Software Terms of Use

Software Terms of Use

With respect to the use of the APEXFiz series software and optional software associated therewith (the “Software”) provided by SHIMA SEIKI MFG., LTD. (“Shima Seiki”), these Software Terms of Use (these “Terms of Use”) set forth legal commitments applicable between a user who uses the Software (the “User”) and Shima Seiki. Any User who does not agree to the terms set forth herein (the “Terms”) cannot use the Software.

Article 1. Terms of Use

In using the Software, the User shall comply with the Terms.
These Terms of Use, along with the software license agreement for the Software that is separately executed (the “Software License Agreement”), constitute the entire agreement between Shima Seiki and the User concerning the use of the Software, and any other agreement or representation that is not contained in either of the Software License Agreement or these Terms of Use shall not legally bind either party.
In case of any discrepancy between the Software License Agreement and these Terms of Use, the Software License Agreement shall prevail.

Article 2. Amendment of these Terms of Use

Shima Seiki may amend these Terms of Use.
If Shima Seiki intends to amend these Terms of Use, it will designate when such amendment will come into effect, and provide notice by email of such intention, the details of these Terms of Use after amendment, and when such amendment will come into effect. Shima Seiki will also disseminate the same to the User by posting on its website.
Notwithstanding the provisions of the preceding paragraph, if the amendment of these Terms of Use through the procedure set forth in the preceding paragraph is not allowed by any law or regulation, Shima Seiki shall separately obtain the User’s consent to amendments to these Terms of Use.

Article 3. Ownership of Copyright

Any and all copyright or other intellectual property rights pertaining to the Software shall be vested in Shima Seiki. The Software is protected by the Copyright Act and other statutory laws and treaties on intellectual property rights.
Any and all copyrights and other intellectual property rights pertaining to the documentation and other related materials provided together with the Software (the “Materials”) shall be vested in Shima Seiki. Such Materials are protected by the Copyright Act and other statutory laws and treaties on intellectual property rights.

Article 4. License for Use

Shima Seiki shall grant the User a non-exclusive right to use the Software in accordance with the terms of these Terms of Use and the Software License Agreement.
The User can obtain the right to use the Software by paying to Shima Seiki the Contract Fee and the Running Fee (both defined in Article 8) as agreed in the Software License Agreement that is separately executed.
The User cannot download the Software before Shima Seiki confirms that he/she has completed the payments set forth in the preceding paragraph and consented to these Terms of Use. The User shall by himself/herself download the Software and install it on a computer prepared by the User which satisfies the specifications designated by Shima Seiki.
The User may not use the Software for any purpose other than its business.
The User will not obtain any copyright, ownership or any other right pertaining to the Software other than the rights granted under these Terms of Use.
Shima Seiki may upgrade the version of the Software as it deems appropriate. The Software so upgraded shall also be deemed as the Software and these Terms of Use shall apply to the use of the Software after the said upgrade.

Article 5. Account Registration

Following the execution of the Software License Agreement with Shima Seiki, the User is requested to create its account registration and registration of the Software licensed to him/her on the ‘My Account’ page of the website provided by Shima Seiki (the “‘My Account’ Page”) in the method designated by Shima Seiki. Notwithstanding the foregoing, if Shima Seiki and the User agree that Shima Seiki will create the User’s account registration and registration of the Software licensed to the User, Shima Seiki shall register the relevant information.
In order to use the Software, the User needs to register its latest and accurate information on its account referred to in the preceding paragraph. Any inaccuracy in the User’s information may disrupt the provision of the license for the Software by Shima Seiki.
If any conditions of the license for use is modified due to revision of the Contract Fee, Running Fee (both defined in Article 8) or the like, change to the optional settings, consolidation or abolishment of any Software type or the like relating to the provision of license for the Software at the convenience of Shima Seiki, Shima Seiki may post the information of such modification on its official website or give notice thereof to the email address registered on the User’s account. The contents of such announcement or notice shall form a part of the Software License Agreement, and be applied to the use of the Software by the User. If the User does not accept the contents of such announcement or notice, Shima Seiki may revoke the license to use the Software under these Terms of Use and the Software License Agreement. In such case, Shima Seiki will not bear any responsibility for any damage suffered by the User due to its inability to use the Software.
If a User who has registered on the ‘My Account’ Page changes such User’s information registered thereon or changes or adds any Software type, increases or decreases the number of licenses, or changes or adds the types of licenses, such User needs to update the User’s information and the product information on the ‘My Account’ Page. Not correctly updating the User’s information and the product information may disrupt the provision of the license for the Software by Shima Seiki. Notwithstanding the foregoing, if Shima Seiki and the User agree that Shima Seiki will update the above-mentioned User’s information and the like, Shima Seiki shall update the relevant information.

