Terms of Service

1. WELCOME

As part of the Service, ImaHima will provide the Subscriber with use of the Service, including a downloadable client and data transmission, access and storage. Subscriber's registration for, or use of, the Service shall be deemed to be agreement to abide by this Agreement including any materials available on the ImaHima or the Service website incorporated by reference herein, including but not limited to ImaHima's or the Service's privacy and security policies.

The Service is offered for the following software application:
Colabolo

The Service can be used via the Service's downloadable client to access the Service's server.

2. DEFINITIONS

Adobe AIR means the AIR runtime environment developed and distributed by Adobe Systems Incorporated.
JPY means Japanese yen.
ImaHima means ImaHima, Inc. of 1-3-1-302 Moto-Azabu, Minato-ku, Tokyo 106-0046, JAPAN.
Service means the specific ImaHima software application identified during the ordering process, developed, operated, and maintained by ImaHima, accessible via http://www.colabolo.com or another designated web site or IP address, or ancillary online or offline products and services provided to Subscriber by ImaHima, to which Subscriber is being granted access under this Agreement.
Subscriber means the individual or entity that has subscribed for the Product under the terms and conditions of this agreement.
Term means the Initial Term or any Renewal Term, as defined in Section 7 below.
USD means United States dollars.
User means Subscriber's employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by ImaHima at Subscriber's request).

3. TERMS OF SERVICE FOR IMAHIMA APPLICATIONS

3.1.Terms of Service. Subscriber acknowledges and agrees to the following terms of service. In addition, Subscriber agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Subscriber will be subject to this Agreement.

3.2.Subscriber Must Have Internet Access. In order to use the Service, Subscriber must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Subscriber must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.

3.3.Accuracy Of Subscriber's Registration Information. Subscriber agrees to provide accurate, current and complete information ("Registration Data") about Subscriber as prompted by the registration form, which Subscriber will fill out online in order to gain access to the Service. Subscriber further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Subscriber acknowledges and agrees that if Subscriber provides information that is intentionally inaccurate, not current or incomplete in a material way, or ImaHima has reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, ImaHima has the right to suspend Subscriber's account.

3.4.Email And Notices. Subscriber agrees to provide ImaHima with Subscriber's e-mail address, to promptly provide ImaHima with any changes to Subscriber's e-mail address, and to accept emails (or other electronic communications) from ImaHima at the e-mail address Subscriber specifies. Except as otherwise provided in this Agreement, Subscriber further agrees that ImaHima may provide any and all notices, statements, and other communications to Subscriber through either e-mail or posting on the Service.

3.5.Passwords, Access, And Notification. The maximum number of users that Subscriber may designate under Subscriber's account is the number of seats purchased by Subscriber, and Subscriber may provide and assign unique passwords and user names to each authorized user for each seat purchased. Subscriber acknowledges and agrees that Subscriber is prohibited from sharing passwords and/or user names with unauthorized users. Subscriber will be responsible for the confidentiality and use of Subscriber's (including its employees') passwords and user names.

3.6.Third-Party Software. Subscriber agrees to use software produced by third parties, including, but not limited to, "Adobe AIR" software that is required to use the Service provided by ImaHima. Until notified otherwise by ImaHima, Subscriber agrees to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by ImaHima and to follow logon procedures for services that support such protocols. Subscriber acknowledges that ImaHima is not responsible for notifying Subscriber of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by ImaHima or telecommunications facilities, including, but not limited to, the Internet.

3.7.Transmission Of Data. Subscriber understands that the technical processing and transmission of Subscriber's electronic communications is fundamentally necessary to Subscriber's use of the Service. Subscriber agrees that ImaHima is not responsible for any electronic communications and/or Subscriber Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by ImaHima.

3.8. Proprietary Rights. Subscriber acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber further acknowledges and agrees that content or information presented to Subscriber through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.

3.9. Confidentiality. Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure ("Confidential Information"). Confidential Information will also include the Software, Documentation, the terms of this Agreement, and any new product information or the results of any bench mark or similar tests on the Software conducted by Subscriber or divulged by Subscriber to ImaHima. Each party shall treat the other party's Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of it own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; (vi) is disclosed in response to a valid order of a court or other governmental body of Japan or any political subdivision thereof; provided, however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued; or (vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Notwithstanding the foregoing, either party may disclose Confidential Information to its authorized employees, legal counsel or accountants; provided, however, that the party disclosing such information (a) contractually obligates all of the foregoing to a duty of confidentiality no less restrictive than the duty imposed by this Section 3.9 and (b) remains liable for any breach of confidentiality by such authorized employees, legal counsel or accountants. ImaHima may use aggregate information to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address.

4. RESTRICTIONS AND RESPONSIBILITIES

This is a contract for Services and the server-side software will be installed, accessed and maintained only by or for ImaHima and no license is granted thereto. Likewise, client-side software will be downloaded and installed by the User to access the Service and no license is granted thereto. Subscriber will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
Subscriber represents, covenants, and warrants that Subscriber will use the Services only in compliance with ImaHima's standard policies then in effect (the "Policy") and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Subscriber hereby agrees to indemnify and hold harmless ImaHima against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber's use of Services. Although ImaHima has no obligation to monitor the content provided by Subscriber or Subscriber's use of the Services, ImaHima may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software (except the client-side software provided by ImaHima), operating system, networking, web servers, long distance and local telephone service (collectively, "Equipment"). Subscriber shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in ImaHima's published policies then in effect. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account or the Equipment with or without Subscriber's knowledge or consent.

