POCKETALK W Terms of Use

These Terms of Use (these “Terms”) constitute an agreement between you and POCKETALK Corporation (“POCKETALK”) regarding the use of the POCKETALK W device and any accompanying accessories (collectively, the “Device”). Please read the Terms before using the Device. These Terms fall under the standard terms and conditions as provided under Article 548-2 of Civil Code and, at the time when you use the Device, you agree to be bound by these Terms. If you do not agree to these Terms, you may not use the Device. If you do not agree to these Terms, you should return the Device to the distributor within 14 days of purchase together with your receipt for a refund. Please be advised that we will not accept the Device for a refund or exchange once the Device is used except as set forth in the Device’s hardware warranty.

Section 1 (Transfer of Device Ownership and Software License)

  1. Subject to your agreement to and compliance with the Terms, the ownership of the Device and any printed materials included with the Device (such as manuals and the like) will be transferred from the distributor to you at the time you purchase the Device.
  2. POCKETALK grants you a non-exclusive right to use the Device as well as the software contained in the Device (“Software”) under these Terms.
  3. Purchase of the Device does not transfer any of the copyrights or other intellectual property rights related to the Software or the printed materials included with the Device (such as manuals and the like) to you.

Section 2 (Conditions of Use)

  1. The Software is available only for your own use of the Service provided by POCKETALK. Any commercial use such as commercial sales or rentals, and business use of two (2) or more units by one (1) company are prohibited. For more details, please contact us here ( http://rd.snxt.jp/64269/ ). This prohibition on commercial use does not apply if you use Devices for educational institutions ( schools as defined by law ( Article 1 of School Education Act), Devices provided for facilities under the boards of education, independent administrative agencies for educational purposes under the Ministry of Education, Culture, Sports, Science and Technology, government-run degree-granting colleges and universities, inter-university institutions, public workforce development facilities and vocational training institutions, nursery schools and nurseries, or when you use the Devices in certain areas( the European Economic Area (EEA), Switzerland and Korea). All intellectual property over the Device itself as well as over the digital content, software, customer support material and other services that the Device provides (collectively, “Service”) is owned by POCKETALK or a third party that POCKETALK designates and protected under both Japanese and international intellectual property law.
  2. You acknowledge and agree that you need to prepare the communication environment such as Wi-Fi connections, etc. necessary to receive the Service. When you use the Device with communication futures, to the extent not inconsistent with the Terms, you will be subject to the Global SIM Service Terms of Use ( https://pocketalk.co.jp/rule/global-sim/en-us ) and the SIM Service Terms of Use ( https://pocketalk.co.jp/rule/domestic/en-us ) (collectively, "SIM Service Terms of Use"), in addition to the Terms, for receiving the Service. By using the Device, you agree to the SIM Service Terms of Use as well. In the SIM Service Terms of Use, the term "user" is to be read as "you". In the case of any conflict between these Terms and such SIM Service Terms of Use, the Terms shall prevail.
  3. If you are unable or unwilling to use the SIM Service, you will be solely responsible for obtaining and configuring the required Internet connectionto receive the Service. In this case, POCKETALK will not be involved in such installation or operation of your communication environment at all nor will it provide support to you.
  4. The SIM Service provided by POCKETALK may be extended by a following a renewal process established by POCKETALK. Unless otherwise determined by POCKETALK, the SIM Service extension requires a fee.
  5. POCKETALK may provide automatic or manual updates for the Software as necessary without notice to you, and these Terms will also apply to such updated Software.
  6. You are solely responsible for obtaining any governmental approvals or certifications required to use the Device, as well as providing any required notification to governmental agencies unless such approvals, certifications, and notifications were completed by the distributor.

