Kinephonics General Terms and Conditions of Business

1 Introduction

Welcome to Kinephonics! Kinephonics is an online learning system (“Kinephonics”) operated by KInephonics Pty Limited, ( “Kinephonics”) with headquarters at Sydney Australia, under the internet domain http://www.kinephonics.com which you can use to improve your knowledge of languages in an easy and efficient manner. Kinephonics is available over your internet browser, but also through mobile applications and PC software.

With your registration with Kinephonics you (the “User”) agree to these general terms and conditions of business (“T&C”). By completing the registration you enter into a valid contract with Kinephonics. Please read these T&C carefully, as they make up the legal framework applying to the use of Kinephonics.

Kinephonics offers some free content and features, but it is not completely cost-free. Services that are only offered for payment are clearly detailed and marked on the http://www.kinephonics.com/. The content is professionally produced and ad-free. To allow for a high standard of technology and learning material, fees are necessary. However they are not charged without explicit warning to the User. The User will not be charged for limited, trial use, nor through registration. Kinephonics exclusively addresses private individuals or final consumers, so that only they may be registered.

2 Scope, Definitions

The T&C apply to all non-commercial Users of Kinephonics. Any deviating or supplementary provisions agreed upon the conclusion of the contract shall only apply if agreed between the parties and drawn up in writing. The T&C apply both to free services and services against payment provided by Kinephonics.

3 Registration and Conclusion of the Contract

3.1 Each User may only register once. The User is obligated to provide complete and truthful information in the sections provided on the registration form. The User agrees to the publication of its User name, its profile information including but not limited to language combinations, Kinephonics-Score, online status and date of registration as well as additional information voluntarily provided, including the profile image. The email address will not be published.

3.2 The contract between the User and Kinephonics regarding the use of Kinephonics is concluded when the User completes and sends the registration form by clicking the respective order button and the User will also be asked to accept the T&C.

3.3 After registration, Kinephonics will send the User an automatic confirmation by email. The email contains a hyperlink via which the User can verify that the email address stated is correct. The User undertakes to provide that verification. Until verification is not provided, Kinephonics may restrict or prevent access to Kinephonics at any time.

3.4 If prices are quoted at Kinephonics, they are including the valid statutory turnover tax.

4 Free Use of the Basic Functions of Kinephonics (Basic Contract)

4.1 Application and registration are free of charge to the User. The use of indicated trial functions at Kinephonics is free.

4.2 The contract for using the basic functions (basic contract) of Kinephonics is concluded for an unlimited period and may be terminated without notice by either party to it at any time unless a premium contract with subscription term was concluded. To terminate the contract, the user has to click the “Delete user account” button under the “Profile/settings” menu. After that, the user receives an email with a link the user must click in order to make the cancellation of the registration effective. If the user has a premium contract with a subscription term, the premium contract must first be terminated according to the regulations specified in No. 6 of these terms and conditions. The basic contract can then be terminated after the end of the subscription term in the manner described above.

4.3 The User account will be deleted upon termination of the basic contract. After termination of the agreement, the User cannot claim the release or return of contents that it has posted.

4.4 Fees will be charged for full access to content and functions such as language courses if this is indicated and the User orders or books them.

5 Services and Products Subject to Fees (Premium Contracts)

Kinephonics offers services and products for a charge at Kinephonics (“Premium Contracts”).

6 Billing types, Cancellation, Renewal

6.1 Premium Contracts are available according to current offers as subscription or one-off purchases. Billing type, prices and term are defined in each offer and are summarized prior to the end of the order process. The contract for ordering Premium products becomes binding by pressing the “Purchase” button.

6.2 Premium Contracts with subscriptions are concluded for the time specified in the individual order. The remuneration or the invoice amount for the subscription term is payable on conclusion of the contract. After each subscription term, the contract renews itself automatically according to the term agreed upon (e.g. 3, 6 or 12 months), unless the User cancels the service before the term runs out. The full invoice amount of each renewal term will be charged on the first day of the renewal.

