NKENNE TERMS OF SERVICE AND END-USER LICENSE AGREEMENT

Updated August 18th 2022

NKENNE TERMS OF SERVICE AND END-USER LICENSE AGREEMENT

1. General | Scope

1.1 These Terms of Service and End-User License Agreement (“EULA”) (collectively with the Terms of Service, the “Terms”) govern the use of the services offered by NKENNE, Inc. (“Nkenne”) through the Nkenne’s website or mobile applications to individuals or businesses who use the Services (“You/Your” or “Users”). Your use of the Services (as defined below) constitutes your acceptance of and agreement to all of the terms and conditions in these Terms and the Privacy Policy (the “Privacy Policy”), available here ad here, and your representation that you are 18 years of age or older or that you are accessing and using the Services with the express consent of a parent or legal guardian, who shall also be subject to the terms of these Terms of Service, EULA, and Privacy Policy. If you object to anything in these Terms or the Privacy Policy, you are not permitted to use the Services. The Privacy Policy is incorporated by reference into these Terms.

1.2 These Terms shall govern each ordering document and any online, email or in-app ordering process by which a customer affirmatively registers or otherwise signs up for the Services, which may include subscription services (each an “Order”). The terms and conditions of each agreed Order shall incorporate these Terms.

1.3 These Terms shall also apply as a framework agreement to future similar contracts between Nkenne and the User without Nkenne being required to refer to them in each individual case. These Terms shall be deemed to be confirmed by the User at the latest when the User accesses the Services.

1.4 These Terms apply to the exclusion of all others. Different, conflicting or supplementary terms of business of the User shall only become part of an Order if and to the extent that Nkenne has consented to their application in writing.

1.5 Individual agreements with the User in specific cases shall take priority over these Terms if made in writing.

1.6 Any notices submitted by the User to Nkenne shall be made in writing and submitted to: [EMAIL]. Any such notice shall be effective one business day after they have been sent after a confirmation receipt is received.

2. Free Services and Paid Services | Trial Use

2.1 Subject to the terms and conditions agreed in each Order, Nkenne grants the User access to its language learning software which is offered as software-as-a-service including to any related websites, spaces, services, applications and the respective learning contents and features as specified in the Order (“Services”). The Services may comprise one or more Nkenne products as described on Nkenne’s website from time to time. The Services may be offered free of charge with limited functionalities (“Free Services”) or against payment of a Service Fee (as defined below) with certain agreed functionalities (“Paid Services”) each as specified in the Order.

2.2 Nkenne shall have the right to downgrade, limit or otherwise modify Free Services at any time without notice. No guarantee, indemnity, Maintenance or Support (as defined below) and availability obligations of Nkenne shall apply to Free Services. Free Services are not a guarantee of (future) product features of Paid Services and should not be relied upon by the User in making any purchasing decisions for Paid Services.

2.3 Nkenne may grant the User access to Paid Services free of charge or at reduced Service Fees as part of a trial evaluation for a period determined by Nkenne in its sole discretion (“Trial Use”). Nkenne shall have the right to downgrade, limit or otherwise modify the Services provided for Trial Use at any time without notice. No guarantee, indemnity, Maintenance or Support and availability obligations of Nkenne shall apply to Trial Use. Nkenne has the right to immediately revoke and terminate any Trial Use at any time. Trial Use is not a guarantee of (future) product features and should not be relied upon by the User in making any purchasing decisions for Paid Services. Subject to the terms and conditions agreed in the Order, Trial Use of Services may end and will then automatically transform into regular Paid Services.

2.4 Nkenne shall be entitled to retain subcontractors, including third-party software suppliers, for the performance of any of its obligations under any Order.

3. User Account | Conclusion of an Order

3.1 In order to use the Services, the User is required to create a user account by accepting these Terms, entering certain personal details and by setting a password of their choice in a registration form provided by Nkenne online (“User Account”). After submitting the completed registration form, the User will receive a confirmation email from Nkenne allowing the User to activate the User Account. Through the creation of the User Account, a binding contract is concluded between the User and Nkenne, entitling the User to use Free Services.

3.2 If the User wishes to use certain Paid Services, the User may place a respective Order with Nkenne through the User Account. Offers made by Nkenne for Paid Services are not binding. By placing an order, the User makes a binding offer to conclude a respective contract. The ordering process includes the following steps: choosing an option, verifying the choice and/or correcting it, inserting relevant data, selecting the method of payment, reading any applicable material terms of the subscription plans and affirmatively accepting such material terms and agreeing to these Terms, and completing a binding submission of the order by clicking an order button and/or checking the box to proceed, as applicable. The User’s offer only becomes binding for both parties when Nkenne confirms acceptance of the offer in an email (“Order Confirmation”). The Order Confirmation also includes detailed information in relation to the User’s Order and an Order number.

