July 2022
1. General | Scope
1.1. These Babbel for Business Terms (“B2B-Terms”) apply to all contracts between Babbel GmbH with registered office at Andreasstraße 72, 10243 Berlin, Germany (“Babbel”) and its clients who are business owners and not consumers (“Partners”) to whom Babbel provides Services.
1.2. These B2B-Terms shall govern all documents related to orders of Babbel’s Services including any online, email or in-app ordering process agreed between Babbel and the Partner (each an “Order”). The terms and conditions of each agreed Order shall incorporate these B2B-Terms.
1.3. These B2B-Terms shall also apply as a framework for future contracts between Babbel and the Partner even if Babbel does not refer to them in each individual case. These B2B-Terms shall be deemed to be confirmed by the Partner at the latest when the Partner or the first Permitted User accesses the Services.
1.4. These B2B-Terms apply to the exclusion of all others. Different, conflicting or supplementary terms shall only become part of an Order if and to the extent that Babbel has consented to such terms in writing.
1.5. Where these B2B-Terms use the expressions ‘in writing’, ‘written form’ or variations thereof, this means the electronic exchange of copies of documents signed by hand as well as documents signed with an electronic signature (such as provided by e.g. DocuSign or Adobe Sign) or any stricter standard (such as wet ink signatures or notarisation) shall suffice. Unless expressly stated otherwise in these B2B-Terms, stand-alone emails shall not suffice.
1.6. Unless stated otherwise in these B2B-Terms, any notices and declarations given or made by the Partner to Babbel shall be made at least in text form within the meaning of applicable law to be valid (simple emails shall suffice).
2. Free Services and Paid Services | Partner Account and Control Panel| Updates | Trial Use
2.1. Subject to the terms and conditions agreed in each Order, Babbel grants the Partner access to Babbel’s language learning software which is offered as software-as-a-service as well as any related websites, spaces, services, applications and the respective learning content and features as specified in the Order (“Services”). Babbel may offer the Services free of charge with limited functionalities (“Free Services”) or Services against payment of a Service Fee with certain agreed functionalities (“Paid Services”) each as specified in the Order.
2.2. Babbel may implement new versions and upgrades of Paid Services including, but not limited to, modifications to the design, operational method, technical specifications, systems, and other functions of Paid Services, at any time in accordance with applicable law.
2.3. Upon expiry or termination of any Order for Paid Services, such Order shall automatically transform into an Order for Free Services.
2.4. Babbel may downgrade, limit or otherwise modify Free Services at any time without notice. Subject to Clause 16, Babbel shall have no obligations with regard to any guarantee, indemnity, Maintenance or Support and availability pertaining to Free Services. Free Services are not a guarantee of (future) product features of Paid Services.
2.5. Babbel may provide the Partner with a dedicated online account (“Partner Account”) and/or with access to the Babbel online administrator portal (“Control Panel”) where the Partner shall manage its Orders and Licenses. Babbel offers the Partner support in managing the Partner Account free of charge. Such support is provided at Babbel’s discretion through a medium such as video conferencing, telephone and/or email.
2.6. Babbel may grant the Partner 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 may downgrade, limit or otherwise modify the Services provided for Trial Use at any time without notice. Subject to Clause 16, Babbel shall have no obligations with regard to any guarantee, indemnity, Maintenance or Support and availability pertaining to Trial Use. Babbel may revoke or terminate any Trial Use at any time without giving prior notice to the Partner. Trial Use is not a guarantee of (future) product features of Paid Services. Subject to the terms and conditions agreed in the Order, Trial Use may end and shall then automatically transform into regular Paid Services.
2.7. Babbel may retain subcontractors, including third-party software suppliers, for the performance of any of its obligations under any Order at any time.