6.3 Premium Contracts with “one-off purchase” can be signalled limited or unlimited. As long as they are indicated to be limited, these are for a given period and terminate without needing to be cancelled.

6.4 Premium contracts with a subscription term that were concluded via http://www.kinephonics.com/ can be terminated by email to info@Kinephonics.com. Detailed instructions are provided on the following page under “How can I cancel a subscription”: http://www.kinephonics.com/. If the user terminates a basic contract

contrary to No. 4.2 before terminating the premium contract with subscription term, Kinephonics will become unusable. However, the subscription term is not terminated, and further costs may be incurred if the subscription term is not terminated separately, even though the subscribed courses can no longer be accessed due to the termination of the basic contract. The user is not entitled to any refund of usage fees.

6.5 Premium contracts with subscription terms that were concluded via the Apple App Store or the Google Play Store have to be terminated via the Apple App Store or the Google Play Store for technical reasons. Termination must occur no later than 48 hours before the extension of the subscription. Detailed instructions are provided on the following page under “How can I cancel a subscription: http://www.kinephonics.com/. If the user terminates a basic contract contrary to No. 4.2 before terminating the premium contract with subscription term, Kinephonics will become unusable. However, the subscription term is not terminated, and further costs may be incurred if the subscription term is not terminated separately, even though the subscribed courses can no longer be accessed due to the termination of the basic contract. The user is not entitled to any refund of usage fees.

6.6 The right to termination due to cause remains intact.

6.7 Kinephonics has the right to cancel Premium Contracts at any time without giving reasons with the termination taking effect at the end of the respective term. Basic functions may be terminated at any time.

7 “Money-back Guarantee” for Premium Contracts

7.1 The User is entitled to terminate a premium contract at any time with immediate effect. If the User terminates a premium contract within the first 20 days after concluding the contract, the usage fee paid will be repaid completely. This does not apply for renewals of Premium Services.

7.2 The “Money-back Guarantee” applies in addition to the mandatory cancellation right in accordance with Section 9.

8 Payment Methods

8.1 Usage fees for premium services are payable in advance.

8.2 The User may effect payment by using one of the payment methods specified such as credit card or direct debit etc.

8.3 When the User achieves access using a voucher code or a course pass, they will have access to the relevant premium service for a limited time. There therefore is no further charge and no corresponding bill. The length of this time depends upon what is specified by the code or pass.

8.4 Billing takes place digitally, a paper billing will not occur. The invoices will be accessible on the website and can be found at http://www.kinephonics.com/and can be viewed at any time.

 

9 Right of withdrawal for consumers

A consumer is any natural person who concludes a legal transaction for purposes that are not attributable to either their commercial or their independent professional occupation. The following right of withdrawal is only applicable to consumers.

Instructions on withdrawal

Right of withdrawal

You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us, e-mail: info@kinephonics.com of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

Effects of withdrawal

If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

10 Content and Accessibility of the Language Portal and Liability

10.1 Kinephonics strives to ensure that the language portal functions properly at all times. However, Kinephonics does not guarantee uninterrupted access.

10.2 For providing its service, Kinephonics uses the technologies currently and commonly used in the field. To be able to make full use of the services offered by Kinephonics, the User must likewise use these technologies (e.g. up-to-date browser technologies, Adobe Flash) or enable their use on its computer (e.g. activate Java Script, enable cookies and pop-ups). If older or not commonly used technologies are used, the User might only be able to make limited use of the services provided by Kinephonics.

10.3 Claims for damage on the part of the User are excluded unless stated otherwise below. The exclusion does not extend to damage claims asserted by the User arising from death or injury to body or health or infringement of essential contractual obligations (cardinal obligations) as well as the liability for other loss or damage caused by a premeditated or grossly negligent contractual infringement on the part of Kinephonics, its legal representatives or vicarious agents. Essential contractual obligations are those which must be met to achieve the goal intended by the contract. A “cardinal obligation” or “essential contractual obligations” are obligations the discharge of which enables the contract to be properly performed in the first place and the contracting party usually relies on and may rely on.

