This Agreement (“Agreement”) is a legal agreement between OPTiM Corporation (“OPTiM”) and a user (“User”) who installs and/or uses OPTiM’s software product(s) named Optimal Remote (“Application”) on a portable device such as a personal computer, a smartphone, or a tablet computer (“Device”). User should read this Agreement carefully before User installs and/or uses Application.

1. GENERAL

2. AMENDMENTS AND CHANGES TO THIS AGREEMENT

1. 2.1 This Agreement may be amended or changed without prior notice to improve Application and/or services related to Application (“Application-related Services”).
2. 2.2 When this Agreement is amended or changed, the amended or changed Agreement (“New Agreement”) is applied to User.
3. 2.3 User agrees to be bound by the terms of the New Agreement by using Application after notice of the New Agreement.

3. PREPARATION AND MAINTENANCE OF EQUIPMENT

1. 3.1 User agrees that Application requires equipment (“Equipment”) including, but not limited to, a personal computer connectable to the Internet, a portable device such as a smartphone or a tablet computer, communication software, and a communication device.
2. 3.2 User agrees to prepare Equipment at User’s own risk and expense. User agrees to prepare means for connecting to the Internet at User’s own risk and expense.
3. 3.3 In no event shall OPTiM be liable for any damages that result from installation of software related to Application, operation of Equipment, defect of Equipment, connection to the Internet, packet communication for use of Application, or disconnection of communication.

4. CONDITIONS FOR LICENSE

1. 4.1 User must obtain a license to use Application from OPTiM or Service Provider and register Application for authorization.
2. 4.2 User agrees to use Application only with Equipment owned and controlled by the applicant or by officers or employees of the applicant.
3. 4.3 User must obtain one license for one Device. User may not install Application on two or more Devices with one license.
4. 4.4 User may not transfer, sell, lease, or rent User’s license(s) to another.
5. 4.5 The copyright and other intellectual properties of Application and the right to license Application are owned by OPTiM or by OPTiM and Service Provider.
6. 4.6 OPTiM grants User the non-exclusive, non-transferable, limited right and license to install and use Application in accordance with this Agreement.
7. 4.7 User or an administrator of Device (“Administrator”) may obtain information on Device in which Application has been installed, such as the type of Device, the operation status of Application, certain types of transmission data between Device and other devices, through use of Application. User should carefully confirm how Application operates. When User is not an owner of Device, User should sufficiently explain to the owner of Device that User may obtain the aforementioned information. User should confirm the legal duty to information that would be obtained through use of Application, and manage and use it in a lawful manner.
8. 4.8 User should keep, in a safe place, User’s identification information (“Identification Information”) such as User’s ID, User’s password, and User’s license key, provided by OPTiM or set by User. If Identification Information should leak to another, he/she may prohibit User from using Device, or may acquire or break data stored in Device. In no event shall OPTiM and Service Provider be liable to manage Identification Information.
9. 4.9 OPTiM may inform User of how to use and update Application via OPTiM’s websites (“Websites”). Such information will be needed to ensure User’s security and/or to correctly understand how to use Application. User should confirm such information and continue to use Application in accordance with this Agreement, online help documents, contents of Websites, or otherwise OPTiM’s instructions.
10. 4.10 OPTiM may delegate all or part of its responsibilities or obligations for provision of Application and management of information obtained from User to a third party at its discretion.

5. TERMINATION OF LICENSE

1. 5.1 A license to use Application becomes effective when User agrees this Agreement and registers User’s ID.
2. 5.2 OPTiM may revoke User’s license whenever User violates any provision of this Agreement.
3. 5.3 User’s License is terminated on the expiration date determined by OPTiM or Service Provider. The expiration date depends upon conditions under which the applicant has applied for a license. User should confirm the conditions under which the applicant has applied for a license.
4. 5.4 If User is charged on a monthly or yearly basis, User is required to inform OPTiM, the sale agent (“Sale Agent”), or Service Provider in a predetermined manner that User will terminate User’s license. User may ask OPTiM, Sale Agent, or Service Provider for details of how to terminate User’s license.
5. 5.5 All of User’s rights granted in accordance with this Agreement shall be terminated upon termination of User’s license.
6. 5.6 User agrees to uninstall Application and destroy all copies of Application upon termination of User’s license.

