Terms & Conditions

2.1. Registering Your Account. In order to access certain features of Nagish Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the App (“Account”).

2.2. Registration Data. In registering an account on the App or Website, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”). You represent that you are (a) at least thirteen (18) years old; (b) of legal age to form a binding contract or that you have reviewed this Agreement with your parent or legal guardian and he or she has provided verifiable parental consent; and (c) not a person barred from using Nagish Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account, whether or not authorized.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Nagish Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Nagish has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Nagish has the right to suspend or terminate your Account and refuse any and all current or future use of Nagish Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Nagish reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Nagish Properties if you have been previously removed by Nagish, or if you have been previously banned from any of Nagish Properties.

2.3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Nagish. Nagish reserves the right to terminate your Account if it has been inactive for more than thirty (30) days.

2.4. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Nagish Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Nagish Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform the Services. Nagish will not assess and charge for any calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing support@nagish.com.

3. TRS USER REGISTRATION DATABASE CONSENT FOR INTERNET PROTOCOL CAPTIONED TELEPHONE SERVICE (“IP CTS”) USERS: You consent that Nagish may collect and transmit the following information to the TRS User Registration Database to ensure proper administration of the TRS program, as required by the FCC: (A) full name; (B) full residential address; (C) telephone number; (D) a unique identifier such as the electronic serial number (ESN) of your IP CTS device, the user’s log-in identification, or the user’s email address; (E) the last four digits of your social security number or alternatives (as appropriate); (F) date of birth; (G) Registered Location (if applicable); (H) Nagish as your IP CTS provider; (I) date of service initiation and (when applicable) termination; (J) a digital copy of your user’s self-certification of eligibility for IP CTS and the date obtained by Nagish; and (K) if you are an existing user, the date on which you last placed an IP CTS call. Failure to consent will require Nagish to deny you, the registered IP CTS user, service.

4.1. Customer Content. You acknowledge that all communications, data, text, Contacts, sound, messages and/or other materials shared or accessible through Nagish Properties (collectively, “Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Nagish, are entirely responsible for all Content that you share, transmit or otherwise make available through Nagish Properties (“Customer Content”). We do not claim any ownership rights in your Customer Content. As between you and Nagish, you retain any and all of your rights to your Customer Content. We consider all Customer Content to be confidential and we do not use, share, or access Customer Content unless directed to do so by you, to ensure compliance with the Agreement, and/or to comply with applicable law and other legal requirements. For example, with your permission we would access your Customer Content to respond to and solve your support request. You are solely responsible for Customer Content and represent that you own or have the necessary rights to all of your Customer Content, and that use of Customer Content does not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, and that the Customer Content complies with the Agreement. You represent and warrant that you have obtained all consents and permissions needed to provide and use your Contacts in the context of the Services. By making any Customer Content available through the Services, you hereby grant to Nagish a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, host, cache, store, reproduce, transmit, publish, distribute and modify (for formatting purposes only), your Customer Content solely in connection with operating and providing the Services and Nagish Properties to you. Subject to the foregoing license, as between Nagish and you, you retain any and all of your rights to your Customer Content.

4.2. No Obligation to Pre-Screen Content. You acknowledge that Nagish has no obligation to review Content (including, but not limited to, Customer Content), although Nagish reserves the right in its sole discretion to refuse or delete any Content. In the event that Nagish refuses or deletes any Content, you acknowledge that Nagish will do so for Nagish’s benefit, not yours. Without limiting the foregoing, Nagish shall have the right to remove any Content that violates the Agreement or is otherwise objectionable. You are responsible for taking precautions as necessary to protect yourself and your computer systems from harmful or destructive Content. Nagish disclaims any responsibility for any harm resulting from the use by visitors or Registered Users of our Services or from Content there posted.

4.3. Storage. Unless expressly agreed to by Nagish in writing elsewhere, Nagish has no obligation to store any Customer Content. Nagish has no responsibility or liability for the deletion or accuracy of any Content or the failure to store, transmit or receive transmission of Content.

