or other similar approvals are required in order to use the Product for diagnosis without such approvals.
    2. The Distributor has the obligation to investigate and identify whether such pharmaceutical or similar approvals are required in order to use the Product for diagnosis in the state, country or jurisdiction where the Distributor wishes to resell the Product, and the Distributor agrees that it must, before reselling the Product to a Sub-distributor or an User, identify and explain these requirements to each prospective Sub-distributor or User of the Product.
    3. The Distributor shall not sell the Product by accepting orders for sales on the internet. The Distributor shall not publish or advertise the prices of the Product on the internet.
  6. Medical devices
    1. In the case where the Product constitutes a medical device that receives approval under the law on securing quality, efficacy and safety of products including pharmaceuticals and medical devices in Japan, this Article applies.
    2. In a case referred to in the preceding paragraph, Distributor shall obtain and keep the necessary approval and license to sell medical devices.
    3. In a case referred to in paragraph 1, when a complaint arises about the quality, etc., of Products Distributer shall investigate the causes for matters related to the complaints, take necessary measures, and record the condition.
    4. In a case referred to in paragraph 1, when the Distributor finds matters concerning the occurrence of disease, disability, or death suspected to be caused by failure or otherwise of the Product or the occurrence of infectious diseases suspected to be caused by the use of the Product, the Distributor shall notify FDS about the same.
    5. In a case referred to in paragraph 1, when the Distributor provides advertising for the Product, Distributor shall label the following matters: (1) the name and address of the Distributor; (2) the telephone number or other contact information; and (3) other necessary matters.
    6. In a case referred to in paragraph 1, when the Distributor accepts the Product from FDS or sells the Product, the Distributor shall state the following matters in documents and preserve these documents for three (3) years: (1) The name of the Product; (2) quantity; (3) the manufacturing number or manufacturing code; (4) the day of acceptance or sale (5) the name and address of transferrer or transferee.
    7. In a case referred to in paragraph 1, when it is necessary to collect Products according to the law on securing quality, efficacy and safety of products including pharmaceuticals and medical devices in Japan, Distributor shall cooperate with FDS to collect Products.
    8. In a case referred to in paragraph 1, Distributor shall confirm and report whether Users have updated the Product or not if FDS requests.
    9. In a case referred to in paragraph 1, Distributor shall comply with the law on securing quality, efficacy and safety of products including pharmaceuticals and medical devices in Japan, other laws and regulations, in addition to the requirements set in other paragraphs.
    10. If the Product is a medical device that obtains notification, certification or approval, etc., according to applicable foreign laws, Distributor shall comply with and observe the obligations according to the applicable foreign laws.
  7. User InformationWhen Distributor submits an order according to Article 4.1, Distributor shall report User’s or Sub-distributor’s information to FDS using the format specified by FDS.
  8. Support
    1. FDS shall provide support to the Distributor only by e-mail without any additional cost to the Distributor.
    2. FDS shall not be obliged to provide any direct support to the Distributor’s User and Sub-distributor. The Distributor shall provide any and all necessary support to the User at the Distributor’s sole expense.
    3. FDS provides updates of the Product to Users and end users purchasing the Products according to Article 2.9 without any additional charge, provided that such updates shall be limited to the same major version of the Product. (For example, if the major version of the Product is version 2.0, updates of the Product to versions 2.1, 2.2 and other subsequent sequential updates of that major version in that series shall be provided to the User without any additional charge. However if the major version of Product is upgraded to version 3.0, then the Product is considered to be a new Product and an additional fee will be required to be paid by the Distributor to FDS.). This paragraph doesn’t apply when Users or end users purchases the Products according to Article 2.9 and FDS enter into the Support and Upgrades Agreement.
    4. If the present major version of the Product is upgraded to a new major version, support for the previous major version of the Product will not be provided.
    5. FDS will provide support solely for the latest updated and upgraded version of the Product.
    6. FDS may provide additional options or functions of the Product, which additions will require the Distributor to pay additional fees to FDS.
    7. FDS shall provide the Distributor with a newsletter or other communication, in its discretion, about any updates, upcoming feature previews, and other important information.
