Terms of Service Agreement
Last Updated: July 19, 2017
PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE USING OUR PLATFORM.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
- ABOUT THE TERMS
- FEES AND PAYMENT TERMS
- USER CONDUCT GUIDELINES
- INTELLECTUAL PROPERTY RIGHTS & LICENSES
- NO ENDORSEMENT
- WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
- GOVERNING LAW & DISPUTE RESOLUTION
Welcome to Lingo Live, the platform that enables you to receive live language coaching anytime, anywhere!
We are able to do this by connecting you to independently contracted language coaches. Before they are permitted to provide language coaching services, we evaluate each coach, and we only accept those that we believe to be of high-quality.
By using our online language coaching, most people can expect to achieve proficiency progress equivalent to one “belt” level over the course of approximately seventy-five lessons, assuming a lesson frequency of three times per week. Belt levels refer to our proficiency assessment, and are based on the Common European Framework of Reference for Languages.
II. ABOUT THE TERMS
Platform Rules and Supplemental Terms
Certain of the Services, Content, features, functionality, tools, and promotions available on or through the Platform may be subject to additional or supplemental terms and conditions (“Supplemental Terms”). If you choose to access or use those Services, Content, features, functionality, or tools, or participate in those promotions, the applicable Supplemental Terms are also incorporated and deemed part of these Terms of Service.
YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
LIMITATIONS OF OUR LIABILITY TO YOU; AND
A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, THROUGH ARBITRARION, BY WHICH YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY.
YOUR ACCESS TO AND USE OF THE PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH ALL APPLICABLE TERMS.
If you are accepting to the Terms as an employee or representative of a company or other legal entity, (i) you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms, and (ii) throughout the Terms, the words “you” and “your” will refer to both you, personally, and the entity you represent.
As used in these Terms of Service:
- “Content” refers to any and all syllabi, lesson plans, templates, information, videos, text, photos and other content provided or made available by Lingo Live, including information and content relating to our live language coaching.
- “Lingo Live” “we,” or “us” refer to Lingo Live Language Services, Inc. and our officers, directors, employees, contractors and agents. To the extent applicable, they also refer to our affiliates, service providers and licensors, and their respective officers, directors, employees, contractors and agents.
- “Platform” refers, collectively, to any and all Websites, Services and Content made available to you by Lingo Live, including any software and technology used to provide any of the foregoing.
- “Services” means any and all language coaching services and related services provided or made available by Lingo Live, including support services.
- “Users” means any and all persons that access or use the Platform. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Website or Content, registering for accounts, and using the Services.
- “Website” refers to any website owned or operated by Lingo Live (including the website currently located at https://www.LingoLive.com/). References to the “Website” include any and all Services, Content, features, functionality, tools, and promotions available on or through each such website.
Amendment of Terms
Lingo Live reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to amend the Terms, including to add or remove terms. If we choose to amend the Terms, we will update the “Last Updated” date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to access or use the Platform, including any Services or Content, after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other amendment to the Terms or supplemental terms will be binding on Lingo Live unless it is in writing and signed by an authorized representative of Lingo Live.
Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
Lingo Live is based in New York State, United States, and the Platform is owned and operated from the United States. You are prohibited from accessing or using the Platform from any territory where any of the Content, Services, or any of the features, functionality, tools, or promotions offered on or through the Platform, is illegal. If you access the Platform from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
Modifications and Updates to the Platform
Lingo Live reserves the right, in its sole discretion, to modify or discontinue offering the Platform, including any Services, Content, features, functionality, tools, and promotions available on or through the Platform, in whole or in part, at any time, for any reason or no reason, with or without notice to you.
You agree that Lingo Live has no obligation to provide any updates or to continue to provide or enable any particular aspect of the Platform, and will not be liable with respect to any such modifications, discontinuance or deletions.
In order to use certain Services, Content, and other aspects of the Platform, you will be required to register for an account.
For corporate clients, designated administrators will set up a primary account, and will designate the individuals who are eligible to sign up for subaccounts. Administrators for each client will have access to manage and view activities associated with the subaccounts registered to that client. (For simplicity, both accounts and subaccounts will be referred to hereafter as “accounts.”)
You may not register for an account if you are not able to form legally binding contracts (for example, if you are under the age of 18), or if you are a person barred from entering into contracts under the laws of the United States or other applicable jurisdiction.
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you set up your account, you will be asked to input your e-mail address and create a password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Lingo Live account. You agree not to disclose your password to any third party, and to notify Lingo Live immediately at Support@LingoLive.com of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities conducted or actions taken on or through your account, whether or not you have authorized such activities or actions. Lingo Live will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Account Suspension and Cancellation
We reserve the right to suspend or cancel accounts of Users who fail to comply with the Terms, including failure to pay fees when due as set forth in the “Fees and Payment Terms” and failure to comply with the terms and conditions regarding User conduct, as set forth in the “User Conduct Guidelines” section below.