5.1. Nagish Properties. Except with respect to Customer Content, you agree that Nagish and its suppliers own all rights, title and interest in Nagish Properties (including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, moral rights, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Nagish Properties.

5.2. Trademarks. Nagish and all related graphics, logos, service marks and trade names used on or in connection with any Nagish Properties or in connection with the Services are the trademarks of Nagish and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Nagish Properties are the property of their respective owners.

5.3. Other Content. Except with respect to your Customer Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Nagish Properties.

5.4. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nagish (“Feedback”) is at your own risk and that Nagish has no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Nagish a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Nagish Properties and/or Nagish’s business.

6.1. Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):

6.1. Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Nagish Properties (including your Account), or access to or use of Nagish Properties;

6.2. Use Nagish Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation;

6.3. Engage in any contests, surveys or other duplicative or unsolicited communications (commercial or otherwise) in connection with Nagish Properties;

6.4. Market any goods or services for any business purposes on or in connection with any Nagish Properties.

6.5. Harm minors in any way;

6.6. Impersonate any person or entity, including, but not limited to, Nagish personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;

6.7. Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;

6.8. Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;

6.9. Register for more than one Account or register for an Account on behalf of an individual other than yourself;

6.10. Stalk or otherwise harass, bully or intimidate any other user of Nagish Properties; or

6.11. Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

Although Nagish does not generally monitor user activity occurring in connection with Nagish Properties or Content, if Nagish becomes aware of any possible violations by you of any provision of the Agreement, Nagish reserves the right to investigate such violations, and Nagish may, at its sole discretion, immediately terminate your license to use Nagish Properties, or remove your Customer Content, in whole or in part, without prior notice to you.

8.1. User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact, including your Contacts. You agree that Nagish will not be responsible for any liability incurred as the result of such interactions.

8.2. Content Provided by Other Users. In connection with your use of Nagish Properties, you may have access to Content provided by other Registered Users or such Content may be transmitted to you. Nagish is not responsible for and does not control Content. Nagish has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Content. You use and access all Content and interact with other Registered Users at your own risk.

9.1. Third-Party Websites, Applications, and Ads. Nagish Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Nagish Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Nagish. Nagish is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Nagish provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

9.2. App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store (the “App Store”). You acknowledge that the Agreement is between you and Nagish and not with the App Store. Nagish, not the App Store, is solely responsible for Nagish Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Nagish Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Nagish Property, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.

You agree to indemnify and hold Nagish, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Nagish Party” and collectively, the “Nagish Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your Customer Content; (b) your use of, or inability to use, any Nagish Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Nagish reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Nagish in asserting any available defenses. This provision does not require you to indemnify any of the Nagish Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the App, Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Nagish Properties.

11.1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF NAGISH PROPERTIES IS AT YOUR SOLE RISK, AND NAGISH PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NAGISH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

11.2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT NAGISH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD NAGISH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER REGISTERED USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. NAGISH MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NAGISH MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH NAGISH PROPERTIES.

11.3. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF NAGISH PROPERTIES OR YOUR CONTACTS. YOU UNDERSTAND THAT NAGISH DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF NAGISH PROPERTIES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF NAGISH PROPERTIES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.

12.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL NAGISH PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT NAGISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF NAGISH PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE NAGISH PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH NAGISH PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON NAGISH PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO NAGISH PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NAGISH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NAGISH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NAGISH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

12.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL NAGISH PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00) and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A NAGISH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A NAGISH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A NAGISH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

12.3. User Content. EXCEPT FOR NAGISH’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE NAGISH PRIVACY POLICY, NAGISH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, CUSTOMER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

12.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NAGISH AND YOU.

13.1. Violations. If Nagish becomes aware of any possible violations by you of the Agreement, Nagish reserves the right to investigate such violations. If, as a result of the investigation, Nagish believes that criminal activity has occurred, Nagish reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Nagish is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Nagish Properties, including your Customer Content, in Nagish’s possession in connection with your use of Nagish Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Nagish, its Registered Users or the public, and all enforcement or other government officials, as Nagish in its sole discretion believes to be necessary or appropriate.