5. BILLING AND RENEWAL

ImaHima charges and collects in advance for use of the Service. During any Term, ImaHima will automatically renew and bill Subscriber's PayPal account, credit card or issue an invoice (a) every month for monthly service, (b) every quarter for quarterly service, (c) each year on the subsequent anniversary for annual service, or (d) as otherwise mutually agreed upon. Payments made by the Subscriber under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by ImaHima, the Subscriber must pay to ImaHima the amount of such taxes or duties in addition to the Service Fee under this Agreement. Notwithstanding the foregoing, the Subscriber shall not be liable for any taxes or duties from which it is exempt at the time such taxes or duties are levied or assessed.

6. NON-PAYMENT AND SUSPENSION

In addition to any other rights granted to ImaHima herein, ImaHima reserves the right to suspend or terminate this Agreement and Subscriber's access to the Service if Subscriber's account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for User seats during any period of suspension. If Subscriber or ImaHima initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account computed in accordance with the Billing and Renewal section above. Subscriber agrees that ImaHima may charge such unpaid fees to Subscriber's PayPal account or credit card or otherwise bill Subscriber for such unpaid fees. Subscriber agrees and acknowledges that ImaHima has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber's account is 30 days or more delinquent.

7. TERMINATION UPON EXPIRATION/CHANGE IN NUMBER OF USERS

This Agreement commences on the Effective Date. Upon the expiration of the initially contracted period ("Initial Term"), this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term, or one year, if the Initial Term is greater than one year, (each a "Renewal Term") at ImaHima's then current rates, unless a different rate is specified in the Order Form. Either party may terminate this Agreement or change the number of Users, effective only upon the expiration of the then current Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. Subscriber agrees and acknowledges that ImaHima has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, immediately after termination.

8. TERMINATION FOR CAUSE

Any breach of Subscriber's payment obligations or unauthorized use of the ImaHima Technology or Service will be deemed a material breach of this Agreement. ImaHima, in its sole discretion, may terminate Subscriber's password, account or use of the Service if Subscriber breaches or otherwise fails to comply with this Agreement. In addition, ImaHima may terminate a free account at any time in its sole discretion. Subscriber agrees and acknowledges that ImaHima has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, including, but not limited to, failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

9. NO ASSIGNMENT

Subscriber shall not transfer or assign this Agreement or any rights or obligations hereunder without the prior written consent of ImaHima. Any attempted assignment or transfer in violation of the foregoing will be void.

10. PUBLICITY RIGHTS

Subscriber grants ImaHima the right to include the Subscriber as a customer in ImaHima's promotional material. Subscriber can have their name not used by ImaHima via email request to support@colabolo.com, unless agreed to in writing on a case by case basis.

11. REPRESENTATIONS & WARRANTIES

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. ImaHima represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online ImaHima help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not provided any false information to gain access to the Service and that billing information is correct.

12. INFRINGEMENT INDEMNIFICATION

By ImaHima: ImaHima shall defend, indemnify and hold Subscriber harmless from all settlements agreed to by ImaHima and all costs and direct damages awarded to a third party to the extent they arise out of a claim that the Service as delivered to Subscriber infringes a third party's registered U.S. patent or copyright. Subscriber will be entitled to indemnification only if (i ) Subscriber notifies ImaHima in writing within ten (10) days of the date Subscriber first becomes aware of a claim; (ii) ImaHima has sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) Subscriber gives ImaHima all reasonably available information and assistance, at ImaHima's expense. ImaHima may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible, terminate Subscriber's right to the allegedly infringing Service and refund to Subscriber the amount which Subscriber has paid for such Service. The foregoing indemnity will not apply to any infringement claim arising from (a) Service which has been modified by parties other than ImaHima or (b) combination of the Service with hardware or other software, if such claim would have been avoided by not so combining the Service. THE FOREGOING STATES SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
By Subscriber: Subscriber shall defend, indemnify and hold ImaHima harmless from all settlements agreed to by Subscriber and all costs and direct damages awarded to a third party to the extent they arise out of Subscriber's making representations or warranties regarding the Service to other third parties. ImaHima will be entitled to indemnification only if (i ) ImaHima notifies Subscriber in writing within ten (10) days of the date ImaHima first becomes aware of a claim; (ii) Subscriber has sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) ImaHima gives Subscriber all reasonably available information and assistance, at Subscriber's expense.

13. DISCLAIMER OF WARRANTIES

IMAHIMA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN. IMAHIMA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY IMAHIMA AND ITS LICENSORS.

14. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY

IN NO EVENT WILL IMAHIMA'S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO IMAHIMA DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. IMAHIMA WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF IMAHIMA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. TAX

Payments made by the Subscriber under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by ImaHima, the Subscriber must pay to ImaHima the amount of such taxes or duties in addition to the Service Fee under this Agreement. Notwithstanding the foregoing, the Subscriber shall not be liable for any taxes or duties from which it is exempt at the time such taxes or duties are levied or assessed.

16. GOVERNING LAW

This agreement is governed by the laws of Japan and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Tokyo District Court, Japan.

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