Welcome to the Cambly Inc. (“Cambly”), application and website! We provide live video chat tutoring sessions for students who want to practice their language skills with a native speaker (the “Service”). This User Agreement (this “Agreement”) applies to users who visit and use the Service (collectively or individually “Students”), whether through our website (the “Site”) or Cambly mobile device application (the “App”). Please read this Agreement carefully, as it (among other things) requires (in Sections 20 and 21) you and Cambly to arbitrate certain claims instead of going to court and requires that there will not be class actions claims, and also provides for your consent to having your video tutoring sessions be recorded and used by Cambly (in Section 9.4).
NOTE TO KIDS under 13 years of age: The SERVICE, Site and app are not FOR persons under the age of 13. If you are under 13 years of age, then please do not use the Service, Site or App. Talk to your parents about what sites are appropriate for you.
- Modification. Cambly may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time, where such Changes will be effective with respect to existing users: (i) thirty (30) days after Cambly provides notice of the Changes, whether such notice is provided through the Site or App user interface, sent to the e-mail address associated with your user account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. If you provide written notice that you do not accept a proposed Change or decline to expressly agree to a proposed Change, Cambly may (in its sole discretion) either allow continued use of the Service, Site and/or App under the terms and conditions of the existing Agreement without the Changes or terminate this Agreement and your use of the Service, Site or App.
- License to Use the App. If you have downloaded the App, then subject to your compliance with all the terms and conditions of this Agreement, Cambly grants you a limited, nonexclusive, nontransferable, revocable license to install and use the App on a compatible mobile device that you own or control for your personal, non-commercial purposes, in each case in the manner enabled by Cambly. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the “Usage Rules” set forth in Apple’s App Store Terms of Service. Any use of the App other than for private, non-commercial use is strictly prohibited.
- Ownership; Proprietary Rights. The Service, Site and App are owned and operated by Cambly. The videos, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service, Site and App (“Cambly Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Cambly Materials are the property of Cambly or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Cambly or its affiliates and/or third-party licensors. Except as expressly authorized by Cambly, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Cambly Materials.
- Mobile Services. Use of the App requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the App.
- Service Generally. The Service allows you to request and engage in a video chat session on demand with an available native speaker (“Tutor(s)”) for purposes of practicing conversation skills in the language of your choice (a “Session”). You agree to only engage in Sessions for your personal, non-commercial purposes and agree not to record, copy, redistribute, broadcast, publicly perform or publicly display any such Session, except as allowed by this Agreement.
- Tutor Availability. Sessions are subject to Tutor availability, and Cambly does not guarantee that any particular (or any) Tutor will be available at any given time. You hereby acknowledge that all Tutors are independent contractors offering their services to you via the Service and are not employees or agents of Cambly. Cambly makes no representation or warranty regarding the results of engaging in a Session, including without limitation that your experience with a Tutor will meet your expectations or goals.
- Screening of Tutors. Cambly screens all Tutors before allowing them to interact with Students by reviewing a 2-5 minute recording of the Tutor speaking in the applicable language and requiring the Tutor to fill out an application that includes a biography. Tutors are also subject to periodic check-ins with Cambly personnel to ensure continued quality and interest of the Tutor. You acknowledge that Cambly has no duty to verify any stated credentials, experience or qualifications of any Tutor, and that Cambly does not conduct any screening of Tutors other than as expressly set forth in this Section 7.3. If you wish to register a complaint regarding any Tutor, please contact Cambly at email@example.com.
- Method of Billing. Students pay for minutes prior to a Session, in accordance with the fees listed in the Site or App at the time you initiate the Session. Cambly may also offer use of the Service through other payment plans, such as monthly subscriptions. To the extent use of the Service is offered through other payment plans, additional terms and conditions (as displayed to you at the at the time of purchase or contained in an updated version of this Agreement) may apply. If you access the Service through the App, payment will occur through the Apple App Store. If you access the Service through the Site, payment will occur through a third party payment systems (e.g., PayPal). All payment terms and conditions are governed by your applicable agreements with Apple and the third party payment system.
- Refunds. Purchased minutes are non-refundable, and minutes used for a Session are non-creditable. In the event you have been mistakenly charged for minutes you did not purchase, you may request a refund. If minutes were purchased on the App, refunds will be handled by the Apple App Store as described at http://support.apple.com/kb/HT1933. If you purchased minutes through the Site, refunds can be handled by the third party payment system or Cambly. If you feel you have been charged in error, please contact Cambly at firstname.lastname@example.org. A refund request must be received by Cambly within thirty (30) days of the charge in order to be considered.
