Terms and Conditions of Service
1. Introduction
Kimbapp, Inc. ("Kimbapp," "us," or "we") operates Kimbapp websites ("Websites"), mobile applications ("Apps"), and related services (collectively referred to as the "Service"). By accessing or using any part of the Service, you confirm that you have read, understood, and agreed to be bound by these Terms and Conditions of Service ("Terms and Conditions"), including any future modifications. We may amend, update, or change these Terms and Conditions at our discretion. If we do, we will provide a notice of such changes on the Websites for at least 7 days after they are posted and indicate the last revised date at the bottom of the Terms and Conditions. Any revisions will become effective either at the end of the 7-day period or the first time you access or use the Service after the changes, whichever occurs earlier. If you do not agree with these Terms and Conditions, you are not authorized to access, use, or participate in the Service.
PLEASE NOTE THAT THESE TERMS AND CONDITIONS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.
2. Service Description
The Service offers users access to a variety of educational services, including language learning and practice. We reserve the right to update, change, suspend, improve, or discontinue any aspect of the Service, temporarily or permanently, at our sole discretion and at any time.
3. Additional Terms
Some of our Services may have additional terms and conditions ("Additional Terms"). We will make these Additional Terms available for you to read through your use of the relevant Service. By using that Service, you agree to the Additional Terms.
4. Registration and Content Submission
a. Registration When registering for and using the Service, you agree to (i) provide accurate, current, and complete information about yourself and/or your organization as requested by Kimbapp; (ii) maintain the confidentiality of your password and other account security information; (iii) promptly update any registration information to keep it accurate, current, and complete; and (iv) be fully responsible for all use of your account and any actions that occur through your account.
b. General Content By submitting any ratings, reviews, information, data, text, photographs, audio clips, audiovisual works, translations, flashcards, or other materials on the Services ("Content"), you grant Kimbapp a royalty-free, perpetual, irrevocable, worldwide, nonexclusive, transferable, and sublicensable license to use, reproduce, copy, adapt, modify, merge, distribute, publicly display, create derivative works from, incorporate such Content into other works, and sublicense through multiple tiers the Content. You acknowledge that this license cannot be terminated by you once your Content is submitted to the Services. You represent that you own or have secured all legal rights necessary for the Content submitted by you to be used by you, Kimbapp, and others as described and otherwise contemplated in these Terms and Conditions. You understand that other users will have access to the Content and that neither they nor Kimbapp have any obligation to maintain the confidentiality of the Content.
5. Your Representations and Warranties
You represent and warrant to Kimbapp that your access and use of the Service will comply with these Terms and Conditions and all applicable laws, rules, and regulations of the United States and any other relevant jurisdiction, including those regarding online conduct or acceptable content, and those regarding the transmission of data or information exported from the United States and/or the jurisdiction in which you reside. You further represent and warrant that you have created or own any material you submit via the Service (including Translation Materials, Course Contributor Materials, Activity Materials, and Content) and that you have the right, as applicable, to grant us a license to use that material as set forth above or the right to assign that material to us as set forth below. You represent and warrant that (1) you are not organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target of comprehensive U.S. economic or trade sanctions (i.e., an embargo) or (2) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department's List of Specially Designated Nationals and Blocked Persons, or (3) otherwise the target of U.S. sanctions.
6. Prohibited Uses
You agree not to upload, display, or otherwise provide on or through the Service any content that: (i) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive, or otherwise violates any law or infringes upon the rights of any third party (including copyright, trademark, privacy, publicity, or other personal or proprietary rights); or (ii) in Kimbapp's sole judgment, is objectionable or restricts or inhibits any other person from using the Service or may expose Kimbapp or its users to any harm or liability of any kind.
7. Indemnification of Kimbapp
You agree to defend, indemnify, and hold harmless Kimbapp and its directors, officers, employees, contractors, agents, suppliers, licensors, successors, and assigns from and against any and all losses, claims, causes of action, obligations, liabilities, and damages whatsoever, including attorneys' fees, arising out of or relating to your access or use of the Service, any false representation made to us (as part of these Terms and Conditions or otherwise), your breach of any of these Terms and Conditions, or any claim that any translation we provide to you is inaccurate, inappropriate, or defective in any way whatsoever.
