THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION CLASS AND CLASS ACTION WAIVER THAT REQUIRES YOU TO RESOLVE DISPUTES WITH PARTY B ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. PLEASE READ SUCH TERMS AND CONDITIONS CAREFULLY BEFORE accessing OR using the Services.
In this Agreement, “Party A” or "You" refers to the individual who purchases the service(s) offered by Party B (the "Course(s)"). “Party B” refers to “LINGOJOY LLC”.
Section 1 Course Information and Valid Term
1. Topping up Instructions: Party A's topping up amount will be shown in Party A's account on Party B's website as tokens called “Joy coins” (Can only be used to redeem course packages and other services or goods on Party B's website) at a rate of 1 Joy coin=1 USD.
2. Course Redemption Instructions: In general, party A can top up any number of tokens and use them to redeem any course. If Party A wishes to terminate existing Course and redeems a new Course, party A can apply for a change. After its approval, existing Course sessions will be deducted and corresponding tokens will be added to party A's account to redeem a new Course.
3. Basic Course Information: The information of the Course is subject to the order information available in Party A's account on Party B's website. Each Course is offered by Party B in different packages, and each package contains a certain number of sessions or classes (hereinafter referred to as the “Package class”) and a certain number of extra given Sessions (if any, hereinafter referred to as the “Extra given class”). There is a bonus class account under party A's account to record all free bonus sessions (such as trail sessions, referral rewards, etc.) that are been given by party B. (hereinafter referred to as the “Bonus class”).
4. Valid Term of a Course and Tokens: A Course or a Token will remain accessible in Party A's account without termination dates (hereinafter referred to as the “Valid Term”).
Section 2 The Execution and Enforcement of this Agreement
2. When Party A registers an account on Party B's website, Party A shall submit accurate and complete information including the name and other related materials. Party A shall be responsible for and shall indemnify Party B from any losses or damages resulting from the inaccurate, misleading or ambiguous information provided by Party A.
3. To make payment on Party B's website, Party A shall (i) be at least 18 years old; (ii) have read, understood and accepted the terms and conditions herein and Party B's Policies; and (iii) agrees to read and accept any updates, amendments, or supplements to Party B's Policies, which may be posted from time to time on Party B's website. By purchasing any services or goods on Party B's website, Party A shall be deemed to have acknowledged and fully understood all the terms and conditions herein and shall have agreed to be bound by this Agreement. If Party A selects to access or use the Services that involve payment of a fee, then he or she agrees to pay, and will be responsible for payment of, that fee and all taxes associated with such access or use. If Party A provides credit card information to pay for such fees, then he or she hereby represents and warrants that he or she is authorized to supply such information and hereby authorize Party B to charge his or her credit card to pay the fees.
4. A "Student" or "Party A's Student" means the student(s) who takes the Course purchased by Party A on Party B's website. Party A, as a student or a parent or a legal guardian, could open several student accounts after registration. Each Student account can only be created for and used by one student. Party A can use tokens in account to redeem course(s) for all students. All Student accounts under Party A's account have its own course and do not share their available Sessions. However, bonus classes under party A's account can be shared by all students under party A's account. Before a Course is started, [Party B/the Instructor (to be defined below)] will assess the Student's academic level and designate appropriate course materials accordingly. In order to achieve an optimal learning result, the Student in a Student account shall not be replaced and no other student(s) can be added to the Student account during the Valid Term of the Course. Party A may not transfer his or her account or any Student account to any other person or use anyone else's account at any time. In cases where Party A has authorized or registered another individual, including a minor, in a student account, Party A is fully responsible for (i) the online conduct of such Student; (ii) controlling that Student's access to and use of the Services; and (iii) the consequences of any misuse.
Section 3 Course Service
1. Party B connects the Student with independent contractor instructors (the “Instructor”) who will provide live 1-on-1 instruction, tutoring, and learning services via the Services. Each Session of a Course generally takes 25 minutes or 55 minutes, depends on the course, unless otherwise provided by Party B.