  9. Demonstration Edition
    1. The Distributor may use the Product for demonstration purposes only with the express prior written approval of FDS.
    2. In order to use the Product for demonstration, the Distributor must make a request to FDS using the format specified by FDS (the “Request Form”).
    3. FDS shall then consider the information provided by the Distributor in the Request Form to decide whether to approve or not approve the Distributor’s request in its absolute discretion. The Distributor agrees to limit use of the Product for the purposes of a demonstration to a reasonable and not excessive range. The Distributor agrees that FDS has the right to limit use to a reasonable range to be determined in FDS’s absolute discretion.
    4. The Distributor must report the results of any demonstration in the format specified by FDS within one (1) week from the end date of the demonstration stated in the Request Form. If the Distributor does not report the results within two (2) weeks of the end date of the demonstration, FDS may consider that the Distributor has no intention to make any report on the results of the demonstration, and the Distributor agrees that FDS has the right to charge the Distributor an amount equivalent to the full price of the Product before any discount, and the Distributor hereby agrees to pay this amount to FDS within ten (10) days of FDS’s demand for it.
  10. Product ChangesFDS has the right to modify, alter, amend or delete any portions or parts of the Product at any time in its absolute discretion. Distributor may not alter, merge, modify or adapt the Product in any way, including by reverse engineering, disassembling or decompiling.
  11. Intellectual Property
    1. FDS retains all ownership rights to all applicable copyrights, trade secrets trademarks, service marks, trade names and other intellectual property rights (including similar rights throughout the world, “Intellectual Property Right”) in the Product. The Distributor shall not copy, modify or reproduce the Product or accompanying documentation in any way, nor may it reverse engineer, disassemble, or decompile the Product, nor remove, obscure or alter FDS’s proprietary notices, any accompanying License Agreement or other documentation for or relating to the Product.
    2. Any documentation accompanying a Product shall also be deemed to be part of the Product and must be delivered by the Distributor to each User or Sub-distributor as a complete Product.
    3. FDS grants the Distributor a non-exclusive, royalty-free license to use FDS’s trademarks, service marks, and trade names for the purpose of advertising, promoting, merchandising and marketing the Product; subject to the prior approval of FDS of the content of such advertising, promotion, merchandising, and marketing. The Distributor will discontinue all use of FDS’s marks, names and all other indicia of its brand promptly upon the termination or expiration of this Agreement.
    4. If the Distributor provides FDS a file to translate the Product (the “Language File”), Distributor shall assign and transfer copyrights and other Intellectual Property Rights (including, without limitation, the rights with respect to Article 27 and 28 of Copyright Act in Japan, and similar rights throughout the world.; the same shall apply hereinafter) relating the Language File without any fees, and Customer shall not assert moral rights relating the Language File.
  12. Modification
    1. If the parties agree to modification of the Product for the Distributor by FDS, FDS shall modify the Product in accordance with the specification agreed by the parties (“Specification”).
    2. FDS shall upload the modified Product to enable the Distributor to download the Product.
    3. If the parties agree, Distributor may assign a new name to the modified Product and resell the modified Product under the new name and Distributor’s own brand and using Distributor’s trademark and logo. Distributor shall report the new name, the trademark and the logo of the modified Product and the place where the modified Product is utilized.
    4. Distributor warrants that the Specification does not infringes the Intellectual Property Rights of any third person, and FDS bears no obligation to investigate whether the Specification infringes the Intellectual Property Rights of any third person. If the Specification infringes a third person’s Intellectual Property Rights, Distributor shall compensate for the loss and damage caused to FDS.
  13. Unauthorized Use
    1. When the Distributor recognizes or detects unauthorized use of the Product by any person, the Distributor must immediately notify FDS of this event in writing and the Distributor shall take all measures necessary to stop such unauthorized use.
    2. FDS shall not be liable for any loss or damage incurred or any claim or demand made against the Distributor, any Sub-distributor and any User whatsoever arising out of the unauthorized use of the Product by any person.
  14. Warranties
    1. The Distributor agrees that its only remedy against FDS under this Agreement or otherwise for any claim shall be limited to the following: FDS shall repair the defect by providing updates or otherwise within a reasonable period of time, to the extent that the defect comes within the definition of “Defects” expressly identified in the Product manual issued by FDS and which defect is caused by the ordinary use of the Product by the User according to the Product manual. Provided that, if the present version of the Product is upgraded to a new version, such repair for any earlier versions will not be provided.