Section 3 (Consent to Data Use)

  1. You acknowledge and agree that POCKETALK may obtain information about your usage of the Device (translation data (including Wi-Fi access point base station information and mobile communication base station information at the time of translation), the POCKETALK W terminal identification number, and communication identification number, etc.) via the Software. POCKETALK will handle such information in accordance with its Privacy Statement, which you can access at https://pocketalk.co.jp/privacystatement/en-us.
  2. The Device transfers voice data generated when speaking through the Software and the translation data thereof, to servers of the providers of voice recognition engines, speech synthesis engines and translation engines, as well as the outsourced contractors for development and support services, etc. ("Third Party Partner") via the Internet, in such a manner that it does not identify you. POCKETALK receives technology service from Third Party Partner for the purpose of providing the Software's voice identification translation function. By using the Device, you agree that your spoken voice data and the translated data thereof will be obtained and stored through the information collection modules embedded in the Device and forwarded to Third Party Partner in such a manner that it does not identify you.
  3. By agreeing to these Terms, you are deemed to have also agreed to any Third Party Partners’ terms and policies and service agreements, including the terms set forth below, all of which may apply to the Device.
    ・NUANCE DEVELOPER FOR MOBILE PROGRAM LICENSE AND HOSTING SERVICES AGREEMENT／Nuance Communications, Inc.
    https://network.nuance.com/imageserver/plumtree/portal/custom/legal/disclaimer-nc.html

Section 4 (Temporary Disruption, Termination or Discontinuation, etc. of Service)

Although using the Service through the Device requires connecting to a third party’s server, POCKETALK will nevertheless use reasonable efforts to ensure that the Service operates in a stable and reliable manner. However, the Service may be temporarily unavailable or terminated without prior notice to you due to one or more of the following reasons:

(i) A breakdown, failure, or any other similar causes involving a server, communication line, or other facilities;
(ii) Periodic or urgent system maintenance work, inspection, repair, or modification;
(iii) A fire, a power outage, or other similar occurrence;
(iv) A natural disaster such as an earthquake, volcanic eruption, flood, or tsunami;
(v) A war, disturbance, riot, turmoil, labor dispute, or other unexpected event; or
(vi) When POCKETALK believes it is necessary to temporarily suspend the Service for operational or technical reasons.

Section 5 (Prohibited Actions)

You are prohibited from performing any of the following acts:

(i) Acts that infringe the intellectual property rights of POCKETALK or a third party, including but not limited to copyright, trademark rights, patent rights, design rights, and other rights provided under relevant law and regulations, or by contract;
(ii) Reproducing, modifying or preparing derivative works of the Software;
(iii) Compiling by integrating or combining part of the Software into other programs;
(iv) Modifying, integrating, reverse engineering (such as by disassembling), and analyzing the Software, as well as other similar acts;
(v) Sublicense or distribute the Software to a third party;
(vi) Transfer the Device or reproductions (except for transferring to those approved by POCKETALK);
(vii) Rent or perform acts similar to renting the Device or reproductions; or otherwise transact used goods;
(viii) Use the Software and reproduce or use other software beyond the scope of personal use without authorization;
(ix) Storing the Software on a network in a manner that allows it to be transmitted to a third party;
(x) Performing acts that damage the reputation of the Device, the Software, POCKETALK or others, including acts that otherwise harass, slander, or libel others; and
(xi) Encouraging any of the acts described above.

Section 6 (Effects of Breaching These Terms)

  1. The Terms shall become effective when you first use the Device.
  2. If you breach any of the provisions of these Terms or infringe the copyright or other property ownership rights of POCKETALK or any third party, POCKETALK may, without the need to notify you in advance: (i) take measures to suspend your use of the Software as appropriate; and/or (ii) terminate your license to use the Software.
  3. POCKETALK will not be liable for any damages to you caused by any action it may take under Paragraph 2 above.