13.2. Breach. In the event that Nagish determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Nagish Properties, Nagish reserves the right to:

13.2.1. Warn you via e-mail (to any e-mail address you have provided to Nagish) that you have violated the Agreement;

13.2.2. Delete any of your Customer Content provided to Nagish Properties;

13.2.3. Discontinue your registration(s) with any Nagish Properties, including any Services;

13.2.4. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or

13.2.5. Pursue any other action which Nagish deems to be appropriate.

14.1. Term. The Agreement commences on the date when you agree to be bound (as described in the preamble above) and remain in full force and effect while you use Nagish Properties, unless terminated earlier in accordance with the Agreement.

14.2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Nagish Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Nagish Properties, unless earlier terminated in accordance with the Agreement.

14.3. Termination of Services by Nagish. If you have materially breached any provision of the Agreement, or if Nagish is required to do so by law (e.g., where the provision of the App, the Website or the Services is, or becomes, unlawful or when required by the FCC), Nagish has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Nagish’s sole discretion and that Nagish shall not be liable to you or any third party for any termination of your Account.

14.4. Termination of Services by You. If you want to terminate the Services provided by Nagish, you may do so by closing your Account for all of the Services that you use.

14.5. Effect of Termination. Upon termination of the Services, your right to use the Services will automatically terminate immediately. Nagish will not have any liability whatsoever to you for any suspension or termination, including for deletion of Customer Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

14.6. No Subsequent Registration. If your registration(s) with or ability to access Nagish Properties, is discontinued by Nagish due to your violation of any portion of the Agreement or for conduct otherwise deemed inappropriate by Nagish, then you agree that you shall not attempt to re-register with or access Nagish Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Nagish reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Nagish and limits the manner in which you can seek relief from us.

15.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the App or Website, or to any aspect of your relationship with Nagish, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Nagish may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

15.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to support@nagish.com. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Nagish will pay them for you. In addition, Nagish will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  

15.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Nagish. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

15.4. Waiver of Jury Trial. YOU AND NAGISH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Nagish are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

15.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.

15.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: unsubscribe@nagish.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Nagish username (if any), the email address you used to set up your Nagish account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.  If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

15.7. Severability. Except as provided in subsection 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

15.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Nagish.

15.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Nagish makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Nagish at the following address: Nagish Inc., 228 Park Avenue S, PMB 58177, New York, NY 10003, Attn: Legal.

16.1. Electronic Communications. The communications between you and Nagish may take place via electronic means, whether you visit Nagish Properties or send Nagish e-mails, or whether Nagish posts notices on Nagish Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Nagish in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nagish provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

16.2. Release. You hereby release Nagish Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Nagish Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Nagish Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Nagish Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the App, Website or any Services provided hereunder. You may also file an informal or formal complaint with the Federal Communications Commission in accordance with 47 C.F.R. § 64.606(c)(6)(v).

16.3. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Nagish’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

16.4. Force Majeure. Nagish shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

16.5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Nagish Properties, please contact us at: Nagish Inc., 228 Park Avenue S, PMB 58177, New York, NY 10003, Attn: Legal or email us at: support@nagish.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

16.6. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Nagish agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, New York.

16.7. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.

16.8. Notice. Where Nagish requires that you provide an e-mail address, you are responsible for providing Nagish with your most current e-mail address. In the event that the last e-mail address you provided to Nagish is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Nagish’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Nagish at the following email address: support@nagish.com. Such notice shall be deemed given when received by Nagish by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

16.9. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

16.10. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

16.11. Accessing and Downloading the Application from Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:

16.11.1. You acknowledge and agree that (i) the Agreement is concluded between you and Nagish only, and not Apple, and (ii) Nagish, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

16.11.2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

16.11.3. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Nagish and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Nagish.

