Effective Date: May 1, 2023.
IMPORTANT NOTICE FOR U.S. CUSTOMERS: THESE TERMS & CONDITIONS CONTAIN A BINDING (WITH LIMITED EXCEPTION) ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTIONS BELOW. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY.
Welcome to Lingokids! Lingokids provides an interactive platform where kids can learn by engaging with various games, video lessons, and audio books offered on our website at Lingokids.com (the site), and our mobile application (the app) (collectively, the Services). Lingokids is operated by MONKIMUN, Inc., a company in existence and duly set up in accordance with the laws of Delaware Revised Uniform Limited Partnerships Act (6 Del.C. § 17), with registered address at 427 N Tatnall St #42597, Wilmington, Delaware, 19801-2230 (Monkimun, Company, we, us or our).
For purposes of these Terms, users of the Services include Child Users, who are children who use the child-directed learning portion of the Services, including any specific functionalities of our products and/or services, and Adult Users, who are individuals over the age of 18, including parents and guardians of Child Users, teachers and school administrators. We refer to all users collectively as you, your, or users.
If you are under age 18, you may only use the Services only with the consent of your parent or legal guardian, or of a teacher or school administrator that is authorized to consent on your parent or legal guardian’s behalf (Adult). Please be sure an Adult has reviewed and discussed these Terms with you. If you are a parent, guardian, teacher, or school administrator of a user under the age of 18, you hereby acknowledge and agree that you have the authority to provide this consent on behalf of such user, that you provide consent for such user to use the Services, and that you will be responsible for ensuring that any child authorized by you to use and access the Services does so in accordance with these Terms.
Table of Contents
- Acceptance of Terms
- Modifications to these Terms
- Accounts and Passwords
- Promotional Codes, Gift Cards, & Gifted Subscriptions
- Services Ownership and License
- Content You Submit
- Services and Content Use Restrictions
- Linking To and From Our Services
- Right of withdrawal
- Governing Law / Jurisdiction
- Additional Legal Terms
- Contact Us
Both these Terms and separate terms of service or sale documents may apply to your use of the Services or to a sweepstakes, service or product offered via the Services (Additional Terms). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
We reserve the right, in our sole discretion, to change or modify portions of these Terms at any time. If we do this, depending on the type of change, we will post the changes on the Services and indicate the new effective date at the top of the document. Depending on the type of change, we may also provide you other reasonable means of notification as required by applicable law. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Terms. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Lingokids Account holders may also access the Service via Lingokids Unlimited/Plus, a subscription fee-based service, which gives access to all content and other certain features within the Services. You will only have access to Lingokids Unlimited/Plus while your paid subscription is active and subsisting.
Passwords and Account Access. Every Account must have one designated Adult User who must be at least 18 years of age and not otherwise barred from contracting with us under applicable law. You are responsible for maintaining the confidentiality of your password and Account information. You agree (a) that you will provide complete and accurate registration information about yourself and any individual you authorize to access your Account and keep your Account information up-to-date, (b) that you are solely responsible for all activities that occur under your Account, (c) to notify us immediately of any unauthorized Account use, (d) that we are in no way responsible for any loss that you may incur as a result of any unauthorized use of your Account and password, and (e) that you will not sell, transfer, or assign your Account or any Account rights. If we learn that an ineligible user has created an Account, we may seek confirmation of the user’s status and/or deactivate the Account.
A. Account Fees & Recurring Billing
For certain types of Accounts or to access certain features of the Services, we may charge a fee, such as an Account fee or subscription fee. All fees are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
For example, we offer our Lingokids Unlimited/Lingokids Plus subscription for a fee. You can accessLingokids Unlimited/Plus in the following ways: by purchasing a subscription to the Services from the site, within the app, where allowed by the app marketplace partners, or through a bundle with one or more of our bundle subscription partners.
- Authorization to Charge for Services. You must use a credit card, debit card or other payment mechanism accepted by us (e.g., Google Play Store, Apple’s iTunes App Store) (Pay Mechanism) to activate and maintain a paid Account. You authorize us to charge you through the Pay Mechanism that you use when registering for an Account. You will also be responsible for charges for any products or services that you order that are offered for sale through the Services. If we do not receive payment from the Pay Mechanism you use, you agree to pay all amounts due hereunder upon our demand and will be solely responsible for any dispute with your payment provider. Should the Pay Mechanism provided initially be declined for insufficient funds or any other reason, we reserve the right to attempt to recharge the Pay Mechanism in full or in lesser installments of the initially incurred charge. You will be solely responsible for all overdraft fees and/or penalties that may be assessed by your payment provider.
