KOBIT Terms of Use

Chapter 1 General Rules

Article 1 (Application of Terms of Use)

With regard to a certain service called “KOBIT” (hereinafter referred to as the “Service”) provided by Creator’s NEXT.inc. (hereinafter referred to as the “Company”), these “Terms of Use of KOBIT” (hereinafter referred to as the “Terms of Use”) are intended to set forth necessary terms and conditions for the use of the Service by a person who has executed an agreement with the Company in respect of the use of the Service (hereinafter referred to as the “User”). The User is required to use the Service upon agreeing to the Terms of Use, and the User will be deemed to have consented to the Terms of Use upon clicking the field for the consent to the Service to indicate the consent to the Terms of Use.

Article 2 (Definitions)

The capitalized terms used in the Terms of Use shall have the meanings ascribed thereto respectively below.

“Use Agreement” refers to the agreement to be executed between the Company and the User in respect of the use of the Service pursuant to the Terms of Use.
“Use Agreement and Terms.” refers to the Use Agreement and the Terms of Use.
“User Facilities” refers to computers, telecommunications facilities, and other hardware and software (including those borrowed by the User from a third party or provided to the User by a third party for use) which the User will use in order to use the Service (for the purpose of the definition in this Item, if the User conducts a service for third parties based on the Service in accordance with Article 3, Paragraph 2, then such third parties shall also be included in the User).
“Service Facilities” refers to computers, telecommunications facilities, and other hardware and software to be installed by the Company (including those borrowed by the Company from a third party or provided to the Company by a third party for use) which the Company will install in order to provide the Service.
“Service Fees” refers to the total amount of the fees for the Service and consumption tax, etc., thereon.
“User ID” refers to a code to be used by the User to use the Service so that the User may be distinguished from other persons.
“Password” refers to a code used, in combination with User ID, to distinguish the User from other persons.

Chapter 2 Execution of Agreement and Service

Article 3 (Types and Contents of Service)

(1) The contents of the Service to be provided by the Company shall be as follows: Contents of the Service: to analyse access data in respect of the User’s site and propose improvement measures in plain English.

(2) To the extent of the Use Agreement executed by and between the User and the Company, the User may provide a service to third parties based on the Service.

(3) The Company or the relevant third parties hold copyrights, trademark rights, and other intellectual property rights (hereinafter referred to as “Copyrights, etc.”) in respect of the Service (including both the produced report, and the system to generate report), and unless otherwise specifically set forth in the Terms of Use, the User shall not be allowed to reproduce, adapt, publicly transmit (including making available to the public), alter, decompile, disassemble, reverse engineer, etc., the Service. The User acknowledges that the User shall not acquire copyrights, etc., in relation to the Service pursuant to the Use Agreement and Terms.

(4) The Service includes third party services (hereinafter referred to as “Third Party Service(s)”), and there may be cases where access to a Third Party Service or interactions, etc., with a Third Party Service may take place. The Company makes no representation or warranty in respect of, and shall not be responsible for, Third Party Services. The User may be requested to execute a separate agreement with a relevant third party in respect of the access, use, etc., in respect of Third Party Services. The User shall comply with the conditions of such agreement, and if the User provides the service to third parties in accordance with Paragraph 2 of this Article, then the User shall cause such third parties to comply with such agreement.

Article 4 (Notice of Change)

(1) If it is expected that there will be a change to the User’s trade name or name, location or address of the principal place of business, contact information, or any other information indicated in the Use Agreement, then the User shall notify the Company to that effect at least ten (10) days before the scheduled date of such change.

(2) The Company shall not be liable for any non-delivery of the Company’s notice or any other damage suffered by the User or third parties if the foregoing occurred due to the User’s failure to give the notice pursuant to the preceding Paragraph.

Article 5 (Execution of Use Agreement)

(1) Any person who applies for the use of the Service shall do so in either of the following ways: 1. by filling out necessary matters in the Company-designated service application form in response to the Terms of Use and an estimate, etc. (hereinafter referred to as the “Estimate”) and submitting the form to the Company (the Estimate and the application form shall be referred to hereinafter as the “Application Form” collectively); or 2. by taking the Company-designated application procedures, upon consenting to the Terms of Use and the fees publicly made available by the Company on its website, and applying to the Company. It is noted that, because the Company may, in its own discretion, change the fees, a User who has consented to the fees and who has taken the application procedures shall be responsible for keeping records of the fees at the time of the application for the Service.

(2) The agreement for the Service shall be formed when the User has submitted the Application Form to the Company or when the User has completed the Company-designated application procedures.

(3) If any of the events set forth in the following Items occurs with respect to the User, the Company may invalidate the Use Agreement retroactively to the time of application:

when there is a false statement, error, or omission in the Use Agreement;
when it is likely that monetary or other obligations under the Use Agreement will not be performed;
when it is technically difficult to provide the Service to the User; or
when the Company otherwise determines that the User is unsuitable;

(4) When the User intends to add a web site to be analysed, a function, etc., such addition (hereinafter referred to as an “Additional Contract Item”) shall be made to the Use Agreement when the use of such Additional Contract Item commences. The Additional Contract Item shall be reflected in the Service Fees to be invoiced by the Company. The calculation starting point [for the fees] in respect of the Additional Contract Item may be different from the time when such addition was made.

Article 6 (Territory for Provision of Service)

The territory for the provision of the Service is limited to the country where the transaction occured, unless otherwise specifically set forth in the Use Agreement and Terms.

Article 7 (Temporary Suspension and Discontinuance of Provision)

(1) If any of the events set forth in the following Items occurs, the Company may suspend the provision of the Service without giving advance notice to, or obtaining the consent of, the User:

when the Service Facilities or any electrical facilities, etc., as the base for the operation of the Service Facilities, experience a failure or breakdown;
when a security problem occurs due to unauthorized access or outside attack upon the Service Facilities;
when the Service cannot be provided due to force majeure such as an act of God; or
when it is otherwise unavoidable for operational or technological reasons in respect of the Service.

(2) When the Company is to conduct a regular inspection or software update for the Service Facilities, the Company may, upon giving advance notice to the User, temporarily suspend the provision of the Service.

(3) In addition to the cases where any of the matters set forth in the respective Items of Article 9 (Termination by Company of Terms of Use), Paragraph 1, occurs with respect to the User, if the User breaches any of the provisions in the Use Agreement and Terms., then the Company may discontinue all or part of the Service without give advance notice or making a demand to the User.

(4) The Company shall not be liable for any damage suffered by the User or other third parties because the Service was not provided due to any of the events set forth in the foregoing Items.

Article 8 (Duration of Use)

(1) The duration of use shall be as set forth below.

The minimum contract period is one month.
If the contract period has been specified, it shall be from the commencement day of use upon the formation of this agreement and until the expiration of the contract period; provided that, unless the User declines to renew or makes a request for an amendment to the contractual terms in the manner prescribed by the Company prior to the expiration of the contract period, this agreement shall be automatically renewed under the same terms and conditions, and the same shall apply thereafter. It is noted that, if there is any Additional Contract Item added by the User, the contract period of this agreement before such addition shall apply.

(2) If any event occurs which makes it difficult for the Company to continue the Service, the Company may terminate this agreement by giving notice to the User.

Article 9 (Termination by Company of Terms of Use)

(1) Notwithstanding any other provision of the Terms of Use, the Company may, without give advance notice or making a demand to the User, terminate all or part of the Use Agreement if the Company determines that any of the events in the following Items occurs with respect to the User:

when there was a false statement in the contents of notice given by the Company;
when the User fails to pay Service Fees by the payment due date specified by the Company;
when a note or check drawn by the User was dishonoured;
when a petition for attachment, provisional attachment, or sale by auction is filed against the User, or when the User becomes subject to a disposition for delinquency of taxes or public charges;
when a petition for the commencement of bankruptcy proceedings, special liquidation proceedings, corporate reorganization proceedings, or civil rehabilitation proceedings is filed against the User, or when a significant concern arises in respect of the User’s credit standing;
when the User’s business license is revoked or the User becomes subject to a disposition of business suspension, etc.;
when the User breaches the Use Agreement and Terms., and fails to cure such breach within a reasonable period after receiving a demand, setting forth such reasonable period;
when a resolution for dissolution, transfer of all or a substantial part of the business, or such other action is passed;
when an event occurs which makes it difficult for the User to perform its duties under the Use Agreement and Terms.;
when it turns out that the User is any of the so-called antisocial forces or any group engaging in antisocial activities, such as an organized crime group (mafia), member of a mafia, quasi-member of a mafia, company affiliated with a mafia, corporate racketeer, rogue person or group proclaiming itself as a social activist, or mafia which commits special intellectual crimes, or belongs or belonged to any of the foregoing, or has a close relationship with any of the foregoing;
when the User itself engages in any tortious act such as a violent act, fraud, terrorism, threatening behaviour, fraudulent or forcible obstruction of business; or engages in any of such acts by using a third party, or when the User engages in an activity in contravention to public order and morals; or
when a serious event occurs which otherwise makes it difficult to continue the Use Agreement and Terms.