3. Rights of Use | Permitted Users | Use Restrictions
3.1. Subject to the terms and conditions of the Order, Babbel grants to the Partner, during the Free Term, the Initial Service Term, and any Renewal Service Term, a non-exclusive, non-transferable, non-sublicensable worldwide right and license to use the Services for the Partner’s internal business purposes only (“License”). Babbel offers the Services as described on Babbel’s websites 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. Unless otherwise agreed, the Partner may only permit its staff (including its employees and freelancers) (collectively “Permitted Users”) to use the Services, provided that (a) the Partner 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) the Partner procures that such users comply with both the B2B-Terms and the ‘Babbel End User Terms’; (d) the Partner remains responsible and liable towards Babbel for all acts and omissions of such users; and (e) the Services are used solely for the benefit of the Partner.
3.3. A Permitted User must be at least eighteen (18) years of age. If a Permitted User is considered to be underaged by applicable law, the Permitted User must be at least fourteen (14) years of age and obtain prior written consent from their legal representative. Babbel may ask the Partner or any Permitted User to present proof of the Permitted User’s identity, their legal age, and/or their legal representative’s consent at any time.
3.4. The Partner 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 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 authorised 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 or outside of the scope of rights as set forth in this Clause 3; or (g) use the Services to: (i) store, download or transmit infringing, libellous, or otherwise unlawful or tortious material, or malicious code or malware; (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) gain unauthorised 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.
3.5. The Services may be subject to export and/or re-export control laws and regulations of the European Union (“EU”), the United States of America (“US”), or to similar laws applicable in other jurisdictions. The Partner warrants that: (a) the Partner is not located in any country to which the EU and/or the US have embargoed goods or have otherwise applied any economic sanctions; and (b) the Partner is not (i) a denied party as specified in any applicable export and/or re-export laws and regulations of the EU, the US, or in similar laws applicable in other jurisdictions; or (ii) otherwise listed on any EU and/or US government list of prohibited or restricted parties.
3.6. The Partner shall not export or re-export, directly or indirectly, any Services or data relating thereto in breach of any applicable laws and regulations. In particular, the Partner shall comply with the sanctions imposed by the EU and the US, in each case, insofar as this does not result in a violation of or a conflict with mandatory laws, in particular with anti-boycott statutes applicable to the Partner. The Partner shall, at its own expense, obtain all necessary customs, import, or other governmental authorisations and approvals.
3.7. The Partner and/or Permitted Users must not duplicate, process, distribute, share, or use for public reproduction any content of the Services without Babbel’s prior written consent, unless expressly permitted by sharing options that may be integrated in the Services.
3.8. The Partner and Permitted Users may only use the Services as prescribed in the Documentation.
3.9. Babbel may monitor the Partner’s and/or Permitted User’s use of the Services and may prohibit and/or suspend any use of the Services that Babbel believes may be in violation of this Clause 3.
4. Partner’s Responsibilities
4.1. The Partner and/or the Permitted User shall be responsible for obtaining and maintaining any technical equipment and related ancillary services required to connect to, access or otherwise use the Services, including, without limitation, hardware and software (collectively the “System”), networks and internet connections at the Partner’s and/or the Permitted User’s cost. Babbel’s current System requirements (as amended from time to time) may be accessed on Babbel’s websites (“System Requirements”).
4.2. The Partner shall keep information in the Partner Account up to date and correct. The Partner and Permitted Users shall ensure that user identities, passwords and similar credentials used for accessing the Services are used and stored in a secure manner, cannot be accessed and used by unauthorised third parties and are immediately changed in the event of unauthorized disclosure. The Partner shall notify Babbel promptly of any unauthorised use of any password or account or any other known or suspected breach of security or misuse of the Services.
4.3. The Partner shall be solely responsible for the content of all data and any other material displayed, posted, uploaded, stored, exchanged or transmitted by the Partner or any user on or through the Services (“Content”). Babbel cannot control the information submitted by the Partner or users during their use of the Services and cannot guarantee the accuracy of any information submitted.
4.4. Babbel may, without notice or liability, investigate any complaints or suspected violations of the Order including these B2B-Terms that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating the Partner’s or any user’s access to the Services.