- Accuracy of Payment Information. You agree to provide complete and accurate account information for all purchases made at our store. You agree to promptly update your Account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. We use a third-party service provider to process payments on our behalf. You acknowledge and agree that in the event the third-party payment processor experiences a data breach that affects your information through no fault of the Company, the Company will in no way be responsible or liable to you for any such breach to the maximum extent permitted under applicable law.
- Terms Applicable to Apple’s App Store. In the event of any failure of our Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the app purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app. Apple is not responsible for addressing any claims by you or any third party relating to the app or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
- Subscription Renewal. By purchasing a subscription, you agree that in accordance with applicable law, we may renew your subscription automatically for the same subscription term on the day after your previous subscription term ends, and you authorize us to charge you for the new subscription term, unless you cancel your Account prior to the subscription renewal date through the procedures described in the Subscription Cancellation section below. We will charge your credit card (or another Pay Mechanism initially used by you) each year, month, or other applicable period (depending on the term that you selected) for the then-current applicable price. The billing period for your subscription fee begins from the time of registration (i.e., when you register, enter your Pay Mechanism and pay the initial subscription fee), and again at the start of each subsequent subscription period. If any subscription fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel, or terminate your subscription. You acknowledge that billing may not occur on the exact same date of each month. Your subscription continues until cancelled by you, or we terminate your access to or use of the Services or subscription in accordance with these Terms.
- Trials and Promotional Fees. We may offer promotional trial subscriptions to access the Services for free or at special discounted prices. If you sign up for a trial subscription, your rights to use the Services are limited by the terms of such trial and will terminate or renew according to the terms of your trial arrangement and/or any applicable Additional Terms. You may cancel your Account during your promotional period to avoid being charged the full applicable subscription fee using the procedures described in the Subscription Cancellation section below.
- Changes to Fees or Account Features. All fees published on the Services are set by Monkimun in its sole discretion and we may change our fees from time to time. Monkimun or its partners will send notice of upcoming automatic renewal prior to renewing your subscription if required by law. We may change the subscription terms, subscription fees, or other fees at any time on a going forward basis at our sole discretion. If the pricing for your subscription increases, we will notify you, and provide you an opportunity to change or cancel your subscription before applying those changes to your Account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from an Account or subscription. Where legally permissible, your continued enrolment in your Account after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue your subscription at the revised rates and/or terms, you must let us know prior to the end of your then-current subscription period in accordance with the Subscription Cancellation section below, so that at the end of that subscription period, your subscription will end. Otherwise, the revised rate and/or terms will apply on and from the next subscription period.
- Subscription Cancellation. To cancel your subscription, you may cancel your Account prior to its renewal date through the Manage My Subscription area in the Parents Section of the App or by contacting our Customer Support team at email@example.com. For more information about how to cancel please see the following Help Center pages: Cancellation Process – App Store; Cancellation Process – Google Play; Cancellation Process – Website Subscriptions.We will honor all cancellations received before the renewal date, outside of iTunes App Store subscriptions. If you downloaded our app through Apple’s iTunes App Store, you must follow the cancellation instructions provided in the iTunes App Store. For all Accounts, you will continue to have access to your Account for the period of time that has already been prepaid. If you activated a paid Account at a discounted or promotional rate, chose to pay in installments, and then canceled that Account prior to all of the installments having been paid, the period of time after the cancellation that your Account will continue to be accessible will be calculated based on the non-promotional/non-discounted rate in effect at the time of cancellation. After you cancel your Account, we will not charge you any subscription fees after the expiration of your then-current subscription. Please note we do not provide full or partial refunds for prepaid sums, except where required by law. In any event, you will be able to continue to use the Services throughout the remainder of the subscription period for which you have already paid.
- Refunds. For information on refunds, please see our Refund Policy at https://help.lingokids.com/hc/en-us/articles/115005107149-Refund-Policy.