Article 6. Types of License and Limitation of Use

At the time of executing the Software License Agreement except for some Software, the User may choose from the two types of license set forth in this article: the user license and the floating license.
The user license is the type of license that permits only one person designated by the User to use the Software. If the User is granted one user license, the Software can be installed on up to three computers owned by such User; provided, however, that only one of them can be used at a time.
The floating license is the type of license that permits the User to use the Software simultaneously at more than one computer, up to the number licensed by Shima Seiki. In case the User wishes to allow the third party other than the User (such third party includes the User's parent company, subsidiaries and other affiliates as well as business partners) to use the Software, the User shall submit the necessary information (①the name of the organization to which the third party belongs, ②the country in which the third party is located, ③the number of licenses to be used) to Shima Seiki, and obtain prior written approval by Shima Seiki. In such case, the User shall be obligated to ensure that any third party the User allows to use the Software complies with this Terms of Use, and shall be liable to Shima Seiki for any acts, claims, and expenses arising from the use of the Software by such third party within the scope of the Software License Agreement executed by the User.

Article 7. Term and Procedure to Stop Renewal

In the case where the method of payment by the User under the Software License Agreement executed by such User is remittance by bank transfer, the effective term of the Software License Agreement shall be one year. Such effective term shall commence on the Contract Start Date stipulated in the Subscription information email sent by Shima Seiki to the User after a product registration under Article 5.1 is made with respect to the Software relevant to the Software License Agreement. The effective term of the Software License Agreement shall be automatically extended for one year unless the User notifies Shima Seiki of its request to stop the renewal no later than 60 days prior to the expiration of the then effective term, and the same shall apply to any subsequent term. If the User stops the renewal, the relevant Software License Agreement shall expire as of the expiration date of the then effective term thereof.
In the case where the method of payment by the User under the Software License Agreement executed by such User is settlement by credit card, the effective term of the Software License Agreement shall be one month. Such effective term shall commence on the Contract Start Date stipulated in the Subscription information email sent by Shima Seiki to the User after a product registration under Article 5.1 is made with respect to the Software relevant to the Software License Agreement. The expiration date of such effective term shall be the day immediately preceding the date in the next calendar month which is the monthly anniversary of the commencement date (if there is no such anniversary date, the expiration date shall be the last day of the next calendar month). The effective term of the Software License Agreement shall be automatically extended for one month unless the User carries out the procedure to stop renewal on the ‘My Account’ Page on which the User made its registration or provides a written request to stop the renewal and such request reaches Shima Seiki no later than 10 Shima Seiki business days prior to the expiration of the then effective term, and the same shall apply to any subsequent term. If the User stops the renewal, the relevant Software License Agreement shall expire as of the expiration date of the then effective term thereof.
During the effective term of the Software License Agreement, the User may not cancel the Software License Agreement before the expiration date.
In the case where the method of payment by the User under the Software License Agreement executed by such User is remittance by bank transfer, the Contract Fee or the Running Fee for the effective term, set forth in Article 8 below, that have been paid shall not be refunded even if the User ceases to use the Software at its convenience during the effective term of the Software License Agreement.
In the case where the method of payment by the User under the Software License Agreement executed by such User is settlement by credit card, the User shall not be discharged from the obligation to pay the Contract Fee or the Running Fee for the effective term, set forth in Article 8 below, even if the User ceases to use the Software at its convenience during the effective term of the Software License Agreement.

Article 8. Contract Fee and Running Fee

When the User executes the Software License Agreement for the first time, he/she shall pay the license contract fee for the Software with respect to each license as predetermined by Shima Seiki. Further, if the User executes a new Software License Agreement in order to change the Software type(s), add any Software type(s), change or add the type of license, the User shall pay the license contract fee for the Software as predetermined by Shima Seiki (as used herein, any type of license contract fee described in this paragraph shall be referred to as the “Contract Fee”) as consideration for the grant of license pertaining to the Software.
In addition to the provisions of Article 8.1 above, the User shall pay to Shima Seiki the running license fees for the Software as predetermined by Shima Seiki in accordance with the Software type(s), type of license and the number of licenses (as used herein, the running license fee described in this paragraph shall be referred to as the “Running Fee”) as consideration for the use of the Software during the effective term of the Software License Agreement by using the method of payment agreed in the relevant Software License Agreement.