4.5. The Partner shall timely provide Babbel with all information reasonably required by Babbel to implement any Order.
4.6. Subject to Clause 16, the Partner shall be liable for losses or damage incurred by Babbel if the Partner or a Permitted User intentionally or negligently reveals their identity/password to a third party or if their identity and password otherwise become known to an unauthorised party.
5. Virtual Classroom
5.1. If specified in an Order, Babbel shall provide Paid Services to the Partner allowing the Partner and/or Permitted Users to participate in language training sessions with language teachers in an online live stream, either in one-to-one sessions or in group sessions (collectively “Babbel Live”), subject to the provisions of this Clause 5. Virtual Classroom Services are services within the meaning of applicable law so that Babbel does not owe any specific result thereunder.
5.2. Unless otherwise agreed, the Permitted User must be at least sixteen (16) years of age in order to participate in Babbel Live.
5.3. In accordance with the Order, Babbel may provide Virtual Classroom Services either: (a) on a subscription basis (“Subscription-based Virtual Classroom Services”); or (b) against certain credits (“Credits”) which are either included in an Order for Services or purchased in a separate Order (“Credit-based Virtual Classroom Services”).
5.4. For Credit-based Virtual Classroom Services, if not used, any Credits (including the right to attend a Virtual Classroom session) shall expire either: (a) twelve (12) months after the Credit-based Virtual Classroom were purchased; or (b) at the termination or expiry of the relevant Order, whichever occurs earlier. Credits will not be refunded and no interest shall accrue on them.
5.5. In order to book a Virtual Classroom session, the Permitted User must log into their user account (the ‘User Account’) and place a booking request by clicking a booking button. Each booking request is subject to availability of the requested language teacher at the requested time as well as an available space for the Permitted User in the desired session. Upon Babbel’s confirmation of the booking request, the Virtual Classroom session shall become binding on Babbel and the Partner.
5.6. The booking of Virtual Classroom sessions is designated to the specific Permitted User. Virtual Classroom Services are limited to a maximum number of sessions per Permitted User per calendar month details of which are set out in the Documentation.
5.7. Virtual Classroom Services are usually provided via web browser, third-party video conferencing software or in the Babbel app. The Partner and/or the Permitted User shall be responsible for fulfilling the System Requirements with regard to Virtual Classroom Services.
5.8. If third-party video conferencing is required to participate in a Virtual Classroom session, the Partner and/or the Permitted User shall be solely responsible for obtaining such video conferencing software including any usage rights thereto at its cost. Babbel does not make any representations or warranties with regard to the availability and/or certain functionalities of such third-party video conferencing software.
5.9. The content and scope as well as the time and duration of a Virtual Classroom session are set out on Babbel’s websites or in the Babbel app. Babbel may adapt and/or supplement the content and scope of a Virtual Classroom session at any time in a relevant manner in accordance with applicable law and in the interest of the Partner. See Clause 2.2.
5.10. Babbel shall use commercially reasonable efforts to make the desired language teacher and language level available at the desired time. However, availability may be limited and changes may be required at short notice on important grounds. In particular, Babbel may replace any designated language teacher with an equally qualified language teacher at any time before the start of a Virtual Classroom session without giving reasons.
5.11. Babbel shall be free to determine the specific contents and/or design of any Virtual Classroom session at its own discretion. With regard to Babbel Live Private Classes, Babbel shall use commercially reasonable efforts to accommodate any requests from the Partner 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).
5.12. The Babbel Live student code of conduct for Virtual Classroom sessions (“Babbel Live Code of Conduct”) can be viewed here, and form an integral part of these B2B-Terms and any Order for Virtual Classroom Services. The Partner and Permitted Users must comply with the Babbel Live Code of Conduct at all times. Babbel shall not be responsible for the conduct of other users taking part in Virtual Classroom sessions.
5.13. Babbel and/or the language teacher may exclude any user (including Permitted Users) from a Virtual Classroom session at any time if such user behaves inappropriately, in particular if such user violates the Babbel Live Code of Conduct. In this case, for Credit-based Virtual Classroom Services, the respective Credits for such session shall be used up in full and shall not be refundable.
