Last Updated : August 12, 2019
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE ACTIVATING YOUR ACCOUNT.
Welcome, and thank you for your interest in the Level Chinese service at levelchinese.com (our “Service”) and offered by Level Chinese (“LC,” “we,” or “us”). These Terms of Service are a legally binding contract between you and LC regarding your use of the Service. If you agree to these Terms on behalf of an organization, then you represent and warrant that you have the authority to bind that organization to these Terms. In that case, the term “you” will refer to the organization.
These Terms provide that all disputes between you and LC will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 19 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with LC.
1. Level Chinese Service Overview. The Service is an online, mastery-based dashboard, assessment tool and learning modules that displays students’ learning progress to instructors and helps students learn and demonstrate mastery of subjects and skills at their own pace.
2. Eligibility. By agreeing to these Terms, you represent and warrant to us that (a) you have not previously been suspended or removed from the Service and (b) your registration and your use of the Service will not violate any law or regulation.
4. User Content
4.1 User Content Generally. Certain features of the Service may permit users to upload and publish on the Service text-based notes, messages and other content that is visible to other users (“User Content”), including hyperlinks to content hosted on third-party websites from the Service (“Linked Content”). You retain copyright and any other proprietary rights that you may hold in the User Content that you upload to the Service subject to the licenses granted in this Section 5.
4.2 Limited License Grant to LC. By posting or publishing User Content, you grant LC a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any formats and through any distribution methods now known or hereafter developed, in connection with making the Service available to you and other users.
4.3 Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service.
4.4 User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content, including hyperlinks to Linked Content. By uploading, posting or publishing User Content, you affirm, represent, and warrant that:
4.5 User Content Disclaimer. We are under no obligation to edit or control User Content, and will not be in any way responsible or liable for User Content or Linked Content. LC may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you may have against LC with respect to User Content or Linked Content. We expressly disclaim any and all liability in connection with User Content and Linked Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, LC does not permit copyright-infringing activities on the Service.
5. Digital Millennium Copyright Act
5.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Designated Agent – Pauline Shuen
1992 Barbara Drive
Palo Alto, CA 94303
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
5.2 Repeat Infringers. LC will terminate the accounts of users that are determined by us to be repeat infringers.
6. Ownership; Proprietary Rights. The Service is owned and operated by LC. The assessment questions and answers, visual interfaces, graphics, design, compilation, information, data, computer code, services, and all other elements of the Service, excluding any User Content and Linked Content provided by LC (“Materials”) are protected by intellectual property and other laws. All Materials are the property of LC or our third-party licensors. LC reserves all rights to the Materials not expressly granted in these Terms.
7. Prohibited Conduct. YOU AGREE NOT TO:
7.1 sell or otherwise transfer (a) any Materials (including assessment questions and answers), (b) the access granted under these Terms, or (c) any right or ability to view, access, or use any Materials;
7.2 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
7.3 violate any right of a third party, including by infringing or misappropriating any third party intellectual property right;
7.4 upload any User Content or other content, including links to any Linked Content, that is unlawful, defamatory, libelous, or that a reasonable person could deem to be profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
7.5 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
7.6 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading, linking to, or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) collecting personal information about another user or third party without consent; or (c) interfering with, intruding into, or disrupting any network or equipment connected to or used to provide the Service;
7.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other Service account without permission; or
7.8 attempt to do any of the acts described in this Section 7, or assist, encourage, permit, or request any person to engage in any of the acts described in this Section 7.
8. Third-Party Services and Linked Websites. LC may provide tools through the Service that enable you export to or otherwise share information with third party services, or to import or otherwise access information from third party services, including by paying a fee to a third party as described in Section 4. By using an account that is connected to or associated with a third-party service, you agree that we may share information associated with your account (including User Content and data concerning performance on assessments) with, or receive information from, the applicable third-party service. Such third-party services may include the educational institution associated with a user’s account. Third-party services are not under our control, and we are not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Such linked websites and Linked Content are not under our control, and we are not responsible for their content.
9. Termination of Use; Discontinuation and Modification of the Service. You may terminate your account by contacting us at email@example.com. If you violate any of these Terms at any time, then you no longer have our permission to use the Service, notwithstanding any permission granted elsewhere in these Terms. In addition, we may terminate your user account on the Service or suspend or terminate your access to the Service at any time, for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service or any of its features at any time, temporarily or permanently, without notice. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
10.2 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service, or certain features of the Service, that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications or rules that apply to a particular feature or content on the Service, subject to Section 12. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
11. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was effective at the time the dispute arose.
12. Feedback. If you choose to provide us with input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant LC a perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
13. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify LC and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “LC Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your breach of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or violation of any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property or other property right, or any privacy, publicity, or confidentiality right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
14. Disclaimers; No Warranties. THE FOLLOWING TERMS OF THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND THE LC ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE LC ENTITIES DO NOT WARRANT (1) THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND (2) THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE, INFORMATION, MATERIALS, OR CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LC OR THE SERVICE, WILL CREATE ANY WARRANTY REGARDING ANY OF THE LC ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS, AND NO AGENT OR EMPLOYEE OF LC IS AUTHORIZED TO MAKE ANY WARRANTY OR GUARANTEE EXCEPT AS SET FORTH IN THE TERMS OF THIS AGREEMENT. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU USE AND ACCESS THE SERVICE, ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, ANY LINKED CONTENT, AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR OTHER EQUIPMENT USED IN CONNECTION WITH THE SERVICE), OR LOSS OF DATA RESULTING FROM USE OF OR ACCESS TO THE SERVICE AND MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE.
15. Limitation of Liability. THE FOLLOWING TERMS OF THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
IN NO EVENT WILL THE LC ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) RELATED TO THIS AGREEMENT OR THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF LC HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
EXCEPT AS PROVIDED IN SECTION 19.4(iii), THE AGGREGATE LIABILITY OF THE LC ENTITIES TO YOU FOR ALL MATTERS ARISING OUT OF THIS AGREEMENT OR RELATED TO THE SERVICE IS LIMITED TO $100.
THE PROVISIONS OF SECTION 14 AND THIS SECTION 15 ALLOCATE RISKS BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and LC agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating any dispute.
18. Dispute Resolution and Arbitration
18.1 Generally. In the interest of resolving disputes between you and LC in the most expedient and cost effective manner, you and LC agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND LC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Despite the provisions of Section 1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Arbitrator. Any arbitration between you and LC will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting LC.
18.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). LC’s address for Notice is: Level Chinese, 1992 Barbara Drive, Palo Alto, CA 94303. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or LC may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or LC must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, LC will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by LC in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
18.5 Fees. If you commence arbitration in accordance with these Terms, LC will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse LC for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
18.6 No Class Actions. YOU AND LC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and LC agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.7 Modifications to this Arbitration Provision. If LC makes any future change to this arbitration provision, other than a change to LC’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to LC’s address for Notice, in which case your account with LC will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.8 Enforceability. If Section 6 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.
20. Contact Information. The Service is offered by Level Chinese, located at 1992 Barbara Drive, Palo Alto, CA 94303. You may contact us by sending correspondence to that address or by emailing us at support@levelchinese.