Article 1. Application

These Terms of Use (the “Terms”) apply to any person (“you” or “User”) who makes use, in any way, of the Product (defined below) or uses, in any way, the Service (defined below). The Product and the Service are provided by Theta Life Sciences and Medical Devices, an authorized retailer of the Triple W, a California corporation (the “Company”), and these Terms form a binding agreement between you and the Company.

 

These Terms apply to all persons and entities located in the United States who use the Product or the Service. If you are located in another jurisdiction, a different set of terms and conditions may apply to you.

 

Article 2. Definitions

The terms used in these Terms have the meanings set forth below:

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1. User:

An individual, corporation, or other entity who uses the Services. As used in these Terms, “User” refers to you, in your capacity as a User of the Product and the Service, unless the context indicates otherwise.

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2. Terminal:

A mobile communication device for the use of the Service, such as smart phone or tablet.

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3. Product:

The “DFree”-brand toilet timing predicting device (a device for anticipating the need to urinate or defecate) which is linked with the Terminal through wireless communication and is worn on the lower abdomen of User, including an application for operating such device with the Terminal.

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4. Accessories:

A USB cable for charging the Product, and ultrasonic gel and a tape for wearing the Product on the lower abdomen of User, all of which are included in the package of the Product.

5. Service:

Any service or services relating to the use of the Product provided by the Company.

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6. Equipment:

Computers, servers, middleware, telecommunications equipment and other equipment, devices or software to be used by the Company for the provision of the Service.

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7. Platform:

Web services to be used by the Company for the provision of the Service (including web services which make the Service available, such as Google Play or the Apple App Store).

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8. Intellectual Property Rights:

Copyrights, patent rights, utility model rights, trademark rights, design rights or any other intellectual property rights (including the rights of acquisition of any of such rights, or the rights of application for registration, etc. of such rights) and know-how.

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Article 3. Notice

Unless otherwise specified in these Terms, any notice from the Company to User shall be given by any method which the Company considers to be appropriate, such as by e-mail, display in the Service or posting on the website of the Company. Any such notice shall become effective at the time of sending of such e-mail, such message as part of the Service or such posting on the Company’s website.

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Article 4. Alteration

1. The Company may, from time to time, make additions to, alter, amend, revise or delete (collectively, “Change”) these Terms without User’s consent or approval. In such case, these Terms, as modified following such Change, shall apply to the use of the Service and the Product by User.

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2. Unless otherwise stipulated by the Company, any Change of these Terms shall become effective at the time of posting or displaying the Change on the website of the Company or in the Service. User shall be deemed to have agreed to such Change by the use of the Service or Product after such Change.

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3. Any operation or instruction manual or warnings, etc. relating to the Product or the Service separately prepared or specified by the Company shall constitute part of these Terms and is hereby incorporated by reference into these Terms.

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Article 5. User Registration

1. Any person or entity who intends to use the Service is required to provide the Company with the information separately designated by the Company for the use of any function (including functions released in the future) of the Service.

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2. User shall provide the Company with accurate and up-to-date information for the registration set forth in Article 5(1).

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3. User shall immediately update User’s own registration information if such information changes, and User shall be liable for the management and modification of such registration information to maintain the accuracy of such information at all times. If User does not make such update in spite of the occurrence of a change in the applicable information, the Company may handle the information already registered by such User as if such information had not changed. Even if the Company receives a notice of change of such information from User, any transaction or procedure conducted before such change may be based on the information prior to such change.

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4. If the Service Agreement is terminated by either party or by a method separately designated by the Company, the Company shall not be liable for continuing to retain any of User’s information after such termination.

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Article 6. Execution of Service Agreement

1. The Service Agreement shall become effective at the time when User starts using the Service. User shall use the Service after agreeing to these Terms and shall be deemed to have agreed to these Terms at the time of the start of use of the Service.

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2. Notwithstanding Article 6(1) or any other provisions of these Terms, if any of the following apply to User, the Company may, in its sole discretion, refuse to execute the Service Agreement with User. In such case, the Company shall have no obligation to disclose the reasons for such refusal.