5.14. In the event that the Partner and/or a Permitted User violate the Babbel Live Code of Conduct (a) repeatedly, following a prior warning by Babbel and/or the language teacher (verbal warning shall suffice); or (b) in a material way, Babbel may, at its sole discretion, temporarily suspend (i) the Partner’s and/or the relevant Permitted User’s access to Virtual Classroom Services; and/or (ii) the Partner Account and/or the relevant User Account, in each case entirely or in part and taking into account the Partner’s and/or the relevant Permitted User’s legitimate interests. Babbel shall inform the Partner and the relevant Permitted User of any such measures without delay.
5.15. 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, or situations under Clause 16.7, Babbel may cancel any Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time. In this case, Babbel shall be released of its obligation to provide the respective Virtual Classroom Services.
5.16. In order to be effective, any cancellation of a Virtual Classroom session by the Permitted User must be made via the User Account.
5.17. If a Permitted User either: (a) cancels a booked 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, then (i) for Subscription-based Virtual Classroom Services the Partner shall pay to Babbel a compensation as specified in the Babbel Live Code of Conduct; or (ii) for Credit-based Virtual Classroom Services the relevant Credits shall be used up in full and shall not be refundable. The Partner shall be free to prove that Babbel has not suffered any loss or that such loss is significantly lower than the compensation the Partner owes or the value of the Credits used up. Babbel reserves the right to claim further damages.
5.18. Permitted Users may use any training material provided by Babbel and/or a language teacher in connection with Virtual Classroom Services solely for the purpose of personal training preparation and follow-up as well as for personal information purposes. The Partner and Permitted Users may not duplicate, process, distribute or use for public reproduction any training material without the prior written consent of Babbel. The Partner and Permitted Users must not (and must not permit any third party to) make any video and/or audio recordings of Virtual Classroom sessions.
6. Maintenance and Support for Paid Services
6.1. Subject to the Partner’s payment of the Service Fees, Babbel shall provide Maintenance and Support for Paid Services to the extent specified in the Order. “Support” shall mean Babbel’s obligation to use commercially reasonable efforts to respond to reasonable support requests of the Partner with regard to Paid Services by troubleshooting issues and providing assistance within reasonable time. “Maintenance” shall mean Babbel’s obligation to use commercially reasonable efforts 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. Babbel provides Support to the Partner via the email address [email protected] or any other email address that Babbel may provide from time to time and/or via the live chat on Babbel’s websites and/or via the telephone numbers as indicated on Babbel’s websites, in each case, at least from Monday to Friday during regular business hours in locations where Babbel operates service centres.
6.3. Babbel shall use reasonable efforts consistent with prevailing industry standards to provide Maintenance for Paid Services in a manner which minimises errors and interruptions in the Paid Services. The Partner may notify Babbel of any errors via the email address [email protected] or any other email address that Babbel may provide from time to time and/or via the live chat on Babbel’s websites. Babbel shall use commercially reasonable efforts to timely correct any notified errors, subject to: (a) the Partner 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.
7. Availability of Paid Services
7.1. Subject to the Partner’s payment of the Service Fees, Babbel shall make Paid Services available to the Partner in accordance with this Clause 7.
7.2. Babbel shall use reasonable efforts to ensure that Paid Services are available to the Partner via 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; 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. Babbel shall not be obliged to provide access to Paid Services such as for internet access for the Partner and/or the Permitted User. See Clause 4.1.
8. Additional Services
8.1. Babbel may provide additional services to the Partner (such as onboarding trainings) if provided for and to the extent described in an Order (“Additional Services”). Unless otherwise agreed, Additional Services are services within the meaning of applicable law so that Babbel does not owe a specific result thereunder.
8.2. The Partner 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. The Partner’s staff or representatives must not give instructions to Babbel’s staff. Any queries arising in connection with Additional Services shall be communicated between the contact person for the Partner and the contact person for Babbel. Babbel’s staff will not be integrated into the operational organisation of the Partner. Babbel may in its sole discretion decide how and where to utilise its resources (including Babbel’s staff) and plan its performances in accordance with the Order.
