September 2020

 
1. General | Scope

1.1 These Babbel for Business Terms (“Terms”) apply to all contracts between Lesson Nine GmbH, Max-Beer-Str. 2, 10119 Berlin, Germany (“Babbel”) and its customers who are business owners within the meaning of § 14 of the German Civil Code (“Customers”) to whom Babbel provides Services (as defined below).

1.2 These Terms shall govern each ordering document and any online, email or in-app ordering process agreed between Babbel and Customer from time to time (each an “Order”), regardless of a master services agreement being in place between Babbel and Customer or not. The terms and conditions of each agreed Order shall incorporate these Terms.

1.3 These Terms shall also apply to future contracts between Babbel and the Customer without Babbel being required to refer to them in each individual case. These Terms shall be deemed to be confirmed by Customer at the latest when Customer accesses the Services.

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

1.5 Where the expressions ‘in writing’, ‘written form’ or variations thereof are used in these Terms, this shall mean ‘in writing’ within the meaning of § 126 of the German Civil Code. The electronic exchange of copies of documents signed by hand as well as documents signed with a simple electronic signature (such as provided by e.g. DocuSign or Adobe Sign) shall be sufficient. Unless expressly stated otherwise in these Terms, simple emails shall not be sufficient.

1.6 Any notices and declarations submitted by Customer to Babbel, including but not limited to notices of termination or setting of deadlines, shall be made at least in text form within the meaning of § 126b of the German Civil Code to be valid (for greater clarity: simple email to be sufficient) if not stated otherwise in these Terms.

1.7 References herein to the application of statutory provisions shall be for clarification purposes only. Consequently, statutory provisions shall apply even without such clarification provided that they are not directly amended by or expressly excluded in these Terms.

 

2. Free Services and Paid Services | Customer Account and Admin Portal | Trial Use

    2.1 Subject to the terms and conditions agreed in each Order, Babbel grants Customer 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 Babbel products as described on Babbel’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 Upon expiry or termination of any Order for Paid Services, such Order shall automatically transform into an Order for Free Services.

    2.3 Babbel shall have the right to downgrade, limit or otherwise modify Free Services at any time without notice. Subject to Clause 16, no guarantee, indemnity, Maintenance or Support (as defined below) and availability obligations of Babbel 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 Customer in making any purchasing decisions for Paid Services.

    2.4 Babbel may provide Customer with a dedicated online account (“Customer Account”) and/or with access to the Babbel online administrator portal (“Admin Portal”) where Customer shall manage its Service Agreements and Licenses. Babbel offers Customer support in managing the Customer Account free of charge. Such support is provided via telephone and/or email through a telephone number and/or an email address that Babbel may provide from time to time.

    2.5 Babbel may grant Customer access to Paid Services free of charge or at reduced Service Fees as part of a trial evaluation for a period determined by Babbel in its sole discretion (“Trial Use”). Babbel shall have the right to downgrade, limit or otherwise modify the Services provided for Trial Use at any time without notice. Subject to Clause 16, no guarantee, indemnity, Maintenance or Support and availability obligations of Babbel shall apply to Trial Use. Babbel has the right to immediately revoke or terminate any Trial Use at any time. Trial Use is not a guarantee of (future) product features and should not be relied upon by Customer 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.

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

     

    3. Rights of Use | Permitted Users | Use Restrictions

      3.1 Subject to the terms and conditions of the Order, Babbel grants to Customer, during the Free Term, 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 Customer’s internal business purposes only (“License”). The Services are offered as prescribed in the relevant description on Babbel’s website including the user on-boarding process (if any) as well as the frequently asked questions sections, in each case as updated from time to time (“Documentation”).

      3.2 Customer may only permit its staff (including its employees and freelancers) (collectively “Permitted Users”) to use the Services provided that (a) Customer has obtained a License for each such user; (b) each such user has accepted vis-à-vis Babbel the then-current ‘Babbel End User Terms’; (c) Customer shall procure that such users comply with these Terms and the ‘Babbel End User Terms’; (d) Customer shall remain responsible and liable towards Babbel for all acts and omissions of such users; and (e) the Services are used solely for the benefit of Customer.

      3.3 Customer shall not (and shall not permit any third party, including Permitted Users, 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, in each case, unless permitted by mandatory statutory law; (d) modify, adapt, translate or create derivative works based on all or any part of the Services (except to the extent expressly permitted by Babbel 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 Clause 3; (g) configure the Services to collect (i) any data that is defined as sensitive personal data or ‘special categories of data’ within the meaning of the EU General Data Protection Regulation (“GDPR”) or any applicable national 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 Babbel’s systems or networks; or (v) perform, or engage any third party to perform, penetration testing, vulnerability assessments or other security assessments.