2. Party B/The Instructor will determine the beginning level for each Student according to an assessment of the Student's academic background. The Student and his/her parent or legal guardian agree that the Student will start the Course from the beginning level as determined by Party B/the Instructor.
4. If the Student cannot attend a Session on the scheduled time as confirmed and listed in the student account, Party A may cancel or reschedule such Session at least 6 hours in advance. If Party A fails to cancel or reschedule such Session at least 6 hours in advance, the student will be deemed as “no-show” for this Session. Each no-show will result in deduction of one Session for the Course.
5. If a Student fails to attend a Session on the scheduled starting time but attends the Session during the scheduled time period, this Session shall be concluded upon the scheduled ending time, and, neither the Student nor Party A can request that the ending time of the Session be postponed or prolonged. This Session will be deemed as completed and will be deducted from the number of remaining Sessions in Party A's account.
6. If, as a result of Party A's system outages occurred after a scheduled Session has started, Party A is unable to complete the Session, this Session will be deemed as completed and will be deducted from the number of remaining Sessions in Party A's account.
7. If Party A cannot complete a scheduled Session due to Party B's or the Instructor's reasons, which include but are not limited to, (i) the Instructor is late for over 5 minutes, (ii) the Instructor cancels the Session or stops teaching prior to the scheduled ending time for any reason; or (iii) Party B's website or Services experiences system outrages, Party A may reschedule such Session, and such Session will not be deducted from the number of remaining Sessions in Party A's account. Other than the right to reschedule the same Session as provided herein, Party A agrees that neither Party B or any Instructor shall have responsibility and is not liable for: (a) the unavailability of the Session during the scheduled time period; (b) any loss of materials, data, transactions or any other information or materials caused by such system outages; (c) the resultant delay, mis-delivery, or non-delivery of data, transactions or any other information or materials caused by such system outages; or (d) any outages caused by any third parties, including without limitation, any companies or servers hosting the Session, any Internet service providers, any third party platforms, or any internet facilities and networks.
8. During the teaching period of a Course, if Party A's Student could not take the Course for certain period of time, Party A may request a leave of absence for the Student. If Party B approves the request, the teaching of the Course will be suspended by the number of days in the request for leave. Party B/the instructor shall not guarantee the same timing and availability after the student's return.
Section 4 Payment and Refund
1. Party A is entitled to a refund of any purchased tokens by filing a request for refund to Party B at any time for any reasons as shown in the formula below. Party A shall be responsible for any bank transaction fees in connection with the refund, which will be deducted from the payment to Party A. If Party A had received a discount while purchasing the Joy coins the following formula does not apply.
Amount of refund = The number of “Joy Coins” left (1 Joy coin= 1USD)- The number of “Joy Coins” ×Bank transaction rate
If Party A made the payment by using “支付宝”or otherwise called “Alipay” in RMB the following formular apply.
Amount of refund = The number of “Joy Coins” left×A preset exchange rate at the time of payment has been made- The number of “Joy Coins” ×A preset exchange rate at the time of payment has been made×Bank transaction rate
2. If Party A requests a refund for a redeemed Course. Party A is entitled to a money refund of the payment for the remaining Sessions within 15days of its redemption. Party A will be responsible for any bank transaction fees incurred in connection with the refund. A redeemed Course that has been redeemed for more than 15 days will not be refunded.
3. Party A shall submit the refund request to Party B at a dedicated channel. The refund payment will be arranged within 2 to 3 weeks from the approval date of the refund request. The refund will be made to the same account and in the same manner from which the payment was made. The time period of the refund transfer may vary depending on the different manner of transfer. Party B could not guarantee the time of successful transfer of the refund.
4. Any “Extra Given Class” (if any) received by Party A at the time of redemption of a Course can only be used after Party A's Students complete all the “Package class”.
5. Please note that if Party B believes that Party A is abusing the refund policy in its sole discretion, Party B may suspend or terminate Party A's account and refuse or restrict any and all current or future use of the Services, without any liability to Party A.
Section 5 The Rights and Responsibilities of the Parties
1. Party A represents, warrants and covenants the following:
· Party A or the Students in Party A's account will not upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) through the Services.