10.4 In the event of infringement of essential contractual obligations, Kinephonics shall only be liable for contractually typical, foreseeable loss or damage if the infringement was due to ordinary negligence unless it is a case of damage claims asserted by the User arising from death or injury to body or health.

10.5 The restrictions as set forth under Sections 10.3 and 10.4 shall also apply to the benefit of Kinephonics’s legal representatives and vicarious agents if claims are asserted against them directly.

11 Copyrights, Trademark Rights, Property Rights and Rights to the Use of Names

Unless content is expressly labelled as creative commons all texts, images and other works created by Kinephonics and distributed within the context of the language portal are protected by copyright and any use outside of the language portal requires Kinephonics’s prior approval.

12 User Generated Content

12.1 Through the interactive use of Kinephonics, Kinephonics offers each User the opportunity to transfer self-generated contents (such as images, translations or texts) to Kinephonics and to post them at Kinephonics so that they may be accessible to the public.

12.2 The User hereby grants Kinephonics a perpetual, worldwide, non-exclusive, free and transferable right to make such content available to the public and to modify it in and to all content, like vocabulary listings, manuals, advises transferred to and published on Kinephonics.

12.3 Kinephonics may at anytime remove or delete any content published by the User in its own discretion.

12.4 Being of age and proper registration via a User account is a prerequisite for posting contents. All contents transferred and, if applicable, posted by Users can be traced back to the self-chosen User name.

12.5 The User accepts that the opportunity to post contents is only granted for personal, non- commercial use. Therefore, the User is not entitled to post such content with which it intends to pursue commercial interests, in particular advertising.

12.6 The User itself shall ensure that its registration information cannot be misused by third parties. In this context the User is particularly obligated to block all third-party access to its registration information. At the consequence of being held personally liable, the User is also responsible for ensuring that the contents it has posted at Kinephonics are free from viruses, worms, Trojans or other programs that could jeopardise or impair the operability or the existence of the language portal or the websites of other Users.

12.7 The User warrants that the content transferred by the User does not infringe on any third party’s intellectual property rights and that the content can be used in accordance with Section 12.2. This includes any moral rights of any people pictured, mentioned or else referred to in the content.

12.8 Kinephonics reserves the right to exclude the User from its offer or to limit the User option to publish content if this agreement is breached. Furthermore, the User warrants and represents and shall ensure at the consequence of being held personally liable that the contents posted by it violate neither pertinent statutory or administrative regulations nor - in addition - are harmful to young persons, are pornographic, racist or insulting or in any other similar manner violate morals.

12.9 The rights granted to Kinephonics by the User and the preceding warranties and releases shall not expire upon termination of the User relationship.

13 Final Provisions

13.1 Agreements between Kinephonics and the User shall be subject to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

13.2 The Parties agree to exclude those provisions of the German international civil law, that may cause the exclusive application of any other jurisdiction.

13.3 The Parties agree on the exclusive jurisdiction of the courts at the place of business of Kinephonics, if the User does not have a residence in Germany.

13.4 Should individual points of these T&C be legally invalid, the remaining portions hereof shall be unaffected and remain binding.

13.5 Kinephonics reserves the right to modify these T&C at any time and without indicating the reason for such modification, as far as those modifications are based upon changes in the services provided by Kinephonics, changes of Kinephonics or upon legal changes or changes due to technical requirements. This includes Kinephonics offering new services. The modified T&C shall be sent to the User in advance by email. If the User does not object to the modified T&C within a period of six weeks, they are deemed to be accepted. If the User objects, Kinephonics may close the User’s account and receive a refund for any the rest of the respective term. Kinephonics shall separately point out these legal consequences in the email with the modified T&C.

14 Additional Provisions Applicable for Residents of the United States of America

14.1 If the User is a resident of the United States of America the provisions of this Section 14 shall be applicable in addition to the provisions above or where in conflict with the provisions above, the User may choose which provisions shall be applicable.

