Please read these Terms before using the POCKETALK VENTANA service. You are required to create an account and agree to these Terms in order to use the POCKETALK VENTANA service. By creating an account for use by your employer, you are creating an account that binds your employer to these Terms as a Customer. If you do not agree to these Terms, you are not permitted to use the POCKETALK VENTANA service.
By registering for an account or by using the POCKETALK VENTANA service, you shall be deemed to have agreed to these Terms.
- "Device" means the device and equipment of POCKETALK products that you use, which includes accessories for such device.
- “Order Form” means the written order form prepared by POCKETALK and executed by the parties that specifies the Fees for, and other terms applicable to, the Service and expressly incorporates these Terms. If a provision of an Order Form conflicts with a provision of these Terms, such provision of the Order Form shall apply with respect to such Order Form. The initial Order Form is attached to these Terms as Exhibit A. Subsequent Order Forms may be mutually executed by the parties in writing and attached to these Terms as Exhibit A-1, Exhibit A-2, etc.
- "Service" means the POCKETALK VENTANA service, which is the provision of digital content, software, as well as support and other services provided to you by POCKETALK for data management functions such as number of translations, translation languages, and results of translations of Devices registered on the Service.
- "Software" means all software (excluding software which is intended to be run on the Device) provided by POCKETALK in order to use the Service.
2. Use of POCKETALK VENTANA
- You are required to create an account in order to use all functions of the Service. To do so, you must provide all information required by POCKETALK in the instructions on the creation of an account POCKETALK has provided to your valid e-mail address. You shall be responsible for any act performed relating to your account. POCKETALK shall not be liable for any losses or damages arising from a breach of confidentiality of your account. If you recognize or suspect any security issue with respect to the Service or your account, please contact us immediately via POCKETALK’s support page.
- Subject to your agreement to and compliance with these Terms, POCKETALK grants you a non-exclusive right to access, use, and view the Service solely in accordance with these Terms. Except as expressly provided in this Section 2.2, POCKETALK does not grant to you any rights, or any title or interest, in or to the Service, the Software, or any other property.
- Purchase of the Device or use of the Service does not transfer to you any of the copyrights or other ownership rights related to the Software or the Service.
- You may provide POCKETALK with comments, suggestions, and recommendations (fixes, improvements, etc.) (hereinafter collectively referred to as “Feedback”) related to the Service. POCKETALK shall own all rights, title, and interest in and to any Feedback, and you hereby assign, and agree to assign, to POCKETALK any and all such rights, title, and interest. Accordingly, POCKETALK may take any action relating to Feedback without any payment to or approval from you.
3. Conditions of Use
- The Service is provided solely for Customer’s internal use for the management of Devices.
- Any and all hardware and software used in the Service is the intellectual property of POCKETALK or a third party licensor and is protected by U.S., Japanese, and other country and international laws concerning intellectual property rights.
- POCKETALK may amend, update, or otherwise modify the Service or its corresponding operating environment in its discretion and with or without prior notice to you.
- The Service can only be used with Devices manufactured, distributed, and sold by POCKETALK or an authorized distributor or agent. You are not permitted to use the Service with any other device (for example, a similar product or an imitation of the Device). If POCKETALK determines or believes that you have violated or are likely to violate this Section 3.4, your access to the Service may be immediately terminated without prior notice to you.
- Access to the Internet is required in order to use the Service. Maintenance and management of necessary equipment for accessing the Internet are solely your responsibility.
- You are not permitted to use, or attempt to use, any other customer’s account. You are not permitted to impersonate other individuals or organizations when using the Service.
- The Service is provided solely to enhance your use of the Devices. You are not permitted to use the Service in a commercial manner, such as by using for a commercial purpose the translated data that is stored, organized, and aggregated by the Service.
The Service is fee-based. You are obligated to pay to POCKETALK all fees set forth in an applicable Order Form (the “Fees”) in accordance with the terms of such Order Form. If your payment of all required Fees is not confirmed, POCKETALK may suspend or terminate the Service without prior notice to you.
5. Confidentiality, Privacy, and Data Use
- “Confidential Information” means all non-public information or material, whether tangible or intangible and in whatever form or medium made available by POCKETALK to Customer whether or not identified by POCKETALK as confidential or similar. Without limiting the foregoing, the following is deemed Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by POCKETALK; (ii) the oral and visual information relating to the Service; and (iii) these Terms and any applicable Order Form.
- Customer shall use Confidential Information solely as necessary for the use of the Service. Customer agrees at all times to use all reasonable efforts, but in any event no less than the efforts that it uses in the protection of its own similarly sensitive confidential information, to protect Confidential Information. Customer agrees to not disclose Confidential Information to any third party and to restrict access to Confidential Information only to those employees or contractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by confidentiality obligations no less restrictive than those set forth in this Section 5.