3.3 Nkenne will not store the contract text (these Terms and the terms and conditions of the respective Order) after conclusion of an Order. The contract text will then not be accessible to the User.

4. Rights of Use | Use Restrictions

4.1 Subject to the terms and conditions of the Order, Nkenne grants to the User, during the Free Term (as defined below), the Initial Service Term, and any Renewal Service Term (each as defined below), a non-exclusive, non-transferable, non-sublicensable world-wide right and license to use the Services for the User’s private purposes only (“License”). The Services are offered as prescribed in the relevant description on Nkenne’s website including the User on-boarding process (if any) as well as the frequently asked questions sections, and other supplemental information describing the Services, in each case as updated from time to time (“Documentation”).

4.2 The User shall not (and shall not permit any third party to) directly or indirectly: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate income from the Services; (b) copy the Services onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of the Services, or otherwise attempt to discover any source code, object code or underlying structure, ideas, know-how or algorithms or other operational mechanisms of the Services; (d) modify, adapt, translate or create derivative works based on all or any part of the Services (except to the extent expressly permitted by Nkenne or authorized within the Services); (e) modify any proprietary rights notices that appear in the Services or components thereof; (f) use any Services in violation of any applicable laws and regulations (including any export laws and restrictions, national security controls and regulations) or outside of the scope of rights as set forth in this Section; (g) configure the Services to collect (i) any personal data of other Users or any applicable data protection law or regulation; (ii) passwords or other authentication credentials; (iii) any payment or other financial data, biometric data or genetic data; or (iv) any data relating to a person under the age of sixteen (16) years (collectively, “Prohibited Data”); or (h) use the Services to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware; or (ii) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of third party systems, or the services or data contained therein; (iv) attempt to gain unauthorized access to the Services or Nkenne’s systems or networks; or (v) perform, or engage any third party to perform, penetration testing, vulnerability assessments or other security assessments.

4.3 The User shall not duplicate, process, distribute, share, or use for public reproduction any content of the Services without the prior written consent of Nkenne, unless expressly permitted by sharing options that may be integrated in the Services.

4.4 The User shall not export or re-export, directly or indirectly, any Services or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations.

4.5 The User may only use the Services as prescribed in the Terms, Order Confirmation, and Documentation.

4.6 Nkenne may monitor the User’s use of the Services and may prohibit any use of the Services it believes may be in violation of this Section.

4.7 Nkenne respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to Nkenne’s Copyright Agent at: [EMAIL]:

• A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow Nkenne to locate the material, and explain why you think an infringement has taken place;

• A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;

• Your address, telephone number, and e-mail 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;

• A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and

• An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

4.8 The Services may enable access to third-party services and websites (collectively and individually, "External Services"). You agree to use the External Services at your sole risk. Nkenne is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. You will not use the External Services in any manner that is inconsistent with these Terms or that infringes the intellectual property rights of Nkenne or any third party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that Licensor is not responsible for any such use. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. Nkenne reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.

5. User’s Responsibilities

5.1 The User represents and warrants to use the Services only in full compliance with all applicable laws and regulations and these Terms, the Order Confirmation, and the Documentation.

5.2 The User shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems and networking (collectively “Equipment”) at their own cost and risk. Nkenne assumes no risk associated with the Equipment.

5.3 The User shall also be responsible for maintaining the security of the Equipment, the User Account, passwords (including but not limited to user passwords) and files, and for all uses of the User Account or the Equipment with or without the User’s knowledge. The User must not share any passwords or access codes with unauthorized third parties.

5.4 The User shall be solely responsible for the content of all data and any other material displayed, posted, uploaded, stored, exchanged or transmitted by the User on or through the Services (“Content”). Nkenne cannot control the information submitted by the User during the use of the Services and cannot guarantee the accuracy of any information submitted. Nkenne may, without notice or liability, investigate any complaints or suspected violations of the Order that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating the User’s access to the Services.

5.5 The User shall keep the information in the User Account up to date and correct. The User shall notify Nkenne promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services.

6. Maintenance and Support for Paid Services

6.1 Subject to the User’s payment of the Service Fees, Nkenne shall provide Maintenance and Support for Paid Services to the extent specified in the Order. “Support” is defined as Nkenne’s obligation to respond to reasonable support requests of the User with regard to Paid Services by troubleshooting issues and providing assistance. “Maintenance” means Nkenne’s obligations with regard to Paid Services related to error resolution, bug fixes and the provision of updates and upgrades made generally available by Nkenne in its sole discretion.