Section 7 (Exemption and Limitation of Liability)

  1. THE TRANSLATIONS THAT THE DEVICE PRODUCES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND. AS SUCH, POCKETALK DOES NOT GUARANTEE THAT ANY TRANSLATIONS THAT THE DEVICE PRODUCES ARE COMPLETE OR ACCURATE, USEFUL TO YOU, OR OTHERWISE CONSISTENT WITH THE PURPOSES THAT YOU USE THE SERVICE FOR. POCKETALK EXPLICITLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THE POCKETALK MATERIALS OR THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; AND POCKETALK MAKES NO WARRANTY (I) THAT THE SERVICE OR POCKETALK MATERIALS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR (II) REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF THE SERVICE OR ANY POCKETALK MATERIALS.
  2. POCKETALK WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU MAY INCUR AS A RESULT OF USING OR RELYING ON TRANSLATIONS THAT THE DEVICE PRODUCES.
  3. EVEN IF YOU INCUR DAMAGES RELATING TO THE DEVICE OR THE SERVICE DUE TO REASONS ATTRIBUTABLE TO POCKETALK, POCKETALK SHALL BE LIABLE FOR COMPENSATION FOR DAMAGES ONLY IF THERE IS WILLFULL OR GROSS NEGLIGENCE ON THE PART OF POCKETALK. EVEN IN SUCH CASES, IN NO EVENT SHALL POCKETALK, ITS SUPPLIERS, OR ITS LICENSORS BE LIABLE FOR: (A) ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR POCKETALK MATERIALS, WHETHER BASED ON CONTRACT, TORT, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY; OR (B) MAXIMUM DAMAGES IN THE AGGREGATE GREATER THAN THE AMOUNT YOU HAVE PAID FOR THE DEVICE.
  4. POCKETALK WILL NOT BE LIABLE FOR ANY DAMAGES THAT YOU OR A THIRD PARTY MAY INCUR ARISING FROM ANY DELAY, INTERRUPTION, TERMINATION OF THE SERVICE DUE TO ANY OF THE REASONS SET FORTH ABOVE IN SECTION 4.

Section 8 (Compensation for Damages)

  1. You are liable for any damages (including attorney's fees) that POCKETALK may incur due to any violation of these Terms by you.
  2. If you resell or rent the Device to a third party for a fee, you will be liable to pay POCKETALK damages in an amount equal to the profit that POCKETALK would have earned had POCKETALK itself sold or rented the Device to a third party for a fee.

Section 9 (Covenant on Beta Features)

  1. POCKETALK may provide earlier versions of features or additional services for the Device or Services prior to their official release ("Beta Features"). In this case, the provisions of this Section shall prevail over the provisions of this Agreement.
  2. You understand that the Beta Features are prior to the official release and agree that they may not function properly by their nature. POCKETALK may also change, suspend, or discontinue providing the Beta Features, in whole or in part, without notice to you. You shall be responsible for your access to and use of the Beta Features, and if you do not agree to each provision of this Section, you may not use the Beta Features.
  3. You may provide POCKETALK with feedback or other information about the Beta Features ("Feedback, etc."). POCKETALK shall have a non-exclusive, perpetual, worldwide right and license to use, edit, and otherwise exploit the Feedback,etc. However, prior consent shall be obtained from you for public disclosure of Feedback, etc. or information that you will specify.
  4. POCKETALK may, in its sole discretion, provide support services (including, without limitation, updates, enhancements, and changes to all or any part of the Beta Features) with respect to the Beta Features, but POCKETALK shall not be obligated to provide such services to you.
  5. Except as provided by law, POCKETALK shall not be liable for any damages to you resulting from the use of the Beta Features. You acknowledge that the Beta Features are implemented and provided for the completion of the official release and that POCKETALK does not provide any warranty for the Beta Features (including, without limitation, the performance or functionality of the Beta Features, fitness for a particular purpose, accuracy, completeness, reliability, usefulness and safety) and you hereby agree to above.