- The Services may also be available for purchase from an authorized reseller or from our bundle subscription partners. Your purchase will be subject to the authorized reseller’s or partner’s terms, as well as these Terms, and payment and management of the bundle subscription may be administered by them.
- To the maximum extent permitted by law, you agree to waive all claims against Monkimun and its third-party affiliates, including Monkimun’s third-party payment processor(s), related to any unauthorized payments made on or through the use of your Account outside of Monkimun’s control, regardless of whether such payments are authorized by you. However, you may submit a claim of the unauthorized payment to Monkimun so that Monkimun can conduct a reasonable investigation as it sees fit under the circumstances. If appropriate, Monkimun will assist in correcting the alleged unauthorized payment, provided that such claim is received by Monkimun within thirty (30) days of the disputed charge or payment.
B. Online Store
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time and without notice, at our sole discretion, in accordance with applicable law. We reserve the right to discontinue any product at any time. Any offer for any product or Service made on this Site is void where prohibited.
We reserve the right to refuse any order you place with us. We may, in our sole discretion and in accordance with applicable law, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same Account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address or phone number provided at the time the order was made.
Monkimun may offer, directly or through a third party, gift cards, promotional codes, or gift subscriptions that are redeemable for certain paid products or Services. These gift cards, promotional codes, or gift subscriptions may be subject to Additional Terms, which will be presented to you when you purchase the promotional item.
A. Ownership. The Services, including any specific functionalities of our products and/or Services (including past, present and future versions) are owned and controlled by us, and all Content related to the Service (as defined below) is protected by United States, European Union, and international copyright, trademark, trade dress, patent, and other intellectual property rights and laws to the fullest extent possible. Content means all text, graphics, user interfaces, visual interfaces, photographs, logos, sounds, music, artwork, and computer code displayed on or available through the Services and the design, structure, selection, coordination, expression, and arrangement of such materials including, without limitation, (i) materials and other items relating to us and our products and services, including, without limitation, all activities, games, lesson plans, teacher trainings, printables, characters, photographs, audio clips, sounds, pictures, videos, and animation; (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including ours (collectively, Trademarks); and (iii) other forms of intellectual property.
B. Limited License. Subject to your strict compliance with these Terms and your payment of any applicable subscription or other fees, we grant you a limited, non-exclusive, revocable, non-assignable and non-transferable license (License) to access, display, view, use, play, and/or print one (1) copy (excluding certain printable activities made available through the Services, which indicate that they may be printed multiple times) of the Content on a personal computer, mobile phone, or other Internet-enabled device (each, an Internet Device) for your personal, non-commercial use only (e.g., teachers may use Content from the Services, including any specific functionalities of our products and/or services, for educating their students and other users’ use is limited to personal use). The License does not give you any ownership of, or any other intellectual property interest in, any Content or the Services or any specific functionalities of our products and/or services, and you cannot otherwise use the Content or the Services without our express prior written permission. All rights not expressly granted to you are reserved by us and/or our licensors and other third parties. Except as expressly provided in these Terms or with Company’s express prior written consent, no part of the Services and no Content may be used, copied, reproduced, distributed, uploaded, posted, publicly displayed, translated, modified, transmitted, broadcasted, sold, licensed, or otherwise exploited for any purpose whatsoever. Any unauthorized use of any Content or the Services for any purpose is prohibited.
You agree that you will not: (i) engage in any activities, including, without limitation, the uploading, posting, emailing, or transmitting of User-Generated Content, that (a) attempt to or do harm to us, the Services, including any specific functionalities of our products and/or services, other users, or any other third party; (b) are unlawful, false, inaccurate, misleading, offensive, obscene, lewd, violent, harassing, threatening, abusive, tortious, defamatory, invasive of another’s privacy, or are otherwise objectionable to us, in our reasonable discretion; or (c) violate any right of any third party, including, without limitation, the uploading, posting, emailing, or transmitting of User-Generated Content that violates another person’s intellectual property right, right of publicity, trade secret right, or other proprietary right; (ii) reverse engineer, disassemble, or modify any source or object code or any software or other products, services, or processes accessible through the Services, including any specific functionalities of our products and/or services, install any software, file, or code on the Services that is not authorized by us, or attempt to do so; (iii) engage in any activity that interferes with a user’s access to the Services or the proper operation of the Services; (iv) access or collect information from the Services using automated means (such as through scripts, bots, scrapers, or spiders); (v) use any meta tags or other hidden text utilizing any of our Trademarks; (vi) interfere with or circumvent any security feature of the Services or any feature that restricts or enforces limitations on the use of or access to the Services, any specific functionalities of our products and/or services, or its Content; (vii) use the Services for commercial, political, or other unauthorized purposes; (viii) disclose, harvest, or otherwise collect information, including email addresses, or other private information about any third party without that party’s express consent; or (ix) otherwise violate these Terms, or any Additional Terms, or solicit, encourage, or facilitate anyone else to do so.
