TERMS AND CONDITIONS OF SERVICE
Performa Learning websites (“Websites”) and mobile applications, including the bizPROFI application (“Apps”) and related services (together with the Websites, the “Service”), including our language proficiency testing services (the “Performa Learning English Test”) are operated by Performa Learning, Inc. (“Performa Learning,” “us,” or “we”). Access and use of the Service is subject to the following Terms and Conditions of Service (“Terms and Conditions”). By accessing or using any part of the Service, you represent that you have read, understood, and agree to be bound by these Terms and Conditions including any future modifications. Performa Learning may amend, update or change these Terms and Conditions. If we do this, we will post a notice that we have made changes to these Terms and Conditions on the Websites for at least 7 days after the changes are posted and will indicate at the bottom of the Terms and Conditions the date these terms were last revised. Any revisions to these Terms and Conditions will become effective the earlier of (i) the end of such 7-day period or (ii) the first time you access or use the Service after such changes. If you do not agree to abide by these Terms and Conditions, you are not authorized to use, access 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. VIEW THESE TERMS HERE.
DESCRIPTION OF WEBSITE AND SERVICE
The Service allows users to access and use a variety of educational services, including learning or practicing a language, taking examinations in the Performa Learning English Test, and the BizPROFI App. Performa Learning may, in its sole discretion and at any time, update, change, suspend, make improvements to or discontinue any aspect of the Service, temporarily or permanently.
REGISTRATION; SUBMISSION OF CONTENT
In connection with registering for and using the Service, you agree (i) to provide accurate, current and complete information about you and/or your organization as requested by Performa Learning; (ii) to maintain the confidentiality of your password and other information related to the security of your account; (iii) to maintain and promptly update any registration information you provide to Performa Learning, to keep such information accurate, current and complete; and (iv) to be fully responsible for all use of your account and for any actions that take place through your account.
As a condition of submitting any ratings, reviews, information, data, text, photographs, audio clips, audiovisual works, translations, flashcards or other materials on the Services (“Content”), you hereby grant to Performa Learning 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; sublicense through multiple tiers the Content, and 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, Performa Learning, 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 or Performa Learning have any obligation to you or anyone else to maintain the confidentiality of the Content.
YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant to Performa Learning that your access and use of the Service will be in accordance with these Terms and Conditions and with 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. If you register with the Performa Learning English Test, you further represent and warrant that the identification materials you submit to Performa Learning are true and accurate representations of legal identification documents, issued to you by a government entity in accordance with local laws, and that you are registering for the Performa Learning English Test for the express purpose of taking a language examination. You further represent and warrant that you will carefully safeguard your password, user name, and account information, will not share your password or user name with any third party, and will not allow any third party to access your Performa Learning English Test account for any purpose.
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 or 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.
You will not 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 right of any third party (including copyright, trademark, privacy, publicity or other personal or proprietary rights); or (ii) in Performa Learning’s sole judgment, is objectionable or which restricts or inhibits any other person from using the Service or which may expose Performa Learning or its users to any harm or liability of any kind. You will not use the Performa Learning English Test to collect information about our testing process or to develop strategy, guides or other testing preparation material or a similar testing service, and you will not violate any rules applicable to the English Test or otherwise cheat or circumvent the applicable procedures when taking an English Test.
INDEMNIFICATION OF PERFORMA LEARNING
You agree to defend, indemnify and hold harmless Performa Learning 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.
LICENSE TO APPS
Subject to the terms of these Terms and Conditions, Performa Learning grants you a non-transferable, non-exclusive license to download, install, and use one copy of each App in object code form only on an interactive wireless device that you own or control. You may not derive or attempt to derive the source code of all or any portion of any App, permit any third party to derive or attempt to derive such source code, or reverse engineer, decompile, disassemble, or translate any App or any part thereof. Performa Learning and its licensors own and shall retain all intellectual property rights and other rights in and to the Apps, and any changes, modifications, or corrections thereto. The following terms and conditions apply to you only if you are using the Apps from the Apple App Store. To the extent the other terms and conditions of these Terms and Conditions are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to Apps from the Apple App Store. You acknowledge and agree that these Terms and Conditions are solely between you and Performa Learning, not Apple, and that Apple has no responsibility for the Apps or content thereof. Your use of any App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and Conditions. You and Performa Learning acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apps or your possession and/or use of any App, including, but not limited to: (i) product liability claims; (ii) any claim that an App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Performa Learning acknowledge that, in the event of any third-party claim that any App or your possession and use of that App infringes that third party’s intellectual property rights, Performa Learning, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and Conditions. You must comply with applicable third party terms of agreement when using any App. You and Performa Learning acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and Conditions as they relate to your license of the Apps, and that, upon your acceptance of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary thereof.
