Term of Use

Overview

Welcome to the Enkulu! 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 Enkulu mobile device application (the “App”). Please read this Agreement carefully, you and Enkulu 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 Enkulu (in Section Recording Content). By CLICKING ON “I AGREE TO THE USER AGREEMENT AND PRIVACY POLICY” AND REGISTERING FOR A USER ACCOUNT, you acknowledge that you have read, understood, and agree to be bound by THIS AGREEMENT, INCLUDING THE ARBITRATION AND VIDEO RECORDING PROVISIONS OF SECTION RECORDING CONTENT. If you do not agree to ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN please do not CLICK “ACCEPT,” IN WHICH CASE YOU WILL NOT BE ABLE TO use THE SERVICE, SITE OR APP.

Privacy Policy

Enkulu’s Privacy Policy, found at http://enkulu.vn/privacy, is hereby incorporated into this Agreement.  Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.

Individual Features and Services

When using the Service, Site or App, you will be subject to any additional posted guidelines or rules applicable to specific services, offers and features which may be posted from time to time (the “Guidelines”).  All such Guidelines are hereby incorporated by reference into this Agreement.  Please note that additional and/or different conditions and terms of use may apply to media or services provided through one or more of our partners or business associates, and you should refer to those before using such services.

Modification

Enkulu 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 Enkulu 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, Enkulu 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, Enkulu 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 Enkulu.  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 Enkulu.  The videos, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service, Site and App (“Enkulu Materials”) are protected by Vietnam copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  All Enkulu Materials are the property of Enkulu or its subsidiaries or affiliated companies and/or third-party licensors.  All trademarks, service marks, and trade names are proprietary to Enkulu or its affiliates and/or third-party licensors.  Except as expressly authorized by Enkulu, 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 Enkulu 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.

Services

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 Enkulu 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 Enkulu.  Enkulu 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

Enkulu 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 Enkulu personnel to ensure continued quality and interest of the Tutor.  You acknowledge that Enkulu has no duty to verify any stated credentials, experience or qualifications of any Tutor, and that Enkulu does not conduct any screening of Tutors other than as expressly set forth in this Section Screening of Tutors.  If you wish to register a complaint regarding any Tutor, please contact Enkulu at teacher@enkulu.vn.

Payment

Method of Billing

Students pay for minutes after a Session, in accordance with the fees listed in the Site or App at the time you initiate the Session, payment will occur through a third party payment systems (e.g., PayPal).  All payment terms and conditions are governed by your applicable agreements with the third party payment system.

Refunds

In the event you have been mistakenly charged for minutes you did not purchase, you may request a refund. Refunds can be handled by the third party payment system or Enkulu.  If you feel you have been charged in error, please contact Enkulu at hello@enkulu.vn.  A refund request must be received by Enkulu within thirty (30) days of the charge in order to be considered.

Timing

If you terminate a Session within 30 seconds of beginning the Session, you will not be charged for that Session.

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 Enkulu’s net income.  You also agree to pay Enkulu any costs and expenses incurred by Enkulu, 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 Enkulu 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 Enkulu shall have no liability in connection therewith.  Enkulu may, at any time, remove any user that in the sole judgment of Enkulu violates this Agreement.  To report any inappropriate activity with respect to a Session, please e-mail Enkulu at hello@enkulu.vn.

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 Enkulu 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.  Enkulu does not endorse any opinion, recommendation, or advice expressed by Tutors or other students, and Enkulu 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 Enkulu with respect thereto.

Recording Content

Sessions may be recorded or monitored by Enkulu, through our video chat provider.  You hereby consent to: (i) the monitoring or recording of any Session you engage in, including your likeness therein; (ii) Enkulu 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 Enkulu for advertising and marketing purposes; (v) such recordings being made available for you to review, (vi) such recording being used or disclosed by Enkulu to the extent required by law or legal process or to the extent Enkulu 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 Enkulu 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 Enkulu to copy, modify, distribute and use such recording and content for its business purposes or as required by law or legal process.

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 Enkulu 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 Enkulu.  You may be liable for the losses incurred by Enkulu or others due to any unauthorized use of your account.

Personal Use

Your Enkulu 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 Enkulu 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.  Enkulu 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 Enkulu 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 Enkulu Materials without our express written consent.  You may not use any Enkulu 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 Enkulu 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

Enkulu 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 Enkulu makes no commitment to update these materials on the Service, Site or App.

Member Disagreements

You alone are responsible for your involvement with Tutors or other Students.  Enkulu reserves the right, but has no obligation, to monitor disagreements between you and Tutors or other Students.

Violations; Termination

You agree that Enkulu, 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.  Enkulu 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 Enkulu shall not be liable to you or any third-party for any such termination.  Enkulu 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 Enkulu 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, Enkulu, 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.   Enkulu, 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. Enkulu, 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 Enkulu 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 Enkulu, 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.  Enkulu 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 Enkulu 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 Enkulu MATERIALS ON THE SERVICE, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH Enkulu, EVEN IF Enkulu OR A Enkulu 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, Enkulu’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL Enkulu’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 Enkulu 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 Enkulu AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICE.