Terms and Conditions of Service
Talking Yak websites (“Websites”) and mobile applications and related services (together with the Websites, the “Service”) are operated by Talking Yak Pvt Ltd on behalf of itself and its parent company, Talking Yak, Inc. (“Talking Yak,” “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. Talking Yak 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.
2. Description of Website and Service
The Service allows users to access and use a variety of educational services, including but not limited to learning or practicing a language, taking examinations, creating and viewing flashcards. Talking Yak 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.
3. 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 Talking Yak; (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 Talking Yak, 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.
b. Submission of Content
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 Talking Yak 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, Talking Yak, 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 Talking Yak have any obligation to you or anyone else to maintain the confidentiality of the Content.
4. Your Representations and Warranties
You represent and warrant to Talking Yak 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 India, 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 or India 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 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 Talking Yak account for any purpose. Should there be a conflict between the governing laws of the jurisdictions, the laws of the United States shall prevail.
5. Inappropriate Use
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 Talking Yak’s sole judgment, is objectionable or which restricts or inhibits any other person from using the Service or which may expose Talking Yak or its users to any harm or liability of any kind. You will not use the Talking Yak 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 Talking Yak product or otherwise cheat or circumvent the applicable procedures when taking an assessment.
6. Indemnification of Talking Yak
You agree to defend, indemnify and hold harmless Talking Yak and its directors, officers, employees, contractors, agents, suppliers, licensors, successors, parent company 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.
7. License to Apps
Subject to the terms of these Terms and Conditions and necessary user registration, Talking Yak 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. Talking Yak 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.
8. In-App Purchases
If you purchase an auto-renewing periodic subscription through the Service, your Talking Yak 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 Talking Yak 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.
Talking Yak may manage, regulate, control, modify, or eliminate Virtual Items at any time, with or without notice. Talking Yak may update the pricing of Virtual Items at any time in its sole discretion, and may add new Virtual Items for additional fees. Talking Yak shall have no liability to you or any third party in the event that Talking Yak 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 Talking Yak account registered to you. Talking Yak may revise the pricing for the goods and services offered through the Service from time to 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.
9. Payment Processors
10. Refund Policy
In the event that Talking Yak 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, any Content or data associated with your use of the Service, or for anything else.
11. NO REPRESENTATIONS OR WARRANTIES BY TALKING YAK
THE SERVICE, INCLUDING ALL IMAGES, AUDIO FILES AND OTHER CONTENT THEREIN, AND ANY OTHER INFORMATION, PROPERTY AND RIGHTS GRANTED OR PROVIDED TO YOU BY TALKING YAK ARE PROVIDED TO YOU ON AN “AS IS” BASIS. TALKING YAK 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, TALKING YAK 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.
12. LIMITATION ON TYPES OF DAMAGES/LIMITATION OF LIABILITY
IN NO EVENT WILL TALKING YAK 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 TALKING YAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TALKING YAK’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 TALKING YAK 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.
Talking Yak 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 Talking Yak 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 Talking Yak’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.
14. 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 Talking Yak 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 Talking Yak, 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 Talking Yak, and you shall not have any right to use such Activity Materials except as expressly authorized by these Terms and Conditions. By using the Service, you hereby assign to Talking Yak any and all rights, title and interest, including any intellectual property rights or proprietary rights, in the Activity Materials. All rights of Talking Yak or its licensors that are not expressly granted in these Terms and Conditions are reserved to Talking Yak and its licensors.
“Talking Yak”, and all other trademarks, service marks, graphics and logos used in connection with the Service are trademarks or service marks of Talking Yak 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 Talking Yak name or any Talking Yak or third-party trademarks, service marks, graphics or logos.
17. 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 Talking Yak 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). Talking Yak’s Agent for Notice of claims of copyright infringement can be reached, by mail, as follows:
Talking Yak English Learning Pvt Ltd
No. 16/3 2nd Floor
Mosque Road, Frazer Town, Bangalore, India 560005
18. Governing Law and Arbitration; No Class Action
These Terms and Conditions, its subject matter and Talking Yak’s and your respective rights under these Terms and Conditions, as well as 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 Commonwealth 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 Talking Yak’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 Talking Yak and you are an individual, you may opt out of this arbitration agreement by sending an email to legal@Talking Yak.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 Talking Yak’s Administration Office of your intent to arbitrate (“Notice”). The Notice to Talking Yak should be sent by any of the following means: (i) electronic mail to legal@Talking Yak.com; or (ii) sending the Notice by U.S. Postal Service certified mail to:
Talking Yak English Learning Pvt Ltd
No. 16/3 2nd Floor
Mosque Road, Frazer Town, Bangalore, India 560005
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 Commonwealth 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 Talking Yak may elect to have the dispute resolved through non-appearance-based arbitration.
To the fullest extent permitted by applicable law, YOU AND TALKING YAK 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 TALKING YAK EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Talking Yak 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 Commonwealth of Delaware, and you and Talking Yak 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 Talking Yak 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 Talking Yak 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 Talking Yak 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. Talking Yak 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 Talking Yak and you, and Talking Yak’s and your respective successors and permitted assigns.