6.2 Support is provided to the User via email through [EMAIL] or any other email address that Nkenne may provide from time to time and/or via the live chat on Nkenne’s website and/or via the telephone numbers as indicated on Nkenne’s website, in each case, at least from Monday to Friday during regular business hours.

6.3 Nkenne shall use reasonable efforts consistent with prevailing industry standards to provide Maintenance for Paid Services in a manner which minimizes errors and interruptions in the Services. The User may notify Nkenne of any errors via [EMAIL] or any other email address that Nkenne may provide from time to time and/or via the live chat on Nkenne’s website. Nkenne shall use commercially reasonable efforts to timely correct any notified errors, subject to (a) the User providing a detailed description of the error and its reproducibility to Nkenne, and (b) depending on the priority of the error to be reasonably determined by Nkenne in its sole discretion.

6.4 If Nkenne’s analysis shows that an error notified by the User has actually not occurred or is not attributable to Paid Services, Nkenne may charge the User for the costs demonstrably incurred by Nkenne in connection with such analysis.

6.5 The fees for Maintenance and Support are included in the Service Fees.

7. Availability of Paid Services

7.1 Subject to the User’s payment of the Service Fees, Nkenne shall make Paid Services available to the User in accordance with this Section.

7.2 Nkenne shall use reasonable efforts to ensure, that Paid Services are available to the User over the internet. Nkenne shall use reasonable efforts to provide advance notice of any scheduled service disruption.

7.3 The User is aware and acknowledges that the User-side access to Paid Services such as an internet access cannot be guaranteed and that Nkenne shall not be liable for any deficiencies in the User’s own internet connections or Equipment.

8. Fees | Payment Terms | No Set-off

8.1 The User shall pay to Nkenne the fees for Paid Services as specified in the Order in accordance with the terms therein (the “Service Fees”).

8.2 Nkenne reserves the right to change the Service Fees for the following Renewal Service Term upon at least one (1) days prior to the end of the Initial Service Term or the end of the then-current Renewal Service Term.

8.3 The User shall make payment of the Services Fees using any of the payment methods offered on Nkenne’s website.

8.4 Nkenne will usually bill through an electronically transmitted invoice, in which case, full payment for invoices must be received by Nkenne prior to the end of the applicable Term.

8.5 Following notice to the User in writing (simple email to be sufficient), Nkenne shall be entitled to suspend the User’s access to Paid Services if payments are not received by Nkenne as required by these Terms.

8.6 The information in the Services may contain typographical errors or other errors or inaccuracies and may not be complete or current. Nkenne therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice. Nkenne does not, however, guarantee that any errors, inaccuracies or omissions will be corrected. Nkenne reserves the right to refuse to fill any orders that you may place based on information on the Services that may contain errors or inaccuracies, including, without limitation, errors, inaccuracies or out-of-date information regarding pricing, shipping, payment terms, or return policies.

9. Term | Termination

9.1 Any Order shall begin on the date specified therein.

9.2 Any Order for Free Services shall remain in effect for an indefinite period of time, unless terminated in accordance with the Order including these Terms (“Free Term”). Nkenne or the User may terminate any Order for Free Services for convenience at any time with immediate effect.

9.3 Any Order for Paid Services shall remain in effect for an initial term as specified in the Order (“Initial Service Term”). The Initial Service Term shall automatically and continuously renew for additional periods as specified in the Order (“Renewal Service Term”), unless terminated at any time by Nkenne or by the User with effect as of the end of the then-current term by contacting Nkenne at [EMAIL]. The User shall not be entitled to terminate any Order for Paid Services for convenience with effect prior to the end of the Initial Service Term or any Renewal Service Term and shall not be due an refund for a partially used applicable Term.

9.4 Nkenne may immediately terminate any Order in its sole discretion without notice.

10. DISCLAIMER OF WARRANTIES | PLATFORM PROVIDERS

10.1 The User has checked that the specification of the Services as described in the Documentation meets User’s needs and wishes. The User is aware of the essential functionalities and features of the Services. The extent, nature and quality of the Services are determined by these Terms, the Order, and the Documentation. Any other information or requirements do only form part of the Order if the User and Nkenne so agree in writing or if Nkenne so confirms in writing. Product descriptions, illustrations, test programs, etc. do not constitute guarantees or agreements on certain specifications. In order to be valid, an agreement on a guarantee requires the written confirmation from an officer of Nkenne.