If you purchase an auto-renewing periodic subscription through the Service, your Performa Learning account will be billed continuously for the subscription until you terminate it as set forth below. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew for an additional equivalent period. If you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription, you will need to log in to your Performa Learning account and follow instructions to terminate or change your subscription, even if you have deleted your account.
In the Service, you may purchase, with “real world” money, a limited, personal, non-transferable, non-sublicensable, revocable license to use (a) “virtual currency,” including but not limited to virtual gems, solely for use in the Service, and (b) “virtual in-app items” (together with “virtual currency,” “Virtual Items”). You are allowed to purchase Virtual Items through the Service, and not in any other way.
Performa Learning may manage, regulate, control, modify, or eliminate Virtual Items at any time, with or without notice. Performa Learning may update the pricing of Virtual Items at any time in its sole discretion, and may add new Virtual Items for additional fees. Performa Learning shall have no liability to you or any third party in the event that Performa Learning exercises any such rights.
The transfer of Virtual Items is prohibited except where expressly authorized in the Service. Other than as expressly authorized in the Service, you shall not sell, redeem or otherwise transfer Virtual Items to any person or entity, including but not limited to Company, another user, or any third party.
You agree to pay all fees and applicable taxes incurred by you or anyone using a Performa Learning account registered to you. Performa Learning may revise the pricing for the goods and services offered through the Service at any time. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
In the event that Performa Learning suspends or terminates your use of the Service or these Terms and Conditions or you close your account voluntarily, you understand and agree that you will receive no refund or exchange of any kind, including for any unused virtual currency or other Virtual Item, any Content or data associated with your use of the Service, or for anything else.
Performa Learning English Test
In the event of a Test Issue (described below), Performa Learning will, at its option, either (a) provide the user with a refund for the affected test, or (b) use reasonable efforts to resolve the Test Issue. For purposes of this Section, “Test Issue” means: (i) the inability to complete the test due to a failure in the Websites or the Apps, or (ii) Test results are delivered more than 48 hours after the test is completed. Whether an issue constitutes a Test Issue will be determined by Performa Learning in its reasonable discretion. For clarity, termination or suspension of your account or certain activities on the Service that results from a violation of Section 5 regarding the English Test rules and procedures does not constitute a “Test Issue” and will not result in a refund. The amount of any refund will depend on the nature of the Test Issue and will not exceed the total amount actually paid by the user for the affected test. To submit a valid claim for a refund, a user must (a) submit the Test Issue in writing to Performa Learning within 24 hours after the Test Issue occurs, and respond to Performa Learning’s requests for information or cooperation, (b) not have directly or indirectly caused the Test Issue, and (c) have met all test requirements when taking the test prior to making a claim for a Test Issue.
THIRD-PARTY LINKS, SITES, AND SERVICES
The Service may include advertisements, which may be targeted to the Content or information on the Service, or other information. The types and extent of advertising by Performa Learning on the Service are subject to change. In consideration for Performa Learning granting you access to and use of the Service, you agree that Performa Learning and its third party providers and partners may place such advertising in connection with the display of content or information submitted by you or others.
NO REPRESENTATIONS OR WARRANTIES BY PERFORMA LEARNING
THE SERVICE, INCLUDING ALL IMAGES, AUDIO FILES AND OTHER CONTENT THEREIN, AND ANY OTHER INFORMATION, PROPERTY AND RIGHTS GRANTED OR PROVIDED TO YOU BY PERFORMA LEARNING ARE PROVIDED TO YOU ON AN “AS IS” BASIS. PERFORMA LEARNING AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PERFORMA LEARNING DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND RELATING TO ACCURACY, SERVICE AVAILABILITY, COMPLETENESS, INFORMATIONAL CONTENT, ERROR-FREE OPERATION, RESULTS TO BE OBTAINED FROM USE, OR NON-INFRINGEMENT. ACCESS AND USE OF THE SERVICE MAY BE UNAVAILABLE DURING PERIODS OF 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.