14.2 Registration and Conclusion of the Contract

The following addition provisions shall apply:

3.5 The User agrees and acknowledges that the User will never access or use another person’s account without permission.

3.6 The User agrees and acknowledges that the User will not transfer their account to another person or entity without Kinephonics’s prior written approval.

3.7 [Reserved]

3.8 If the User selects a Username or similar identifier for their account, Kinephonics reserves the right to remove or reclaim it if Kinephonics, in its sole discretion, believes it is inappropriate or violates the rights of a third party (including, but not limited to any applicable trademarks).

14.3 Content and Accessibility of the Language Portal and Liability

The following shall replace and supersede Section 10 of the T&C:

10.1 [Reserved]

10.2 [Reserved]

10.3 For providing its service, Kinephonics uses the technologies currently and commonly used in the field. To be able to make full use of the services offered by Kinephonics, the User must likewise use these technologies (e.g. up-to-date browser technologies, Adobe Flash) or enable their use on its computer (e.g. activate Java Script, enable cookies and pop-ups). If older or not commonly used technologies are used, the User might only be able to make limited use of the services provided by Kinephonics. The User is solely liable for any loss or damage incurred by the User, Kinephonics or any third party caused by the User’s failure to use up-to-date technologies when accessing Kinephonics.

10.4 [Reserved]

10.5 The content on Kinephonics (excluding User Generated Content as defined below) and the trademarks, service marks and logos on Kinephonics are owned or licensed to Kinephonics, subject to copyright and other intellectual property rights under the law.

10.6 The User agrees (a) not to modify any part of Kinephonics, except with the express and prior written consent of Kinephonics; (b) not to download or copy any account information for the benefit of any other party; (c) not to collect or make any use of any product listings, descriptions or prices; not to resell or make any commercial use of Kinephonics or its contents; not to reproduce, duplicate, copy, sell, resell or otherwise exploit Kinephonics for any commercial purpose without express written consent of Kinephonics; not to use any meta tags or any other “hidden tag” utilizing the Kinephonics name or any Kinephonics trademarks without the express written consent of Kinephonics.

10.7 The User agrees not to circumvent, disable or otherwise interfere with security-related features of Kinephonics or any associated websites and/or tablet and/or mobile applications or features that prevent or restrict use or copying of any content or enforce limitations on Kinephonics’s use.

10.8 The User agrees not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses Kinephonics in a manner that sends more request messages to the Kinephonics and/or Kinephonics servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Kinephonics grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Kinephonics reserves the right to revoke these exceptions either generally or in specific cases. The User agrees not to collect or harvest any personally identifiable information, including account names, from Kinephonics, nor to use the communication systems provided by Kinephonics (e.g., comments, email) for any commercial solicitation purposes. The User agrees not to solicit, for commercial purposes, any Kinephonics Users with respect to their content. In all use of Kinephonics and all associated services, website and mobile and/or tablet applications, the User agrees to comply with all applicable laws and regulations.

14.4 Copyrights, Trademark Rights, Property Rights and Rights to the Use of Names

The following additional provisions shall apply:

If the User is a copyright owner or an agent thereof, is located within the United States and its territories, and believes that any content on Kinephonics infringes upon the User’s copyrights, the User may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Kinephonics’s Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

  • Information reasonably sufficient to permit Kinephonics to contact the User, such as an address, telephone number, and, if available, an electronic mail address;

  • A statement that the User has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

  • A statement that the information in the notification is accurate, and under penalty of perjury, that the User is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Kinephonics‘s designated Copyright Agent to receive notifications of claimed infringement is mentioned in the imprint. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Kinephonics customer service at: info@en.Kinephonics.com.

14.5 User Generated Content

The following Section shall replace Section 12.8 of the T&C in its entirety:

12.8 Kinephonics reserves the right, in its sole discretion, to exclude the User from its offer or to limit the User’s option to publish content if these T&C are breached. Furthermore, the User warrants and represents and shall ensure at the consequence of being held personally liable that any still photograph, text, music, audio, video, audio-visual work and sound recordings, computer graphics or visual effects (collectively, “User Generated Content”) posted by the User does not violate any applicable law, statute or administrative regulation and is not threatening, defamatory, indecent, harmful to young persons, pornographic, obscene, offensive to persons of any race, religion or national origin, descriptive or depictive of any graphic violence and/or offensive visual content, liable to incite violence or hatred, in breach or privacy (including uploading any private, financial or sensitive or personally-identifying information) or insulting or in any other similar manner in violation of morals.