      3.4 Customer 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. In particular, Customer shall comply with the sanctions imposed by the Federal Republic of Germany, the European Union, the United Nations and with the applicable federal laws of the United States of America, in each case, insofar as this does not result in a violation of or a conflict with § 7 of the German Foreign Trade and Payments Ordinance or a similar applicable anti-boycott statute. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.

      3.5 Customer and/or Permitted Users shall not duplicate, process, distribute, share, or use for public reproduction any content of the Services without the prior written consent of Babbel, unless expressly permitted by sharing options that may be integrated in the Services.

      3.6 Customer and/or Permitted Users may only use the Services as prescribed in the Documentation.

      3.7 Babbel may monitor Customer’s and/or Permitted User’s use of the Services and may prohibit and/or suspend any use of the Services it believes may be in violation of this Clause 3.

       

      4. Customer’s Responsibilities

        4.1 Customer represents and warrants that Customer and its Permitted Users shall use the Services only in full compliance with all applicable laws and regulations.

        4.2 Customer 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 Customer’s cost. Babbel’s current Equipment requirements (as amended from time to time) may be accessed on Babbel’s website.

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

        4.4 Customer shall be solely responsible for the content of all data and any other material displayed, posted, uploaded, stored, exchanged or transmitted by Customer or any user on or through the Services (“Content”). Babbel cannot control the information submitted by Customer or users during their use of the Services and cannot guarantee the accuracy of any information submitted. Babbel 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 Customer’s or any user’s access to the Services.

        4.5 Customer shall timely provide Babbel with all information reasonably required by Babbel to implement any Order. Customer shall keep the information in the Admin Portal and in the Customer Account up to date and correct. Customer shall notify Babbel promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services.

         

        5. Virtual Classroom

          5.1 If specified in an Order, Babbel shall provide Paid Services to Customer allowing Customer and/or Permitted Users to participate in language training sessions with language teachers in an online live stream, either in one-to-one sessions (“Babbel Intensive”) or in group sessions (“Babbel Live”) (collectively “Virtual Classroom”), subject to the additional provisions of this Clause 5. Virtual Classroom Services are services within the meaning of § 611 German Civil Code.

          5.2 Babbel provides Virtual Classroom Services against certain credits (“Credits”) which are either included in the Order and/or purchased separately. If not used, any Credits (including the right to attend a Virtual Classroom session) shall expire (a) twelve (12) months following their purchase, or (b) as of termination or expiry of the relevant Order, whichever occurs earlier. Credits will not be refunded and no interest shall accrue on them.

          5.3 In order to book a Virtual Classroom session, Customer or a Permitted User must access the Babbel online platform located at a web address provided by Babbel (“Online Platform”). Each booking request made by Customer or a Permitted User is subject to availability of the requested language teacher at the requested time as well as the availability of a free seat in the desired session. Upon confirmation of the booking request, the Virtual Classroom session shall become binding on Babbel and Customer.

          5.4 Virtual Classroom Services are provided via web browser or in the Babbel app. The Customer shall be responsible for fulfilling Babbel’s additional Equipment requirements with regard to Babbel Intensive Services and/or Babbel Live Services as amended from time to time which may be accessed on Babbel’s website.

          5.5 In order to be able to use Virtual Classroom Services, Customer and/or the Permitted User may be required to use third-party video conferencing software as specified by Babbel in the Equipment requirements as amended from time to time. Customer shall be solely responsible for obtaining such video conferencing software including any usage rights thereto at Customer’s own cost and Babbel does not make any representations or warranties with regard to the availability and/or certain functionalities of such third-party video conferencing software.

          5.6 Babbel shall strive to make the desired language teacher available to Customer and/or the Permitted User under Virtual Classroom Services. However, Babbel reserves the right to replace a designated language teacher with an equally qualified language teacher at any time before the start of a Virtual Classroom session without giving reasons.

          5.7 The content and scope as well as the time and duration of a Virtual Classroom session are set out on the Online Platform. Babbel reserves the right to adapt and/or supplement the content and scope of a session at any time in a relevant manner and in the interest of Customer.