10.2 THE USER EXPRESSLY UNDERSTANDS AND AGREES THAT: (a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NKENNE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, PERFORMANCE, NON-INTERFERENCE WITH INFORMATION, AND ACCURACY OF INFORMATIONAL CONTENT. THERE IS NO WARRANTY THAT INFORMATION PROVIDED ON THE SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS; (b) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; (c) NKENNE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; (d) NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NKENNE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

10.3 Platform providers, such as Apple Inc. and Google Inc., that make our app available for download (“Platform Providers”) are not parties to these Terms. Platform Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the app. In the event of any failure of the app to conform to the warranties herein, you may notify the applicable Platform Provider, and such Platform Provider may refund any purchases made through the app (if applicable). To the maximum extent permitted by applicable law, Platform Providers will have no other warranty obligation whatsoever with respect to the app. You acknowledge that Platform Providers are not responsible for addressing any claims relating to the app or your possession and/or use of the app, including but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) third party claims if intellectual property infringement, and (iv) claims arising under consumer protection or similar legislation. Nkenne, not the Platform Providers, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Platform Providers are third party beneficiaries of these Terms, and Platform Providers will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. You represent that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties.

11. Proprietary Rights | User Data | Updates

11.1 Nkenne and its suppliers own and shall retain all proprietary rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights and technical solutions, in and to the Services, including but not limited to any learning contents and didactic methods. The User acknowledges that the rights granted under any Order do not provide the User with title to or ownership of the Services.

11.2 The User shall retain all right, title and interest in and to the User data and any content, as well as any data that is based on or derived from the User data and any content. The User grants to Nkenne a non-exclusive, non-transferable, sublicensable, worldwide and unlimited right and license to use the User data and any content solely in connection with providing the Services. Nkenne shall have no liability for the User data and any content.

11.3 Nkenne reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.

12. Data Protection

12.1 The User and Nkenne shall at all times comply with the requirements of any applicable privacy and data protection legislation.

12.2 The processing of personal data by Nkenne is further described in Nkenne’s privacy policy which can be accessed here.

13. Indemnity

13.1 Without prejudice to any other liability of the User under contract or statutory law, the User shall defend, indemnify and hold harmless, at its expense, Nkenne and its Affiliates, its employees, officer, directors, agents, licensors, attorneys, subcontractors, suppliers and resellers against any third-party claim to the extent such claim arises from or is made in connection with the User’s breach of these Terms or otherwise from the User’s use of Services, and the User shall pay all costs, including reasonable attorney’s fees, and damages finally awarded against Nkenne by a court of competent jurisdiction as a result of any such claim. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with Nkenne respectively, or which is a wholly owned subsidiary of Nkenne respectively, whereby ‘control’ means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.

13.2 In connection with any claim for indemnity under this Section, Nkenne must promptly provide the User with notice of any claim that Nkenne believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the User of its obligations under this Section, except to the extent that such failure materially prejudices the User’s defense of such claim. Nkenne may, at its own expense, assist in the defense if it so chooses, but the User shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind Nkenne shall not be final without Nkenne’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

14. Limitation of Liability

14.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT NKENNE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NKENNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:

(a) THE USE OR THE INABILITY TO USE THE SERVICES;

(b) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;

(c) THE FACT THAT YOU HAVE RELIED ON INFORMATION FROM THESE TERMS, THE SERVICES, ORDER, AND/OR RELATED INFORMATION;

(d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR

(e) ANY OTHER MATTER RELATING TO THE SERVICES.

IF YOU ARE DISSATISFIED WITH THE SERVICES, OR ANY OF THE INFORMATION CONTAINED THEREON, OR REFUSE TO ABIDE BY THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE. NOTWITHSTANDING THE FOREGOING, NKENNE’S LIABILITY TO YOU SHALL IN NO CASE EXCEED THE AMOUNT FOR WHICH YOU HAVE PAID FOR THE SERVICES. YOU FURTHER AGREE NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST NKENNE ARISING OUT OF THE USE OF THE SITE.

NKENNE SHALL NOT BE HELD LIABLE FOR ANY REPRESENTATIONS ON THIRD PARTY SITES IN RELATION TO THE INFORMATION PROVIDED IN CONNECTION WITH THE SERVICES.

15. IT Security

15.1 The User shall ensure that their passwords are stored and used in a secure manner and cannot be accessed and used by third parties. The User shall be liable for any unauthorized use of the Services.

15.2 Where it is suspected that any unauthorized person has become aware of the User’s identity and/or password, the User shall immediately inform Nkenne thereof and also change their user identity and/or password.

15.3 The User shall be liable for losses or damage incurred by Nkenne where the User intentionally or negligently reveals their identity/password to a third party or where their identity and password otherwise become known to an unauthorized party, unless the User notifies Nkenne immediately upon suspicion that such event has occurred.

16. Assignment | Novation

16.1 Nkenne may assign any Order, these Terms, Documentation and/or any other rights or obligations associated with the Services in whole or in part to a third party, provided that such assignment shall not impair the User’s rights under such.

16.2 At Nknne’s request, the User shall enter into a novation agreement with a third party for any Order without undue delay in order to enable Nkenne to exercise its rights pursuant to Section.