IV. FEES AND PAYMENT TERMS
Language coaching services are purchased in packages. One or more packages of coaching sessions may be purchased in each order. The number and pricing of packages purchased will be set forth in the order. Fees for packages purchased in an order, including any applicable taxes, are due regardless of whether all packages are used. For corporate clients, each package purchased will be assigned to a specific, named User identified by the administrator. Each package will be used by the individual named, and are not transferable, in whole or in part, unless otherwise expressly permitted by Lingo Live. Once an order is placed, the number of packages may not be reduced.
Except with respect to any add-on options expressly set forth in an order, packages purchased at a later date will be at the rates available at the time of purchase.
You will be charged in full for the number of packages purchased in an order upon submission of the order. If the order allows for the addition of optional add-on packages, you will be charged in full for each add-on package as it is activated. By placing an order, you hereby agree to pay the charges associated with the order in accordance with the foregoing.
Lingo Live will automatically charge the credit card or payment account associated with your account as set forth above. If you wish to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change your information in your account. This may temporarily disrupt your access to your account while Lingo Live verifies your new payment information.
If Lingo Live is unable to successfully charge your credit card or payment account for fees due, we reserve the right to suspend or terminate access to the affected packages and/or accounts. If you terminate your account for any reason or if we terminate your account due to your breach, such termination will be effective immediately, and you will be immediately billed for any unbilled fees incurred prior to the effective date of termination. You will not receive a refund for any amounts you already paid for packages in-progress. Further, you agree to reimburse us for any collection costs and interest for any overdue amounts.
We may contact you via email regarding your account, including, for example, in connection with any problem with your credit card or payment account.
Fees for Services and other agreed upon charges are nonrefundable.
Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Platform, including the Services and Content, through an Internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that Lingo Live is not liable in any way for any third party charges.
V. USER CONDUCT GUIDELINES
You may not, directly or indirectly, contact, approach, solicit or engage any of the instructors introduced to you by Lingo Live, or otherwise engage in activities intended to circumvent the Platform. You hereby agree that, if you breach this prohibition, you will pay to Lingo Live liquidated damages in the amount of either (a) five times the amount that Lingo Live would charge for comparable services on or through the Platform, or (b) one hundred thousand dollars ($100,000), whichever is greater. You agree that (i) if you were to breach this non-circumvention provision, it may be difficult to determine the actual damages caused to Lingo Live, and (ii) that the amount of liquidated damages is a fair, reasonable and appropriate estimate of our damages in the event of such a breach, and not a penalty.
In addition, Users may not:
- access, copy, store or use any aspect of the Platform for any purpose other than your own personal use;
- distribute, disclose, publish, sell, rent or otherwise expose any aspect of the Platform to any third party, for any purpose except your own personal use, or otherwise permit a third party to access, copy, store or use any aspect of the Platform for any other purpose;
- prepare derivative works from the Platform;
- share your password or transfer your account to any person without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
- access, search, collect information from, or otherwise interact with the Platform whether by manual methods or by use of any software, device, script or robot, or by any other means (automated or otherwise), including by “scraping,” “crawling” or “spidering” the Platform, to systematically retrieve Content in order to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like (except that crawling is permissible without further authorization if done in accordance with the provisions of the robots.txt file only);
- access the Platform other than through the currently available, published interfaces that are provided by Lingo Live, unless you have been specifically authorized to do so in a separate agreement with us;
- mirror or frame any Services, Content, page, feature, functionality, or tool on/in the Platform, copy any aspect of the Platform, or use or display Lingo Live’s name or any of our other trademarks, logos or proprietary materials, without Lingo Live’s express written consent;
- interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
- access, tamper with or use non-public areas of any of the Platform, Lingo Live’s computer systems, or the technical delivery systems of Lingo Live’s providers;
- probe, scan, or test the vulnerability of any system or network of Lingo Live or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Lingo Live or any of Lingo Live’s providers or any other third party to protect the Platform;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
- export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Platform or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage, assist or permit any third party to do any of the foregoing.
For the avoidance of doubt, the foregoing prohibitions apply to the Website, Services and/or Content, as applicable.
Lingo Live reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Lingo Live has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform, including the Services and Content, by any User, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Lingo Live, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Lingo Live, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform, including the Services and Content (including for customer support purposes).
You agree to cooperate with and assist Lingo Live or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
Account Suspension and Cancellation
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account in response to a suspected breach of the Terms, and take technical and legal steps to prevent you from using our Platform, including our Services and Content. If we have suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to our reasonable satisfaction.