(2) If any of the events in the Items above occurs with respect to the User, any and all monetary obligations owed by the User to the Company shall become immediately due and payable as a matter of course without the Company’s giving notice or making a demand.

Article 10 (Discontinuance of Service)

(1) Notwithstanding any other provision of the Terms of Use, if any of the events set forth in the following items occurs, the Company may discontinue all or part of the Service, and in relation to such discontinuance, all or part of the Use Agreement may be terminated as of the date of such discontinuance (hereinafter referred to as the “Date of Discontinuance”):

when, at least thirty (30) days prior to the Date of Discontinuance, the Company notifies the User of the intention to discontinue all or part of the Service; or
when the Company becomes unable to provide the Service due to force majeure such as an act of God.

(2) If all or part of the Service is to be discontinued pursuant to the preceding Paragraph, then out of the Service Fees that the User has already paid, the Company shall return to the User the amount calculated on a daily basis for the number of days on which, due to the discontinuance of the Service, the User was unable to use the Service despite the fact that such days were within the use period of the Service. With regard to the discontinuance of the Service under the preceding Paragraph, the Company shall not assume any liability other than the duty to make such return.

Chapter 3 User’s Obligation

Article 11 (Principle of Self-Responsibility)

(1) If, in relation to the use of the Service, the User causes damage to a domestic or overseas third party for a reason attributable to the User, or if a third party files a claim, etc., then the User shall handle and resolve the same at its own responsibility and expense. The foregoing shall also apply when, in relation to the use of the Service, a third party causes damage to the User, or the User files a claim, etc., against a third party.

(2) With regard to any information (content) to be provided or transmitted by the User by using the Service, the User will provide the same at its own responsibility, and the Company shall make no guarantee whatsoever in respect of the contents thereof and shall not assume any liability for damage arising therefrom. Additionally, if the User conducts a service for third parties based on the Service in accordance with Article 3, Paragraph 2, then the User shall obtain such third parties’ consent to the effect that the Company shall store information (content) provided or transmitted by such third parties.

(3) In using the Service, the User shall provide the access log of its site and other information, etc., to be analysed through the Service as necessary for the analysis (hereinafter referred to as “Information to be Analysed” ), or otherwise consent that the Company will access the Information to be Analysed and that the Company or certain third parties will use the same solely for the intended purposes such as achieving the objectives of the Service, improving the Service, and developing a new service. Furthermore, if the User conducts a service for third parties based on the Service in accordance with Article 3, Paragraph 2, then the User shall obtain such third parties’ consent to the effect that the Company will access the Information to be Analysed and that the Company will use the same within the scope of the purpose of using the Information to be Analysed in order to achieve the objectives of the Service, improve the Service, or develop a new service, among other purposes.

Article 12 (Configuration and Maintenance of Equipment for Use of Service)

(1) The User shall, at its own expense and responsibility, configure the User Facilities necessary in order to use the Service and maintain the environment for using the Service.

(2) In using the Service, the User shall, at its own expense and responsibility, connect the User Facilities to the Internet by using telecommunication services of telecommunications carriers, etc.

(3) If there is any problem with the User Facilities, the Internet connections set forth in the preceding Paragraph, or the environment for the use of the Service, the Company shall not be obligated to provide the Service to the User and shall not assume any liability for damage suffered by the User or other third parties due to such problem.

Article 13 (Backup)

Any data recorded by the User by using the Service shall be backed up under the control of the User. The Company shall not be liable for damage suffered by the User or other third parties due to the non-existence of a backup or the failure to make a backup appropriately.

Article 14 (User ID and Password)

(1) The Company shall provide the User a User ID and an initial Password for logging in the site for the Service and using the Service.