16.3 The User shall not assign any of its rights or obligations under any Order and these Terms without the prior written consent of Nkenne.

17. Entire Agreement | Severability | Changes | Revision

17.1 The Order including these Terms represents the entire agreement between the User and Nkenne in respect of its subject matter and supersedes all prior negotiations and agreements made between the parties in relation to its subject matter, whether written or oral.

17.2 Should any provision of the Order including these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what the parties would have agreed, pursuant to the meaning and purpose of the original provision and of the Order if they had recognized the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in the Order including these Terms that was not intended by the parties.

17.3 Valid amendments or supplements to any Order must be made in writing (exchange of simple emails shall be sufficient). The same shall apply to any agreement to deviate from or cancel this requirement of written form.

17.4 Nkenne may amend and/or update these Terms from time to time with future effect and as necessary for technical, economic or legal reasons. Any revision of these Terms shall be announced to the User in text form (simple email shall suffice) no later than three (3) days before their proposed effective date, unless, in its sole discretion, Nkenne deems it necessary to make such amendments without advanced notice. The User may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by the User, unless the User objects to the revision before their proposed effective date.

18. Governing Law | Consumer Dispute Resolution

18.1 Any Order and any issues, disputes or claims (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of Maine without regard to the laws of the state of the User’s usual place of residence.

Payments – Subscriptions – Effective date: August 18th 2022

Please review these subscription terms (“Subscription Terms”) carefully before using any NKENNE subscription services (“NKENNE Subscription Services”) because they affect your rights. By using any of the NKENNE Subscription Services, you accept these Subscription Terms and agree to be legally bound by them, as well as the NKENNE’s Private Policy and TERMS of USES, of which these Subscription Terms are a part. If there are any discrepancies between these Subscriptions Terms and NKENNE’S PRIVACY POLICY, or the Subscriptions Terms and any other provisions of the TERMS OF USE with respect to the NKENNE Subscription Services, the Subscription Terms shall govern. In addition, if you purchase NKENNE Subscription Services through a third-party platform (typically an in-app purchase) (“3rd Party Platform Purchases”), certain aspects of your subscription will be subject to the terms and conditions of such third party.

19. Account Information. If we request registration information from you to set up a user account, you must provide us with accurate and complete information and must update the information when it changes. You may not access any age-restricted Services unless you are above the required age. You are responsible for maintaining the confidentiality of your user account login names and password and for restricting access to your computer and other devices, as applicable, so that others may not access your account, and we will not be responsible for your failure to do so. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We are not responsible for any loss or damage resulting from unauthorized use.

19.2. Age Limitations. Individuals under the age of majority in their jurisdiction of residence (which is 18 in most jurisdictions) are not eligible to purchase a NKENNE Subscription.

19.3. Device Access and Requirements. You shall not access your subscription to the NKENNE Subscription Services (your “NKENNE Subscription”) on more than four (4) devices. NKENNE retains the right, but not the obligation, to monitor the NKENNE Subscription Services to determine compliance with these Subscription Terms, including without limitation the number of downloads or log-ins, and any operating rules established by NKENNE and to satisfy any law, regulation or authorized government request. To see if NKENNE Subscription products are accessible with your specific device, visit www.pimsleur.com/c/pimsleur-coursemngrapp.

19.4. Payment. The purchase of NKENNE Subscriptions is available globally. The Fees charged to your Payment Method (both terms defined below) may, as notified to you, vary from billing period to billing period due to changes in your subscription plan or applicable taxes, and you authorize NKENNE to charge your Payment Method for these amounts. If you purchase directly from NKENNE, you can access and edit your credit card or PayPal information (“Payment Method”) used to pay for your NKENNE Subscription on the nkenne.com website. To do so, click on the “Your Account” link, which appears at the top of each page of the site, log in, and then follow the links to the “Details” section of the active Subscription you would like edit. For any 3rd Party Platform Purchase, your billing relationship will be directly with the applicable distributor (defined in Section 14). The applicable third-party distributor will charge you for any fees incurred and you must contact the distributor to make any changes to your payment method.

