Terms of Service
1. Your Acceptance
2. NuWay™ Service
These Terms of Service apply to all users of the NuWay™ Service. Information provided by our users through the NuWay™ Service may contain links to third party websites that are not owned or controlled by Sark Mobile Solutions. Sark Mobile Solutions has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Sark Mobile Solutions will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly acknowledge and agree that Sark Mobile Solutions shall not be responsible for any damages, claims or other liability arising from or related to your use of any third-party website.
3. Sark Mobile Solutions Access
B. In order to access and use the features of the Service, you acknowledge and agree that you will have to provide Sark Mobile Solutions with your mobile phone number. You expressly acknowledge and agree that in order to provide the Service, NuWay™ may periodically access your contact list and/or address book on your mobile device to find and keep track of mobile phone numbers of other users of the Service. When providing your mobile phone number, you must provide accurate and complete information. You hereby give your express consent to NuWay™ to access your contact list and/or address book for mobile phone numbers in order to provide and use the Service. You are solely responsible for the information that you submit and that are displayed for your profile on the NuWay™ Service. You must notify Sark Mobile Solutions immediately of any breach of security or unauthorized use of your mobile phone. Although Sark Mobile Solutions will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Sark Mobile Solutions or others due to such unauthorized use.
C. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc. or “load testers” such as wget, apache bench, mswebstress, httpload, blitz, Xcode Automator, Android Monkey, etc., that accesses the Service in a manner that sends more request messages to the Sark Mobile Solutions servers in a given period of time than a human can reasonably produce in the same period by using a NuWay™ application, and you are forbidden from ripping the content unless specifically allowed. Notwithstanding the foregoing, Sark Mobile Solutions grants the operators of public search engines permission to use spiders to copy materials from the website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Sark Mobile Solutions reserves the right to revoke these exceptions either generally or in specific cases. While we don’t disallow the use of sniffers such as Ethereal, tcpdump or HTTPWatch in general, we do disallow any efforts to reverse-engineer our system, our protocols, or explore outside the boundaries of the normal requests made by NuWay™ clients. We have to disallow using request modification tools such as fiddler or whisker, or the like or any other such tools activities that are meant to explore or harm, penetrate or test the site. You must secure our permission before you measure, test, health check or otherwise monitor any network equipment, servers or assets hosted on our domain. You agree not to collect or harvest any personally identifiable information, including phone number, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation or spam purposes. You agree not to spam, or solicit for commercial purposes, any users of the Service.
4. Intellectual Property Rights
The design of the NuWay™ Service along with NuWay™ created text, scripts, graphics, interactive features and the like, except User Profile Submissions (as defined below), and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Sark Mobile Solutions, subject to copyright and other intellectual property rights under India and foreign laws and international conventions. The Service is provided to you AS IS for your information and personal use only. Sark Mobile Solutions reserves all rights not expressly granted in and to the Service. You agree to not engage in the use, copying, or distribution of any of the Service other than expressly permitted herein, including any use, copying, or distribution of User Profile Submissions of third parties obtained through the Service for any commercial purposes.
5. User Profile Submissions
A. The NuWay™ Service allows NuWay™ users to submit status text, profile photos and other communications submitted by you, as well as the automatic submission of your “last seen” status (collectively, the “Profile Submissions”). These Profile Submissions may be hosted, shared, and/or published as part of the NuWay™ Service, and may be visible to other users of the Service whose mobile phone number you have in your mobile phone and which you have not expressly blocked. For clarity, direct messages, location data and photos or files that you send directly to other NuWay™ users will only be viewable by those NuWay™ user(s) or group(s) you directly send such information; but Profile Submissions may be globally viewed by any NuWay™ user whose mobile phone number is on your smartphone, unless you have blocked the user. The submission of your ‘last seen’ status is done on an automatic basis. As clarified in the following section, you retain your ownership rights in your Profile Submissions. You understand that whether or not such Profile Submissions are published, Sark Mobile Solutions does not guarantee any confidentiality with respect to any submissions.