- Customer’s obligations hereunder with respect to Confidential Information will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by Customer; (ii) is independently developed by Customer without use of the Confidential Information; (iii) is rightfully obtained by Customer from a third party without any obligation of confidentiality; or (iv) is already known by Customer without any obligation of confidentiality prior to obtaining the Confidential Information from POCKETALK. In addition, Customer may disclose Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to POCKETALK so that the POCKETALK may seek a protective order and engage in other efforts to minimize the required disclosure. Customer shall cooperate with POCKETALK in seeking such protective order and in engaging in such other efforts.
- Nothing in these Terms will be construed to convey to Customer any ownership rights to the Software or other Confidential Information. Except as expressly provided in Section 2.2 above, nothing in these Terms will be construed to convey to Customer any patent right, copyright, trademark right, or right in any trade secret embodied therein. Customer shall not, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these Terms.
- Customer acknowledges that any unauthorized disclosure or use of the Confidential Information may cause POCKETALK irreparable injury and that, notwithstanding anything to contrary herein, POCKETALK will be entitled to, in addition to any other remedies available at law or in equity, seek injunctive relief in any court of competent jurisdiction.
- a) POCKETALK may review, analyze, or use history of translations that you sent in using the Device or the Service when required under applicable law or regulation or to improve translations and enhance the Device or the Service; and
- b) POCKETALK may provide analysis data such as history of translation, chosen translation languages, or number of translations of the person who uses the Device or the Service. You shall obtain any and all consent required under applicable laws and regulations from users of the Devices or the Service in connection with acquisition or use of such analysis data.
- POCKETALK shall not be liable for any storage, management and backup of the translated data obtained via the Software or the Service.
- If you do not use the Service for a certain period of time after commencement of the use of the Service, POCKETALK may delete the translated data without notifying you.
6. Service Level Agreement
The Service Level Agreement attached to the applicable Order Form (the “SLA”) shall apply to your use of the Service. In the event a provision of these Terms conflicts with a provision of the SLA, the provision of the SLA shall control.
7.Temporary Disruption, Termination, or Discontinuation of the Service
- POCKETALK will use reasonable efforts to ensure stable operation of the Service. However, the Service may be temporarily disrupted, terminated, or discontinued without prior notice to you:
- (a) In the event that the provision of the Service becomes impossible due to a breakdown, failure, or any other causes in the server, communication line, or any other facilities;
- (b) When conducting periodical or urgent system maintenance, inspection, repair, or modification;
- (c) In the event that the provision of the Service becomes impossible due to fire or power outage, etc.;
- (d) In the event that the provision of the Service becomes impossible due to a natural disaster such as an earthquake, volcanic eruption, flood, or tsunami;
- (e) In the event that the provision of the Service becomes impossible due to war, disturbance, riot, turmoil, labor dispute, pandemic, or other unexpected events; or
- (f) Otherwise when it is considered necessary to temporarily suspend the Service for operational or technical reasons.
- POCKETALK shall not be liable for any damages incurred by you in connection with any of the events described in Section 7.1.
8. Prohibited Activity
Without limiting any other restrictions set forth in these Terms, please note that the following activity is expressly prohibited:
- Acts that infringe the intellectual property or other rights of POCKETALK or any third party, including but not limited to copyright, trademark right, patent right, trade secret right, design right, moral right, or privacy right;
- Reproduce, modify, or create derivative works of the Software or the Service;
- Compile by integrating or combining part of the Software into other programs;
- Modify, integrate, reverse engineer (disassemble, etc.), or analyze the Software;
- Sublicense or distribute the Software or the Service to a third party;
- Use the Software and reproduce or use other software beyond the scope of personal use without authorization;
- Store the Software on a network in a manner that allows it to be transmitted to a third party;
- Without authorization, duplicate, mirror or frame the Service or layout or design of an optional page which constitutes an individual element of the Service;
- Acts intended to damage the credibility of the Device, the Software, POCKETALK or others or otherwise harass or slander others;
- Acts that encourage any act which falls under any of the above items; and
- Other acts deemed inappropriate by POCKETALK.
9. Suspension and Termination
- In the event that you breach of any of the provisions of the Terms or infringe the copyright or other intellectual property ownership rights of POCKETALK, POCKETALK may suspend or terminate your use of the Service, and these Terms, as appropriate without notifying you.
- POCKETALK shall not be liable for any damages to you caused by any suspension or termination in accordance with Section 9.1.
10. Account Deletion
- All your rights to use the Service will expire at the moment of account deletion, regardless of the reason. Please note that if you inadvertently delete your account, you will not be able to recover the account.
- POCKETALK may, but is not obligated to, back up the information of an account, even after account deletion, to the extent necessary for the operation of the Service or other legally permitted use.
- When you use the Service, you may receive a notice, a text message, an email or other electronic communication from POCKETALK. When you create an account for use of the Service, you agree to receive those correspondences.
- Data communication charges that arise in connection with an electronic communication received by you shall be at your cost.
- Any notices or other communications provided by POCKETALK under these Terms, including those regarding modifications to these Terms, will be given (i) via email or (ii) by posting to the Service. For notices made by email, the date of receipt on the message will be deemed the date on which such notice is transmitted.