· Party A or the Students in Party A's account will not post or provide any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, incorrect, infringing, defamatory or libelous content or information.
· Party A or the Students in Party A's account will not copy, modify, reverse engineer, reproduce, distribute, publicly display, publicly perform, communicate to the public, create derivative works from, deface, tarnish, mutilate, hack, interfere with, or otherwise use and exploit any Party B's content, the Services or Courses except as permitted by this Agreement.
· Party A or the Students in Party A's account will not frame or embed the Services to circumvent the Services.
· Party A or the Students in Party A 's account shall not otherwise engage in activities that Party A knows or should have reasonably known adversely affect the daily operation of Party B's Services or its website.
· Party A and Party A's Student shall not disparage Party B or the Instructors' performance, or distribute any false or misleading statement or otherwise take any action which could reasonably be expected to adversely affect the personal or professional reputation of Party B, Party B's employees or the Instructors.
· Under no circumstances should Party A and Party A's Student sell or otherwise transfer part or all of the purchased Course to any third party in any manner. Party A or Party A's Student will not impersonate another person or gain unauthorized access to another person's account for Party B's Services.
· Party A agrees to prepare the internet access equipment and other software and equipment needed for taking the Course.
· To protect the privacy and interests of Instructors, other users of the Services and Students in other users' accounts, Party A and the Students in Party A's account shall not to solicit, collect, probe, or ask for the private information of other Students, users or Instructors, including but not limited to personal information, contact information, personal network or financial status.
· Party A understands and agrees that Instructors for the Courses Party A has purchased may choose to terminate their contract relationship with Party B and become inactive. Party B does not guarantee Instructor availability to Students and shall not be held liable for any issues relating to Instructor availability.
2. Party B represents, warrants and covenants the following:
· Party B reserves the right to terminate, suspend, modify, or delete, at its sole discretion, (a) any Courses or any Service; and (b) Party A's or Party A's Student's access to its Services or Party A's account, as follows:
· If Party A or any Student in Party A's account breaches or violates this Agreement or any of the Policies, as posted on Party B's website from time to time, Party B may take action immediately without prior notice to Party A. If Party B takes action pursuant to this section, Party B shall not have any liability to Party A for any Courses Party A may have purchased nor for any other use of the Services associated with Party A's account. For avoidance of any doubt, Party A understands and agrees that it will not be compensated nor be eligible for any refund under any circumstances for any such access lost to the Services, including without limitation to the Courses purchased;
· Party B may also take action for any reason or no reason, in which case Party B will provide prior notice to Party A of any of the above changes through Party B's website or other manners of communication set out herein.
· As requested by Party A, Party B shall provide Party A with reasonable technical support services during regular business hours of Party B.
Section 6 Personal Information and Confidentiality
2. If there is any change to any information provided by Party A, Party A shall promptly inform Party B by email at firstname.lastname@example.org. Party A will be responsible for any loss or damages to both parties resulting from Party A's failure to promptly notify Party B of such change.
3. Party A agrees to properly keep the confidentiality of his or her account and password. Party A is responsible for the activity of any person (including the Students) who uses the account and the password. If the Student's account or password is misused, Party A shall immediately notify Party B's employee and request Party B to suspend the Services. Party A shall not disclose, lend, transfer or assign its account and password to any third party. Party B may temporarily suspend the use of Party A's account if Party B reasonably suspects that Party A has breached its obligation under this Subsection 3. Party B may terminate this Agreement and all Services with respect to Party A immediately upon actual knowledge of Party's A's breach of its obligation under this Subsection 3.
4. Without Party B's explicit written consent and authorization, Party A shall not, in any way, provide or disclose to any third party any technical data, trade secrets and other confidential or proprietary information he or she obtained by accessing to or use Party B's website or Services under this Agreement. If Party A breaches his or her obligation under this Subsection 4, Party B has the right to terminate this Agreement and all Services with respect to Party A immediately, and Party A shall be liable for any losses or damages suffered by Party B due to Party A's breach.