6. PROHIBITIONS

1. 6.1 User may not use Application for criminal or antisocial activities or for threatening or aiding such activities.
2. 6.2 User may not use Application for unlawful or illegal activities such as violation of another’s rights, invasion of another’s privacy, and misappropriation of personal information.
3. 6.3 User may not in any way use Application for harassment activities such as stalking.
4. 6.4 User may not install Application without permission of an owner of Device.
5. 6.5 User may not force another to install Application without any justifiable reason.
6. 6.6 User may not use Application to control or manage any device User is not authorized to use, without any justifiable reason.
7. 6.7 User may not in any way sell, lease, rent, license, sublicense, or otherwise distribute Application.
8. 6.8 User may not take an action that infringes or is likely to infringe any OPTiM’s or third party’s copyright, trademark, and other rights related to Application.
9. 6.9 User may not reverse engineer, decompile, disassemble, translate, modify, or prepare derivative works from Application or any part thereof.
10. 6.10 User may not use Application in any manner that could damage, disable, overburden, or impair servers or networks connected to Application.
11. 6.11 User may not, and may not allow any third party to, misuse or misappropriate any ID associated with Application.
12. 6.12 User may not violate any provision of this Agreement.
13. 6.13 User may not take any unreasonably improper, inappropriate, or inadequate action with regard to Application.

7. DISCLAIMER OF WARRANTIES

1. 7.1 User expressly understands and agrees that User’s use of Application under this Agreement is at User’s sole discretion and risk and that Application is provided “as is” without warranty of any kind.
2. 7.2 If Application includes any defect or bug, or Application-related Services stop due to overload on the system or trouble of the system, or otherwise Application becomes completely unavailable, OPTiM shall not be liable for any damages arising out of or in any way related to such an incident except damages caused by OPTiM’s willful or gross negligence.
3. 7.3 OPTiM may modify Application or shut down Application-related Services without prior notice whenever OPTiM determines that such modification or shutdown is needed. OPTiM shall not be liable for any damages arising out of or in any way related to such modification or shutdown except for adjustment of periodic payments User has already made.
4. 7.4 In no event shall OPTiM guarantee User’s profit, result, or fruit obtained through use of Application.
5. 7.5 User agrees that User’s downloading and installation of Application is at User’s sole risk and expense. In no event shall OPTiM guarantee integrity and accuracy of such downloading and installation.
6. 7.6 In no event shall OPTiM be liable for any damages arising out of any failure or trouble of Equipment, power failure, failure of communication lines, system failure, or any other incident beyond the reasonable control of OPTiM. In such an incident, data relating to User (“User Data”) may be deleted, lost, or delayed. User agrees that use of Device may be restricted or Device may be initialized in such an incident.
7. 7.7 In no event shall OPTiM be responsible for backup of User Data. User or Administrator should periodically make a backup of User’s data stored on Device.
8. 7.8 If User is an individual and do not use Application for business, Application that proves to have a latent defect will be repaired or replaced, free of charge, by OPTiM.

8. VIOLATION OF AGREEMENT

1. 8.1 In the event User fails to comply with any provision of this Agreement, OPTiM may take without prior notice appropriate measures including, but not limited to, deletion of all or part of User Data, refusal of use of Application, and deprivation of User’s membership. OPTiM shall not be liable for any damages arising out of or in any way related to such appropriate measures.
2. 8.2 User is solely responsible for any damages to OPTiM or any third party that result from OPTiM’s appropriate measures provided in Subsection 8.1.
3. 8.3 In the event User fails to comply with any provision of this Agreement, OPTiM may make a claim for any damages (including, but not limited to, damage for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or accruing from OPTiM’s appropriate measures provided in Subsection 8.1 against User.
4. 8.4 To the maximum extent permitted by applicable law, User agrees to defend, indemnify and hold harmless OPTiM from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from OPTiM’s appropriate measures provided in Subsection 8.1.

9. DAMAGE CAUSED BY USER’S DATA

1. 9.1 In the event data set on Application by User have interfered or are likely to interfere with Application or any OPTiM’s server, OPTiM may take without prior notice appropriate measures including, but not limited to, deletion of all or part of User Data. OPTiM shall not be liable for any damages arising out of or in any way related to such appropriate measures.
2. 9.2 User are solely responsible for any damage to OPTiM or any third party that results from OPTiM’s appropriate measures provided in Subsection 9.1.
3. 9.3 In the event data set on Application by User have interfered or are likely to interfere with Application or any OPTiM’s server, OPTiM may make a claim for any damage (including, but not limited to, damage for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or accruing from OPTiM’s appropriate measures provided in Subsection 9.1 against User.
4. 9.4 To the maximum extent permitted by applicable law, User agree to defend, indemnify and hold harmless OPTiM from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from OPTiM’s appropriate measures provided in Subsection 9.1.