B. You shall be solely responsible for your own Profile Submissions and the consequences of posting or publishing them. Because NuWay™ is only acting as a repository of data, Sark Mobile Solutions makes no guarantees as to the validity, accuracy or legal status of any user submitted profile. In connection with Profile Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Sark Mobile Solutions to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Profile Submissions to enable inclusion and use of the Profile Submissions in the manner contemplated by the Service and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the Profile Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Profile Submissions in the manner contemplated by the Service and these Terms of Service. To be clear: you retain all of your ownership rights in your Profile Submissions, but you have to have the rights in the first place. However, by submitting the Profile Submissions to NuWay™, you hereby grant Sark Mobile Solutions a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Profile Submissions in connection with the NuWay™ Service and Sark Mobile Solutions’ (and its successor’s) business, including without limitation for promoting and redistributing part or all of the NuWay™ Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each subscriber to your status on the NuWay™ Service a non-exclusive license to access your Profile Submissions through the Service. The foregoing license granted by you terminates once you remove or delete a Profile Submission from the NuWay™ Service.
C. In connection with Profile Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Sark Mobile Solutions all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Sark Mobile Solutions or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person; (vi) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (viii) attempt to gain unauthorized access to the Service or its related systems or networks.
D. Adult content must be identified as such. Sark Mobile Solutions does not endorse any Profile Submission or any opinion, recommendation, or advice expressed therein, and Sark Mobile Solutions expressly disclaims any and all liability in connection with Profile Submissions. Sark Mobile Solutions does not permit copyright infringing activities and infringement of intellectual property rights via its Service, and Sark Mobile Solutions will remove all content and Profile Submissions if properly notified that such content or Profile Submission infringes on another’s intellectual property rights. To file a copyright infringement notification, please send a written communication that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material, including the user ID of the NuWay™ user allegedly infringing the copyrighted work; (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Such takedown notices may be emailed to support at email@example.com. Sark Mobile Solutions reserves the right to remove content and Profile Submissions without prior notice. Sark Mobile Solutions may also terminate a user’s access to the Service, if they are determined to be a repeat infringer, or for any or no reason, including being annoying. A repeat infringer is a User who has been notified of infringing activity more than once and/or has had a Profile Submission removed from the Service more than twice. An annoying person is anyone who is (capriciously or not) determined to be annoying by authorized Sark Mobile Solutions employees, agents, subagents, superagents or superheros. Sark Mobile Solutions also reserves the right to decide whether content or a Profile Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to excessive length or limited interest. Sark Mobile Solutions may remove such Profile Submissions and/or terminate a User’s access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
E. You understand that when using the NuWay™ Service you will be exposed to Profile Submissions from a variety of sources, and that Sark Mobile Solutions is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Profile Submissions, and that such Profile Submissions are not the responsibility of Sark Mobile Solutions. You further understand and acknowledge that you may be exposed to Profile Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Sark Mobile Solutions with respect thereto, and agree to indemnify and hold Sark Mobile Solutions, its officers, directors, employees, agents, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the NuWay™ Service.
F. Sark Mobile Solutions permits you to link to materials on the Service for personal purposes only. Sark Mobile Solutions reserves the right to discontinue any aspect of the NuWay™ Service at any time.
6. Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE NUWAY™ SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SARK MOBILE SOLUTIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. SARK MOBILE SOLUTIONS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SERVICE’S CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE NUWAY™ SERVICE. SARK MOBILE SOLUTIONS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE NUWAY™ SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY USER PROFILE SUBMISSION OR OTHER ADVERTISING, AND SARK MOBILE SOLUTIONS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. AND AGAIN, USE THIS JUST FOR FUN.
7. Limitation of Liability
YOU SPECIFICALLY ACKNOWLEDGE THAT SARK MOBILE SOLUTIONS SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by Sark Mobile Solutions from its facilities in India. Sark Mobile Solutions makes no representations that the NuWay™ Service is appropriate or available for use in other locations. Those who access or use the NuWay™ Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless Sark Mobile Solutions, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the NuWay™ Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your Profile Submissions caused damage to a third party. This defence and indemnification obligation will survive these Terms of Service and your use of the NuWay™ Service.