16.11.4. You and Nagish acknowledge that, as between Nagish and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

16.11.5. You and Nagish acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Nagish and Apple, Nagish, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.

16.11.6. You and Nagish acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

16.11.7. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

16.12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

16.13. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Nagish understands the importance of making sure a Registered User has reliable, fast access emergency services when they need it most.

Definitions: Terms capitalized when used within this document have the following meanings:

“911 Services” means functionality that allows Registered Users to contact emergency services by dialing the digits 911.

“Enhanced 911 Service” or “E911” means the ability to route an emergency call to the designated entity authorized to receive such calls, which in many cases is a Public Safety Answering Point (“PSAP”), serving the Registered User’s registered or user-provided address and to deliver the Registered User’s telephone number and registered address information automatically to the emergency operator answering the call.

With “Enhanced 911 Service” (“E911”), when a caller from your registered location dials the digits 911 from the Nagish Service that is associated with a phone number and a properly registered address, the phone number and address are automatically presented to the local emergency center serving the location. Emergency operators will have access to this information regardless of whether the caller is able to verbally provide such information, and whether the caller uses IP Relay or IP CTS.

EMERGENCY SERVICE DISCLOSURE APPLICABLE TO IP RELAY AND IP CTS CALLING SERVICES OFFERED BY NAGISH:

The limitations detailed below are applicable to all of Nagish’s Internet-based telecommunications relay Service (“iTRS”) calling Services, including its Internet Protocol Relay Service (“IP Relay”) and its Internet Protocol Captioned Telephone Service (“IP CTS”). You acknowledge and understand the potential complications arising from the delivery of emergency services when dialing 911 and, specifically, the limitations detailed below associated with Nagish’s iTRS emergency calling capabilities.

1. Nagish’s iTRS Calling Services Have 911 Capabilities that are Different Than Those Offered by Traditional Providers of Local Telephone Services. You acknowledge and agree that all of Nagish’s calling Services are Internet based and that the 911 calling capabilities associated with all of Nagish’s calling Services are different from those offered by traditional providers of local telephone services and that 911 calls may be handled differently than emergency calls placed with traditional telephone service. You expressly consent to the limitations of the 911 calling capabilities, including without limitation, those described herein, and may consider alternate means for accessing traditional emergency services.
2. 911 Service May NOT Work If You Experience A Power Outage, Internet Service Outage or any other network disruption. Outages of your electricity and problems with your connection, including network congestion, will disrupt any Nagish calling Service and you may not be able to use it for 911 emergency calling.
3. 911 Service Will NOT Work If Your Internet Service Is Disconnected Or You Experience An Outage For Any Reason. If you have a Service outage due to a suspension of your account due to billing issues or for any other reason, you will not be able to use any Nagish calling Services for any calls, including for emergency 911 calls.
4. You May Not Be Able to Reach the Correct Emergency Services If You Have A Telephone Number That Does Not Match Your Actual Geographic Location.
   While Nagish will leverage GPS and other geolocation information from your mobile device, if you have provided Nagish to access this information, emergency service personnel will not always be able to track your location through Nagish’s system and it is therefore important that the location registration remains updated. For 911 calls to be accurately routed to the appropriate emergency call center, you must provide accurate address information. Your call may not reach the emergency personnel near your actual physical location, you may have to provide your location information to a national emergency calling center, and/or the emergency personnel may not be able to transfer your call or respond to your emergency.  In an emergency, it is best to dial 911 directly from your native dialer app rather than through TRS.
5. You May Not Be Able To Reach the Correct Emergency Service Center If You Fail to Register or Update Your Valid Service Address.
   Failure to provide a correct physical address in the correct format, or update your Registered Location, may cause calls to be routed to the incorrect local emergency service provider. Furthermore, use of any Nagish calling Service from a location other than the location to which such Service was registered, i.e., the “Registered Location,” may result in 911 calls being routed to the incorrect local emergency service provider. That call may instead be routed to the backbone provider 24/7 Emergency Call Center (“ECC”). You acknowledge that for emergency call routing involving the ECC, Nagish has no ability to assist the caller in the event that (i) the caller cannot speak or identify their address; (ii) the data connectivity between the address database and the ECC is interrupted; or (iii) Nagish cannot provide the endpoint location information.