    2. FDS shall not be liable for any loss or damage incurred or any claim or demand made against the Distributor, a Sub-distributor or a User whatsoever arising out of the ordinary and proper use or any other use of the Product.
    3. The Distributor agrees to indemnify FDS and to hold FDS harmless from and against any loss, damage, claim or demand whatsoever arising out of the Distributor’s activities, including but not limited to any express warranties or representations made by the Distributor, its agents or employees, that are not part of the written warranty, and that are not approved specifications of the Product.
    4. The Distributor agrees that it is obliged to properly investigate whether any pharmaceutical, medical or other similar regulatory approval or approvals are required in order for the User to use the Product for diagnosis in the state, country or jurisdiction where Distributor wishes to resell the Product, and agrees to indemnify FDS from and against any loss, damage, claim or demand whatsoever arising out of lack of pharmaceutical, medical or other similar regulatory approvals.
    5. Distributor agrees that with respect to the Product, Distributor shall neither give nor make any other or different warranty or representation as to the quality, merchantability, fitness for purpose, or any other feature of Product, other than those that have been expressly made in writing by FDS and that are in the Product manual.
    6. In the case where Distributor makes or develops brochures, advertisements Language Files, or any other documents relating to the Product, Distributor represents and warrants that the contents and the translation of these is accurate.
  15. Relationship of the PartiesIt is expressly understood and agreed that the relationship between the parties is solely that of “Seller” and “Distributor”. The Distributor is not and shall not be a partner, agent, representative or joint-venturer of or with FDS. The Distributor has no authority to assume or create any obligation, or any estoppel or other legal, equitable or restitutionary obligation whatsoever for or on behalf of FDS, express or implied, with respect to the Product or otherwise.
  16. Term and Termination
    1. The Term of this Agreement is a period of one (1) year from the effective date. At the end of the initial term or any extension term, the term of this Agreement shall be automatically extended for an additional one (1) year term unless one of the parties gives the other party a notice to terminate this Agreement at the end of that term, at least thirty (30) days in advance of such termination.
    2. This Agreement may be terminated by FDS if Distributor does not pay the amounts owing to FDS by the Distributor within 30 days of their respective due dates.
    3. If FDS has reasonable grounds to suspect that the Distributor’s promises, information (such as User’s or Sub-distributor’s information), or reports (including but not limited to reports of demonstrations) are inaccurate or otherwise in breach of this Agreement, FDS may terminate this Agreement in its absolute discretion, and pursue any appropriate legal or other remedies.
    4. The expiration or termination of this Agreement for any reason whatsoever shall not discharge or relieve either party from any obligation that accrued prior to such expiration or termination, and shall not relieve any party that has breached this Agreement from liability for damages resulting from such breach. Further, the expiration or termination of this Agreement for any reason whatsoever shall not destroy or diminish the binding force and effect of any of the provisions of this Agreement that expressly, or by reasonable implication or imputation, come into effect or continue to have effect on or after expiration or termination of the Agreement.
  17. Governing Law and Arbitration
    1. This Agreement and its validity, construction and effect shall be governed by the laws of Japan.
    2. All disputes arising between the parties in regard to this Agreement shall be finally and conclusively settled by arbitration in Japan under the arbitration rules of the Japan Commercial Arbitration Association.
  18. General Provisions
    1. This Agreement supersedes all prior agreements, proposals, representations and communications between the parties relating to the subject matter herein. In the case of conflict between this Agreement and the Distributor’s purchase orders issued for the Product, the terms of this Agreement shall prevail.
    2. The Distributor and FDS agree that this Agreement, and the Product, including all information related to the Product, that is disclosed to the Distributor as a result of this Agreement, (1) constitute the proprietary and confidential information of FDS; (2) shall be used by the Distributor only as required to exercise the license granted under this Agreement; and (3) shall be held in confidence and shall not be made available in any form to any person or entity other than the Distributor, without the express written consent of FDS. FDS agrees that the Distributor shall be permitted to disclose relevant aspects of the Product and related information about FDS to any User and Sub-distributor, but solely to the extent that such disclosure is directly related to the User’s or Sub-distributor’s use or purchase of the Product, and provided that the Distributor shall take all reasonable steps to ensure that the Product is not copied, duplicated or otherwise reproduced in whole or in part, in contravention of the Agreement.