10. COLLECTION AND USE OF INFORMATION

1. 10.1 By starting use of Application, User agrees that Application acquires information listed below (“Collected Information”) and stores Collected Information on Device or the OPTiM’s server. Collected Information includes information relating to User’s security and User’s personal information.
   1. User’s address, name, organization, and the like that were input upon registration by User.
   2. Information that identifies Device (“Device Information”)
   3. Information relating to users of Device that is registered by User or Administrator
   4. User’s ID and license key for Application installed on Device
   5. Operation logs of Application
   6. Positional information of Device
   7. Model information of Device
   8. User’s telephone number
   9. IP address assigned to Device
   10. Information required to use Google push service (Registration ID)
   11. Accounting information for Google Play
   12. Other information required to provide functions of Application
2. 10.2 OPTiM may use Collected Information for purposes listed below.
   1. For provision of Application-related Services
   2. For improvement of Application and/or Application-related Services
   3. For OPTiM’s or Service Provider’s communication with User
   4. For OPTiM’s or Service Provider’s notification to inform User of OPTiM’s or third party’s services
   5. For collection and analysis of statistical data (“Statistical Data”) produced from Collected Information processed such that User is not identified
   6. For provision of Statistical Data to a third party
3. 10.3 OPTiM may share Collected Information with Service Provider and Sale Agent. User can obtain details of Service Provider and Sale Agent on Websites.
4. 10.4 User agrees that, in order to prevent abuse of Device such as spoofing, Application mechanically monitors communication packets to determine whether specific words and/or specific communication methods designated by OPTiM and User are used in the communication packets.
5. 10.5 OPTiM may share accumulated or non-identifiable information on users with a third party.
6. 10.6 OPTiM may disclose Collected Information in a non-identifiable manner to a third party if:
   1. the disclosure is required to comply with applicable law (including law in countries other than a country where User resides), governmental regulations, or administrative orders,
   2. the disclosure is required to prevent injury or damage to property or to maintain and ensure management, rights, privacy, and security of OPTiM, its affiliates, users, or other information providers (including cases where the disclosure is required to implement provisions of this Agreement, to take OPTiM’s available remedial measures, or to limit damages that would be caused to OPTiM),
   3. OPTiM uses third party’s services including website hosting, data analysis, payment, order reception, supply of infrastructure and network, IT services, support and maintenance of Application, customer services, email delivery services, monitoring services, and the like,
   4. the disclosure is required for OPTiM’s reorganization, merger, sale, joint enterprise, assignment, or transfer, or for disposal of all or part of OPTiM’s business, assets, or stocks (including cases where the disclosure is required for bankruptcy or similar proceedings),
   5. the disclosure is required to improve public health or promote healthy cultivation of children,
   6. the disclosure is required by governmental agencies, local public bodies, public institutions, or consignees thereof (including governmental agencies, local public bodies, public institutions, or consignees thereof in countries other than a country where User resides), or
   7. User explicitly agrees that OPTiM discloses Collected Information to a third party.
7. 10.7. User may select an option of not disclosing part of Collected Information determined by OPTiM, such as positional information, in accordance with proceedings determined by OPTiM if User does not wish to transmit that part of Collected Information because it may identify User. When User selects such an option, some functions of Application may be unavailable due to the lack of part of Collected Information.
8. 10.8 Application needs to acquire Device Information. If User does not wish to disclose Device Information, User must stop use of Application and uninstall Application. User may obtain detailed information of this restriction at the OPTiM’s customer service center.