Article 9. Payment of the Running Fee

In the case where the method of payment by the User under the Software License Agreement executed by such User is remittance by bank transfer, the User shall pay the Running Fee for the first contract year by the date designated in the Software License Agreement. If Shima Seiki cannot confirm the receipt of the Running Fee by the above-mentioned date, the Software License Agreement shall be cancelled.
In the case where the method of payment by the User under the Software License Agreement executed by such User is remittance by bank transfer, Shima Seiki will issue to the User an invoice for the Running Fee (for one year) at the time of renewal of the Software License Agreement. The User shall complete the payment of such Running Fee no later than seven days prior to the renewal date. If Shima Seiki cannot confirm the receipt of the Running Fee by the above-mentioned date, the Software License Agreement will not be renewed but automatically terminate upon expiration of the then effective term thereof.
In the case where the method of payment by the User under the Software License Agreement executed by such User is settlement by credit card, if the relevant settlement institution cannot complete the credit approval process for such transaction with respect to the Running Fee for any month, the Software License Agreement will not be renewed but automatically terminate as of the end of the immediately preceding month.
Shima Seiki will not bear any responsibility for any damage directly or indirectly suffered by the User or any third party due to its inability to use the Software as a result of the termination of the Software License Agreement based on the User’s default concerning the payment of the Running Fee.

Article 10. Prohibited Acts

The User is prohibited from reproducing all or any part of the Software or the Materials.
The User is prohibited from making any alteration (including an upgrade) to, reverse engineering, reverse compiling or disassembling the Software.
The User who purchased user license is prohibited from using the Software out of the country of purchase, except for the temporary use.
The User is prohibited, except for Article 6.3, from granting any license to use the Software, or selling, lending or leasing the Software and the Materials, to any third party (such third party includes the User’s parent company, subsidiaries and other affiliates as well as business partners).
The User is prohibited from using the Software in any manner that contravenes any provision of these Terms of Use or the Software License Agreement, or any method designated by Shima Seiki.
The User is prohibited from analyzing any data or file generated by using the Software.

Article 11. Confidentiality

The User shall not disclose any information obtained through the use of the Software to any third party, without obtaining the prior express consent of Shima Seiki.

Article 12. Privacy Policy

Shima Seiki will obtain the User’s information through fair and lawful means. The User’s information to be obtained by Shima Seiki includes, among other things, the name, date of birth and email address of the User, the organization/division that the User belongs to, as well as the country of the User.
Shima Seiki will use the User’s information for the purposes described below:
(i) Providing, improving and enhancing the Software;

(ii) Addressing comments and requests from the User; or

(iii) Soliciting or otherwise conducting marketing for products or services of Shima Seiki.
With respect to a User who pays the Running Fee and the Contract Fee by credit card, Shima Seiki will obtain, as the User’s information, the number, name of the holder, expiration date, security code or any other necessary information of the relevant credit card.
For the purpose of improving the quality or fixing problems of the Software, and also soliciting, advertising or otherwise conducting marketing for products or services of Shima Seiki, Shima Seiki will anonymously collect and analyze data on computer(s) used by the User on which the Software is installed (such as information of such computer(s), and the product name, version, functions used, configuration, location and error logs of the Software). The User shall acknowledge and agree to such acts by Shima Seiki.
Shima Seiki will not provide any of the User’s information to any third party without obtaining prior consent from the relevant User, except where the provision thereof is permitted by any law or regulation or set forth in these Terms of Use.
Shima Seiki will provide the User’s information set forth in Article 12.1 as well as the collected information and analysis results set forth in Article 12.4, to its subsidiaries (whether or not they are consolidated subsidiaries), contract distributors and contract agents in order to solicit or otherwise conduct marketing for products or services of Shima Seiki.
Shima Seiki will endeavor to keep the User’s information accurate and up to date to the extent necessary for its purpose of use, and delete the User’s information upon completion of the purpose of use.
Shima Seiki will take appropriate information security measures against unauthorized access, computer viruses or the like in order to prevent any loss, destruction, falsification, leakage or the like of the User’s information.
Shima Seiki may outsource to a third party the handling of the User’s information it acquires, in whole or in part. Shima Seiki will appropriately manage such outsourced third party through execution of a contract concerning the handling of the User’s information or through other means.
Requests can be made to Shima Seiki concerning the User’s information, with regard to notification of the purposes of its use, disclosure thereof, correction, addition or deletion of any particular thereof, suspension of its use, deletion thereof, or suspension of provision thereof to a third party (collectively, the “Disclosure”). For the relevant procedures, please contact the Service Desk for Complaint and Consultation Concerning Personal Information. However, please note that there may be cases where the Disclosure is not possible due to the relevant provisions of any law or regulation or the like.