Once your account is terminated, Lingo Live will have the right, but not the obligation to delete any or all of the information and content submitted, uploaded or otherwise provided by you.
When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
VI. INTELLECTUAL PROPERTY RIGHTS & LICENSES
The Platform, including the Services and Content, and all features, functionality, and tools thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and all intellectual property rights therein are the exclusive property of Lingo Live and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Lingo Live (the “Lingo Live Marks”) are the property of Lingo Live, and that you are not permitted to use the Lingo Live Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any Services, Content features, functionality, or tools of the Platform in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Lingo Live or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Lingo Live’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Lingo Live or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to our Platform (“Feedback”). You may submit Feedback by e-mailing us, at Support@LingoLive.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Lingo Live. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Lingo Live or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Lingo Live all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Lingo Live’s rights in such improvements, enhancements and modifications.
VII. NO ENDORSEMENTS
Links to Third Party Websites and Services
The Platform may provide links to third-party websites, resources or services. You acknowledge and agree that Lingo Live is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Lingo Live of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
VIII. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
Warranties by Users
You represent and warrant to Lingo Live that:
- you have the power and authority to accept and agree to the Terms,
- you own or control all of the rights necessary to provide the information that you provide and to grant the rights and licenses granted herein,
- the exercise by Lingo Live of the rights granted by you hereunder will not cause Lingo Live to violate any applicable laws, rules or regulations, to infringe the rights of any third party, and
- all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM, INCLUDING THE SERVICES AND CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, LINGO LIVE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE RESULTS OBTAINED FROM THE SERVICES OR THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY CONTENT.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM, INCLUDING THE SERVICES AND CONTENT, IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, LINGO LIVE DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING ANY SERVICES OR CONTENT, (II) THE ACTS OR OMISSIONS OF ANY PERSON(S) WITH WHOM YOU MAY COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, AND (III) ANY SERVICE OR CONTENT ACCESSED OR VIEWED IN CONNECTION WITH THE USE OF THE PLATFORM.
- YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE PLATFORM, INCLUDING THE SERVICES AND CONTENT, IS AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE LINGO LIVE AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL LINGO LIVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LINGO LIVE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- THE LAWS OF CERTAIN JURISDICTIONS (INCLUDING, IN THE CASE OF THE UNITED STATES, CERTAIN STATE LAWS) DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION VIII, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, LINGO LIVE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY AND ALL OF THE FOREGOING, SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LINGO LIVE AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION VIII THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, indemnify, and hold Lingo Live its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including the Services or Content, and any and all features, functionality, tools, and promotions available on and through the Platform, (ii) any interactions with any other person as a result of your use of the Platform, (iii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iv) your gross negligence or willful misconduct.
Obligation to Defend
You agree that, at Lingo Live’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Lingo Live may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Lingo Live (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
IX. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND LINGO LIVE HAVE AGAINST EACH OTHER ARE RESOLVED.
The Terms shall be governed by and interpreted in accordance with the laws of New York State, USA without regard to conflict of law principles.
Arbitration, Class Action Waiver and Jury Trial Waiver
All disputes, claims, controversies and matters arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform, including the Services or Content (collectively, “Disputes”) shall be exclusively settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in New York, New York USA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. You acknowledge that by agreeing to arbitration as the exclusive forum for the resolution of all Disputes, you are waiving their right to a trial by jury.
All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
Jurisdiction and Venue
In the event that arbitration is not available, you and Lingo Live agree that any and all Disputes will be brought in the federal or state courts located in New York, New York USA and each agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Further, Lingo Live also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
Fees and Costs
The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
Future Amendments to this Section
Both of us agree that if we make any amendment to this “Governing Law & Dispute Resolution” section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Lingo Live. We will notify you of amendments to this section by posting the amended Terms on https://www.LingoLive.com/Terms. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Lingo Live in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Lingo Live may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of this Agreement shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Lingo Live (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Our failure to exercise any right or enforce any obligation under these Terms of Service or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of Lingo Live. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) “herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii) “or” connotes any combination of all or any of the items listed, and (iii) “including” (and any of its derivative forms) means “including but not limited to.”
If you have any questions or concerns, please contact Lingo Live at Support@LingoLive.com.
You can also write to us at:
Support Lingo Live Language Services, Inc., 575 Market Street, 4th Floor, San Francisco, CA 94105
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
The name, and address of the provider of this Platform is:
Lingo Live Language Services, Inc., 575 Market Street, 4th Floor, San Francisco, CA 94105
Complaints regarding the Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to Support@LingoLive.com.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Copyright ©2017 Lingo Live Language Services, Inc., a Delaware company with offices located at575 Market Street, 4th Floor, San Francisco, CA 94105 and its licensors. All rights reserved.