          5.8 Babbel and the respective language teacher shall be free to determine the specific contents and/or design of any Virtual Classroom session at their own discretion. With regard to Babbel Intensive Services, Babbel will use commercially reasonable efforts to accommodate any requests from Customer and/or the Permitted User on the specific contents and/or design of a session. Each Virtual Classroom session may include up to five (5) minutes of administrative activities (e.g. designation of homework, preparation of notes).

          5.9 The booking of Virtual Classroom sessions is not limited to a specific Permitted User. A change of the individual Permitted User participating in a session is possible any time until the beginning of the respective sessio, but is excluded after that.

          5.10 Babbel and the language teacher reserve the right to exclude the Permitted User from a Virtual Classroom session at any time if the Permitted User behaves inappropriately. In this case, the respective Credits for such session shall be used up in full and shall not be refundable.

          5.11 Customer and/or any Permitted User may cancel any Virtual Classroom session at any time without giving reasons. Babbel may cancel any Virtual Classroom session without giving reasons up to twenty-four (24) hours before its scheduled starting time. In the event of illness of the designated language teacher, force majeure or other unforeseeable events beyond Babbel’s control, Babbel may cancel any Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time. In each case described in this Clause 5.11, Babbel shall be released of its obligation to provide the respective Virtual Classroom Services.

          5.12 In order to be effective, any cancellation of a Virtual Classroom session must be made via the Online Platform.

          5.13 If Customer or a Permitted User or Babbel cancels a Virtual Classroom session at least twenty-four (24) hours before its scheduled starting time, no Credits shall be used up for the relevant session.

          5.14 If Customer or a Permitted User (a) cancels a Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time, or (b) does not attend a Virtual Classroom session in whole or in part, all respective Credits shall be used up in full and shall not be refundable.

          5.15 Any training material provided by Babbel and/or a language teacher in connection with Virtual Classroom Services may only be used by Customer or any Permitted User for the purpose of personal training preparation and follow-up as well as for personal information purposes. Training material may not be duplicated, processed, distributed or used for public reproduction without the prior written consent of Babbel. Video and/or audio recordings of Virtual Classroom sessions by Customer or Permitted Users are prohibited.

           

          6. Maintenance and Support for Paid Services

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

            6.2 Support is provided to Customer via email through b2bsupport@babbel.com or any other email address that Babbel may provide from time to time and/or via the live chat on Babbel’s website and/or via the telephone numbers as indicated on Babbel’s website, in each case, at least from Monday to Friday during regular business hours.

            6.3 Babbel 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. Customer may notify Babbel of any errors via b2bsupport@babbel.com or any other email address that Babbel may provide from time to time and/or via the live chat on Babbel’s website. Babbel shall use commercially reasonable efforts to timely correct any notified errors, subject to (a) Customer providing a detailed description of the error and its reproducibility to Babbel, and (b) depending on the priority of the error to be reasonably determined by Babbel in its sole discretion.

            6.4 If Babbel’s analysis shows that an error notified by Customer has actually not occurred or is not attributable to Paid Services, Babbel may charge Customer for the costs demonstrably incurred by Babbel 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 Customer’s payment of the Service Fees, Babbel shall make Paid Services available to Customer in accordance with this Clause 7.

              7.2 Babbel shall use reasonable efforts to ensure, that Paid Services are available to Customer over the internet, however no less than ninety-nine point five percent (99.5%) per calendar year (based on twenty-four (24) hours a day and seven (7) days a week) excluding (a) any temporary unavailability for scheduled or for unscheduled Maintenance, either by Babbel or by third-party providers, and (b) unavailability for causes beyond Babbel’s reasonable control. Babbel shall use reasonable efforts to provide advance notice of any scheduled service disruption.

              7.3 Customer is aware and acknowledges that Customer-side access to Paid Services such as internet access cannot be guaranteed and that Babbel shall not be liable for any deficiencies in Customer’s own internet connections or equipment.

               

              8. Additional Services

                8.1 Babbel may provide additional services to Customer (such as e.g. onboarding trainings) if and to the extent described in an Order (“Additional Services”). Unless otherwise agreed, Additional Services are services within the meaning of § 611 German Civil Code.

                8.2 Customer shall provide reasonable cooperation as well as timely and complete information to Babbel as necessary in order to enable Babbel to perform Additional Services.

                8.3 Customer’s staff or representatives must not give instructions to Babbel’s staff. Any queries arising in connection with Additional Services must be addressed by Customer’s competent contact person to Babbel’s competent contact person. Babbel’s staff shall not be integrated into the operational organization of Customer. Babbel shall in its sole discretion decide how and where to utilize its resources (including Babbel’s staff) and plan its performances in accordance with the Order.