    3. FDS agrees that all information relating to the Product that is disclosed to FDS as a result of this Agreement shall be used according to FDS’s Privacy Policy.
    4. FDS may modify this Agreement in its absolute discretion by posting the revised Agreement on its website, located at https://fujidenolo-s.co.jp/terms/en/.
    5. The absence of any objection by Distributor within two (2) weeks from any modification of this Agreement prescribed in preceding paragraph shall constitute the Customer’s acceptance of and agreement to such revised Agreement and all of its terms.
    6. When FDS and Distributor enter into this Agreement and a similar distributor agreement in Japanese, the similar agreement in Japanese shall apply preferentially to a Distributor located in Japan, and This Agreement shall apply preferentially to a Distributor located outside of Japan.
    7. The Distributor shall be exclusively responsible for the procurement and renewal of all export or import licenses required under foreign law for the export or import of the Product, and shall be solely and exclusively responsible for the timely payment of all costs and other expenses (including taxes) in connection with such procurement and renewal. The Distributor agrees to comply with any applicable export or import laws of any foreign country or jurisdiction with respect to the export of the Product from Japan. The Distributor shall be solely and exclusively responsible at its own expense for compliance with all domestic or other laws, legislative, administrative, decisional or arising otherwise, relating to the Product in the states, countries or jurisdictions in which the Distributor sells the Product.
  19. Effective DateThis Agreement shall be effective as of and from the date FDS and the Distributor enter into this Agreement.

Support and Upgrades Agreement

Exhibit B

This Agreement (the “Agreement”) is entered into between Fujidenolo Solutions Co., Ltd. (“FDS”) and the Customer, as follows:

  1. BackgroundFDS can provide support, update and upgrade for the software specified separately (the “Product”), and the Customer wishes to be provided with support, update and upgrade for the Product. Therefore, the parties agree as set out in this Agreement.
  2. Support
    1. FDS provides updates and upgrades of the Product to the Customer without limitation to the same major version of the Product. (For example, if the major version of the Product is version 2.0, updates of the Product to versions 2.1, 2.2 and other subsequent sequential updates of that major version in that series, and upgrades of the Product to new major version 3.0 also shall be provided to the Customer.)
    2. FDS shall provide Customer technical advice about the Product (“Technical Advice”) in preference to third persons who have not entered into a Support and Upgrades Agreement.
    3. Technical Advice can be provided from 10 am to 5 pm during weekdays, Japan time.
    4. Technical Advice can be provided via E-mail, but cannot be provided by telephone or by dispatch of FDS’s employee.
    5. Technical Advice excludes support by dispatch of FDS’s employee to Customer’s office and with acceptance of hardware etc.
    6. FDS will provide support solely for the latest updated and upgraded version of the Product.
  3. PriceThe price for the services in the preceding Article shall be agreed separately.
  4. Loss the LicenseIn the case where the Product constitutes a medical device that receives approval under the law on securing quality, efficacy and safety of products including pharmaceuticals and medical devices in Japan, when this Agreement is terminated or becomes invalid, the License Agreement between FDS and Customer shall be terminated and Customer will lose the right and license to use the Product.
  5. Term and Termination
    1. The Term of this Agreement is a period of one (1) year from the effective date. At the end of the initial term or any extension term, the term of this Agreement shall be automatically extended for an additional one (1) year term unless one of the parties gives the other party a notice to terminate this Agreement at the end of that term, at least thirty (30) days in advance of such termination.
    2. This Agreement may be terminated by FDS if Customer does not pay the amounts owing to FDS by the Distributor within one (1) week of their respective due dates.