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(1)  If any Service Agreement with User has previously been terminated by the Company due to any default on monetary obligations relating to the Service or any other breach of such Service Agreement;

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(2)  If User’s registration information contains any false information, error or omission;

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(3)  If the Company determines, in its sole discretion, that User may fail to perform any monetary obligations or any other obligations based on the Service Agreement;

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(4)  If a company for which User works provides any products or services which are the same as or similar to the Service; or

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(5)  If the Company determines, in its sole discretion, that the execution of the Service Agreement would be inappropriate.

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Article 7. Content of Service

The detailed content of the Service shall be specified on the website of the Company or in the Service.

Article 8. Setup and Maintenance for Use of Service

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1. User shall prepare User’s own Internet-connected environment for downloading the Service and prepare User’s own Terminal compatible with Bluetooth necessary for communications with the Product at User’s own expense and responsibility. The Company shall specify or post information relating to Terminals that are compatible with the Service (“Compatible Terminals”) in the Product’s or Service’s operation or instruction manual, in the Service or on the Company’s website.

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2. Any information provided by the Company relating to Compatible Terminals is for User’s reference purposes only. Even if a Terminal is specified as a Compatible Terminal, it is possible that such Terminal may not be compatible with the Service. User shall confirm the compatibility of the Terminal that User actually uses for the Service at User’s own expense and responsibility, even if such Terminal is specified as a Compatible Terminal. The Company shall not be liable for the compatibility or incompatibility of any Terminal.

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3. The Company shall designate Compatible Terminals in its sole discretion. The Company shall not be liable for the use of the Service with any incompatible Terminal.

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4. Based on the registration information of User, the Company may notify User of any information relating to products and services of the Company by e-mail or any other method, if User agrees to such notification. The information of User shall be handled in accordance with the Privacy Policy of the Company (available at https://www.dfreeus.biz/privacy-policy), as the same may be modified from time to time. The Privacy Policy is hereby incorporated in its entirety into these Terms and forms part of these Terms.

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5. User shall take any and all security measures at User’s own expense and responsibility in accordance with User’s usage environment of the Service, such as prevention of (i) infection by computer viruses, (ii) unauthorized access by third parties or (iii) information leakage.

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6. User shall use the Product and the Service after carefully reviewing any and all operation or instruction manuals and warnings, etc. prepared or specified by the Company. The Company shall not be liable to User for any unavailability of the Product or the Service, any damage or loss incurred by User or any third party or any other matter relating to the Product or the Service arising from User’s breach of such operation or instruction manuals or warnings, etc.

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7. The Company suffers any losses or damages in connection with User’s breach of these Terms or the Service Agreement or in relation to the use of the Service, User shall compensate the Company for such damage.

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Article 9. Accessories, etc.

1. The Company has no obligation to provide any Accessories as part of the provision of the Service. If User needs any additional Accessories or if the Accessories fail to function, etc., such User shall purchase them at his/her own expense.

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2. In the case of any Product returns or payment refunds pursuant to Article 16, User shall return any and all of the Accessories to the Company, even if such User has already used any part of the Accessories.

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Article 10. Management of Data

1. User shall carefully manage User’s own registration information, the data stored or saved in the Product and in the Terminal and any other data, etc. relating to the use of the Service (collectively, the “Data”) at User’s own expense and responsibility to prevent any third party from using any Data without the prior written consent of the Company.

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2. The Company shall not be liable to User for any leakage or unauthorized use of the Data for any reason whatsoever (including due to any loss or damage of the Product or any breach of Data management obligations by such User).

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3. The Company may use the Data freely for advertising, operating the Service or for any other purposes. The Company shall comply with the Privacy Policy in its use of the Data.

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4. The Company shall have no obligation to back up or duplicate any of the Data. User shall perform any desired backup of the Data at User’s own expense and responsibility.

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Article 11. Termination of Service Agreement by the Company, etc.