9. Ability to Accept Terms of Service
You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. You further represent and warrant that you are not located in a country that is subject to a Government of India embargo, or that has been designated by the Government of India as a” terrorist-supporting” country, and that you are not listed on any Government of India list of prohibited or restricted parties. Sark Mobile Solutions is the developer of the Service, with an address at 1132, 22B Main, 23rd Cross, HSR Layout 2nd Sector, Bangalore 560102, India, info at www.sarkmobilesolutions.com.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Sark Mobile Solutions without restriction.
The Information Sark Mobile Solutions Collects
Sark Mobile Solutions may obtain the following types of information from or concerning you or your mobile phone device, which may include information that can be used to identify you as specified below (“Personally Identifying Information”):
User Provided Information:
You provide certain Personally Identifiable Information, such as your mobile phone number, push notification name (if applicable), billing information (if applicable) and mobile device information to Sark Mobile Solutions when choosing to participate in various uses of the NuWay™ Service, such as registering as a user, updating your status or requesting status for your contacts. In order to provide the NuWay™ Service, Sark Mobile Solutions will periodically access your address book or contact list on your mobile phone to locate the mobile phone numbers of other NuWay™ users (“in-network” numbers).
When you visit the Sark Mobile Solutions Site, we may send one or more cookies – a small text file containing a string of alphanumeric characters – to your computer that uniquely identifies your browser. Sark Mobile Solutions uses both session cookies and persistent cookies. A persistent cookie remains after you close your browser. Persistent cookies may be used by your browser on subsequent visits to the site. Persistent cookies can be removed by following your web browser help file directions. A session cookie is temporary and disappears after you close your browser. You can reset your web browser to refuse all cookies or to indicate when a cookie is being sent. However, the Sark Mobile Solutions Site may not function properly if the ability to accept cookies is disabled.
Log File Information:
When you use the Sark Mobile Solutions Site, our servers automatically record certain information that your web browser sends whenever you visit any website. These server logs may include information such as your web request, Internet Protocol (“IP”) address, browser type, browser language, referring / exit pages and URLs, platform type, number of clicks, domain names, landing pages, pages viewed and the order of those pages, the amount of time spent on particular pages, the date and time of your request, one or more cookies that may uniquely identify your browser, your phone number, phone number you are requesting the status of and various status information. When you use the NuWay™ Service, our servers log certain general information that our application sends whenever a message is sent or received, or if you update or request any status information, including time and date stamps and the mobile phone numbers the messages were sent from and to.
The Information Sark Mobile Solutions Does Not Collect
Sark Mobile Solutions does not collect names, emails, addresses or other contact information from its users’ mobile address book or contact lists other than mobile phone numbers, names, vehicle registration numbers and other Profile Submission that the user makes —the NuWay™ mobile application will associate whatever name the NuWay™ user has assigned to the mobile telephone number in his/her mobile address book or contact list — and this occurs dynamically on the mobile device itself and not on Sark Mobile Solutions’ servers. This means that if you have your friend’s mobile phone number associated with the name “Kishore” in your mobile address book, that’s the name that will appear for that mobile phone number in your Sark Mobile Solutions contact list. We do not collect location data, but users may voluntarily share their location with other users via the NuWay™ Service.
The contents of messages that have been delivered by the NuWay™ Service are not copied, kept or archived by Sark Mobile Solutions in the normal course of business. The NuWay™ Service is meant to be a SMS replacement, using data service through a user’s phone (either via cell network or wifi). Users type their messages, which are sent via data service to our servers, and routed to the intended recipient (who must also be a NuWay™ user), if that recipient is online. If the recipient is not online, the undelivered message is resent from the user’s phone to the recipient when the recipient comes online. The contents of delivered messages except for files are not kept or retained by Sark Mobile Solutions. Files are stored as strings and stored for a maximum duration of thirty (30) days. The only records of the content of any delivered messages reside directly on the sender’s and recipient’s mobile devices (and which may be deleted at the user’s option). Notwithstanding the above, Sark Mobile Solutions may retain date and time stamp information associated with successfully delivered messages and the mobile phone numbers involved in the messages, as well as any other information which Sark Mobile Solutions is legally compelled to collect. Files that are sent through the NuWay™ Service will reside on our servers after delivery for a maximum duration of thirty (30) days, but are deleted in accordance with our general retention policies.
The Way Sark Mobile Solutions Uses Information