TERMS AND CONDITIONS
(Last revised on January 3 2022 )
Thank you for choosing RoxyPenguin by Serhiy Krynytskyy, private person, resident of Estonia with an id 38407180171, address: Koidu 53a, Tallinn, Harju, 11316, Estonia (“RoxyPenguin", "Serhiy Krynytskyy", "we", "us", "our”) to provide you (“you", "your", "yours", "user”) with an application for learning. Our services include a wide variety of content, courses and learning games and exercises, designed to facilitate learning of a wide range of subjects which are available as applications available to download on mobile or tablet devices ("Apps"), and at our websites http://roxypenguin.com/ (“Website”), or any other device , whether invented or to be invented, by which you can access our content, courses, games and exercises, collectively being our services to you (“Services”).
Unless explicitly stated otherwise, any new features that are added to the current Services, including the release of new tools and resources, shall be subject to these Terms.
We may update or require you to update the Services to implement technical adjustments or make improvements, provided that the Services shall always match the description provided in all material respects.
By using our Services, you confirm that (i) you are at least 13 years old; and (ii) your use of the Services will not violate any applicable law or regulation in the province state, territory or country in which you reside.
2. USING OUR SERVICES WITHOUT REGISTRATION
To use our Services you don't have to register or create an online account or an online profile. All the data that you enter or generate by using our Services is stored in a local Data Base on your iPhone or iPad or other device you use to access our services and, also, may be stored in your iCloud account if you ever used the Premium version of our Services and had iCloud Data Base backup feature enabled.
Although, if you choose the Premium version of our Services you have to use your App Store\iTunes\Apple ID account ("Apple Account"), as all purchases are handled by Apple and can be restored only by your Apple Account. We don't have access to the information stored in your Apple ID account as it is solely handled by Apple.
Data base backup functionality in Premium version of our Services requires you to use Apple iCloud account.
We take your privacy very seriously. Any personal information you submit to us shall be subject to our Privacy Policies. You understand that through your use of the Services, you consent to the collection and use (to the extent stated in the Privacy and Cookie Policies) of this information. You further understand, acknowledge and agree that any personal information you provide to us through public means of communications (Forums, Social Media) is in the public domain and is provided at your sole liability. We accept no responsibility whatsoever for the use of any personal information you share in such way by you or any other individual.
3.1 COPPA COMPLIANCE
To the extent that the Children’s Online Privacy Protection Act 1998 is deemed to apply to us, this Website and our Apps are not aimed at children and does not seek to collect personal information from children under 13. You may request access and/or rectification of your data or data relating to your children at all times via our Contact Us page or by email email@example.com.
4. OUR CONTENT
Except for the User Content (defined below) all of the content available through the Services (including the right to sue for passing off, design rights, reports, data, databases, tools, code, photographs, pictures, video, interfaces, web-pages, designs, text, graphics, images, information, software (“Software”), audio and other media files, their selection and arrangement, materials and all other intellectual property rights) are owned by us or are licensed to us by a third party (“Our Content”). You acknowledge and accept that you are expressly prohibited from using Our Content except where we grant you a limited license to use Our Content in connection with the Services, as set out in clause 6. Our name and logo ‘RoxyPenguin’ is our registered trademark/service mark. To the extent that there are trademarks, service marks and/or logos from other organizations on our Website or Apps, they are the trademarks, service marks and logos of those respective organizations. You are granted no general right or commercial license with respect to our trademarks, service marks and logos or of the trademarks, service marks or logos of those other organizations.
5. YOUR LICENSE
Subject to your compliance with these Terms, we grant you a limited, personal, non-transferable, non-sublicensable, worldwide and non-exclusive license to use Our Content for the exclusive purpose of using the Services for your own personal, non-commercial use (“License”), with the except that Services may be accessed and used by other accounts associated with you via Apple Family Sharing or volume purchasing. Your License to use Our Content is restricted to use of the object code of the Software, and it is a condition of the License that, except where permitted under applicable law, you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, rent, lease, loan, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to access the Apps or the Website by any means other than through the interfaces that are provided by us for use in accessing the Service.
The following terms and conditions apply to you only if you are using the Apps from the Apple App Store. To the extent the other terms and conditions of these Terms and Conditions are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to Apps from the Apple App Store. You acknowledge and agree that these Terms and Conditions are solely between you and Serhiy Krynytskyy, not Apple, and that Apple has no responsibility for the Apps or content thereof. Your use of any App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and Conditions. You and Serhiy Krynytskyy acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apps or your possession and/or use of any App, including, but not limited to: (i) product liability claims; (ii) any claim that an App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Serhiy Krynytskyy acknowledge that, in the event of any third-party claim that any App or your possession and use of that App infringes that third party’s intellectual property rights, Serhiy Krynytskyy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and Conditions. You must comply with applicable third party terms of agreement when using any App. You and Serhiy Krynytskyy acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms and Conditions as they relate to your license of the Apps, and that, upon your acceptance of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary thereof.