1. If the Company determines, in its sole discretion, that any of the following conditions apply to User, the Company may terminate all or any part of the Service Agreement or cease all or any part of the provision of the Service without prior notice or demand:

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(1)  If User’s registration information or any other notice, etc. from such User has any false information, error or omission;

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(2)  If User is subject to any suspension of bank payments or becomes insolvent;

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(3)  If any draft, bill or check drawn by User is dishonored;

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(4)  If any petition for attachment, provisional attachment or auction is filed against User, or if User is subject to any disposition of delinquent taxes or public dues;

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(5)  If any petition for bankruptcy, corporate reorganization or civil lawsuit is filed against User, or if User files such petition itself, or if the credit condition of User has any significant uncertainty;

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(6)  If User is subject to any adverse disposition regarding a business license, such as the cancellation or suspension of User’s business license by any competent authority;

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(7)  If User breaches any provision of the Service Agreement and does not remedy such breach within a reasonable period of time after receiving a notice from the Company requesting such correction;

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(8)  If User passes a resolution of its dissolution, capital reduction or transfer of all or any important part of its business, etc.;

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(9)  If User currently provides or plans to provide in the future any service which is the same as or similar to the Service; or

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(10) If the Company determines in its sole discretion that any other event has occurred which may cause the performance of the Service Agreement to become difficult or inappropriate.

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2. If any of the above conditions apply to User, User shall forfeit the benefit of time relating to any and all of User’s obligations to the Company. If any unpaid service fees or any default interest or delinquent charges remain at the time of the termination of the Service Agreement or the cessation of use of the Service on the basis of Article 11(1), User shall immediately pay such fee, interest or charge to the Company.

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Article 12. Prohibited Matters

1. The Company prohibits User from performing any act in using the Service that the Company determines, in its sole discretion, falls into any of the following categories. If any act performed by User corresponds to any of the following categories, the Company may terminate all or any part of the Service Agreement with User or cease all or any part of the use of the Service by User without prior notice or demand to such User:

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(1)  Any breach of laws and regulations, any act in connection with any criminal act, use of the Product contrary to the purposes of use of the Product designated by the Company, or breach of these Terms, the Service Agreement or any operation or instruction manual;

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(2)  Any fraud or threat against the Company, another User of the Service or any other third party;

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(3)  Any act contrary to public order and morals;

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(4)  Infringement of any Intellectual Property Right, right to likeness, privacy right, good name or goodwill or any other right or interest of the Company, another User of the Service or any other third party;

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(5)  Any act placing an excessive burden on the networks or systems, etc. of the Company or the Service;

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(6)  Any act which may interfere with the operation of the Service;

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(7)  Any improper analysis such as reverse engineering of the Service or the Product;

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(8) Any development of any product, etc. competitive with or similar to the Service or the Product;

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(9)  Any unauthorized or illegal access or attempt of unauthorized or illegal access to the networks or systems of the Company or the Product;

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(10) Any act of pretending to be a third party (spoofing);

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(11) Any advertising, promotion, solicitation or sales activities through the Service not authorized in writing in advance by the Company;

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(12) Any act of harming or damaging (including emotional harm) another User or any other third party; or

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(13) Any redistribution, lending or sale of the Service or Product without the prior written consent of the Company.

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2. If the Company determines, in its sole discretion, that any act of User in using the Service falls within any of the categories set forth in the preceding paragraph, the Company may, in its sole discretion, take what it determines to be appropriate measures, such as deletion of all or any part of the information transmitted by User without prior notice. In such case, the Company shall not be liable for any losses or damages incurred by such User arising from such measures.

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Article 13. Temporary Suspension or Cessation of Provision of Service

1. Upon the occurrence or existence of any of the following circumstances, the Company may suspend or cease the provision of the Service without prior notice to, and without prior consent of, User:

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(1)  If the Company engages in periodic or emergency maintenance of the hardware, software, or other equipment used in providing the Service;

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(2)  If the Company has difficulty providing the Service, etc. due to any act of God such as a natural disaster, power outage, war, riot, civil commotion, labor dispute or any other force majeure event;

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(3)  If the Company has difficulty providing the Service due to a suspension or cessation of the provision of telecommunications services by a telecommunications carrier, etc.;

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(4)  If the Company has difficulty providing the Service due to any reason related to the Platform; and

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(5)  If the Company determines in its sole discretion that the suspension or cessation of provision of the Service is necessary for any other operational or technical reason.