19.4.1 Recurring Subscriptions. NKENNE may offer recurring NKENNE Subscriptions in one or more term lengths (e.g., monthly, six-month, annual, etc.). These NKENNE Subscriptions automatically renew at the end of each term unless cancelled in accordance with these Subscription Terms (or otherwise terminated in accordance with the Terms). We will provide you with notice of renewal on NKENNE Subscriptions with term lengths longer than one month. The term lengths available and the Fees for each will be as described on the Sites. By providing Payment Method information for your recurring NKENNE Subscription, you are agreeing to pay the periodic subscription fee and any applicable taxes and service fees (“Fees”) in connection with your use of your NKENNE Subscription. The Fees will be charged to your Payment Method automatically at the beginning of your NKENNE Subscription (or, as described in Section 9, at the end of your Trial Period or the close of your Introductory Rate period, where applicable), and at the beginning of each renewal period thereafter, unless you cancel your NKENNE Subscription or the NKENNE Subscription and/or Service is suspended or terminated pursuant to these Terms. NKENNE reserves the right to change the pricing of NKENNE Subscription products at any time. In the event of a price change, NKENNE will notify you 30 days in advance (or such longer period as may be required by applicable law) by sending an email to the address you have registered for your account. If you do not wish to accept a price change, you may cancel your NKENNE Subscription, as described in Section 6. If you do not cancel your NKENNE Subscription after the price change and prior to the start of your new Subscription period, your subscription will be renewed at the price in effect at the time of the renewal, without any additional action by you, and you authorize NKENNE to charge your Payment Method for these amounts. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify NKENNE within 60 days after they are posted to Your Account under the Payment History section specific to a given NKENNE Subscription. YOU ARE RESPONSIBLE FOR ALL INTERNET ACCESS CHARGES. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.

19.4.2 Fixed Term One-Time Subscriptions. NKENNE may, in addition to or in place of recurring NKENNE Subscriptions, offer other fixed-term, one-time NKENNE Subscription options that do not automatically renew at the end of the subscription term. By providing Payment Method information for your fixed-term, one-time NKENNE Subscription, you are agreeing to pay a one-time subscription fee for the subscription period and any applicable taxes and service fees in connection with your use of the NKENNE Subscription. Subject to any rights under applicable law, fixed-term, one-time NKENNE Subscriptions cannot be cancelled and are not eligible for a refund. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify NKENNE within 60 days after they are posted to Your Account under the Payment History section specific to a given Subscription. YOU ARE RESPONSIBLE FOR ALL INTERNET ACCESS CHARGES. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.

19.5. Refunds. All fees are non-refundable, except to the extent you may be entitled to a refund under NKENNE’s 30-day Money-Back Guarantee if you satisfy the terms set forth therein. Unless subject to specific terms for 3rd Party Platform Purchases, even if you cancel your NKENNE Subscription during a subscription period, you will not receive a refund for any portion of the Fees for the remainder of that subscription period. In rare circumstances, or the extent required by applicable law, we may provide a credit, refund, discount, or other consideration to some or all of our subscribers (“Credits”). The amount and form of such Credits, and the decision to provide them, are at our sole discretion. The provision of Credits in one instance does not entitle you to Credits in the future for similar instances, nor does it obligate us to provide Credits in the future.

19.6. Cancellation of Recurring Subscription. You can cancel your recurring NKENNE Subscription at any time by contacting us by logging in to your app account, locating the specific NKENNE Subscription under “Subscriptions”, clicking on the “Cancel Subscription” link for that Subscription, completing the “Cancel Subscription” form, and clicking “Confirm” on that page. You can also email us at support@nkenneapp.com. If you cancel your NKENNE Subscription during a free Trial Period (defined below), access to your NKENNE Subscription will immediately terminate. If you cancel your NKENNE Subscription after a Trial Period (should there be one) and during a paid subscription period, the cancellation will go into effect at the end of the then-current billing period. You will have continued access to your NKENNE Subscription for the remainder of your paid billing period, but YOU WILL NOT RECEIVE A REFUND OF ANY FEES PAID, unless required by applicable law. You must cancel your NKENNE Subscription no later than 11:59 PM Eastern Time on the last day of your current subscription period to avoid paying the Fees for the next subscription period. (For the purpose of clarity and without limiting the foregoing, if your NKENNE Subscription is scheduled to renew on January 1st, you must cancel by 11:59 PM ET on December 31st to avoid being charged for a renewal.) After cancellation of your NKENNE Subscription, you will continue to owe any accrued amounts due under these Subscription Terms and not yet paid.

19.7. Payment Failure for Recurring Subscriptions. If you fail to pay any renewal Fees as a result of expiration of your Payment Method, insufficient funds, or otherwise, your NKENNE Subscription may automatically be cancelled and access will be discontinued. (After an initial payment failure, NKENNE may, in its sole discretion, make additional attempts to charge your payment method for any outstanding Fees before electing to cancel your NKENNE Subscription.) In the event of cancellation, the status of your NKENNE Subscription in the Subscription History section of Your Account on nkenne.com will indicate “Cancelled”. You will need to repurchase a new NKENNE Subscription to regain access and no new introductory offers will be available. Your lesson history from the cancelled NKENNE Subscription will be retained if you subsequently purchase the identical NKENNE Subscription under the identical user name and password.