A. Linking to or Framing Our Services. When linking to our Services, you may not or create the false appearance that your websites and/or organization is sponsored by, endorsed by, affiliated with, or associated with us. We reserve the right to prohibit linking to the Services for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
B. Third Party Links. Certain portions of our Services may include materials from third parties. In addition, third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and have no responsibility or liability for any third-party materials or websites, or for any other materials, products, or services of third parties.
Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
If you are a resident of the EEA, the United Kingdom, or Switzerland, you hereby agree that the Company provides immediate access to some Services upon Account creation or payment of a subscription fee (see Clause 4, above), and because of that, you agree that you will not be able to exercise your right of withdrawal from these Terms or obtain a refund within fourteen (14) days (or any other period required by local laws) after Account creation or fee payment.
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us as described below that you no longer wish to use our Services. We reserve the right to modify or discontinue the Services or suspend or terminate your access to it, including any Accounts or User-Generated Content submitted by you, at any time, without notice, for any reason and without any obligation to you or any third party. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, or otherwise violates these Terms, then we may suspend or terminate your Account or deny you access to all or part of the Services. Any suspension or termination will not affect your obligations to us, including any payment obligations to us, and you will not be entitled to a refund of any payments, except where provided under applicable law. Upon suspension, discontinuation, cancellation, or termination of your access to the Services, or upon notice from us, your License to use the Services will terminate immediately. The following Clauses will survive termination: 4 (only for payments due and owing to us prior to the termination), 7, 8, 9, 10, 12, 13, 14, and 15.
In relation to the EEA, United Kingdom, or Switzerland consumer’s personal data, the Company shall comply with the applicable obligations under Regulation (EU) 2016/679 and, after termination of these Terms, the consumer shall refrain from using the digital content or services and from making them available to third parties.
These Terms, and any Additional Terms, will be governed by and construed in accordance with the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflicts of laws principles. Except as otherwise expressly set forth in Clause 15 Arbitration, the exclusive jurisdiction for all Disputes (as defined below) that you and Monkimun are not required to arbitrate will be the state and federal courts located in Wilmington, Delaware and you and Monkimun each waive any objection to jurisdiction and venue in such courts.
For users residing in the EEA, the United Kingdom, or Switzerland, these Terms, and additional terms, will be governed by and construed in accordance with the laws of your country of residence, and you may bring legal disputes in your local courts.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH MONKIMUN AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND MONKIMUN AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED THROUGH THE SERVICES, THESE TERMS, OR CONTENT (A “DISPUTE” AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, INDIVIDUAL BILATERAL ARBITRATION, AS DETAILED BELOW.
Users who are residents of the USA
You and Monkimun agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
“Disputes” shall include, but are not limited to, any claims or controversies between you and Monkimun against each other related in any way to or arising out of in any way from the Services or the Content including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and Monkimun, even if the claim arises after you or Monkimun has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that Monkimun brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and Monkimun, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with Monkimun; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. Disputes does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets, claims of piracy or unauthorized use of intellectual property (collectively, intellectual property claims).
Initial Dispute Resolution
Most disputes can be resolved without resort to litigation. You can reach our support department at firstname.lastname@example.org. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with our support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Binding Arbitration Process and Procedure
Except as provided herein, if we cannot resolve a Dispute informally, any Dispute will be resolved only by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Monkimun agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Monkimun are each waiving the right to a jury or to participate in a class action. Monkimun and you further agree to submit to the personal jurisdiction of any state or federal court in Wilmington Delaware to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. This arbitration provision shall survive termination of these Terms.