- Timing. To the extent you are using the Service through the use of purchased minutes, then you will begin being charged per minute of the Session after the first minute of the Session. If you terminate a Session within 59 seconds of beginning the Session, you will not be charged for that Session. If you run out of paid minutes prior to a Session ending, the Session will terminate and you will be prompted to purchase more minutes.
- General. All fees are nonrefundable. All fees are payable in U.S. dollars except as otherwise enabled by the Apple App Store. Fees displayed to you are exclusive of any taxes that may be due in connection with such fees, and you agree to pay any such taxes that may be due, other than taxes based on Cambly’s net income. You also agree to pay Cambly any costs and expenses incurred by Cambly, including reasonable attorneys fees, in recovering any fees due hereunder.
- Video Chat Sessions
- Hardware and Software. Engaging in a Session requires compatible hardware and may require the download and installation of specified software. You are solely responsible for acquiring and installing any such hardware and software and for determining compatibility with your system, and hereby assume all risk and liability associated with such hardware and software. You acknowledge that it is your responsibility to review and comply with all applicable license agreements and other terms and conditions relating to all software you use in connection with Sessions, the Site, the App and the Service generally.
- Prohibited Behavior in Sessions. In connection with your participation in any Session, you agree not to engage in any activity that would infringe, misappropriate or violate any third party intellectual property rights or that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate. You agree to engage in Sessions for the sole purpose of practicing your language skills. You acknowledge that Cambly does not have any duty to monitor Sessions or have any control over the content of a Session, and that you may be exposed to material that you find objectionable in the course of engaging in a Session and that Cambly shall have no liability in connection therewith. Cambly may, at any time, remove any user that in the sole judgment of Cambly violates this Agreement. To report any inappropriate activity with respect to a Session, please e-mail Cambly at email@example.com.
- False Information by Student. In connection with your use of the Service, Site and App, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Cambly or any third party; (ii) submit material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; or (iii) post advertisements or solicitations of business. Cambly does not endorse any opinion, recommendation, or advice expressed by Tutors or other students, and Cambly expressly disclaims any and all liability in connection with such opinions, recommendations or advice. You understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Cambly with respect thereto.
- Recording; Content. Sessions may be recorded or monitored by Cambly, through our video chat provider TokBox. You hereby consent to: (i) the monitoring or recording of any Session you engage in, including your likeness therein; (ii) Cambly copying and using such recordings for any business purpose, including without limitation for purposes of Tutor evaluation, Tutor training, dispute resolution and improving the Service; (iii) such recording being made available to the other party to the Session; (iv) such recording being used by Cambly for advertising and marketing purposes; (v) such recordings being made available for you to review, (vi) such recording being used or disclosed by Cambly to the extent required by law or legal process or to the extent Cambly deems necessary for purposes of enforcing or protecting its rights or the rights of a third party. You hereby waive any rights of publicity, privacy or other rights under applicable law to the extent such rights could be used to prevent Cambly from using Session recordings as contemplated hereunder, and hereby grant a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable, and transferable license under any intellectual property rights you may have in or to any Session recording or content therein to Cambly to copy, modify, distribute and use such recording and content for its business purposes or as required by law or legal process. If you have any questions concerning Tokbox and its practices, you may visit the TokBox website and learn how to contact TokBox at http://www.tokbox.com.
- Account Data.
- Registration. In order to use the Services, Students must register and create an account through the App or Site. Registration requires you to: (i) create a unique user name and password, (i) provide an e-mail address, (iii) indicate your current country of domicile, (iv) indicate your native language, (v) indicate the language you wish to practice, and (vi) indicate your gender. Note that Cambly does not have access to your payment card information. You agree that the information you provide, at all times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept confidential, accurate and up-to-date at all times.
- Password. When you register you will be asked to provide a password. As you will be responsible for all charges and other activities that occur under your password, and you agree to keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Cambly. You may be liable for the losses incurred by Cambly or others due to any unauthorized use of your account.
- Personal Use. Your Cambly account, and the minutes you purchase for use with your account, are for your use only. You agree not to share your user name and password or otherwise permit any other person to access or use your Cambly account or purchased minutes.
- Tutor Notes. Tutors may take notes specific to you that relate to your fluency, interests, gender, age and other information that may be discussed during the Session. Cambly personnel and subsequent Tutors may view, utilize and add to the notes.
- Prohibited Uses.
- Unlawful Use. As a condition of your use of the Service, Site or App, you will not use the Service, Site or App for any purpose that is unlawful or prohibited by this Agreement. Access to the Cambly Materials and the Service, Site or App from territories where their contents are illegal is strictly prohibited. Students and Tutors are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, e-mail, or privacy.