8. License to Apps
Subject to these Terms and Conditions, Kimbapp grants you a non-transferable, non-exclusive license to download, install, and use one copy of each App in object code form only on a wireless device that you own or control. You are prohibited from deriving or attempting to derive the source code of any App or reverse engineering, decompiling, disassembling, or translating any App or any part thereof. Kimbapp and its licensors retain all intellectual property rights and other rights in and to the Apps, and any changes, modifications, or corrections thereto.
If you are using Apps from the Apple App Store, the following terms apply: You acknowledge that these Terms and Conditions are solely between you and Kimbapp, not Apple, and that Apple has no responsibility for the Apps or their content. Your use of any App must comply with the App Store Terms of Service. Apple is not responsible for providing any maintenance and support services for the Apps. In case of any App's failure to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App. Any other warranty-related claims, losses, liabilities, damages, costs, or expenses will be governed by these Terms and Conditions. Kimbapp is responsible for addressing any claims relating to the Apps or your possession and/or use of any App, including product liability claims, legal or regulatory requirement conformity, and consumer protection legislation. Kimbapp, not Apple, is responsible for the investigation, defense, settlement, and discharge of any intellectual property infringement claim related to an App. You must comply with applicable third-party terms of agreement when using any App. Apple and its subsidiaries are third-party beneficiaries of these Terms and Conditions as they relate to your license of the Apps and have the right to enforce these Terms and Conditions against you.
9. In-App Purchases
If you purchase an auto-renewing subscription through the Service, your Kimbapp account will be billed continuously until you terminate the subscription. Subscriptions automatically renew for additional periods. To change or terminate your subscription, log in to your Kimbapp account and follow the instructions, even if you have deleted your account. You may purchase a limited, personal, non-transferable, non-sublicensable, revocable license to use virtual currency and virtual in-app items (collectively, "Virtual Items") with real-world money, solely for use within the Service. Purchases of Virtual Items must be made through the Service. Kimbapp may manage, regulate, control, modify, or eliminate Virtual Items at any time and may update Virtual Item pricing at its discretion. Kimbapp has no liability if it exercises these rights. Unauthorized transfer of Virtual Items is prohibited. You must not sell, redeem, or transfer Virtual Items to any person or entity, except as authorized within the Service. You agree to pay all fees and applicable taxes for any purchases, transactions, or other monetary interactions within the Service. Kimbapp may revise the pricing for goods and services offered through the Service at any time. All information provided for purchases or transactions must be accurate, complete, and current. You are responsible for all charges incurred by users of your payment method in connection with purchases or transactions within the Service.
10. Payment Processors
All financial transactions made in connection with the Service will be processed by a third party according to their respective terms of use, privacy policy, and/or any applicable payment terms and conditions. Kimbapp is not responsible for the actions or inactions of any third-party payment processor, including system downtime or payment service outages.
11. Refund Policy
If Kimbapp suspends or terminates your use of the Service or you close your account voluntarily, you will not receive any refund or exchange of any kind, including for any unused virtual currency or other Virtual Items, any Content or data associated with your use of the Service, or for anything else.
12. Third-Party Links, Sites, and Services
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities not owned or controlled by Kimbapp. Kimbapp does not endorse or assume responsibility for any such third-party sites, information, materials, products, or services. When accessing any third-party website, service, or content from Kimbapp, you understand that these Terms and Conditions and our Privacy Policy do not apply to your use of such sites. Kimbapp is not responsible or liable for any damage or loss arising from your use of any third-party website, service, or content. The Service may include advertisements, which may be targeted based on the Content or information on the Service or other information. Advertising on the Service is subject to change. In exchange for Kimbapp granting you access to and use of the Service, you agree that Kimbapp and its third-party providers and partners may place advertising in connection with the display of content or information submitted by you or others.