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2. If Any of the conditions set forth in Article 11(1) apply to User, or if User does not pay any service fee when due for the use of the Service, etc. or breaches any provision of the Service Agreement, the Company may suspend or cease the provision of all or any part of the Service without prior notice to, and without prior consent of, User.

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3. The Company shall not be liable for any damages or losses incurred by User or any third party in connection with the suspension or termination of the provision of the Service pursuant to Article 11(2).

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Article 14. Termination of Service

1. In any of the following cases, the Company may, in its sole discretion, terminate all or any part of the Service and notify (except in the case of clause (2) below) User of such termination and the date of such termination. The Company also may, in its sole discretion, terminate all or any part of the Service Agreement on such date of Service termination. Such circumstances for termination are:

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(1)  If the Company decides, in its sole discretion, to terminate the Service and notifies User of such termination at least thirty (30) days prior to the date of such termination;

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(2)  If the Company has difficulty providing the Service to User due to any act of God such as natural disaster, power outage, war, riot, civil commotion, labor dispute or any other force majeure; or

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(3)  If the Company has difficulty providing the Service due to any suspension or cessation of provision of the services of any telecommunications carrier, etc.

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2. The Company shall not be liable for any losses or damages incurred by User or any third party in connection with the termination of all or any part of the Service.

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Article 15. Damages

1. If User breaches any provision of these Terms, whether by intent, negligence, or otherwise, such User shall be liable for any and all damages and losses incurred by the Company in connection with such breach. In furtherance thereof, User agrees to defend, indemnify, and hold harmless the Company, its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from User’s breach of these Terms. If the Company incurs any damages or losses arising jointly from any breach of these Terms by User and the actions or omissions of any third party, User shall be liable, and compensate the Company, for such losses and damages jointly and severally with such third party.

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2. The Company shall not compensate User for any losses or damages incurred by User arising from any suspension, cessation, termination or change of the provision of the Service by the Company, suspension or cessation of the provision of or denial of access to all or any part of the Service, termination of the Service Agreement, loss of any Data or failure of any Equipment caused by the use of the Service or in connection with the Service.

Notwithstanding this Article 15, in the event that the Company is held to be liable to User for any damages or losses for any reason, the entire liability of the Company shall be limited to the aggregate amount of the payments for the Service and the Product received by the Company from User.

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Article 16. Return of Product and Refund

1. If User returns a Product and all of its Accessories to the designated contact of the Company by the due date separately designated by the Company after deleting all Data relating to the Product and restoring the Product and Accessories to their original condition at the time of purchase, the Company shall refund User’s purchase payment for such Product, provided that User complies with the Company’s Return Policy (available at www.dfreeus.biz/return-policy), as may be modified from time to time. The Return Policy is hereby incorporated into, and forms part of, these Terms.

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2. Notwithstanding Article 16(1), if the Company determines in its sole discretion that a returned Product or the applicable Accessories do not satisfy the Company’s Product return requirements (including without limitation the return deadline), the Company shall have no obligation to provide any refund to User.

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3. The Company will not refund any shipping, delivery or service charges to User, regardless of the condition of any returned Product. Any and all return charges shall be borne by User unless the Company, in its sole discretion, determines that an exception would be appropriate.

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4. The Company shall not be liable for any damage incurred by User or any third party arising from the failure to delete any Data in connection with a returned Product.

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Article 17. Handling of Intellectual Property Rights

Any and all Intellectual Property Rights relating to the website of the Company, the Service and the Product shall belong to the Company or the persons who grant licenses to the Company for such Intellectual Property Rights. The license granted to User for the use of the Service on the basis of the Service Agreement does provide or imply any license to User of any Intellectual Property Rights beyond what is explicitly stated in the Service Agreement.

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Article 18. Protection of Personal Information

The Company shall handle the personal information of User obtained in connection with the Service in accordance with the Privacy Policy.