- Unauthorized Use. You may not use the Service, Site or App in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use of the Service, Site or App. You may not intentionally interfere with or damage the operation of the Service, Site or App, or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, Site or App, features that prevent or restrict the use or copying of any content accessible through the Service, Site or App, or features that enforce limitations on the use of the Service, Site or App. You may not attempt to gain unauthorized access to the Service, Site or App, or any part of it, other accounts, computer systems or networks connected to the Service, Site or App, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service, Site or App, or any activities conducted on the Service, Site or App. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service, Site or App. You agree neither to modify the Service, Site or App in any manner or form, nor to use modified versions of the Service, Site or App, including (without limitation) for the purpose of obtaining unauthorized access to the Service, Site or App.
- Robots. The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Service, Site or App for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
- Trademark Restrictions. You may not utilize framing techniques to enclose any trademark, logo, or other Cambly Materials without our express written consent. You may not use any Cambly logos, graphics, or trademarks, including as part of any meta tags or any other “hidden text,” without our express written consent, except as permitted in this Agreement.
- Communications. Under this Agreement, you consent to receive communications from Cambly electronically. We will communicate with you by e-mail or by posting notices on the Service, Site or App. 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.
- Availability of Service. Cambly may make changes to or discontinue any of the media, products or services available within the Service, Site or App at any time, and without notice. The media, products or services on the Service, Site or App may be out of date, and Cambly makes no commitment to update these materials on the Service, Site or App.
- Notice. Except as explicitly stated otherwise, legal notices shall be served on Cambly by internationally recognized overnight courier and be sent to 657 Bryant St, San Francisco, CA 94107 and shall be served on you to the e-mail address or mailing address you provide to Cambly during the registration process. Notice shall be deemed given to Cambly upon delivery by the courier, and given to you (if sent by e-mail) 24 hours after the e-mail is sent unless Cambly is notified that the e-mail address is invalid or (if notice is sent by mail) five (5) days after mailing.
- Member Disagreements. You alone are responsible for your involvement with Tutors or other Students. Cambly reserves the right, but has no obligation, to monitor disagreements between you and Tutors or other Students.
- Violations; Termination. You agree that Cambly, in its sole discretion and for any or no reason, may terminate this Agreement, any member or customer account (or any part thereof) you may have at the Service or your use of the Service, Site or App, and remove and discard all or any part of your account at any time. Cambly may also in its sole discretion and at any time discontinue providing access to the Service, Site or App, or any part thereof, with or without notice. You agree that any termination of your access to the Service, Site or App or any account you may have or portion thereof may be effected without prior notice, and you agree that Cambly shall not be liable to you or any third-party for any such termination. Cambly does not permit copyright infringing activities on the Service, Site or App, and reserves the right to terminate access to the Service, Site or App, and remove all content submitted, by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, Site or App may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Cambly may have at law or in equity.
- Disclaimers; No Warranties. THE SERVICE, SITE, APP AND ANY THIRD-PARTY, MEDIA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CAMBLY, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
CAMBLY, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE SERVICE, SITE OR APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, SITE, APP OR THE SERVERS THAT MAKE THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CAMBLY, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE, SITE OR APP IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT CAMBLY NOR ITS SUPPLIERS, LICENSORS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL, OR OTHER DATA THROUGH THE USE OF THE SERVICE, SITE OR APP AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Indemnification; Hold Harmless. You agree to indemnify and hold Cambly, and its affiliated companies, and its suppliers, licensors and partners, harmless from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Service, Site or App, violation of the rights of any other person or entity, or any breach of this Agreement. Cambly reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
- Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL CAMBLY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE CAMBLY MATERIALS ON THE SERVICE, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH CAMBLY, EVEN IF CAMBLY OR A CAMBLY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, CAMBLY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL CAMBLY’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF: (A) THE TOTAL AMOUNTS YOU HAVE PAID TO CAMBLY HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE DATE OF THE CLAIM AND (B) FIFTY (50) U.S. DOLLARS.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN CAMBLY AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICE.
- Arbitration. Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.
- Class Action Waiver. You further agree that anY CLAIMS subject to arbitration under section 20 MUST BE MADE IN YOUR INdividual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
- Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to mandatory arbitration under Section 20 shall be filed only in the state or federal courts in and for San Francisco County, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cambly without restriction. Sections 1, 2, 5, 6, 8.4 and 10 through 22 will survive any termination of this Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement or Guidelines made by Cambly as set forth in Section 3 above.
- More Information; Complaints. The services hereunder are offered by Cambly, with e-mail: firstname.lastname@example.org. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
Cambly User Agreement_(118233189)_(3) (4).docx