To begin an arbitration proceeding, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at http://www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 1717 Arch Street, Suite 3810, Philadelphia, PA 19103; and (c) send one copy of the Demand for Arbitration to 427 N Tatnall St #42597 Wilmington, Delaware 19801-2230.
The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at http://www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in these Terms, the rules set forth in these Terms will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state’s law.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs, and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of these Terms.
Authority of Arbitrator
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of these Terms including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable or whether any claims are not subject to Arbitration. The arbitrator will decide the rights and liabilities, if any, of you and Monkimun. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial
YOU AND MONKIMUN HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Monkimun are instead electing that all covered claims and disputes shall be resolved by individual binding arbitration under this Arbitration Agreement, except as specified above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Subject to the section titled “Waiver of Class or Consolidated Actions,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement
This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with Monkimun.
Users Residing in the EEA, the United Kingdom, or Switzerland
Except as provided herein, if we cannot resolve a Dispute informally, any conflict derived from this contract or in relation to this contract including any matter regarding its existence, validity, termination, interpretation or execution will be definitively resolved via arbitration administered by the European Association of Arbitration, in accordance with its Regulations in force on the date on which the arbitration request is presented and the concerned parties are aware of this.
The concerned parties accept that the arbitration tribunal composed for such a purpose be made up of one sole Arbitrator and the language of arbitration will be Spanish or English, and the arbitration proceedings will be held in Madrid, Spain.
This Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Monkimun, or any employee, officer, director, or investor of Monkimun, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person’s access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with Monkimun.
Subject to the section titled “Waiver of Class or Consolidated Actions,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
As a consumer, you have the right to refer the matter to a court of law where you reside. You may also choose to make a complaint in the first instance to the relevant consumer protection agency in your territory or to the relevant EU or national board/authority for consumer disputes, or you can go to https://ec.europa.eu/consumers/odr to resolve a consumer dispute out of court online.
To the greatest extent permitted by applicable law, the following additional legal terms shall apply:
15.1.WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Monkimun and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Monkimun and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party. If an Arbitrator or a Court determines that applicable law precludes enforcement of this Paragraph’s limitations as to a particular remedy, then the portion of the claim seeking that remedy (and only that portion of the claim) must be severed from the arbitration and may be brought in court. All other claims shall remain subject to arbitration solely on an individual basis.
The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). The arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Monkimun Users, and cannot be used to decide other disputes with other Users.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Wilmington, Delaware or wherever Clause 14 above determines if you are a resident of the EEA, the United Kingdom, or Switzerland.
If any clause within this section is found to be invalid or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Monkimun, or any employee, officer, director, or investor of Monkimun, and to any claims asserted by any of them against you.
This Section shall survive any termination of your account or the Services.
15.2 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS:
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS IS, AS AVAILABLE, AND WITH ALL FAULTS BASIS. THEREFORE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR PARENT, AFFILIATES, SUBSIDIARIES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, COMPANY PARTIES), HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, AS TO:
THE SERVICES (INCLUDING THE CONTENT AND THE USER-GENERATED CONTENT); THE FUNCTIONS, FEATURES, INCLUDING ANY SPECIFIC FUNCTIONALITIES OF OUR PRODUCTS AND/OR SERVICES, OR ANY OTHER ELEMENTS ON, OR MADE ACCESSIBLE THROUGH, THE SERVICES; ANY PRODUCTS, SERVICES, OR INSTRUCTIONS OFFERED OR REFERENCED AT OR LINKED THROUGH THE SERVICES; WHETHER THE SERVICES (AND THEIR CONTENT), OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE, ARE FREE FROM ANY HARMFUL COMPONENTS (INCLUDING VIRUSES, TROJAN HORSES, AND OTHER TECHNOLOGIES THAT COULD ADVERSELY IMPACT YOUR INTERNET DEVICE); THE SPECIFIC AVAILABILITY OF THE SERVICES, AND WHETHER ANY DEFECTS IN THE SERVICES WILL BE REPAIRED, OR WILL BE REPAIRED IN A PARTICULAR TIME FRAME; AND WHETHER YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