Section 7 Intellectual Property
1. Party B has the ownership of and all intellectual property rights, including and not limited to copyrights, in the following materials: (1) all the materials prepared by or for Party B for the Courses (including but not limited to textbooks, courseware and relevant training materials); (2) all the materials generated from the teaching process (including but not limited to any teaching videos and teaching schemes); (3) software, programs and contents displayed, used, or provided on Party B's website; and (4) any other materials, content or technologies created by or for Party B in connection with providing the Services (the "Company Materials"). Party B hereby grants Party A and the Students in Party A's account a limited, non-exclusive, non-transferable license to access and use the Company Materials solely for the Students' personal, non- commercial, educational purposes through the Services, in accordance with this Agreement and any conditions or restrictions associated with particular Courses or Services. All other uses are expressly prohibited absent express written consent by Party B. Without Party B's consent, Party A and the Students in Party A's account shall not, at any time (during the term of and after the termination of the Agreement), (i) use the abovementioned Company Materials for commercial purpose; (ii) translate, copy, broadcast, edit, or otherwise reproduce or create derivative works of the abovementioned Company Materials in any way; and (iii) disclose, sell, share, license, or otherwise redistribute or transmit the abovementioned Company Materials to any third party.
Section 8 Non-Solicitation
1. Instructors and Party B's employees and are important human resources to Party B's existence and development. Party A agrees not to in any way, solicit, request, invite or otherwise cause any Instructors or Party B's employees to terminate the contract or employment relationship with Party B and/or accept a position for similar function (whether full-time, part-time, or temporary) offered by Party A or other individuals or organizations unaffiliated with Party B, during the term and within one year after the termination of this Agreement.
2. In the event of any breach of the foregoing non-solicitation obligation by Party A, Party A shall be liable for penalty to Party B in an amount that equals to two times the annual payment earned by the solicited person from Party B immediately before the termination of the relationship with Party B.
Section 9 Liability for Breach of this Agreement
Subject to the Limitation on Liability provision in Section 10.2, any party who breaches its representations, warranties, covenants or obligations under this Agreement shall be liable for all the losses and damages incurred by the other party as a consequence of this breach
Section 10. Disclaimers; Limitation of Liability; Indemnity
THE SERVICES, COURSES, COMPANY MATERIALS, AND ANY OTHER MATERIALS MADE AVAILABLE ON OR THROUGH THE USE OF THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PARTY B AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. PARTY B AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT PARTY A'S USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES, THE SUBMISSIONS, THE SERVER(S) ON WHICH THE SERVICES ARE HOSTED, OR ANY SERVICES AVAILABLE ON ANY THIRD-PARTY PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE OR STATEMENT OF PARTY B OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE THROUGH THE USE OF THE SERVICES, OR ON THIRD-PARTY PLATFORMS OR OTHERWISE, SHALL CREATE ANY WARRANTY. PARTY A'S USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY SERVICES PROVIDED ON ANY THIRD-PARTY PLATFORM, ARE ENTIRELY AT HIS OR HER OWN RISK.
2. Limitation of Liability.
PARTY B SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES. PARTY B SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF PARTY A'S USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES EVEN IF PARTY B HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PARTY B SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND PARTY B'S REASONABLE CONTROL.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. OTHER THAN FOR THE TYPES OF LIABILITY THAT CANNOT BE LIMITED BY LAW, PARTY A AGREES THAT PARTY B'S LIABILITY TO PARTY A IS LIMITED TO 100% OF ANY AMOUNT PARTY A HAS PAID UNDER ITS ACCOUNT WITH PARTY B.
in consideration for using THE SERVICES, party a agrees to indemnify, DEFEND, AND hold HARMLESS party b and its owners, affiliates, officers, directors, employees, licensors, agents, representatives, successors, and assigns from any and all claims, demands, losses, liabilities, damages (including consequential, compensatory, or punitive damages), and expenses (including attorneys' fees), whether based upon breach of contract, breach of warranty, or any other legal theory, arising out of or in connection with (I) PARTY A'S USE OF THE SERVICES; (ii) PARTY A'S breach or violation of any REPRENTATIONS, WARRNTIES, COVENANTS CONTAINED IN these Terms; (iii) PARTY A'S violation of ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS; AND (IV) PARTY A'S VIOLATION OF the rights of any third party.