13. NO REPRESENTATIONS OR WARRANTIES BY KIMBAPP
Kimbapp provides the Service, including all images, audio files, and other content, as well as any other information, property, and rights granted or provided to you, on an "as is" basis. Kimbapp and its suppliers make no representations or warranties of any kind regarding the Service, either express or implied, and all such representations and warranties, including warranties of merchantability, fitness for a particular purpose, or non-infringement, are expressly disclaimed. Kimbapp does not make any representation or warranty relating to the accuracy, availability, completeness, informational content, error-free operation, results obtained from use, or non-infringement. Access and use of the Service may be unavailable during peak demand, system upgrades, malfunctions, or scheduled or unscheduled maintenance, or for other reasons. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
14. LIMITATION ON TYPES OF DAMAGES/LIMITATION OF LIABILITY
Kimbapp is not liable to you or any third party (whether based in contract, tort, strict liability, or other theory) for indirect, incidental, special, consequential, or exemplary damages arising from or relating to the access or use of, or the inability to access or use, the Service or any portion thereof, including but not limited to loss of use, inaccurate results, loss of profits, business interruption, or damages stemming from loss or corruption of data or data being rendered inaccurate, the cost of recovering any data, the cost of substitute services, or claims by third parties for any damage to computers, software, modems, telephones, or other property. Kimbapp's liability to you or any third party for any cause whatsoever is limited to the amount paid, if any, by you to Kimbapp for the Service in the 12 months prior to the initial action giving rise to liability. This is an aggregate limit, and the existence of more than one claim will not increase this limit.
15. Termination
Kimbapp may terminate your access to and use of the Service at any time, for any reason, and at such time, you will have no further right to use the Service. You may terminate your Kimbapp account at any time by following the instructions available through the Service. Provisions of these Terms and Conditions relating to the protection and enforcement of Kimbapp's proprietary rights, your representations and warranties, disclaimer of representations and warranties, release and indemnities, limitations of liability and types of damages, ownership of data and information, governing law and venue, and miscellaneous provisions shall survive any such termination.
16. Indemnification
You agree to indemnify, defend, and hold harmless Kimbapp, its affiliates, officers, directors, employees, agents, and licensors from any claims, liabilities, damages, losses, or expenses, including reasonable attorneys' fees and costs, arising from your access or use of the Service, any breach of these Terms and Conditions, or any infringement by you or any other user of your account on intellectual property or other rights of Kimbapp or third parties.
17. Governing Law and Jurisdiction
These Terms and Conditions and your use of the Service are governed by the laws of the applicable jurisdiction, without regard to conflict of law principles. You agree that any legal action or proceeding between you and Kimbapp related to these Terms and Conditions or your use of the Service will exclusively take place in the appropriate courts of the applicable jurisdiction, and you consent and submit to their exclusive jurisdiction and venue.
18. Privacy
Your use of the Service is also subject to our Privacy Policy, which can be found at kimb.app/privacy. By using the Service, you agree to the terms of the Privacy Policy.
19. Promotion Code Terms
Kimbapp Promotion Codes ("Promotional Codes") are offered by Kimbapp (either directly or through a partner) subject to these Terms and Conditions of Service. Promotional Codes are provided in association with an auto-renewing periodic subscription. Each Promotional Code grants access to Kimbapp Plus at the advertised price, beginning upon your acceptance and valid payment submission, and may be subject to an overall redemption limit. By submitting your payment information, you accept the advertised Promotional Code, agree to these Promotional Code Terms, and acknowledge the Terms and Conditions.
Eligibility for a Promotional Code is dependent on satisfying specific conditions, including not being a current subscriber (unless the Promotional Code is explicitly for existing subscribers), providing a valid and approved payment method, and meeting any additional requirements advertised with the Promotional Code. Eligible Users may only use a Promotional Code once, and previous users cannot redeem the same offer again.