                8.4 Customer shall reimburse Babbel for any travel and other expenses incurred in connection with Additional Services at cost.

                 

                9. Fees | Payment Terms

                  9.1 Customer shall pay to Babbel the fees for Paid Services and Additional Services as specified in the Order in accordance with the terms therein (the “Service Fees”).

                  9.2 Customer shall pay to Babbel any fees arising from Customer exceeding the capacity of Paid Services set forth in the Order or any other additional fees that may become payable.

                  9.3 In the event that the number of active Licenses in the Customer Account falls below the amount initially ordered by Customer for the then-current Initial Service Term or Renewal Service Term, Customer shall remain obliged to pay to Babbel the full amount of the corresponding Service Fees for such Licenses initially ordered.

                  9.4 Babbel reserves the right to change the Service Fees for the following Renewal Service Term upon at least sixty (60) days prior to the end of the Initial Service Term or the end of the then-current Renewal Service Term.

                  9.5 Unless otherwise specified, Customer shall make all payments via credit card using Babbel’s website. Babbel may also choose to bill through an electronically transmitted invoice, in which case, full payment for invoices must be received by Babbel thirty (30) days after the mailing date of the invoice.

                  9.6 All Service Fees are exclusive of, and Customer shall pay all applicable taxes, duties, and assessments, however designated, which are levied or imposed upon such Service Fees.

                  9.7 Following notice to Customer in writing (simple email to be sufficient), Babbel shall be entitled to suspend Customer’s access to Paid Services in accordance with § 320 German Civil Code if payments are not received by Babbel within fourteen (14) days of the due date.

                   

                  10. Term | Termination

                    10.1 Any Order shall begin on the date specified therein.

                    10.2 Any Order for Free Services shall remain in effect for an indefinite period of time, unless terminated in accordance with the Order (“Free Term”). Babbel or Customer may terminate any Order for Free Services for convenience at any time with immediate effect.

                    10.3 Any Order for Paid Services shall remain in effect for an initial term as specified therein (“Initial Service Term”). The Initial Service Term shall automatically and continuously renew for additional periods, each of which correspond with the Initial Service Term (“Renewal Service Term”), unless terminated by either party at least three (3) months prior to and with effect as of the end of the then-current term. Customer 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.

                    10.4 The parties’ right to immediately terminate any Order for good cause shall remain unaffected. Such good cause shall in particular exist, if (a) a party commits a material breach of the Order, and such breach has not been cured within thirty (30) days after receipt of written notice thereof (simple email to be sufficient); (b) Customer is in default of payment by more than forty-five (45) days; (c) Customer breaches the use restrictions under Clause 3; or (d) Customer ceases its due payments or suffers a significant deterioration in its asset situation.

                     

                    11. Limited Warranty for Paid Services

                      11.1 Customer has checked that the specification of the Services as described in the Documentation meets Customer’s needs and wishes. Customer 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 Customer and Babbel so agree in writing or if Babbel 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 a director of Babbel.

                      11.2 Babbel warrants that Paid Services will, in all material respects, conform to the functionality described in then-current Documentation for the applicable Paid Services version. In case of a breach of this warranty Babbel shall be required to use commercially reasonable efforts to modify the Paid Services to conform in all material respects to the Documentation, and if Babbel is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Customer shall be entitled to terminate the Order upon written notice and receive a pro-rata refund of the unused Services Fees which have been paid in advance (if any) for unused access to the Paid Services. Customer must notify Babbel in writing of any warranty breaches and Customer must have installed and configured the Paid Services in accordance with the Documentation to be eligible for the foregoing remedy. Any no-fault liability of Babbel for the existence of initial errors under § 536a German Civil Code shall be excluded. Customer’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 16.

                      11.3 Under no circumstances shall Customer be entitled to obtain the source code of the Services.

                       

                      12. Confidentiality | Customer Data

                        12.1 Customer and Babbel understand that they have or may disclose to each other business, technical or financial information relating to their business (“Confidential Information”). Confidential Information of Babbel includes but is not limited to non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes non-public data provided by Customer to Babbel to enable the provision of the Services or during the use of the Services (“Customer Data”).

                        12.2 Customer and Babbel shall take reasonable precautions to protect each other’s Confidential Information, and not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. This shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that Customer or Babbel respectively can document (a) is or becomes generally available to the public; or (b) was in Customer’s or Babbel’s respective possession or known by them prior to receipt; or (c) was rightfully disclosed to Customer or Babbel respectively without restriction by a third party; or (d) was independently developed without use of any Confidential Information or (e) is required to be disclosed by law.