‍

By accepting the Terms of Use, incorporating this Disclosure, you acknowledge that you have received and understand the information regarding the limitations of E911/911 Services.

You acknowledge and agree that Nagish, its affiliates, directors, officers, employees, agents, underlying local provider(s) or other public or private agencies and any third party providers will not be liable for any injury, death or damage to persons or property, or any other claim arising directly or indirectly out of, or relating in any way to the E911 or 911 Services, including without limitation any inability to access such Services, except to the extent such claims or causes of action arose from Nagish’s gross negligence, recklessness or willful misconduct.

These Nagish AI Supplementary Terms (“Nagish AI Terms”) apply to your access to and use of any Nagish AI features.

Definitions: Any defined terms used herein and not otherwise defined have the meanings set forth in the Agreement.

“Customer Data” shall have the meaning set forth in the Nagish Privacy Policy.

“Nagish AI” means any features or functionality made available by Nagish that utilize data models trained by machine learning.

“Nagish Live” is our service that transcribes live conversations. Nagish Live is not offered when a user makes a phone call with Nagish, and Nagish Live is not offered in connection with the federal telecommunications relay services (“TRS”) program.

Fees
Nagish AI is currently offered as part of your Nagish Account at no additional cost.

‍
Input and Output
You may provide input to be processed by Nagish AI (“Input”), and receive output generated and returned by Nagish AI based on the Input (“Output”). When you use Nagish AI, Input and Output are your Customer Data. You are solely responsible for the content and use of your Customer Data. You acknowledge that due to the nature of machine learning and the technology powering Nagish AI features, Output may not be unique and Nagish AI may generate the same or similar output to Nagish or a third party, and Nagish AI may generate the same Output for you as other Registered Users. Further our Services may provide incomplete, incorrect, or offensive Output that does not represent Nagish’s views.

Nagish AI Use Restrictions

• You may not use Nagish AI or Output (i) to develop foundation models or other large scale models that compete with Nagish or Nagish AI; (ii) to mislead any person that Output from the Service was solely human generated; (iii) to generate spam or content for dissemination in electoral campaigns, or (iv) in a manner that violates any technical documentation, usage guidelines, or parameters.
• Nagish reserves the right to disable or degrade your access to Nagish AI in its sole discretion in order to ensure optimal performance and fair use across all Nagish Users.
• You will ensure that your Input and use of Nagish AI and Output will not (i) violate any applicable law, including any local, regional, or national prohibition of such technology; (ii) violate these Nagish AI Terms or the Agreement; (iii) violate our “User Conduct” restrictions as set forth in our Terms of Service; or (iv) infringe, violate, or misappropriate any of our rights or the rights of any third party.

‍

Improving Nagish AI
Artificial intelligence and machine learning models can improve over time to better address specific use cases. We use Customer Data to provide our Services, comply with applicable law, enforce our terms and policies, and keep our Services safe. The content of calls processed as part of the federal TRS program will not be used or retained beyond the duration of the call by either Nagish or its partners, except as required by law.

WARRANTY DISCLAIMER
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA OBTAINED THROUGH THE USE OF ANY NAGISH AI FEATURE IS DONE AT YOUR SOLE RISK. NAGISH AI CANNOT DYNAMICALLY RETRIEVE INFORMATION, AND OUTPUT MAY NOT ACCOUNT FOR EVENTS OR CHANGES TO UNDERLYING FACTS OCCURRING AFTER THE AI MODEL WAS TRAINED. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NAGISH OR THROUGH NAGISH AI SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.