19.8. Promo Codes. From time to time, promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Unless otherwise stated in the promotion’s terms and conditions, promotional codes can only be used once, cannot be redeemed for cash, must not be offered for sale or other consideration, are not redeemable for 3rd Party Platform Purchases, and may be combined with other offers, subject to certain restrictions as determined by NKENNE in its sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.

19.9. Introductory Offers. NKENNE may, but is under no obligation, to make available introductory offers for new or certain former subscribers at its sole discretion. Introductory offers may include a free Trial Period or a discounted Introductory Rate (each as described and defined below).

19.9.1 Trial Period. NKENNE may provide a limited free trial period (“Trial Period”) to new subscribers and certain former subscribers at its sole discretion, but is under no obligation to do so, and Trial Periods may not be available at all times or in all areas. NKENNE reserves the right, in its absolute discretion, to determine your eligibility for a Trial Period. The specific terms of the Trial Period will be stated in the marketing material describing the particular Trial Period offer. If NKENNE provides you with a Trial Period, you must provide valid Payment Method information to NKENNE in order to access your NKENNE Subscription product during the Trial Period. NKENNE will not charge you in connection with the Trial Period. If you do not cancel your NKENNE Subscription by the last “day” (defined below) of your Trial Period, you authorize NKENNE to begin your paying NKENNE Subscription and automatically charge your Payment Method for your first periodic Fee at the end of your Trial Period. A “day” for the purposes of these Subscription Terms and as relates to trial subscriptions begins at 12:01 AM Eastern Time on the day you complete the sign-up process, regardless of what time of day you actually sign up. NKENNE WILL NOT SEND YOU NOTICE THAT YOUR TRIAL PERIOD HAS ENDED OR THAT YOUR PAYING SUBSCRIPTION HAS BEGUN. IF YOU WISH TO AVOID CHARGES TO YOUR PAYMENT METHOD, YOU MUST CANCEL THE TRIAL PERIOD PRIOR TO 11:59 PM ET ON THE LAST “DAY” OF YOUR TRIAL PERIOD. You will only have one Trial Period before you must begin paying for your NKENNE Subscription. If you exceed this limit, NKENNE may charge your Payment Method for any Trial Period after the first, or suspend your use of the NKENNE Subscription, in its sole discretion.

19.9.2. Introductory Rate. NKENNE may also offer an introductory discount on Fees for a specified period (“Introductory Rate”) to new subscribers and certain former subscribers at its sole discretion, but is under no obligation to do so, and Introductory Rates may not be available at all times or in all areas. NKENNE reserves the right, in its absolute discretion, to determine your eligibility for an Introductory Rate. The specific terms of the Introductory Rate will be stated in the marketing material describing the particular introductory offer. Following the end of the Introductory Rate period, your NKENNE Subscription will automatically continue at the then-applicable full Fees for the NKENNE Subscription type that you have selected. NKENNE WILL NOT SEND YOU NOTICE THAT YOUR INTRODUCTORY RATE HAS ENDED. IF YOU WISH TO AVOID ADDITIONAL CHARGES TO YOUR PAYMENT METHOD, YOU MUST CANCEL YOUR NKENNE SUBSCRIPTION PRIOR TO THE END OF YOUR INTRODUCTORY RATE AS DESCRIBED IN SECTION 6 ABOVE. Limit one (1) Introductory Rate offer per person and per email address. If you exceed this limit, NKENNE may charge your Payment Method for the full Fees for the NKENNE Subscription you have selected, or suspend your use of the NKENNE Subscription, in its sole discretion.

19.10. Quality of Service. The perceived quality of the audio content is dependent on the playback quality of the device, the type and level of ambient noise surrounding the user, and the quality of any external speakers/headphones used. Different people may perceive significant differences in audio quality depending on these factors. The speed to download your NKENNE lessons is dependent on the speed of your Internet connection.

19.11. Updates and Testing. NKENNE reserves the right to update and change NKENNE Subscription content and features at any time. In addition, NKENNE reserves the right to test various aspects of NKENNE Subscriptions. NKENNE reserves the right to, and by using our NKENNE Subscription Services you agree that we may, include you in or exclude you from these tests without notice.

19.12. NKENNE Subscription-specific Emails. NKENNE may send you emails regarding the Site Content or your NKENNE Subscription from time to time. You agree that NKENNE may send you these types of emails to the email address that you provide. Because these emails are necessary for you to access your NKENNE Subscription, you agree that you will receive these emails even if you have opted out of receiving other email from NKENNE. If you do not want to receive these types of emails, you may cancel your NKENNE Subscription at any time.