(2) User ID and Password shall not be disclosed or leased to, or shared with, a third party by the User, and must be managed in a strict manner (including changing the Password appropriately) so that they will not be leaked to a third party. The Company shall not assume any liability for any damage suffered by the User or other third parties due to inadequate administration of User ID and Password, an error in using the same, or use by a third party.

(3) If a third party uses the Service by using the User’s User ID and Password, such act shall be deemed to have been taken by the User, and the User shall take full responsibility for such use. Furthermore, if the Company suffers damage due to such act, the User shall compensate the Company for such damage.

(4) If the User’s User ID and Password are used by a third party as a result of willfulness or negligence on the part of the Company, the preceding Paragraph shall not apply.

Article 15 (Prohibited Matters)

(1) The User shall not take any of the following acts in relation to the use of the Service:

an act that breaches or is likely to breach copyrights or other rights of the Company or a third party;
an act of having a third party use the Service in violation of the Use Agreement and Terms.;
an act of violating laws and regulations or public order and morals, or an act of impairing the interests of the Company or a third party;
an act of damaging the reputation or credibility of the Company or a third party;
an act that is linked or is likely to be linked to a crime;
an act of using the Service by pretending to be a third party;
an act of sending or posting a virus or a harmful computer program, etc.;
an act that impedes or is likely to impede the use or operation of a third party’s facilities or the Service Facilities; or
an act that is otherwise prohibited under the Use Agreement and Terms.

(2) In the event that the User becomes aware that any of the acts set forth in the respective Items in the preceding Paragraph was taken, or determines that any such act is likely to be taken, then the User shall notify the Company immediately.

(3) In the event that the Company becomes aware that, in relation to the use of the Service, the User’s act is any of the acts set forth in the respective Items in Paragraph 1, or that any information provided by the User relates to any of the acts set forth in the respective Items in Paragraph 1, then the Company may suspend the provision of the Service in whole or in part, without giving advance notice to the User.

Chapter 4 Company’s Obligation

Article 16 (Duty of Care as Good Manager)

The Company shall provide the Service under the duty of care as a good manager.

Article 17 (Breakdown of Equipment for Service)

(1) In the event that the Company becomes aware of the occurrence of a failure with the Service Facilities, the Company shall notify the User without delay and endeavour to facilitate recovery or restoration.

(2) In addition to the above, if a failure occurs in respect of the Service, the party which became aware of such failure shall notify the other party, and the parties shall, upon mutual consultation, determine the measures to be taken by the respective parties and take such measures.

Chapter 5 Handling of Confidential Information

Article 18 (Handling of Confidential Information)

(1) Of any and all technological, business, or operational information provided by the other party for the purpose of carrying out the Service, with regard to information specified in writing by the other party as confidential in advance, with the scope of confidential information identified and the confidential nature clearly indicated (hereinafter referred to as “Confidential Information”), neither the User nor the Company shall disclose or divulge the same to a third party; provided that the foregoing shall not apply when the other party gives its prior written consent; or when any of the following Items applies.

Information which was already in possession without being bound by a confidentiality obligation
Information which was duly obtained from a third party without being bound by a confidentiality obligation
Information which was independently developed without relying on the information provided by the other party
Information which is in, or entered, the public domain without violating the Use Agreement and Terms., and whether before or after the receipt thereof

(2) Notwithstanding the provision of the preceding Paragraph, the User and the Company may disclose a portion of Confidential Information required to be disclosed pursuant to certain provision the laws and regulations or requested by a competent government agency to the recipient pursuant to such provisions of the laws and regulations or to such government agency. In such event, the User or the Company, as applicable shall notify the other party as to the disclosure in advance unless such advance notice is in violation of the related laws or regulation, and if the notice prior to the disclosure is not allowed, such notice shall be given ex post facto.

(3) The party which received Confidential Information shall take necessary measures for the management of such Confidential Information.

(4) The party which received Confidential Information may use or reproduce such Confidential Information only to the extent required for the purpose of performing the Use Agreement and Terms. If reproduced, the User and the Company shall handle such reproduced Confidential Information as Confidential Information under this Article. Additionally, if reproduction beyond the extent required for the purpose of performing the Use Agreement and Terms., becomes necessary, the other party’s prior written consent shall be obtained.

(5) The party which received Confidential Information shall, upon request of the other party, return to the other party or delete any material, etc. (including copies thereof) containing such Confidential Information.