Promotional Codes must be redeemed before any advertised expiration date. Kimbapp reserves the right to modify, suspend, or terminate a Promotional Code at any time and for any reason, in which case subsequent enrollments will not be honored. If you don't cancel your subscription before the end of the Promotional Period, you will automatically become a recurring subscriber and your subscription will auto-renew for additional periods equal to the expiring subscription term, unless you cancel before the end of the relevant term in accordance with Kimbapp's Terms and Conditions. Your provided payment method will be charged the current subscription price. If you cancel during the Promotional Period, you will lose access to Kimbapp Plus, and you agree that you will not receive any refunds or exchanges for any unused virtual currency, content, data, or anything else related to your use of the Service. By using a Promotional Code, you agree that your anonymized aggregated data may be shared by Kimbapp with the partner who provided the Promotional Code.
20. Notice for Claims of Copyright Violations and Agent for Notice
If you are a copyright owner and believe that any material available through the Service infringes upon your copyrights, you may submit a copyright infringement notification to Kimbapp under the Digital Millennium Copyright Act by providing us with specific information in writing. Please consult your legal counsel or see 17 U.S.C. §512(c)(3) for further details. Kimbapp's Agent for Notice of claims of copyright infringement can be reached by mail at 16 rue Charlemagne, 75004 Paris, France or by email at contact@kimb.app
21. Governing Law and Arbitration; No Class Action
These Terms and Conditions, their subject matter, and Kimbapp's and your respective rights under them, as well as any claim or dispute ("claim") arising from or related to them, are governed by the laws of the Commonwealth of Pennsylvania, United States of America, without regard to conflict of law provisions. ANY DISPUTE OR CLAIM RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except for Kimbapp's right to seek injunctive relief as outlined below. Each party shall bear its own attorneys' fees, unless expressly required otherwise by applicable law. If you do not want to arbitrate disputes with Kimbapp and you are an individual, you may opt out of this arbitration agreement by sending an email to contact@kimb.app within 30 days of the day you first access or use the Service.
If you intend to seek arbitration, you must first send a written notice of your intent to Kimbapp's Administration Office ("Notice"). The Notice should be sent electronically to contact@kimb.app or by certified mail to Kimbapp, Inc., Attention: Legal, 5900 Penn Ave; Pittsburgh, PA 15206. The Notice must describe the nature and basis of the claim or dispute, specify the relief sought, and include your name, address, and contact information. If we intend to seek arbitration against you, we will send a notice of dispute to you at the contact information we have for you.
The arbitration will be conducted by a neutral single arbitrator in Allegheny County, Pennsylvania, and the proceedings will be governed by JAMS under its Comprehensive Arbitration Rules and Procedures (the "JAMS Rules") as modified by these Terms and Conditions. The JAMS Rules are available at www.jamsadr.com. All issues are for the arbitrator to decide, but the arbitrator is bound by these Terms and Conditions. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the JAMS Rules. We will reimburse all other JAMS filing, administration, and arbitrator fees paid by you, unless the arbitrator determines that the arbitration was frivolous or brought for an improper purpose, in which case the payment of all such fees shall be governed by the JAMS Rules. The arbitration will be conducted in English. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
For claims with a potential award of $10,000 or less, either you or Kimbapp may elect to resolve the dispute through non-appearance-based arbitration. To the fullest extent permitted by law, YOU AND KIMBAPP EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. If a claim proceeds in court rather than arbitration, YOU AND KIMBAPP EACH WAIVE ANY RIGHT TO A JURY TRIAL.
If a court of competent jurisdiction finds the arbitration provisions invalid or inapplicable, you and Kimbapp agree that all claims arising from or related to these Terms and Conditions must be resolved exclusively by a state or federal court located in Allegheny County, Pennsylvania, and you and Kimbapp each agree to submit to the personal jurisdiction of such courts. Notwithstanding the above, Kimbapp may still apply for and obtain injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
22. Language
This agreement was originally written in English (US). In case of any conflict between the English version and any translated version, the English version prevails.
23. California Resident
If you are a California resident, in accordance with Cal. Civ. 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
24. Miscellaneous
These Terms and Conditions constitute the entire agreement between Kimbapp and you concerning the subject matter hereof. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect. A waiver by Kimbapp or you of any provision of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Kimbapp may assign its rights or obligations under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of Kimbapp and you, and Kimbapp's and your respective successors and permitted assigns.