EXCEPTING ONLY AS MAY BE SPECIFICALLY SET FORTH IN ANY ADDITIONAL TERMS, THE COMPANY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ERRORS, COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15.3 LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY COMPANY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY OR DEATH OR FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO:
THE SERVICES (INCLUDING THE CONTENT AND THE USER-GENERATED CONTENT AND ANY SPECIFIC FUNCTIONALITIES OF OUR PRODUCTS AND/OR SERVICES); YOUR USE OF OR INABILITY TO USE THE SERVICES, OR THE PERFORMANCE OF THE SERVICES; THE FAILURE OF A CHILD USER TO LEARN OR OTHERWISE BENEFIT EDUCATIONALLY FROM THEIR USE OF THE SERVICES; ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING ANY SPECIFIC FUNCTIONALITIES OF OUR PRODUCTS AND/OR SERVICES; ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS OR OTHER RIGHTS OWNERS; ANY ERRORS OR OMISSIONS IN THE SERVICES’ TECHNICAL OPERATION; OR ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, SOFTWARE, MODEM, OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE, OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING LOSSES OR DAMAGES IN THE FORM OF LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, INACCURACY OF RESULTS, OR EQUIPMENT FAILURE OR MALFUNCTION.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY EVEN IF ANY OF THE EVENTS OR CIRCUMSTANCES WERE FORESEEABLE AND EVEN IF COMPANY PARTIES WERE ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, REGARDLESS OF WHETHER YOU BRING AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR TORT (INCLUDING WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, FORCE MAJEURE, TELECOMMUNICATIONS FAILURE, OR DESTRUCTION OF THE SERVICES).
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT’S “ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS.” SIMILARLY, THIS SECTION DOES NOT LIMIT THE COMPANY PARTIES’ TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM THE COMPANY PARTIES’ OWN INTENTIONAL OR RECKLESS CONDUCT.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS EXCEED (I) THE AMOUNT PAID BY YOU TO US DURING THE PREVIOUS TWELVE MONTHS OR (II) $100, WHICHEVER IS GREATER, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF THE COMPANY PARTIES FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY THE COMPANY PARTIES’ GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY THE COMPANY PARTIES’ FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MONKIMUN AND YOU.
To the maximum extent allowed by law, you agree to indemnify, defend and hold harmless Monkimun and its officers, directors, employees and agents (the Indemnified Parties), from any claims or demand, including reasonable attorneys’ fees, made by any third party resulting from: (a) your breach or alleged breach of these Terms; (b) your use of the Services or activities in connection with the Services, including any specific functionalities of our products and/or services; (c) your User-Generated Content; (d) your violation of any law, rule or regulation; or (e) your violation of any third party rights. Monkimun reserves the right to assume, at their sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with the Indemnified Parties in asserting any available defenses. You will not, in any event, settle any claim without our prior written consent. If any child you authorize to use or access the Services disaffirms any or all of these Terms, you agree to defend, indemnify and hold us harmless for any damages we suffer by the child’s disaffirmance.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold the Indemnified Parties harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.
15.5 Infringement Policy and Reporting Procedure
If you believe that any content appearing on any part of the Service has been copied in a way that constitutes copyright infringement under the Digital Millennium Copyright Act of 1998 (the DMCA) or any other regulation applicable within any of the countries the EEA, the United Kingdom, or Switzerland, please forward the following information to the Copyright Agent named below:
(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 (the complaining party);
(ii) identification of the copyright work(s) claimed to have been infringed;
(iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material;
(iv) information reasonably sufficient to permit us to contact the complaining party;
(v) a statement that the complaining party (name, address, telephone number, and email address) 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.
Users Residing in the United States
In accordance with the DMCA, you can notify us of alleged copyright infringement via this formhttps://help.lingokids.com/hc/en-us/requests/new, by sending an email to email@example.com or by postal mail at Monkimun Inc., 427 N Tatnall St #42597, Wilmington, Delaware 19801-2230, USA.
The DMCA provides that a person who knowingly materially misrepresents that material or an activity is infringing may be subject to liability. We may send the information in the notice from the complaining party to the person who provided the allegedly infringing material.
Users Residing in the EEA, the United Kingdom, or Switzerland
Our designated agent to receive notices of copyright infringement is Cristobal Viedma, who may be reached via this formhttps://help.lingokids.com/hc/en-us/requests/new, by sending an email to firstname.lastname@example.org or by postal mail at Monkimun Inc., 427 N Tatnall St #42597, Wilmington, Delaware 19801-2230, USA.