    3. The expiration or termination of this Agreement for any reason whatsoever shall not discharge or relieve either party from any obligation that accrued prior to such expiration or termination, and shall not relieve any party that has breached this Agreement from liability for damages resulting from such a breach. Further, the expiration or termination of this Agreement for any reason whatsoever shall not destroy or diminish the binding force and effect of any of the provisions of this Agreement that expressly, or by reasonable implication or imputation, come into effect or continue to have effect on or after expiration or termination of the Agreement.
  6. Governing Law and Arbitration
    1. This Agreement and its validity, construction and effect shall be governed by the laws of Japan.
    2. All disputes arising between the parties in regard to this Agreement shall be finally and conclusively settled by arbitration in Japan under the arbitration rules of the Japan Commercial Arbitration Association.
  7. General Provisions
    1. FDS may modify this Agreement in its absolute discretion by posting the revised Agreement on its website, located at https://fujidenolo-s.co.jp/terms/en/.
    2. The Customer’s continued use of the Product shall constitute the Customer’s acceptance of and agreement to such revised Agreement and all of its terms.
    3. When FDS and Customer enter into this Agreement and a similar support and upgrades agreement in Japanese, the similar support and upgrades agreement in Japanese shall apply preferentially to a Customer located in Japan, and This Agreement shall apply preferentially to a Customer located outside of Japan.
  8. Effective DateThis Agreement shall be effective as of and from the date FDS and the Customer enter into this Agreement.

Data Processing Terms

Exhibit C

These data processing terms (hereinafter referred to as these “Data Processing Terms”) shall apply to the processing of personal data governed by GDPR, which are conducted by the processor, Fujidenolo Solutions Co., Ltd. (hereinafter referred to as “FDS”) in accordance with the instructions of the customer as a controller (hereinafter referred to as “Customer”), in the use of the software (hereinafter referred to as the “Product”) of FDS by Customer. These Data Processing Terms shall constitute a part of the License Agreement, and in the instance of a conflict between the terms of these Data Processing Terms and the License Agreement, the terms of these Data Processing Terms shall prevail only to the extent governed by GDPR. The obligations and responsibilities of FDS regarding compliance with GDPR shall be limited to those stipulated in these Data Processing Terms.

  1. DefinitionsIn these Data Processing Terms, the following capitalized terms shall have the meanings set forth below. The definitions in Article 4 of GDPR apply to those not defined in these Data Protection Terms.
    1. “GDPR” means the EU General Data Protection Regulation 2016/679. GDPR, the law of European Union and the domestic laws of the European Union Member States relating to privacy or to the use or processing of data of natural persons are collectively referred to as “GDPR, Etc.”
    2. “Supervisory Authority” means an independent supervisory authority established by the Member State of the European Union under Article 51 of GDPR.
    3. “Personal Data” means any information relating to an identified or identifiable natural person (hereinafter referred to as “Data Subject”).
    4. “Processing” means any operation or set of operations that are performed on Personal Data or on sets of Personal Data, whether or not by automated means.
    5. “Controller” means any natural person, legal person, public authority, governmental agency, or other body that, alone or jointly with others, determines the purposes and means of processing Personal Data.
    6. “Processor” means a natural person, legal person, public authority, governmental agency, or other body which processes Personal Data on behalf of the Controller.
  2. Parties Obligations
    1. In processing Personal Data in connection with these Data Processing Terms, FDS shall comply with the provisions and obligations stipulated in GDPR, etc., which shall extend to the types of Personal Data, category of Data Subjects, nature and purposes of processing, and term of processing set forth in the Appendix. FDS shall perform the processing only for the purposes set forth in the Appendix.
    2. When processing Personal Data, FDS shall comply with the obligations set forth in each of the following items in accordance with Article 28(3) of GDPR.
      1. FDS shall process Personal Data based only on documented instructions from Customer including those provided under these Data Processing Terms or under the License Agreement unless required to process under the law of the European Union or the domestic laws of Member States of the European Union. If FDS considers that such instructions are in breach of GDPR, etc., FDS shall promptly notify the Customer. In addition, if the law of the European Union or domestic law of the Member States of the European Union requires any processing, FDS shall notify the Customer of such legal requirement before processing, unless that law prohibits such notification based on substantial grounds of public interest.
      2. FDS shall impose confidentiality obligations on all officers and employees authorized to process Personal Data unless they are bound by an obligation of confidentiality under the domestic law of a Member State of the European Union.