(6) The provisions of this Article shall remain in effect for five (5) years after the completion of the Service by the Company.

Article 19 (Handling of Personal Information)

(1) With regard to any personal information (which refers to “Personal Information” defined in the Act on the Protection of Personal Information) contained in any business or other operational information provided by the other party in order to carry out the Service, the User and the Company shall use Personal Information solely for the intended purposes such as achieving the objectives of the Service, improving the Service, and developing a new service, and shall not disclose or divulge such Personal Information to a third party and shall comply with the Act on the Protection of Personal Information and other related laws and regulations.

(2) The provisions of Paragraphs 3 through 5 in the preceding Article (Handling of Confidential Information) shall apply mutatis mutandis to the handling of Personal Information.

(3) The provisions of this Article shall remain in effect after the completion of the Service by the Company.

Chapter 6 Damages

Article 20 (Limitation on Loss or Damages)

Regardless of whether under the liability due to default, in tort, or for any legal cause of claim, the Company’s liability to compensate the User for loss or damage suffered in relation to the Service or the Use Agreement and Terms, shall be limited to ordinary damage which is actually caused to the User directly as a result of an event attributable to the Company or the Company’s violation of the Use Agreement and Terms., and the amount of damages shall not exceed the amount under the Use Agreement pertaining to such event. It is noted that the Company shall not be liable to compensate for damage not attributable to the Company, for damage arising from a special situation, or for lost profits, whether or not the Company was able to foresee it.

Article 21 (Disclaimer)

(1) The liability owed by the Company in relation to the Service or the Use Agreement and Terms., shall be, regardless of a reason, limited to the scope set forth in the preceding Article, and the Company shall not be liable to compensate the User for damage caused in any of the following events, regardless of whether under the liability due to default, in tort, or for any legal cause of claim:

damage caused due to force majeure such as an act of God, fire, natural disaster, accident, acts of government, shortage of supply, social disturbance, or riot;
damage caused due to a failure of the User Facilities;
damage caused due to the performance value of the Internet connection service, such as the response time from the Service Facilities;
damage caused by an unauthorized access to, or attack upon the Service Facilities by a third party, an interception on the communication route, or a computer virus which is not defendable even by exercising the care as a good manager;
damage caused due to the User’s failure to comply with the steps, security measures, etc., prescribed by the Company;
damage caused due to a failure of the telecommunications services provided by a telecommunications carrier;
damage caused due to a court order or a compulsory disposition under laws and regulations; or
damage caused due to any other reason not attributable to the Company.

(2) The Company shall not be liable for any dispute, etc., arising between the User and a third party as a result of the User’s use of the Service.

Article 22 (Notice)

(1) Notice by the Company to the User shall be given by email, in writing, by posting the contents of such notice on the Company’s home page, or in such other method as deemed appropriate by the Company.

(2) When the notice by the Company to the User is sent by email or posted on the Company’s web site pursuant to the preceding Paragraph, such notice shall take effect when such email is sent, or when the notice is posted on the web site, respectively.

Article 23 (Amendment of Terms of Use)

The Company may amend the Terms of Use from time to time. When the Terms of Use are amended, such amendment shall take effect upon the expiration of an advance notice period of thirty (30) days following the date on which the Company notified the User of such change.

Article 24 (Prohibition on Transfer of Rights and Obligations)

Unless the Company’s prior written consent has been obtained, the User shall not transfer to a third party, cause a third party to assume, or offer as security, the status under the Use Agreement or all or part of the rights or obligations under the Use Agreement.

Article 25 (Jurisdiction)

It is agreed that, if the need for a lawsuit, mediation, or other court proceeding arises between the User and the Company, the Tokyo District Court shall have exclusive jurisdiction.

Article 26 (Governing Law)

Matters concerning the formation, effect, performance and interpretation of the Use Agreement and Terms., shall be governed by the laws of Japan.

Article 27 (Partial Invalidation)

Even if part of the Use Agreement and Terms., is invalid, the effectiveness of the Use Agreement and Terms., shall not be affected thereby overall, and with regard to such invalid part, the relevant provision in laws and regulations such as the Civil Code and the Commercial Code shall apply.

Article 28 (Survival)

The following provisions shall survive termination of the Terms of Use: Article 7, Paragraph 4, Article 10, Paragraph 2, Article 11, Article 13, Article 18 through Article 21, Article 24, and this Article.