Party B does not hire or employ Instructors and is not responsible or liable for any interactions involved between the Instructors and the Students. Party B is not responsible for any disputes, claims, losses or damage that arises out of or relate to conduct of Instructors or Students, including, but not limited to, any Student's reliance upon any information provided by an Instructor.
Section 11 Jurisdiction and Dispute Resolution
1. Governing Law and Language. The formation, performance, interpretation and dispute resolution of this Agreement shall be governed by and construed in accordance with the laws and regulations of the People's Republic of China (excluding the Special Administrative Region and Taiwan Region). This Agreement has been prepared in the Chinese language and the Chinese language shall control its interpretation. The English translation of this Agreement is prepared for your convenience. In the event of any conflicts between any provisions of this Agreement and the English translation thereof, the Chinese version shall prevail.
2. Mandatory Arbitration. Any dispute or claim arising out of or relating to (a) this Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) Party A's access to or use of the Services at any time, whether before or after the date Party A agrees to this Agreement shall be resolved by the parties through amicable negotiation, by e-mailing Party B at email@example.com first. If the dispute cannot be resolved through negotiation, the parties agree that any such dispute or claim will be settled by arbitration before the Arbitration Commission, and not in a court of law. The parties hereby consent and submit to the exclusive jurisdiction of such arbitration; (b) waive any objection to that choice of forum based on venue or to the effect that the forum is not convenient; provide that Party B reserves the right to bring its claims seek injunctive or other reliefs for Party A's breaches of Sections 6, 7 and 8 in a court of competent jurisdiction.
The arbitration will be administered by the Changsha Arbitration Commission ("CAC") in accordance with the CAC's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "CAC Rules") then in effect. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration. Unless the parties otherwise agree, the arbitration will be conducted in Changsha, China.
The Arbitrator will render an award within the time frame specified in the CAC Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator's decision shall be final and binding on all parties. An Arbitrator's decision and judgment thereon shall have no precedential or collateral estoppel effect.
Your responsibility to pay any CAC filing, administrative and arbitrator fees will be solely as set forth in the CAC Rules.
3. You acknowledge and agree that, by agreeing to the Terms, you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless otherwise agreed in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
If any portion of this mandatory arbitration clause is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from this clause; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the mandatory arbitration clause or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the mandatory arbitration clause; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Section 12 Miscellaneous
1. Termination. After the Courses in Party A's account are completed, or the Services with respect to Party A are terminated earlier pursuant to Section 5.2, 6.3 6.4 or 12.2, this Agreement shall be terminated automatically and Party A's account shall expire immediately. The termination of this Agreement will not affect the validity of the provisions pertaining to confidentiality, intellectual property and non-solicitation set forth in Section 6, Section 7 and Section 8 herein, respectively.
2. Modifications. Party B is entitled to amend this Agreement and the Policies and other content on Party B's website from time to time. If an amendment materially changes the terms and conditions in this Agreement or the Policies, Party B will notify Party A through Party B's website or other prominent manners of communication provided herein. The amended Agreement or Polices will come into force once posted on Party B's website and will supersede the previous Agreement or Policies. Party A shall log into his/her account to review the amended Agreement. In case of disagreement of the amended agreement, Party A shall notify Party B in writing (including email) and immediately stop using the Services pursuant to the Agreement. Party A will be deemed to have accepted the amended Agreement, if Party A fails to object to such amendment in writing within two (2) business days or any Student in Party A's account continues to take any Course thereafter.
3. Severability. If any provision hereof is held to be invalid or unenforceable, in whole or in part, for any reasons, such provision or part thereof shall to that extent be deemed not to form part of this Agreement. The remaining provisions of this Agreement shall remain valid and binding.
4. Assignment. Party A may not assign or transfer this Agreement in whole or in part without Party B's prior written approval. Party B may assign or transfer this Agreement in whole or in part, without any notice to or approval by Party A to any party, provided that Party A's rights hereunder are not prejudiced.