                        12.3 Notwithstanding anything to the contrary, Babbel shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Customer Data and data derived therefrom), and Babbel shall be free (during and after the term hereof) to (a) use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Babbel offerings; and (b) disclose such data and information solely in aggregate or other de-identified form in connection with its business.

                         

                        13. Proprietary Rights | Trade Names and Logos | Updates | Feedback

                          13.1 Babbel 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. Customer acknowledges that the rights granted under any Order do not provide Customer with title to or ownership of the Services.

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

                          13.3 Babbel 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 of the Services, at any time without prior notice.

                          13.4 Customer agrees that Babbel may refer to Customer by its trade names and logos, and may briefly describe the Customer’s business, in Babbel’s marketing materials and Babbel’s website.

                          13.5 Customer may from time to time provide Babbel with suggestions for new features or functionalities of and with feedback regarding the Services. Babbel shall be free to take such suggestions or feedback into consideration. Customer grants to Babbel, without charge, the fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose.

                           

                          14. Data Protection

                            14.1 Customer and Babbel shall at all times comply with the requirements of any applicable privacy and data protection legislation including but not limited to the GDPR.

                            14.2 In the event that the provision of the Services includes the processing of personal data relating to the Customer, Babbel processes such data solely as a ‘processor’ on behalf of the Customer who acts as a ‘controller’, each as defined in any applicable privacy and data protection legislation including but not limited to the GDPR. Where required by such legislation, Babbel shall enter into a written data processing agreement with Customer.

                            14.3 The processing of personal data by Babbel is further described in Babbel’s privacy policy which can be accessed on Babbel’s website.

                            14.4 Customer is solely responsible to ensure that processing of personal data of Customer’s employees by Babbel is in compliance with any relevant employment contract, collective agreements, works council agreements, and applicable labor law.

                             

                            15. Indemnity

                              15.1 Without prejudice to any other liability of Customer under contract or statutory law, Customer shall defend, indemnify and hold harmless, at its expense, Babbel and its Affiliates, its employees, subcontractors, suppliers and resellers against any third party claim to the extent such claim arises from or is made in connection with Customer’s breach of Clause 3 or otherwise from Customer’s use of Services, and Customer shall pay all costs and damages finally awarded against Babbel 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 Babbel respectively, or which is a wholly owned subsidiary of Babbel respectively, whereby ‘control’ means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.

                              15.2 In connection with any claim for indemnity under this Clause 15, Babbel must promptly provide Customer with notice of any claim that Babbel believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve Customer of its obligations under this Clause 15, except to the extent that such failure materially prejudices Customer’s defense of such claim. Babbel may, at its own expense, assist in the defense if it so chooses, but Customer shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind Babbel shall not be final without Babbel’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

                              15.3 Babbel agrees at its expense to defend Customer against (or, at Babbel’s option, settle) any third-party claim to the extent such claim alleges that the Services infringe or misappropriate any patent, copyright, trademark or trade secret of a third party, and Babbel shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Services is, or in Babbel’s sole opinion is likely to become, subject to such a claim, Babbel, at its option and expense, may (a) replace the applicable Services with functionally equivalent non-infringing technology; (b) obtain a license for Customer’s continued use of the applicable Service; or (c) where relevant, immediately terminate the Order in whole or in part and provide a pro-rata refund of the Service Fees that have been paid in advance for the applicable Services (beginning on the date of termination). The foregoing indemnity obligation of Babbel shall not apply: (i) if the Services are modified by Customer or by any third party for which Customer is responsible; (ii) if the Services are combined with other non-Babbel products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (iii) to any unauthorized use of the Services. The provisions in this Clause 15.3 shall be Customer’s sole remedy with respect to any claim of infringement of third-party intellectual property rights and trade secrets.

                               

                              16. Limitation of Liability

                                16.1 Babbel shall be unrestrictedly liable for (a) injury to life, body or health caused by Babbel, its legal representatives or assistants in performance; (b) damage caused intentionally or with gross negligence by Babbel, its legal representatives or executive staff; (c) damage caused intentionally by Babbel’s assistants in performance not mentioned in (b); (d) damage resulting from the absence of any guaranteed characteristics; and (e) claims under the German Product Liability Act.