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Article 19. No Warranty and Disclaimer

1. The Company does not represent or warrant that User will experience any health benefits, any particular health or physiological effect or any similar outcome as a result of use of the Service or the Product. If User or any third party incurs any damages or losses in connection with any use of the Service or Product, regardless of whether arising from any inaccurate, inappropriate or unclear content, expressions or acts or omissions on the part of the Company, the Company shall not be liable for any such damages or losses, regardless of the presence or absence of any intent or negligence of the Company.

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2. The Company shall not be liable for any damage incurred by User arising from any suspension, cessation or termination of the provision of the Service, unavailability or change of the Service, failure of or damage to any Terminal caused by any download or use of the Service, unavailability or inoperability of the Product or in connection with the Service.

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3. If Article 13(3) is deemed to be invalid, inapplicable or otherwise ineffective under applicable law or regulations and the Company is held to be liable for losses or damages to User in connection with the suspension or termination of the provision of the Service pursuant to Article 11(2), the Company shall be liable to User only for the damages directly incurred by such User due to User’s use of the Service, unless such losses or damages are caused by intentional wrongdoing or gross negligence of the Company. Notwithstanding the foregoing, in any case, the liability of the Company for such any such losses or damages shall be limited to the amount of service fees for the use of the Service already paid by User to the Company at the time of the occurrence of such losses or damages.

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Article 20. Assignment by the Company of the Provision of the Service

The Company may, in its sole discretion, assign, designate or entrust any third party to perform all or any part of the services or operations necessary for the provision of the Service to User.

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Article 21. Warranty against Defects

The Product is the subject of a limited warranty, provided on the terms and conditions set forth in the Warranty Policy (available at www.dfreeus.biz/warranty-policy). The Warranty Policy is hereby incorporated into, and forms part of, these Terms.

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EXCEPT AS SPECIFICALLY AND EXPLICITLY STATED, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SERVICE AND THE PRODUCT, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WHETHER SUCH WARRANTIES ARE EXPRESS OR IMPLIED.

THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE (INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) ARISING FROM INACCURACY, ERROR IN OR FAILURE OF THE SERVICE OR THE PRODUCT.

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Article 22. Severability

If any provision or part of a provision of these Terms is deemed to be invalid under applicable laws or regulations, the remaining portions of these Terms shall survive in full force and effect. In such case, such invalid provision or invalid part shall be amended to the extent necessary to make it effective and be construed to ensure the purpose of, and the legal and economic effects equivalent to, such invalid provision or part.

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Article 23. Assignment of Rights or Obligations

1. User may not assign, transfer, offer as collateral to any third party, make any third party accept or assume, or dispose of in any way, all or any part of User’s contractual status in the Service Agreement or User’s rights or obligations on the basis of these Terms, without prior written approval of the Company.

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2. User acknowledges and agrees that the Company may assign, transfer, offer as collateral to any third party, make any third party accept or assume, or dispose of in any way, all or any part of its status relating to the Service, its contractual status in the Service Agreement or its rights or obligations on the basis of these Terms, without providing any notice thereof to User.

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Article 24. Export Control

Japan, the United States or certain other countries have rules and regulations regarding the export of products and information. User agrees to comply with such rules and regulations and not to export or re-export the Product or the Service to countries or persons prohibited under these rules and regulations. By using the Service and by purchasing the Product, you represent that you are not in a country where such export of the Product or the Service is prohibited. You are also responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Product and the Service.

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Article 25. WAIVER OF JURY TRIAL.

USER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT USER MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICE OR THE PRODUCT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). USER ACKNOWLEDGES THAT COMPANY HAS BEEN INDUCED TO ENTER INTO THE TERMS BY, AMONG OTHER THINGS, USER’S WAIVER IN THIS SECTION.

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Article 26. Jurisdiction

Any dispute which may arise out of, in relation to or in connection with these Terms shall be subject to the exclusive jurisdiction of the courts located in San Francisco, California. User irrevocably consents to service, jurisdiction, and venue of such courts for any such dispute and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise.

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Article 27. Governing Law

These Terms and the Service Agreement shall be governed by the laws of the State of California without regard to the conflicts of law principles thereof.

Last Updated: May 14, 2022