6. THIRD-PARTY CONTENT AND LINKS TO THIRD-PARTY WEB SITES
The Services may contain third-party owned content and links to other websites, including Facebook and Google Plus ("Third Party Websites"). We do not endorse, sponsor, recommend, or otherwise accept responsibility for any Third Party Websites. In addition, Third Party Websites are not under our control and we are not responsible for the content or privacy practices of the Third Party Websites, including, without limitation, links contained on Third Party Websites or any changes or updates to Third Party Websites. We may provide third party content and Third Party Websites to you only as a convenience, and the inclusion of such third party content and Third Party Websites is not an endorsement by us in favor of any third party. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through Third Party Websites. We have no responsibility for the content on Third Party Websites that you may find or access when using our Services. Content available on or through Third Party Websites may be protected by copyright and the intellectual property laws of any country.
7. USER CONDUCT
You must not attempt to gain unauthorized access to our Services, the server(s) on which our Services are stored or any server, computer or database connected to our Services. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Services will cease immediately. You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law, or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of us, our users and the general public.
8. PREMIUM SUBSCRIPTION FEES
The basic version of the Services can be used completely free of charge. This includes limitations on many features, such as time of practicing per day, access to Premium game levels, iCloud backup. If you decide to remove those limitations of basic version and have other Premium features, we have a range of subscription options to best meet your needs. You can opt to subscribe for our Monthly Premium, Quarterly Premium, Yearly Premium (together the “Premium”) to remove basic version limitations and gain access to additional advanced functionality an learning material. Our fees for Premium are available to view in our Apps. Our Fees are subject to different subscription plans, gift plans and promotions, and we therefore reserve the right to update our Fees from time to time.
If you select Monthly Premium your subscription will automatically renew as a rolling subscription and renew at the end of each monthly period, being one month (or as near to the date as possible) from the date on which your Monthly Premium was activated.
If you select the Quarterly Premium your subscription will automatically renew as a rolling subscription and renew at the end of each quarter (three months) period, being three months (or as near to the date as possible) from the date on which your Quarterly Premium was activated.
If you select Yearly Premium, your subscription will automatically renew as a rolling subscription at the end of each annual period, on the date on which your Yearly Premium was activated (each being a “Renewal”).
If you proceed with a Renewal, the method of payment used to pay the Fees will be debited at the end of your current Premium subscription.
You acknowledge that, if we change the Fees, this will not affect your existing Premium subscription, therefore, if you have signed up for subscription at a certain Fee, any Fee changes will not affect any current subscription or any Renewals).
Please note that if you have purchased the subscription through Apple iTunes or RoxyPenguin iPhone/iPad application, the following conditions apply for renewals of Monthly, Quarterly and Yearly Premium subscription:
Subscriptions may be managed by the user and auto-renewal may be turned off by going to the user's Account Settings after purchase.
The effect of the changes are as follows:
Your Premium subscription may start with a free trial. The free trial period for any subscription will last for the period of time specified when you signed up. Free trials may not be combined with certain other offers, as specified. If you begin your subscription with a free trial, the first billing day will be the day after the free trial expires. E.g. for 7 day free trial the billing day will be the 8th day. However, no charges will be made if you cancel the subscription prior to the end of your free trial period.
You may cancel your membership at any time by going to your account settings.
9. CANCELLATION AND REFUND OF SUBSCRIPTION
You can keep track of your Premium subscription by opening App Settings which will direct you to your App Store Manage Subscription page. You can also do this in your App Store app or iOS Settings. We do not provide refunds for Apple App Store payments, as those purchases are managed solely by Apple. We do not provide refunds after 14 days of the original purchase. We may not be able to refund you, or there may be a delay in issuing you a refund if you have paid the Fees using any third party scripts or products that anonymize personal payment details, including but not limited to, Apple App Store and Play Store payments. We do not offer refunds or partial refunds outside of the refund options stated above.
10. DELETING YOUR ACCOUNT
You can delete your account and terminate your use of the Services at any time by deleting the App from your device. Once you have deleted your Account, your License will be revoked and you will no longer have access to your User Content. If you have an active Premium subscription when your account is deleted upon your wish, you will not receive a refund for any time remaining on your Premium subscription.
11. TERMINATION OF YOUR ACCOUNT BY US
We reserve the right to modify, temporarily suspend or permanently delete your Account and terminate your access to the Services if we have reason to believe that you have breached or acted inconsistently with the Terms. Following termination, your License will be automatically revoked and we reserve the right to delete your Account, erase all or any information on your Profile and discard any of your User Content. You agree that we shall not be liable to you for any modification or discontinuance of the Service. We accept no liability for deletion of information or content from your Profile. You acknowledge and accept that certain User Content may remain after the termination of your Account and that the User Content License shall not be revoked or terminated. If you have an active Premium subscription when we terminate your Account, you will not receive a refund for any time remaining on your Premium subscription.
12. NO REPRESENTATIONS OR WARRANTIES
We, our officers, employees, contractors, suppliers, affiliates, agents and licensors do not guarantee that our Services, or any content therein, will always be available, uninterrupted and free from bugs or viruses and you should use your own anti-virus software. You are responsible for configuring your information technology, computer and mobile phone programs and platform to access any of our Services. We may suspend or withdraw or restrict the availability of all or any part of our Services for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal, but this may not be possible.