19.13. Access to Subscription Services and Accounts. We may take any of the following actions in our sole discretion at any time, and without giving you prior notice:

• change or discontinue the NKENNE Subscription Services;

• change how we offer and operate NKENNE Subscription Services (e.g., to begin charging a fee to access features or Site Content that we previously made available without charge);

• remove Site Content from the NKENNE Subscription Services;

• restrict, suspend or terminate your access to one or more NKENNE Subscription Services or features thereof.

We will not be limited to the remedies above if you violate these Subscription Terms. If NKENNE terminates your access to the NKENNE Subscription, you must immediately stop using such Service. However, if you have paid for a NKENNE Subscription and we discontinue the Service before the end of a paid subscription period, or we terminate your account before the end of a paid subscription period for reasons other than your breach of these Terms, we will refund a prorated portion of the applicable NKENNE Subscription fee corresponding to the portion of the paid subscription period for which our action caused you not to have access to the relevant Service. If NKENNE terminates your access to your NKENNE Subscription because you breached these Subscription Terms (or any other provision of the Terms of Use), you will not be entitled to any refund.

19.14. Subscriptions Obtained Through Third Parties. If you obtain a NKENNE Subscription as a 3rd Party Platform Purchase through a third party entity (a “distributor”) that maintains your subscription account and collects your payments for the NKENNE Subscription Services, that subscription is subject to the distributor’s terms, and the provisions of these Subscription Terms concerning subscription purchase, billing, cancellation/refunds, and payment do not apply to that subscription to the extent these Subscription Terms conflict with the distributor’s terms. When you access a NKENNE Subscription through a portal provided by such a third-party distributor, and the distributor transmits subscription content to you, the provisions of these Subscription Terms concerning access to and delivery of such content do not necessarily apply, and in the event of a conflict, the distributor’s applicable terms govern. For 3rd Party Platform Purchases, your billing relationship will be directly with the applicable distributor, and not with NKENNE. Any fees charged for your NKENNE Subscription will be billed by the applicable distributor using the payment information you have provided to such distributor. To cancel a NKENNE Subscription obtained as a 3rd Party Platform Purchase, please follow the cancellation instructions and adhere to the deadlines set out by the applicable distributor.

If you do not agree to these Subscription Terms, you should immediately stop using the NKENNE Subscription Services.

OUR RIGHT TO UPDATE THESE TERMS

NKENNE reserves the right to modify or add to all or any portion of these Terms at any time ("Updated Terms"). Without limiting the foregoing, we may modify our price, payment terms, system requirements, the promotional offers, membership and renewal terms, and any other elements of these Terms.

We will notify you of the Updated Terms by posting them on the Sites so that they are accessible via a link on the homepage or otherwise, and that your use of a Site after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms.

Special Terms for NKENNE Subscriptions In addition, if you have subscribed, if required by law, we will provide you notice using email and/or your mailing address, or any other contact information we have for you in our discretion. Where required by law, this notice will be provided at least thirty (30) days before the change comes into effect (or such longer period as may be required by applicable law) and will set out the new clause, or the modified clause and how it read formerly, and the date on which the change will come into effect. Before the change comes into effect, you may cancel this agreement rather than accept the change. To the fullest extent permitted by law, as your sole remedy, where required by law you may refuse the modification and rescind, or cancel this agreement without cost, penalty, cancellation fee or cancellation indemnity, by providing us with notice to that effect no later than thirty (30) days after the modification comes into force, using the information in the notice, if the change results in increased obligations to you or a reduction of obligations on us. To the fullest extent permitted by applicable law, your continued access to and/or use of the Site(s) after the date specified in such notice constitutes your full acceptance of, and agreement to be legally bound by, the Updated Terms.

Therefore, you should review these Terms before using a Site. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of a Site from that point forward.

19. Governing Law | Consumer Dispute Resolution

19.1 Any Order and any issues, disputes or claims (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the State of Maine without regard to the laws of the state of the User’s usual place of residence.

19.2 Any Dispute (as defined below) shall be subject the following forms of resolution:

INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to the Services (“Dispute”), you and NKENNE agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to NKENNE. NKENNE’s address for such notices is [10a Gleckler Rd., Portland ME 04103].

BINDING ARBITRATION. If you and NKENNE are unable to resolve a Dispute through informal negotiations, all disputes (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). Notwithstanding the exceptions of this provision, the arbitration may be conducted in person, through the submission of documents, by phone or online. Depositions, if any, may be conducted in person or through video conference. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and NKENNE may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in Portland, Maine with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.

WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and NKENNE agree that any arbitration will be limited to the Dispute between NKENNE and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND NKENNE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and NKENNE otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” Section will be deemed null and void.

LOCATION OF ARBITRATION. If an actual venue is needed or required for all parties in the Arbitration, such venue will be Portland, Maine.

Updated August 18, 2022