LIMITATION ON TYPES OF DAMAGES/LIMITATION OF LIABILITY
IN NO EVENT WILL PERFORMA LEARNING BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY) FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF 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 THE LOSS OF USE OF THE SERVICE, 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, EVEN IF PERFORMA LEARNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PERFORMA LEARNING’S LIABILITY TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO PERFORMA LEARNING FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
Performa Learning may terminate your access and use of the Service immediately at any time, for any reason, and at such time you will have no further right to use the Service. You may terminate your Performa Learning account at any time by following the instructions available through the Service. The provisions of these Terms and Conditions relating to the protection and enforcement of Performa Learning’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.
PROPRIETARY RIGHTS IN SERVICE CONTENT AND ACTIVITY MATERIALS
All content available through the Service, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (the “Service Content”), are the proprietary property of Performa Learning or its licensors. No Service Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, other than as expressly permitted in these Terms and Conditions. You may not use any data mining, robots, scraping or similar data gathering or extraction methods to obtain Service Content. As between you and Performa Learning, all data, information and materials generated from your access and use of the educational activities made available on or through the Service, including translated content generated by you (collectively, the “Activity Materials”), shall be exclusively owned by Performa Learning, and you shall not have any right to use such Activity Materials except as expressly authorized by these Terms and Conditions. Activity Materials will not include Translation Materials. By using the Service, you hereby assign to Performa Learning any and all rights, title and interest, including any intellectual property rights or proprietary rights, in the Activity Materials. All rights of Performa Learning or its licensors that are not expressly granted in these Terms and Conditions are reserved to Performa Learning and its licensors.
“Performa Learning,” “BizPROFI” and all other trademarks, service marks, graphics and logos used in connection with the Service are trademarks or service marks of Performa Learning or their respective owners, and certain of them are registered with the United States Patent and Trademark Office. Access and use of the Service does not grant or provide you with the right or license to reproduce or otherwise use the Performa Learning name or any Performa Learning or third-party trademarks, service marks, graphics or logos.
NOTICE FOR CLAIMS OF COPYRIGHT VIOLATIONS AND AGENT FOR NOTICE
If you are a copyright owner and have a good faith belief that any material available through the Service infringes upon your copyrights, you may submit a copyright infringement notification to Performa Learning pursuant to the Digital Millennium Copyright Act by providing us with the following information in writing:
an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Please consult your legal counsel for further details or see 17 U.S.C. §512(c)(3). Performa Learning’s Agent for Notice of claims of copyright infringement can be reached as follows:
By mail: 2711 Centerville Road Ste. 120, Wilmington, DE 19808
By email: firstname.lastname@example.org
GOVERNING LAW AND ARBITRATION; NO CLASS ACTION
These Terms and Conditions, its subject matter and Performa Learning’s and your respective rights under these Terms and Conditions, as well as and any claim, cause of action or dispute (“claim”) arising out of or related to these Terms and Conditions, shall be governed by and construed under the laws of the State of Delaware, United States of America, excluding the conflict of law provisions of that or any other jurisdiction, regardless of your country of origin or where you access the Service. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS AND CONDITIONS OR THE SERVICE WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except for Performa Learning’s right to seek injunctive relief as set forth below. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding.
If you do not want to arbitrate disputes with Performa Learning and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within 30 days of the day you first access or use the Service.
If you intend to seek arbitration you must first send written notice to Performa Learning’s Administration Office of your intent to arbitrate (“Notice”). The Notice to Performa Learning should be sent by any of the following means: (i) electronic mail to firstname.lastname@example.org; or (ii) sending the Notice by U.S. Postal Service certified mail to Performa Learning, Inc., Attention: Legal, 2711 Centerville Road Ste. 120, Wilmington, DE 19808. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought; and (z) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you.
The arbitration will be conducted before a neutral single arbitrator in the State of Delaware, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes, as modified by these Terms and Conditions. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of these Terms and Conditions. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. We will reimburse all other AAA 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 AAA rules. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. For any claim where the potential award is reasonably likely to be $10,000 or less, either you or Performa Learning may elect to have the dispute resolved through non-appearance-based arbitration.
To the fullest extent permitted by applicable law, YOU AND PERFORMA LEARNING 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 for any reason a claim proceeds in court rather than in arbitration, YOU AND PERFORMA LEARNING EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Performa Learning agree that all claims arising out of or related to these Terms and Conditions must be resolved exclusively by a state or federal court located in the State of Delaware and you and Performa Learning each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such claims. Notwithstanding the above, you agree that Performa Learning shall still be allowed to apply for and obtain injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
This agreement was originally written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
These Terms and Conditions constitute the entire agreement between Performa Learning 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 Performa Learning 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. Performa Learning 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 Performa Learning and you, and Performa Learning’s and your respective successors and permitted assigns.