11. PROTECTION OF INFORMATION

1. 11.1 In no event shall OPTiM check, examine, or inspect User Data without User’s approval.
2. 11.2 Notwithstanding the provision of Subsection 11.1, an OPTiM’s or its affiliate’s operator (“Operator”) may check, examine, or inspect User Data by giving notice to User via Websites or the like if required for maintenance or security of Application. In such event, Operator shall keep User Data strictly in confidence and shall not disclose User Data to any other member of OPTiM or any third party.
3. 11.3 In no event shall OPTiM discloses to a third party information that can identify User by itself or identify User by reference to other information without User’s consent, except:
   1. the disclosure is required to comply with applicable law, governmental regulations, or administrative orders,
   2. the disclosure is required to protect life, health, and property of any person in a case where OPTiM has difficulty in obtaining a consent from User,
   3. the disclosure is particularly required to improve public health or promote healthy cultivation of children in a case where OPTiM has difficulty in obtaining a consent from User,
   4. the disclosure is required because OPTiM needs to cooperate with official business of governmental agencies, local public bodies, or consignees thereof in a case where obtaining a consent from User may inhibit such official business,
   5. the disclosure is required to continue Application-related Services upon OPTiM’s merger or other changes of OPTiM, and
   6. the disclosure is required to make User’s credit card payment for any fee related to Application and to verify whether User’s credit card has been used in an unauthorized manner in a case where an unauthorized use of User’s credit card is suspicious.
4. 11.4 OPTiM shall protect User Data with appropriate security measures. User agrees that OPTiM cannot eliminate any possibility of third party’s unauthorized activity including, but not limited to, unauthorized access to User Data, and theft, destruction, or falsification of User Data. In a case where such an unauthorized activity is conducted, OPTiM will help User identify the third party who conducted the unauthorized activity. In absence of OPTiM’s negligence, OPTiM shall not liable for any damages arising out of or in any way related to such an unauthorized activity.
5. 11.5 OPTiM keeps User Data in an appropriate manner in accordance with the OPTiM’s information security guideline and privacy policy, which are posted at http://www.optim.co.jp.

12. SECRECY

1. 12.1 Either party of User and OPTiM shall hold in strict confidence, and shall not disclose technical information, sales information, personal information, or any other confidential information received from the other in connection with Application to any third party without the prior written consent of the other, except for:
   1. information that was known and on record at the party prior to disclosure by the other,
   2. information that became part of the public domain through no fault of the party after disclosure by the other,
   3. information that was obtained by the party prior to disclosure by the other,
   4. information that is lawfully obtained by the party from a third party without any obligation of secrecy,
   5. information that is derived from development after disclosure by the other and independently of disclosure by the other, and
   6. information that is disclosed in accordance with Subsections 10.6 and 11.3.
2. 12.2 The obligation of confidence under this Agreement shall continue during and after the term of this Agreement.
3. 12.3 In no event shall OPTiM be liable for any damages arising out of or in any way related to information leakage caused by User’s or Administrator’s insufficient management of information obtained through use of Application. User agrees to resolve any disputes arising out of or accruing from such information leakage at User’s sole risk and expense.

13. LIMITATION OF LIABILITY

1. 13.1 User may make a claim for any damage arising out of OPTiM’s willful or gross negligence with respect to Application against OPTiM only in a range and a manner provided in this Agreement to an extent that has not been recovered by OPTiM. In order to make such a claim, User must provide OPTiM with a written request by the earlier of three months from the date on which damage was caused and three months from termination of this Agreement.
2. 13.2 In no event shall OPTiM be liable for any damages arising out of use of Application or unavailability of Application (including, but not limited to, special damage, incidental damage, indirect damage, similar damage, damage for loss of profits or loss of User Data, and damage caused by leakage of User Data to a third party). OPTiM shall not be liable for such damage even if OPTiM is notified of the possibility of such damages.
3. 13.3 For any reason including, but not limited to, default of obligation, breach of warranty, unjust enrichment, and tort, the total liability of OPTiM under this section shall be limited to the lower of three times a monthly fee provided under Individual Agreements, one fourth of a yearly fee, a lump sum fee paid for obtaining ID.
4. 13.4 If OPTiM is liable for any damage under the provisions of this Agreement, comparative negligence applies in a case where such damage is caused by OPTiM’s or Service Provider’s negligence and User’s negligence (including slight negligence).

14. TERMINATION BY OPTIM

OPTiM may terminate this Agreement without the prior notice if:

1. User does not pay a service fee by a due date for payment,
2. User violates Section 6 or other provisions of this Agreement,
3. User loses status as a customer of OPTiM or OPTiM cannot locate User,
4. OPTiM suspects that User abuses Application, or
5. User or Administrator is proved to be a member of any antisocial entity.

15. PROHIBITION OF ASSIGNMENT

User agrees that User’s rights to OPTiM may not be assigned to another.

16. SEVERABILITY

If a court of competent jurisdiction holds that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions of this Agreement shall not be affected or impaired, and shall remain in full force.

17. GOVERNING LAW

This Agreement and User’s relationship with OPTiM under this Agreement shall be governed by and construed in accordance with the laws of Japan.

18. GOOD FAITH EFFORTS

Subject to Section 17, User and OPTiM shall make good faith efforts to resolve in an expedient manner any matter which may not be specifically provided for in this Agreement or any dispute which may arise under this Agreement.

19. JURISDICTION

User and OPTiM agree to submit to the exclusive jurisdiction of Tokyo District Court in Japan to resolve any legal matter arising from this Agreement.