15.6 Wireless Features & Communication
The Services may offer certain features and services, including any specific functionalities of our products and/or services that are available to you via your wireless Internet Device (collectively, Wireless Features). Your carrier may charge standard messaging, data, and other fees, which may appear on your wireless bill or be deducted from your prepaid balance. Your carrier may prohibit or restrict certain Wireless Features, and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties. If you have registered via the Services for Wireless Features, then you agree to notify us of any changes to your wireless number (including phone number) and update your Account to reflect the changes.
15.7 User Comments, Feedback, and Other Submissions
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, Comments), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
You agree that your comments will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third party.
15.8 No Third-Party Beneficiaries
These Terms are not enforceable by or for the benefit of any third party, except where provided under applicable law.
15.9 General Provisions
A. Communications. When you communicate with us electronically, such as via a Services communication tool, you consent to receive communications from us electronically. Please note that we will do our best to respond to your inquiry, but it may take us some time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
B. Notice. Where Monkimun requires that you provide an email address, you are responsible for providing Monkimun with your most current email address. In the event that the last e-mail address you provided to Monkimun is not valid, or for any reason is not capable of delivering to you any notices required/permitted by these Terms, Monkimun’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Monkimun at the following address: Monkimun Inc., 427 N Tatnall St #42597, Wilmington, Delaware, 19801-2230. Such notice shall be deemed given when received by Monkimun by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
C. Operation of Services; International Issues. We control and operate the Services from the United States. If you use the Services from other locations, you are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply (e.g., any local education regulatory or data privacy laws). You and we disclaim any application of the Convention on Contracts for the International Sale of Goods.
D. Force Majeure. Monkimun shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, pandemic, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
E. Exclusive Venue. Any claim or dispute that between you and Monkimun that arises out of or is related to the Services and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Wilmington, Delaware, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Wilmington, Delaware.
If you are a resident of the EEA, the United Kingdom, or Switzerland, Clause 14 shall apply.
F. Timing of Claim. You agree that except where otherwise provided under applicable law, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
G. Export Control. You may not use, export, import, or transfer the Services, including the purchase of any products or service on the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Services or purchased any products or services on the Services, and any other applicable laws. In particular, but without limitation, the Services, including any products or services purchased on the Services, may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services or purchasing products or services on the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services nor the products or services purchased on the Services for any purpose prohibited by U.S. law.
H. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed unenforceable by a court or arbitrator, you agree that every attempt will be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement will continue in full force and effect. You agree that these Terms, and Additional Terms, will not be construed against us because we drafted them.
I. Assignment. We may assign our rights and obligations under these Terms, or any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms, and any Additional Terms, may not be assigned by you, and you may not delegate your duties under them.
J. No Waiver. No waiver by us of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of Monkimun Inc.
K. Survival. In the event of any termination of these Terms, whether by you or the Company, the following Sections will continue in full force and effect: Section 8 (Content You Submit), including but not limited to the Company’s right to use Your Content; Section 9 (Services and Content Use Restrictions); Section 10 (Linking To and From Our Services); Section 13 (Governing Law/Jurisdiction); Section 14 (Arbitration); and Section 15 (Additional Legal Terms).
L. Entire Agreement. These Terms constitute the entire agreement and understanding between you and Company concerning the subject matter of the Terms and supersedes all prior agreements and understandings of the parties with respect to that subject matter. These Terms may not be altered, supplemented, or amended by the use of any other document(s), unless otherwise agreed to in a written agreement signed by you and Company. To the extent that anything in or associated with the Services is in conflict or inconsistent with these Terms, these Terms shall take precedence.
M. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
If you are a resident of the EEA, the United Kingdom, or Switzerland, you may report complaints to the addresses, channels and authorities indicated along these Terms.
If you have any questions or concerns with respect to these Terms or the Services, you may contact us throughour website https://help.lingokids.com/hc/en-us/requests/new, or through the channels indicated below. We will do our best to deal with your enquiry promptly.
427 N Tatnall St #42597, Wilmington, Delaware, 19801-2230