- The Software and Service shall be provided to you on an as-is basis, without warranty of any kind, express, implied, or statutory. Without limiting the preceding sentence, POCKETALK does not provide any warranty against defects, function, performance of the Software or Service, result of usage, its accuracy, reliability (including that the Software or Service does not cause malfunction) or any other guarantee. Liability with respect to selection of the Software or Service, effects of usage or result of usage thereof shall all be assumed by you.
- POCKETALK does not guarantee that any translation results by the Device are complete and accurate, useful to you, or otherwise consistent with the purposes for which you have used the Service.
- POCKETALK shall use reasonable efforts to ensure there are no bugs or viruses in connection with provision of the Service. However, as stated above, the Service shall be provided on an as-is basis, and POCKETALK does not warrant there are no bugs, viruses, or any other failure or fault in the Service. All risks concerning quality and performance of the Software and the Service shall be borne by you.
- POCKETALK shall not be liable for any damages incurred by you as a result of the use of any translation results.
- POCKETALK does not guarantee that you can use the Service properly on any operating system or web browser and is not obligated to perform operation verification or improvement measures to make such a guarantee.
13. Limitation of Liability and Indemnification
- POCKETALK SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ORDER FORM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
- POCKETALK’S MAXIMUM AGGREGATE LIABILITY SHALL BE THE FEES PAID BY YOU IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
- In addition to the exclusions and limitations set forth in Sections 13.1 and 13.2, the following exclusions and limitations shall apply:
- a) POCKETALK shall not be liable for any transactions, communications, disputes, or other issues that may occur between you and a third party in connection with the Service; and
- b) The Service uses an external system as part of the system. Therefore, if you cannot use the external system, you may not be able to use the Service. POCKETALK will not be liable for any damages caused by such inability.
- c) POCKETALK shall not be liable for any damages incurred by you or any third party arising from any delay, interruption, termination, or abolition of the provision of the Service due to any breach by you of Section 5; and
- d) POCKETALK shall not be liable for any damages resulting from a claim by a third party that arose due to your not obtaining consent in accordance with Section 5 or your failure to comply with applicable law or regulation.
- The exclusions and limitations of damages set forth in this Section 13 above are fundamental elements of the basis of the bargain between POCKETALK and you and shall apply to the extent permitted by applicable law, whether or not a party has been informed of the possibility of such damage, or if a remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow for certain exclusions or limitations of liability, so certain of the above exclusions and limitations may not apply to you.
- You agree to indemnify and hold harmless POCKETALK and its officers, directors, employees, affiliates, agents, licensors, and contractors (the “Indemnified Parties”) from and against any claims, complaints, actions, demands, or allegations brought against any or all of the Indemnified Parties (collectively, “Claims”) and all liabilities, damages, costs, and expenses, including without limitation reasonable attorneys’ fees arising out of or in any way related to (i) your access to or use of the Service, (ii) your breach of these Terms, or (iii) your violation of any law or regulation or the rights of any third party. We reserve the right to assume control of the defense of any Claim, and you agree to cooperate with us with respect to any Claim. In addition, you shall not settle or otherwise dispose of any Claim without express prior written consent from POCKETALK.
14. Changes to these Terms
- POCKETALK may modify these Terms in its sole discretion. Such modified Terms will specify their effective date. We will notify you at least seven (7) days before we make material changes to these Terms to give you an opportunity to review the modified Terms before continuing to use the Services. By using the Services after a modification to these Terms becomes effective, you are accepting the modified Terms. You can review previous versions of these Terms in our archive. Please refer to（ https://pocketalk.co.jp/rule/console/en-us/ ）for the latest Terms.
- If you do not wish to continue using the Service after the Terms have been changed in accordance with Section 14.1, you can apply to cancel the Service by the method specified by POCKETALK, before the date when the revised Terms apply as provided in Section 14.1.
15. General Provisions
- Except as otherwise expressly stated herein, these Terms together with the applicable Order Form constitute the complete and exclusive agreement between POCKETALK and you regarding the Service and any other subject matter of these Terms. Accordingly, these Terms together with the applicable Order Form supersede and replace any and all prior oral or written understandings or agreements between POCKETALK and you related to the Service and any other subject matter of these Terms.
- If for any reason a court of competent jurisdiction finds any provision of these Terms or the applicable Order Form invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions will remain in full force and effect.
- You are not permitted to assign, delegate, or transfer these Terms or any applicable Order Form, by operation of law or otherwise, without POCKETALK’s prior written consent. Any attempt by you to assign or transfer these Terms or any applicable Order Form without such consent will be of no effect. POCKETALK may freely assign or transfer these Terms or any applicable Order Form without restriction.
- POCKETALK’s failure to enforce any right or provision of these Terms or any Order Form will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of POCKETALK. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
- These Terms, any Order Form, and any disputes relating to these Terms or any Order Form shall be governed by the laws of the State of California, without reference to conflict of laws rules. Any dispute relating to these Terms or any Order Form shall be filed in the state or federal courts located in Santa Clara County, California and such courts shall have exclusive jurisdiction over such matters. The parties agree that venue is proper in such courts.
Effective date of these Terms: December 21, 2023