Service Desk for Complaint and Consultation Concerning Personal Information

Shima Seiki Mfg., Ltd.

Personal Information Protection Manager: Mitsuhiro Shima, Representative Director

Contact address: 85 Sakata, Wakayama, 641-8511

Tel: 073-471-0511

Article 13. Indemnity

Shima Seiki will not bear any responsibility for any damage directly or indirectly suffered by the User or any third party in relation to the Software. The User shall hold Shima Seiki harmless from any damage, loss or liability suffered by Shima Seiki concerning any claim made by any third party against Shima Seiki in relation to the use of the Software. Provided, however, that if the said damage, loss or liability is due to any cause attributable to Shima Seiki, Shima Seiki will be liable to indemnify the User only up to the amount of the Running Fee agreed upon in the relevant Software License Agreement equal to one year’s amount (if the method of payment by the User under the Software License Agreement is remittance by bank transfer) or one month’s amount (if the method of payment by the User under the Software License Agreement is settlement by credit card).
Shima Seiki will not provide any warranty concerning the Software (including any warranty that the Software satisfies the User’s requirements, the Software operates correctly, or the Software is free from any defect), or bear any legal liability (including liability for non-conformity to contract and tort liability). If Shima Seiki deems it necessary at its discretion, it may correct a malfunction of the Software at any time and provide a corrected version of the Software to the User.

Article 14. Revocation, etc. of License

Shima Seiki may revoke the license to use the Software granted to the User (the “Revocation”) without advance notice at its convenience, during the term of the Software License Agreement. In such case, Shima Seiki will report such Revocation to the User as soon as possible. If a Revocation is made, with respect to a User whose method of payment under the Software License Agreement is remittance by bank transfer, Shima Seiki will refund to such User the amount obtained by dividing the amount of the Running Fee paid by such User for the relevant effective term of the Software License Agreement by 365, and then multiplying the resulting amount by the actual number of days in the period from the day following the Revocation to the expiration date of such effective term of the Software License Agreement. With respect to a User whose method of payment under the Software License Agreement is settlement by credit card, the automatic remittance of the Running Fee shall be discontinued from the month following the Revocation. Other than those set forth above, no refund of the Running Fee will be made by reason of the Revocation. Under either settlement method, Shima Seiki will not refund any Contract Fee to the User in connection with the Revocation.
Shima Seiki may, at its own discretion, temporarily suspend the license to use the Software granted to the User due to failure of the Software or any other reason (the “Suspension”). The User shall be obliged to pay the Running Fee even during the duration of the Suspension.
If Shima Seiki makes a Revocation, these Terms of Use and the Software License Agreement shall terminate.
Shima Seiki will not bear any responsibility for any damage suffered by the User due to the Revocation, the Suspension or the termination of the Software License Agreement accompanying the Revocation.

Article 15. Unilateral Cancellation by Shima Seiki

If the User breaches any of the terms of these Terms of Use or the Software License Agreement, Shima Seiki may, without any notice or demand to the User, immediately cancel these Terms of Use and the Software License Agreement, and revoke the license to use the Software.
Even if these Terms of Use or the Software License Agreement is canceled pursuant to the preceding paragraph, the User shall not be discharged from the obligation to pay the Running Fee.
If the Software License Agreement is cancelled pursuant to Article 15.1, Shima Seiki may claim against the User for compensation of damages suffered by Shima Seiki due to breach by the User.

Article 16. Notice

Any notice concerning these Terms of Use shall be prepared in the language selected by the User on its account set forth in Article 5.1 (i.e., English, Chinese (simplified character) or Japanese). Any notice by Shima Seiki to the User shall be made by sending such notice by email to the email address of the User registered on its account.

Article 17. Survival

The provisions of Article 3, Article 4.5, Article 5.3, Articles 7.4 and 7.5, Article 9.4, Article 10, Article 11, Article 13, Article 14.4, Articles 15.2 and 15.3, Article 17, Article 18 and Article 19 of these Terms of Use shall survive the termination hereof.

Article 18. Governing Law

The validity, interpretation and performance of these Terms of Use shall be governed by and construed in accordance with the laws of Japan.

Article 19. Jurisdiction

The parties hereto shall agree to the exclusive jurisdiction of the Wakayama District Court for the first instance with respect to any and all disputes concerning these Terms of Use.