14.6 Final Provisions

The following shall replace and supersede Section 13 of the T&C and any contradictory provisions elsewhere in the T&C:

13.1 Agreements between Kinephonics and the User shall be subject to the laws of the Federal Republic of Germany, except with respect to subject matter that is governed by the federal copyright laws of the United States in which case United State copyright law will apply to the extent of such matters. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

13.2 The Parties agree to exclude those provisions of the German international civil law, that may cause the exclusive application of any other jurisdiction.

13.3 Any failure of Kinephonics to exercise or enforce any right or provision of the T&C or the Privacy Statement shall not constitute a waiver of such right or provision. Should individual points of these T&C or the Privacy Statement be legally invalid, the remaining portions hereof shall be unaffected and remain binding.

13.4 The User and Kinephonics acknowledge and agree that these T&C, and the Privacy Statement and any other legal notices published by Kinephonics and incorporated herein shall constitute the entire agreement between the User and Kinephonics.

13.5 The Parties agree on the exclusive jurisdiction of the courts at the place of business of Kinephonics, if the User does not have a residence in Germany.

13.6 These T&C and the Privacy Statement, and any rights and licenses granted hereunder, may not be transferred or assigned by the User, but may be assigned by Kinephonics without restriction.

13.7 The User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the T&C or the Privacy Statement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

13.8 Kinephonics may, in its sole discretion, modify or revise the T&C at any time, and the User agrees to be bound by all such modifications or revisions. The modified T&C will be posted at this address and so we encourage Users to periodically check these T&C. If the User does not agree to any of these terms or the Privacy Statement, the User should immediately stop accessing and/or using this website or any of the other Kinephonics services or mobile and/or tablet applications. If the User has paid for Premium Services and objects to the T&C and/or the Privacy Statement, please notify Kinephonics immediately and we will close the applicable account and issue the applicable User a full refund for the remainder of the applicable term.

15 Additional Provisions Applicable for Residents of Brazil

15.1 If the User is a resident of Brazil the provisions of this Section 15 shall be applicable in addition to the provisions above or where in conflict with the provisions above, the User may choose which provisions shall be applicable.

15.2 In addition to Section 6 and 9 the following information applies:

Renewal: After each term, the contract renews itself automatically according to the term agreed upon (e.g., 3, 6 or 12 months), unless the User cancels the service before the term runs out. The full invoice amount of each renewal term will be charged on the first day of the renewal.

Cancellation: All Premium Contracts can be cancelled, at any time for any party, without reasons, before the respective term runs out. In case the Premium Contracts are cancelled by Kinephonics without reasons, Kinephonics shall return to the User the price of the services/products proportionally to the remaining period of the Contract. On the other hand, if the Premium Contract is cancelled by User without reasons, then User will lose the price on its entirety that has already been paid. In addition, the User may regret and opt to give up on the contract within a period of seven days, counted as of the contract’s signature or the receipt of the service. In such case, Kinephonics shall return to User the amount, duly adjusted, that has been already paid by User. The Premium Contracts may also be cancelled with just cause (fortuitous event or force majeure) by the parties. In this case any price or compensation shall not be due by the parties, it being understood Kinephonics shall return to User the price of the services/products proportionally to the remaining period of the Contract. The payments and refunds mentioned in this section shall be paid within 30 (thirty) days as of the request for cancellation.

15.3 The user grants third parties designated by Kinephonics powers to close the forward exchange contract FX and to remit the funds relating to payments executed via boleto bancário, credit cards or PAYPAL.

15.4 The third parties mentioned above act on behalf of the user and do not account for collecting taxes, which might originate in relation to this operation.

