Terms & Conditions
PLEASE REGULARLY CHECK THE APP AND WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Table of Contents
1. USE OF THE SERVICES AND NAGISH PROPERTIES
The App, Website, and the Services, and the information and content available on the App, Website and the Services (as these terms are defined herein) (each, a “Nagish Property” and collectively, the “Nagish Properties”) are protected by U.S. copyright laws. Subject to the Agreement, Nagish grants you a limited license to reproduce portions of Nagish Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Nagish in a separate license, your right to use any and all Nagish Properties is subject to the Agreement.
1.1. Description. The Service allows Registered Users (as defined below) to create, import and maintain an address book of the Registered User’s contacts ( “Your Contacts”) to enable a Registered User to place and receive captioned calls to such contacts through the internet via the App or Website. You understand that the captioning provided in connection with the Services is by an automated speech recognition system which provides captions in the App or Website.
1.2. Requirements for Use of the Services. In order to use the Service for free, you represent that you have a hearing loss or a speech impediment that necessitates uses of a captioned or relayed telephone service, and you will not allow others who do not have a hearing loss or speech impediment to utilize the Services to make or receive calls through the App or Website. Except as set forth below, you understand that the cost of transcription through the Service is funded through a government program, and that we may disclose your telephone number to third parties in to verify eligibility to use the Services. Nagish reserves the right to offer the Service for a fee outside of the United States as well as to Registered Users without hearing loss or a speech impediment. Registered Users of the Service without hearing loss or a speech impediment should turn off captions during use of the Service.
1.3. App License. Subject to your compliance with the Agreement, Nagish grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App access through or downloaded from the Google Play store (a “Google Play Sourced App”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
1.4. Updates. You understand that Nagish Properties are evolving. As a result, Nagish may require you to accept updates to Nagish Properties that you have installed on your mobile device. You acknowledge and agree that Nagish may update Nagish Properties with or without notifying you. You may need to update third-party software from time to time in order to use Nagish Properties.
1.5. Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Nagish Properties or any portion of Nagish Properties, including the App, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Nagish Properties (including images, text, page layout or form) of Nagish; (c) you shall not use any metatags or other “hidden text” using Nagish’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Nagish Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the App or Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the App or Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Nagish Properties in order to build a similar or competitive App, Website or service; (g) except as expressly stated herein, no part of Nagish Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Nagish Properties. Any future release, update or other addition to Nagish Properties shall be subject to the Agreement. Nagish, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Nagish Property terminates the licenses granted by Nagish pursuant to the Agreement.
1.6. Third-Party Materials. As a part of Nagish Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Nagish to monitor such materials and that you access these materials at your own risk.
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 (13) 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 agrees to this Agreement on your behalf; 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. 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 per platform or SNS 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 charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing email@example.com.
Currently, we provide the Services of making and receiving calls through text, free of charge. However, we may reserve the right to charge fees for other types features enabled through the App or Website.
4. RESPONSIBILITY FOR CONTENT
4.1. Types of Content. You acknowledge that all data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Nagish Properties (collectively, “Content”), including Nagish Properties, 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 upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Nagish Properties (“Your Content”), and that you and other Registered Users of Nagish Properties, and not Nagish, are similarly responsible for all Content that you and they Make Available through Nagish Properties ( “User Content”).
4.2. No Obligation to Pre-Screen Content. You acknowledge that Nagish has no obligation to pre-screen Content (including, but not limited to, User Content), although Nagish reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Nagish pre-screens, refuses or removes 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.
4.3. Storage. Unless expressly agreed to by Nagish in writing elsewhere, Nagish has no obligation to store any of Your Content that you Make Available on Nagish Properties. Nagish has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Nagish Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Nagish retains the right to create reasonable limits on Nagish’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the App or Website and as otherwise determined by Nagish in its sole discretion.
5.1. Nagish Properties. Except with respect to Your Content and User 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 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. Your Content. Nagish does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Nagish Properties, you grant Nagish a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, host, display, publish, license, distribute, reproduce, modify and adapt Your Content (in whole or in part) for the purposes of operating, providing, developing and improving Nagish Properties to you and to our other Registered Users; as well as researching and developing new Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Nagish, are responsible for all of Your Content that you Make Available on or in Nagish Properties.