                                16.2 Babbel shall be liable for damage resulting from the breach of its primary obligations hereunder by Babbel, its legal representatives, senior executives or assistants in performance. Primary obligations are such basic duties which form the essence of the Order and on the performance of which Customer may rely. If the breach of such primary obligation was caused (a) through simple negligence by Babbel, its legal representatives or executive staff; or (b) through simple or gross negligence by Babbel’s assistants in performance not mentioned in (a), then Babbel’s ensuing liability shall be limited to the amount which was foreseeable by Babbel at the time the respective Service was performed.

                                16.3 Subject always to Clauses 16.1 and 16.2, Babbel shall not be liable for damage resulting from the breach of non-primary obligations through (a) simple negligence of Babbel, its legal representatives or executive staff; or (b) simple or gross negligence of Babbel’s assistants in performance not mentioned in (a).

                                16.4 Babbel shall not be liable for any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Services to process Prohibited Data.

                                16.5 Babbel shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen if proper and regular data backup measures had been taken by Customer.

                                16.6 Subject always to Clause 16.1, the total liability of Babbel arising out of or in connection with any Order, whether in contract or tort or otherwise shall in no circumstances exceed a sum equal to one hundred and fifty percent (150%) of the total Service Fees paid or payable by Customer under the relevant Order.

                                16.7 Babbel does not guarantee, represent or warrant any specific language learning progress or language learning success to be achieved by Customer and Permitted Users by using the Services.

                                16.8 Any other liability of Babbel not covered by this Clause 16 is excluded on the merits.

                                 

                                17. IT Security

                                  17.1 Customer shall ensure that user identities and passwords obtained by Customer in conjunction with registration for the Services are stored and used in a secure manner and cannot be accessed and thereby used by third parties. Customer shall be liable for any unauthorized use of the Services.

                                  17.2 Where it is suspected that any unauthorized person has become aware of a user identity and/or password, Customer shall immediately inform Babbel thereof and also change such user identity and/or password.

                                  17.3 Customer shall be liable for losses or damage incurred by Babbel where Customer intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorized party, unless Customer notifies Babbel immediately upon suspicion that such event has occurred.

                                  17.4 Babbel shall adopt reasonable measures to ensure that the security of the Services meets relevant industry standards.

                                   

                                  18. Limited of Right to Set-Off | Limitation of Right of Retention

                                    Customer may only invoke a right to set-off and assert a right of retention to the extent that its claims have been (a) finally established by a court of law; (b) are uncontested; or (c) have been acknowledged by Babbel.

                                     

                                    19. Assignment | Novation

                                      19.1 Customer may not assign any Order without the prior written approval of Babbel and any purported assignment in breach of this Clause 19 shall be void. Babbel may at its discretion assign, or transfer to third parties any Order and/or any associated rights in whole or in part.

                                      19.2 Customer shall, at Babbel’s request, promptly, and in any event within fourteen (14) days, enter into a novation agreement in such form as Babbel shall reasonably specify in order to enable Babbel to exercise its rights pursuant to this Clause 19.

                                       

                                      20. Entire Agreement | Severability | Changes | Revision

                                        20.1 The Order including these Terms represents the entire agreement between Customer and Babbel 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.

                                        20.2 Should any provision of an 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. It is the express intention of the parties that this savings clause does not just have the effect of shifting the burden of proof but that § 139 German Civil Code is entirely dispensed with.

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

                                        20.4 Babbel 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 Customer in text form (simple email to be sufficient) no later than six (6) weeks before their proposed effective date. Customer may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by Customer, unless Customer objects to the revision before their proposed effective date. Babbel shall expressly inform Customer thereof in the respective announcement.

                                         

                                        21. Governing Law | Venue

                                          21.1 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 Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

                                          21.2 The courts of Berlin (Germany) shall have exclusive jurisdiction to settle any dispute or claim, whether contractual or non-contractual, that arises out of or in connection with any Order or its subject matter or formation.

                                           

                                          22. Miscellaneous

                                            22.1 The person signing or otherwise accepting the Order including these Terms for Customer represents that it is duly authorized by all necessary and appropriate corporate action to enter into the Order on behalf of Customer.

                                            22.2 Without prejudice to § 354a of the German Commercial Code, Customer shall not assign any of its rights or obligations under any Order and these Terms without the prior written consent of Babbel.

                                            22.3 No agency, partnership, joint venture, or employment is created as a result of any Order and Customer does not have any authority of any kind to bind Babbel in any respect whatsoever. No transfer of employees within the meaning of the German Transfer of Employees Act shall take place.

                                               

                                              Lesson Nine GmbH 

                                              District Court of Berlin Charlottenburg, Germany

                                              HRB 110215

                                              September 2020