16 Additional Provisions Applicable for Residents of Spain

16.1 If the User is a resident of Spain the provisions of this Section 16 shall be applicable in addition to the provisions above or where in conflict with the provisions above, the User may choose which provisions shall be applicable.

16.2 These shall be applicable for all services or products offered by Kinephonics and will be made available to the User prior to entering any agreement, easily accessible and clearly understandable.

16.3 In addition to free content and features provided by Kinephonics, Kinephonics may offer services and/or products to the Users through the website on a cost basis. Before using, acquiring or contracting said products or services offered by Kinephonics, the User must carefully read and accept the T&C governing such products or services as provided in the version currently published and enforced by Kinephonics at the time of the use, acquisition and/or contracting.

16.4 In addition to Section 3 the following provisions shall be applicable:

3.5.1 Access and browsing through the website does not require registration.

3.5.2 Access to the website by persons under 14 is prohibited, except where they have prior expressed consent from their parents, guardians or legal representatives, who shall be considered as responsible for the actions performed by the minor under their custody, in application of the rules in force. In the event a person under 14 access the website, it shall be presumed that the person has express authorization by its parents, guardians or legal representatives.

3.5.3 In order to purchase any of Kinephonics’s products and/or services a minimum age of 18 years is required. Upon registration as a User for Kinephonics’s products and/or services the User will receive a login code/username and password for access.

3.5.4 Each User may only register once. The User is obligated to provide complete and truthful information. Registration is possible in different ways:

  • Registration with your email address and chosen password or;

  • Connection to third party systems such as Facebook Connect, in which case Kinephonics

recommends you to review the terms of use and privacy policy of such systems, not being responsible Kinephonics for damages caused by third parties to Users.

3.5.5 The password is personal and non-transferable. In the event of request to change the password, the User must change the password pursuant to the rules concerning security and complexity established from time to time by Kinephonics.

3.5.6 The publication of User personal data on the website shall require the previous acceptance of the privacy policy by the User.

16.5 Activation and use of external social networks which the User is a member, through the website of Kinephonics, involves the identification and authentication of User, in the external network from which the data will be extracted. User is encouraged to review the terms of use and privacy policy networks where data is imported. In these cases, the User should be aware that when he access these networks, he is leaving the website of Kinephonics and Kinephonics has no influence on anything that happens on such social network. Consequently, Kinephonics assumes no liability for any breaches of security by or within such social networks. Once the data has been imported and incorporated into the Kinephonics’s system, Kinephonics guarantees the User the application of the technical and organisational data security measures in accordance with applicable laws.

16.6 In addition to Section 5 the following provisions shall apply:

Premium Services can be purchased by electronic means via the website or application provided by Kinephonics subject to the User completing all forms and information requested by Kinephonics during such order process. In any case, the purchase of Premium Services is considered executed when Kinephonics has received the purchase request, and accepted the form of payment that the User has chosen, after appropriate validation processes.

16.7 In addition to Section 11 the following provisions shall apply:

Kinephonics owns or has obtained the relevant license over the exploitation rights of the intellectual property of the website, as well as over the intellectual property covering the contents, services and products available through the website. The access to or use of the website or the purchase of the services of Kinephonics offered through the website will never be deemed a waiver, transfer, license or total or partial assignment of said rights by Kinephonics except as detailed herein. Deletion or manipulation of the legal copyright credits and any other identification data of the rights of Kinephonics or its respective owners included within the contents and products is expressly prohibited. Deletion or manipulation of any credits or identification information contained in any software, texts, watermarks and products provided by Kinephonics is also prohibited. All intellectual property rights are reserved. In particular, it is expressly prohibited to modify, copy, reuse, exploit, reproduce, transform, publicly communicate, make second or subsequent publications, send by mail, transfer, use, treat or distribute by any means all or part of the contents and products included in the website for private or commercial purposes, except with the prior express written approval by Kinephonics or, should it be the case, owner of the relevant rights.

16.8 In the event that the User may find links in the website to other sites such other sites will be managed by third parties. Kinephonics has no authority or possibility to review, control or approve all the information, contents, products or services provided by other websites linked from the Kinephonics websites.