      3. FDS shall implement appropriate technical and organizational measures to to protect Personal Data according to Article 32 of GDPR.
      4. If FDS outsources the processing of Personal Data to another processor (hereinafter referred to as “Sub-Processor”), FDS shall comply with the provisions of clause 6 of this Article.
      5. After considering the nature of the processing, FDS shall assist the Customer by taking such appropriate technical and organizational measures as may be reasonably required for the Customer to fulfill the obligation to facilitate the exercise of Data Subject rights as set forth in Chapter 3 of GDPR. If a request relating to the exercise of rights of a Data Subject is received, FDS shall immediately inform the Customer of such request.
      6. After considering the nature of the processing and the available information, FDS shall assist Customer in performing its obligations under the provisions of Article 32 (Security of processing), Article 33 (Notification of a Personal Data breach to the Supervisory Authority), Article 34 (Communication of a Personal Data breach to the Data Subject), Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of GDPR.
      7. Upon the termination of the License Agreement, FDS shall delete or return all Personal Data as selected by Customer and delete any existing copies, unless the law of the European Union or the domestic law of Member States of European Union requires it to retain such Personal Data. In the event Customer does not notify FDS in writing of its decision to delete or return within thirty (30) days after termination of the provision of the services, FDS shall delete all Personal Data. Customer shall back up the data at its responsibility before termination of the License Agreement; provided, however, for the services that automatically delete data upon completion of provision of the service, Customer shall have chosen to delete them under these Data Processing Terms. In this case, the Customer shall, if necessary, contact FDS in advance and follow the FDS’s instructions on how to move the data (FDS will charge a fee for this data transfer.) before the termination of the service provision.
      8. FDS shall keep all information reasonably required to prove compliance with the obligations under Article 28 of GDPR (other than information necessary to be kept confidential by FDS for security or other reasons) available to Customer, if the Customer requests in writing within the period separately specified. For the avoidance of doubt, audits of Customer or auditors shall be allowed in accordance with the internal procedures of FDS during its business hours, only when requested by the Customer in writing within the period separately specified and FDS is reasonably deemed to fail to prove its compliance with the obligations of Processor under Article 28 of GDPR.
    3. When FDS becomes aware of a Personal Data breach, FDS shall notify the Customer without delay in accordance with Article 33(2) of GDPR.
    4. FDS shall maintain a record of processing activities in accordance with Article 30(2) of GDPR.
    5. When any Controller other than Customer (including parent companies, subsidiaries, affiliates, etc., of Customer) uses the Products, Customer shall act as an agent of such Controller in terms of the rights and obligations under these Data Processing Terms. Where such Controller has the right to request directly to FDS, Customer shall exercise such right, and Customer shall obtain all consents required from such other Controller. When FDS notifies or provides information to the Customer, FDS is deemed to have fulfilled its obligation to notify or provide such information to the Controller other than the Customer.
    6. The Customer comprehensively agrees in advance that FDS may cause specific processing work to be carried out by Sub-Processor as it deems appropriate. FDS shall notify the Customer in advance in the case of addition or change of Sub-Processor. The Customer may reject in writing within thirty (30) days of such notice. If the Customer does not reject within such period, FDS may use Sub-Processor to perform the specific processing work. In the event that FDS fails to take reasonable measures in response to a legitimate rejection by Customer, Customer may terminate the License Agreement without paying additional costs, such as penalty or other, by giving written notice to FDS within thirty (30) days from the rejection. Sub-Processor shall assume the same obligation of data protection that FDS is obliged to the Customer. If the Sub-Processor fails to comply with the obligation of data protection, FDS shall be liable to the Customer for such data protection.
  3. Force MajeureFDS shall not be liable to compensate Customer for any failure or delay in the performance of its obligations under these Data Processing Terms due to acts of God, strikes, riots, war, or other force majeure events.

Appendix

Types of Personal Data
  • Name
  • Age
  • Sex
  • Date of Birth
  • ID
  • Examination Information (including images and observation from doctors, etc.)
Category of Data Subject patients of Customer
Nature and purpose of processing provision and improvement of the Products
Term of processing the term of the License Agreement
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