You understand and agree that the Services are provided “as is” and that you use the Services at your own risk. To the fullest extent permitted by applicable law, we expressly disclaim all warranties of any kind, whether express or implied, including but not limited to any implied warranties of fitness of the Services for a particular purpose. We do not make any representation or warranty of any kind and do not assume any responsibility for any improvement of your language learning or your learning of any other subject by use of our Services, accuracy of Our Content, User Content or any other content available by use of the Services. Access to the Services may be slow, limited or unavailable during periods of peak demand, system upgrades, malfunctions or scheduled or unscheduled maintenance, or for any other reason beyond our reasonable control.
Our Content and User Content available by use of our Services is provided for general information only. It is not intended to amount to advice on which you should rely. Although we make reasonable efforts to update the information on our site, we make no representations, warranties or guarantees, whether express or implied, that the content on our site is accurate, complete or up to date.
12.1 YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant to Serhiy Krynytskyy that your access and use of the Service will be in accordance with these Terms and Conditions and with all applicable laws, rules and regulations of the United States and any other relevant jurisdiction, including those regarding online conduct or acceptable content, and those regarding the transmission of data or information exported from the United States and/or the jurisdiction in which you reside. You further represent and warrant that you have created or own any material you submit via the Service (including Translation Materials, Course Contributor Materials, Activity Materials, and Content) and that you have the right, as applicable, to grant us a license to use that material as set forth above or the right to assign that material to us as set forth below.
You represent and warrant that (1) you are not organized under the laws of, operating from, or otherwise ordinarily resident in a country or territory that is the target or comprehensive U.S. economic or trade sanctions (i.e., an embargo) or (2) identified on a list of prohibited or restricted persons, such as the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or (3) otherwise the target of U.S. sanctions.
13. LIMITATION OF LIABILITY
You acknowledge and warrant that we, our officers, employees, contractors, suppliers, affiliates, agents and licensors are not and shall not be liable to you for any damages, including but not limited to loss of profit, inaccurate results, loss or corruption of Your Content or any data, data being inaccurate, the cost of recovering any data or Your Content, inability to access the Services, the cost of substitute services, claims by third parties for any damage to computers, software, modems, telephones or any other property, indirect, incidental, special, consequential or exemplary damages, even where we have been advised of the possibility of such damages.
We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
The maximum aggregate liability of us to you in relation to any paid Premium Services (whether such liability arises in contract, tort (including negligence), breach of statutory duty or otherwise) shall, to the fullest extent permitted by applicable law, not exceed the total amount of the Fees paid by you to us for the Premium Services in the 12 months prior to the initial action giving rise to the liability, which is an aggregate limit that will not increase according to the number of claims brought by you. If no Fees have been paid by you and your use of the Services has been limited to the free Services, you shall not be entitled to any damages of any kind.
If you have a dispute with another User relating to, arising from, or in any way connected with use of the Services, you release us from all claims, demands and damages of any kind or nature arising out of or in any way connected with such dispute.
13.1 INAPROPRIATE USE
You will not upload, display or otherwise provide on or through the Service any content that: (i) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or infringes upon the right of any third party (including copyright, trademark, privacy, publicity or other personal or proprietary rights); or (ii) in Serhiy Krynytskyy's sole judgment, is objectionable or which restricts or inhibits any other person from using the Service or which may expose RoxyPenguin or its users to any harm or liability of any kind.
You agree to indemnify and hold us, our officers, employees, contractors, suppliers, affiliates, agents and licensors harmless from any losses, damages, cost, expense (including reasonable legal fees) or other liability, arising out of any claim, demand, allegation or proceeding brought by any third party due to, or arising out of your User Content, your use of the Services, your connection to the Services, your breach of the Terms, or your violation of any rights of another person or entity.
15. GENERAL INFORMATION
Governing Law and Arbitration These Terms and Conditions, its subject matter and Serhiy Krynytskyy' and your respective rights under these Terms and Conditions shall be governed by and construed under the laws of Estonia excluding the conflict of law provisions of that or any other jurisdiction. Any dispute arising between you and Serhiy Krynytskyy' will be resolved by binding arbitration. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding.
Under these Terms no person other than us and you shall have any rights in relation to your access and/or use of the Services, provided that our third party licensors may take action against you to enforce any infringement of their intellectual property rights or other rights.
If we fail to exercise or enforce any rights or provision of the Terms, this shall not constitute a waiver of such rights or provisions. If any provision of the Terms are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
You agree that these Terms represent the entire understanding between us and you and these Terms supersede any previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, between us and you.
This agreement was originally written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
Any notices or other communication given by you to us shall be done via our support email at firstname.lastname@example.org.
16. QUESTIONS AND CLAIMS
Please contact us with any question you might have about these Terms via email@example.com using the subject “Questions about Terms”. Please also report any suspected or known violations of these Terms via firstname.lastname@example.org using the subject “Violations of Terms”. If you wish to notify us about any suspected copyright infringement of any third party, please send a message via email@example.com using the subject “Copyright notification”.