Section 10 (Miscellaneous)

  1. These Terms will be construed in accordance with the laws of Japan.
  2. POCKETALK is entitled to change contents, terms and other details of these Terms within the scope of the purposes of the Device and the Service, if such change conforms to the customer's general interests, if it is found that there are changes are recognized as due to reasonable grounds such as social conditions, economic conditions, changes in taxation, changes in laws and regulations, changes in the actual situation concerning the Service pursuant to provisions of Article 548-4 of the Civil Code.
  3. If POCKETALK amends the these Terms pursuant to the preceding paragraph, POCKETALK will indicate on the prescribed web site （https://pocketalk.co.jp/rule/pt-s/en-us）or will notify you by the method determined by POCKETALK and apply these Terms after amendment after reasonable period has passed.
  4. If you do not want to continue using the Device and the Services after amendment of these Terms pursuant to provisions of paragraph 1, you may propose to cancel these Terms by the method prescribed by POCKETALK, during the period until the date that these Terms after amendment will apply. However, even in such case, POCKETALK will not return the price for the Devices you have already paid.
  5. These Terms do not preclude you from agreeing to different terms with the distributor; however, any such terms shall not apply to POCKETALK or modify these Terms.
  6. The Tokyo District Court has the exclusive jurisdiction to resolve any disputes relating to the Device, the Software, or these Terms.
  7. If any provision of these Terms is found to be void or unenforceable: (i) that void or unenforceable provision will be modified to the minimum extent necessary to cure the defect and make the provision valid and enforceable; and (ii) the remaining provisions of these Terms will nevertheless be binding upon the parties and will in no way be affected or impaired by the void or unenforceable provision.

July 14, 2023
POCKETALK Corporation

Appendix 1

United States

The following provisions shall apply to any users subject to the jurisdiction of courts in the United States. In the event a provision of this Appendix conflicts with a provision elsewhere in the Terms, such provision of this Appendix shall control.
PLEASE READ THIS APPENDIX CAREFULLY, AS IT CONTAINS A REQUIREMENT THAT CERTAIN DISPUTES AND CLAIMS BE SUBJECT TO ARBITRATION AND IT OTHERWISE LIMITS THE MANNER IN WHICH YOU CAN MAKE A CLAIM AGAINST POCKETALK.

Arbitration

Each party agrees that, except as set forth under the Exceptions paragraph below, any dispute between you and POCKETALK arising out of or relating to these Terms, or the breach, termination, enforcement, interpretation or validity thereof (including the determination of the scope or applicability of this agreement to arbitrate), the Services, the POCKETALK materials, or any other POCKETALK products or services (collectively, “Disputes”) will be subject to arbitration in accordance with this Section. You can decline this agreement to arbitrate by contacting us-inquiry@POCKETALK.com within thirty (30) days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration provision. In the event that you so decline this arbitration provision, or this arbitration provision is otherwise found not to apply to you or your Dispute, you and POCKETALK agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Santa Clara County, California. Both you and POCKETALK agree to the exclusive jurisdiction of, and that venue is proper in, such courts.

Any Dispute shall be resolved by arbitration in Palo Alto, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The JAMS Rules are available at www.jamsadr.com. In the event a provision of this Section conflicts with the applicable arbitration rules, such provision of this Section shall control.

Class Action Waiver

The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims, unless both you and POCKETALK specifically agree to do so following initiation of the arbitration. If you choose to pursue a Dispute in court by opting out of the arbitration provision, as specified above, this class action waiver will not apply to you. You are not permitted to be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Jury Waiver

You understand and agree that by accepting the arbitration provision in these Terms, you and POCKETALK are each waiving the right to a jury trial or a trial before a judge in a public court.

Exceptions

Notwithstanding the Arbitration paragraph, either you or POCKETALK may assert claims, if they qualify, in small claims court in Palo Alto, California or in any United States county where you live or work. Either party may bring a lawsuit solely for injunctive or other equitable relief to stop unauthorized use of the Services or POCKETALK materials, or infringement of intellectual property rights.

Limitation on Claims

Regardless of any law to the contrary, any claim arising out of a Dispute must be filed within one (1) year after such cause of action arose, or such claim or cause of action will be forever barred.