16.9 As a consequence, Kinephonics assumes no liability for any cause whatsoever in relation to any site linked from the website, in particular, without limitation, about their operation, access, data, information, files, quality and trustworthiness of their products and services, their own links and/or any of their contents, on a general basis.

16.10 In this respect, if the Users have actual knowledge about illegal activities performed through these third party sites, they must immediately communicate this information to Kinephonics in order to cancel access to the links to such sites.

16.11 Establishment of any type of links from the website to other sites shall not be interpreted as any kind of cooperation or dependence between Kinephonics and the third party operator of the linked website.

16.13 Language. In the event of discrepancies between the different language versions of these Terms & Conditions, the Spanish version shall prevail for Spanish residents who are consumers. In any other situation, the English version shall prevail.

17 Additional Provisions Applicable for Residents of France

17.1 If the User is a resident of France the provisions of this Section 17 shall be applicable in addition to the provisions above or where in conflict with the provisions above, the User may choose which provisions shall be applicable.

17.2 The following provisions shall replace Section 12:

12.1 Through the interactive use of Kinephonics, Kinephonics offers each User the opportunity to transfer self-generated contents (such as, inter alia, images, translations or texts) (hereinafter, collectively the “Content”) to Kinephonics and to post them at Kinephonics so that they may be accessible to the public.

12.2 The User hereby grants Kinephonics a worldwide, non-exclusive, free and transferable right to use the Content on Babble, for the duration of intellectual property rights relating to said Content. This includes, without limitation:

a) The right to reproduce, broadcast, publish, duplicate, print or record all or part of the Content, on any media known now or in the future, in any format;

b) The right to make any version, in any language, of all or part of the Content and, more generally, the right to translate, arrange, modify, adapt and transform all of part of the Content in any format, for any type of use or purpose;

c) The right to use and exploit all of part of the Content in their original version or in such other version as previously defined, by any means;

d) The right to, sell, license or transfer the rights to use, rent or loan copies of the Content in their original version or in such other version as previously defined, with or without a consideration;

e) The right to integrate all or part of the Content, with or without modifications or interfaces;

12.3 Kinephonics may at anytime remove or delete any Content published by the User in its own discretion.

12.4 Being of age and proper registration via a User account is a prerequisite for posting Contents. All Contents transferred and, if applicable, posted by Users can be traced back to the self-chosen User name.

12.5 The User accepts that the opportunity to post Contents is only granted for personal, non- commercial use. Therefore, the User is not entitled to post such Content with which it intends to pursue commercial interests, in particular advertising.

12.6 The User itself shall ensure that its registration information cannot be misused by third parties. In this context the User is particularly obligated to block all third-party access to its registration information. At the consequence of being held personally liable, the User is also responsible for ensuring that the Contents it has posted at Kinephonics are free from viruses, worms, Trojans or other programs that could jeopardise or impair the operability or the existence of the language portal or the websites of other Users.

12.7 The User warrants that the Content transferred by the User does not infringe on any third party’s intellectual property rights and that the Content can be used in accordance with Section 12.2. This includes any moral rights of any people pictured, mentioned or else referred to in the Content.

12.8 Kinephonics reserves the right to exclude the User from its offer or to limit the Users option to publish Content if this agreement is breached. Furthermore, the User warrants and represents and shall ensure at the consequence of being held personally liable that the Contents posted by it violate neither pertinent statutory or administrative regulations nor - in addition - are harmful to young persons, are pornographic, racist or insulting or in any other similar manner violate morals.

12.9 The rights granted to Kinephonics by the User and the preceding warranties and releases shall not expire upon termination of the User relationship.

17.3 The following shall replace and supersede Section 13 of the T&C and any contradictory provisions elsewhere in the T&C:

13.1 Subject to any mandatory French rules, agreements between Kinephonics and the User shall be subject to the laws of The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

13.2 Subject to any mandatory French procedural rules, German courts at Kinephonics’s place of business shall have exclusive jurisdiction.