5.5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Nagish through its suggestion, feedback, wiki, forum or similar pages (“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. USER CONDUCT
6.1. Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Agreement):
6.1.1. 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;
6.1.2. Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any Nagish Property;
6.1.3. Use Nagish Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation;
6.1.4. Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with Nagish Properties; or
6.1.5. Market any goods or services for any business purposes on or in connection with any Nagish Properties.
6.2. General. In connection with your use of Nagish Properties, you shall not:
6.2.1. Make Available any Content that, in Nagish’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, pornographic, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
6.2.2. Harm minors in any way;
6.2.3. 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;
6.2.4. Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
6.2.5. 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;
6.2.6. Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
6.2.7. Register for more than one Account or register for an Account on behalf of an individual other than yourself;
6.2.8. Stalk or otherwise harass, bully or intimidate any other user of our Nagish Properties; or
6.2.9. Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Nagish may, but is not obligated to, monitor or review Nagish Properties and Content at any time. Without limiting the foregoing, Nagish shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. 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 change, alter or remove Your Content, in whole or in part, without prior notice to you.
8. INTERACTIONS WITH OTHER USERS.
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; provided, however, that Nagish reserves the right, but has no obligation, to intercede in such disputes. 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. Nagish Properties may contain User Content provided by other Registered Users. Nagish is not responsible for and does not control User Content. Nagish has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk.
9. THIRD-PARTY SERVICES
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 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. DISCLAIMER OF WARRANTIES AND CONDITIONS
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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT THE SERVICES ARE PRE-PRODUCTION AND HAVE NOT BEEN COMPLETELY TESTED IN ALL SITUATIONS.
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 OPERATORS OF EXTERNAL SITES, 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 USER 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. LIMITATION OF LIABILITY
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.
12.4. 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 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 Your 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 Content provided by you or your agent(s) to Nagish Properties;
13.2.3. Discontinue your registration(s) with any of Nagish Properties, including any Services or any Nagish community;
13.2.4. Discontinue your subscription to any Services;
13.2.5. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
13.2.6. Pursue any other action which Nagish deems to be appropriate.
14. TERM AND TERMINATION
14.1. Term. The Agreement commences on the date when you accept them (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), 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. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Nagish will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your 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, or any other Nagish community is discontinued by Nagish due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Nagish Properties or any Nagish community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Nagish Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Nagish reserves the right, in its sole discretion, to i
15. DISPUTE RESOLUTION
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 firstname.lastname@example.org. 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: email@example.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., 80 State Street, Albany, New York 12207, Attn: Legal.
16. GENERAL PROVISIONS
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., 80 State Street, Albany, New York 12207, Attn: Legal or email us at: firstname.lastname@example.org. 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: email@example.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.
Annex 1 - Nagish E911 Services
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.
- 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.
- 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.
- 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.
- 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. Nagish Services are technically capable of being used in locations that are not associated with the traditional geographic area of a telephone number. However, these capabilities can cause 911 problems. All 911 capabilities will only be available in the location that you have associated with the particular Nagish IP Relay or IP CTS telephone number you have assigned to the Service. While Nagish will leverage GPS and other geolocation information from your mobile device, 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. Additionally, if you are using the Service in a location that uses a different area code than the area code in the number you are using with your Nagish Service, when you dial 911 you may not be able to reach any emergency personnel. Even if you do reach emergency personnel, your call may not reach the emergency personnel near your actual physical location and the emergency personnel may not be able to transfer your call or respond to your emergency.
- You May Not Be Able To Reach the Correct Emergency Service Center If You Fail to Register A Valid Service Address. Failure to provide a correct physical address in the correct format may cause all E911 Service 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 address,” may result in Enhanced 911 calls being routed to the incorrect local emergency service provider. If you fail to register a physical address or register and incomplete or incorrect address, the call will not be automatically routed to the correct Public Service Answering Point (PSAP). Instead, that call will be handled by 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.
- Emergency Service Responders May Not Automatically Know The Number or Location.Unlike traditional emergency 911 services, when you call 911 using Nagish’s iTRS calling Services, the emergency personnel receiving the call may not be able to automatically identify the phone number or the physical address from which the call originates. You may need to tell the emergency personnel the nature of the emergency, give them the phone number, and describe the physical location. If the call is dropped for any reason, emergency personnel may not be able to call back or find the location.
You shall be responsible for providing such location information as Nagish may request in order to provision 911 Services provided by Nagish in a manner that will allow the automatic transmission of location information with each 911 call made using the iTRS calling Services. You shall be responsible for maintaining the accuracy of all such location information, and promptly updating the location information of any device that is relocated from the previously-provided location.
The provision of E911 Services shall be conditioned upon you providing Nagish with accurate location data, call back number, valid address or any other information required and requested by Nagish in order to provide the E911 Services. You shall provide this information in a timely manner and in a format required or requested by Nagish. You shall update this information whenever necessary to reflect changes. The Parties understand and acknowledge that should you fail to provide any such information, Nagish may not be able to provide the E911 Services, in whole or in part. You agree to release indemnify and defend Nagish and all of its affiliates, subsidiaries, employees, shareholders, agents, vendors, and representatives from any and all claims that may arise from your failure to satisfy this section including resulting from your failure to provide a correct or updated address to Nagish.