This Software License Agreement ("SLA") is an agreement between you (an individual or entity, referred to hereinafter as “you” or, in the possessive, “your”) and Fujitsu Component Limited ("Fujitsu Component"), which governs your use of software, including associated manuals and electronic documents such as “read me” files, that will be downloaded from this website to your computer or hardware (collectively "Software") for use with Fujitsu Component products (“Products”).
The Software should only be downloaded from this website, and be installed or used by you, on the condition you agree to the terms and conditions set forth in this SLA. Any of your acts of showing an acceptance, including clicking the “ACCEPTANCE” button on this website, or installation or use of the Software shall be deemed as your acceptance of the terms and conditions of this SLA.
If you do not agree to the terms of this SLA, you are not permitted to download, install or use Software.
Fujitsu Component will grant you a non-exclusive, non-transferable, royalty-free limited license to:
(a) install and use Software solely for the purpose of using Products (the "Purpose");
(b) copy Software, if necessary, to perform the Purpose or for a backup purpose; and
(c) embed Software into your products.
(d) distribute, at your responsibility, Software in the form of Object Code to a customer who has purchased your products.
In case that Software is provided in the form of source code (“Source Code”), Fujitsu Component further grants you a non-exclusive, non-transferable, royalty-free limited license to:
(a) modify and/or reproduce Source Code; and
(b) convert Source Code, including Source Code modified or reproduced under Article 1.2(a) of this SLA, into object code ("Object Code").
(c) distribute, at your responsibility, Software in the form of Object Code converted under Article 1.2(b) to a customer who has purchased your products.
The following shall be deemed to be Software under this SLA:
(a) any copy of Software;
(b) any Source Code you have modified or reproduced; and
(c) any Object Code you have converted from Source Code (including Source Code you have modified or reproduced).
Unless otherwise expressly provided herein, you shall not:
(a) modify Software;
(b) reverse engineer, decompile or disassemble Software, in the case that Software is not provided in the form of Source Code;
(c) use Software for any purposes other than the Purpose; and
(d) rent, lease, sublicense or lend Software. 1.5 You may only use Software in combination with Products.
Disputes. The terms of this Section 13 shall apply to all Disputes between you and Fujitsu Component. The term “Dispute(s)” is meant to have the broadest meaning permissible under law and includes any dispute, claim, controversy or action between you and Fujitsu Component arising out of or relating to this SLA, the Software, or other transaction involving you and Fujitsu Component, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. “DISPUTE” DOES NOT INCLUDE IP CLAIMS, or more specifically, a claim or cause of action for (a) trademark infringement or dilution, (b) patent infringement, (c) copyright infringement or misuse, or (d) trade secret misappropriation (an “IP Claim”). You and Fujitsu Component also agree, notwithstanding Section 13.6, that a court, not an arbitrator, may decide if a claim or cause of action is for an IP Claim.
Binding Arbitration. You and Fujitsu Component agree that all Disputes shall be resolved by binding arbitration according to this SLA. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Pursuant to this SLA, binding arbitration shall be administered by JAMS, a nationally recognized arbitration authority, pursuant to its code of procedures then in effect for consumer related disputes, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see Section 13.6 below). You and Fujitsu Component understand and agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section 13, (b) this SLA memorializes a transaction in interstate commerce, and (c) this Section 13 shall survive termination of this SLA.
Pre-Arbitration Steps and Notice. Before submitting a claim for arbitration, you and Fujitsu Component agree to try, for sixty (60) days, to resolve any Dispute informally. If Fujitsu Component and you do not reach an agreement to resolve the Dispute within the sixty (60) days, you or Fujitsu Component may commence an arbitration. Notice to Fujitsu Component must be addressed to: Shinagawa Seaside Park Tower, 12-4, Higashi-shinagawa 4-chome, Shinagawa-ku, Tokyo, 140-8586, Japan (the “Fujitsu Component Address”). The Dispute Notice to you will be sent to the most recent address Fujitsu Component has in its records for you. For this reason, it is important to notify us if your address changes by emailing us at email@example.com or writing us at the Fujitsu Component Address above. Notice of the Dispute shall include the sender’s name, address and contact information, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). Following receipt of the Dispute Notice, Fujitsu Component and you agree to act in good faith to resolve the Dispute before commencing arbitration.
Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND FUJITSU COMPONENT AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
Arbitration Procedure. If you or Fujitsu Component commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this SLA. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this SLA. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this SLA, including any claim that all or any part of this SLA is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for an IP Claim, which is excluded from the definition of “Disputes” in Section 13.1 above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator may award you the same damages as a court could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction.
You and/or Fujitsu Component may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Santa Clara County, California at your option.
(a) Initiation of Arbitration Proceeding. If either you or Fujitsu Component decides to arbitrate a Dispute, both parties agree to the following procedure:
(i). Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”).
(ii). Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS, 160 W. Santa Clara St. Suite 1600, San Jose, CA 95113 U.S.A.
(iii). Send one copy of the Demand for Arbitration to the other party (same address as the Dispute Notice), or as otherwise agreed by the parties.
(b) Hearing Format. During the arbitration, the amount of any settlement offer made shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Fujitsu Component is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
(c) Arbitration Fees. In the event that you initiate arbitration against Fujitsu Component pursuant to the provisions of this SLA, Fujitsu Component shall pay, or (if applicable) reimburse you for, any costs of arbitration over $250. In the event that Fujitsu Component initiates arbitration against you pursuant to the provisions of this SLA, Fujitsu Component shall pay all costs of the arbitration.
(d) Award in Your Favor. For Disputes in which you or Fujitsu Component seeks $75,000 or less in damages exclusive of attorney’s fees and costs, if the arbitrator’s decision results in an award to you in an amount greater than Fujitsu Component’s last written offer, if any, to settle the Dispute, Fujitsu Component will: (i) pay you $1,000 or the amount of the award, whichever is greater and (ii) reimburse you for any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing the Dispute in arbitration. Except as agreed upon by you and Fujitsu Component in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by Fujitsu Component pursuant to this Section 13.6(d).
(e) Attorney’s Fees. Fujitsu Component will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under this SLA. Your right to expenses under Section 13.6(d) above does not limit your rights to expenses under applicable law; notwithstanding the foregoing, the arbitrator may not award duplicative awards of expenses.
Opt-out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in this SLA by sending a written letter to the Fujitsu Component Address within thirty (30) days of your assent to this SLA (including without limitation the download and installation of the Software) that specifies (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section 13. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including the requirement to provide notice prior to litigation.
Amendments to Section 13. Notwithstanding any provision in this SLA to the contrary, you and Fujitsu Component agree that if Fujitsu Component makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Fujitsu Component’s address) in this SLA, Fujitsu Component will obtain your affirmative assent to the applicable amendment. If you do not affirmatively assent to the applicable amendment, you are agreeing that you will arbitrate any Dispute between the parties in accordance with the language of this Section 13 (or resolve disputes as provided for in Section 13.7, if you timely elected to opt-out when you first assented to this SLA).
Severability. If any provision in this Section 13 is found to be unenforceable, that provision shall be severed with the remainder of this SLA remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 13.5. This means that if Section 13.5 is found to be unenforceable, the entire Section 13 (but only Section 13) shall be null and void.