13.3 Should individual points of these T&C be legally invalid, the remaining portions hereof shall be unaffected and remain binding.

18 Additional Provisions Applicable for Residents of Italy

18.1 If the User is a resident of Italy the provisions of this Section 18 shall be applicable in addition to the provisions above or, where in conflict with the provisions above, the User may choose which provisions shall be applicable.

18.2 In addition to Section 3 the following provisions shall be applicable:

3.5 The User may always correct any errors in data he/she has entered. After an order has been submitted, the User will receive shortly an email confirming receipt of the order.

3.6 The language used to enter any contract through this website is Italian.

3.7 The User is required to carefully read the T&C, which have been made available on the website to enable the User to acknowledge, store and reproduce them pursuant to Article 12, paragraph 3, of the E-Commerce Decree. A copy of the T&C will in any case be sent to the User by email. Contracts with the User will be archived by Kinephonics with access for the User via this website through his/her account.

18.3 The following provisions shall replace and supersede Section 12:

12.1 Through the interactive use of Kinephonics, Kinephonics offers each User the opportunity to transfer self-generated contents (such as, inter alia, images, translations or texts) (hereinafter, collectively the “Content”) to Kinephonics and to post them at Kinephonics so that they may be accessible to the public.

12.2 The User hereby grants Kinephonics a worldwide, non-exclusive, free and transferable right to use the Content on Kinephonics, for the duration of intellectual property rights relating to said Content. This includes, without limitation:

a) the right to reproduce, broadcast, publish, duplicate, print or record all or part of the Content, on any media known now or in the future, in any format;

b) the right to make any version, in any language, of all or part of the Content and, more generally, the right to translate, arrange, modify, adapt and transform all of part of the Content in any format, for any type of use or purpose;

c) the right to use and exploit all of part of the Content in their original version or in such other version as previously defined, by any means;

d) the right to, sell, license or transfer the rights to use, rent or loan copies of the Content in their original version or in such other version as previously defined, with or without a consideration;

e) the right to integrate all or part of the Content, with or without modifications or interfaces.

12.3 Kinephonics may at any time remove or delete any Content published by the User in its own discretion.

12.4 Being of age and proper registration via a User account is a prerequisite for posting Content. All Content transferred and, if applicable, posted by Users can be traced back to the self-chosen User name.

12.5 The User accepts that the opportunity to post Content is only granted for personal, non- commercial use. Therefore, the User is not entitled to post such Content with which it intends to pursue commercial interests, in particular advertising.

12.6 The User itself shall ensure that its registration information cannot be misused by third parties. In this context the User is particularly obligated to block all third-party access to its registration information. At the consequence of being held personally liable, the User is also responsible for ensuring that the Content it has posted at Kinephonics are free from viruses, worms, Trojans or other programs that could jeopardise or impair the operability or the existence of the language portal or the websites of other Users.

12.7 The User warrants that the Content transferred by the User does not infringe on any third party’s intellectual property rights and that the Content can be used in accordance with Section 12.2. This includes any moral rights of any people pictured, mentioned or else referred to in the Content.

12.8 Kinephonics reserves the right to exclude the User from its offer or to limit the User’s option to publish Content if this agreement is breached. Furthermore, the User warrants and represents and shall ensure at the consequence of being held personally liable that the Content posted by it violate neither pertinent statutory or administrative regulations nor - in addition - are harmful to young persons, are pornographic, racist or insulting or in any other similar manner violate morals.

12.9 The rights granted to Kinephonics by the User and the preceding warranties and releases shall not expire upon termination of the User relationship.

18.4 The following shall replace and supersede Section 13 of the T&C:

13.1 Subject to any mandatory Italian law provision, agreements between Kinephonics and the User shall be subject to the laws of Australia. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

13.2 Subject to any mandatory Italian law provision, German courts at Kinephonics’s place of business shall have exclusive jurisdiction.

13.3 Should individual points of these T&C be legally invalid, the remaining portions hereof shall be unaffected and remain binding.