8.4. The Partner shall reimburse Babbel for any travel and other expenses incurred in connection with Additional Services at cost.
9. Fees | Payment Terms | Limited Right to Set-Off | Limitation of Right of Retention
9.1. The Partner shall pay the fees for Paid Services and Additional Services as specified in the Order in accordance with the terms therein (the “Service Fees”).
9.2. The Partner shall pay any fees arising from the Partner 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 Partner Account falls below the amount initially ordered by the Partner for the then-current term, the Partner shall remain obliged to pay the full amount of the Service Fees agreed in the Order.
9.4. Babbel may change the Service Fees for the following Renewal Service Term upon at least sixty (60) days’ prior notice to the end of the Initial Service Term or the end of the then-current Renewal Service Term.
9.5. Unless specified otherwise, the Partner shall make all payments via any of the payment methods offered on Babbel’s websites. In the event that the Partner and Babbel agree on payment against invoice, full payment for invoices must be received by Babbel thirty (30) days after the mailing date of the invoice. As a rule, Babbel will bill through an electronically transmitted invoice.
9.6. All Service Fees are exclusive of, and the Partner shall pay all applicable taxes, duties, and assessments, however designated, which are levied or imposed upon such Service Fees.
9.7. Following notice to the Partner in writing (simple email shall suffice), Babbel may suspend the Partner’s access to Paid Services in accordance with applicable law if payments are not received by Babbel within fourteen (14) days of the due date.
9.8. The Partner 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.
10. Term | Termination
10.1. Any Order shall begin on the date specified therein. Where no such date is specified, any Order for Free Services or for Paid Services shall begin when the first Permitted User accesses the Services thereunder.
10.2. Any Order for Free Services shall remain in effect for an indefinite period of time, unless terminated in accordance with the Order including these B2B-Terms (“Free Term”). Babbel or the Partner may terminate any Order for Free Services for convenience at any time with immediate effect.
10.3. Unless otherwise agreed, any Order for Paid Services shall remain in effect for an initial term as specified in the Order (“Initial Service Term”). The Initial Service Term shall automatically and continuously renew for additional periods, each of which correspond with the Initial Service Term (“Renewal Service Term”), unless terminated by Babbel or by the Partner at least three (3) months prior to and with effect as of the end of the then-current term. The Partner may not 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. Any Order for Additional Services shall remain in effect as specified therein. Babbel or the Partner may terminate any Order for Additional Services for convenience in accordance with its terms and applicable law.
10.5. The Partner’s and Babbel’s right to immediately terminate any Order for good cause shall remain unaffected. Such good cause shall in particular exist for both parties, if the other 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 shall suffice). Such good cause shall also exist for Babbel if: (a) the Partner is in default of payment by more than forty-five (45) days; (b) the Partner and/or a Permitted User breach the use restrictions under Clause 3; (c) the Partner and/or a Permitted User violate the Babbel Live Code of Conduct; or (d) the Partner ceases its due payments or suffers a significant deterioration in its asset situation.
11. Limited Warranty for Paid Services
11.1. The Partner represents and warrants that they have checked that the specification of the Services as described in the Documentation meet their needs and wishes. The Partner is aware of the essential functionalities and features of the Services. The extent, nature and quality of the Services are determined by these B2B-Terms, the Order, and the Documentation. Any other information or requirements only form part of the Order if the Partner and Babbel so agree 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 must be confirmed in writing by a director of Babbel.
11.2. Babbel warrants that Paid Services will, in all material respects, conform to the functionality described in the 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 the breach in question, the Partner may 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. In order to be eligible for a remedy in relation to the breach, the Partner shall notify Babbel in writing of any warranty breaches and the Partner must have used the Paid Services in accordance with the Documentation. Any no-fault liability of Babbel for the existence of initial errors under applicable law shall be excluded. The Partner’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 16.
11.3. The Partner may not obtain the source code of the Services for any reason.
12. Confidentiality | Partner Data
12.1. The Partner and Babbel understand that they have disclosed 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 the Partner includes non-public data provided by the Partner to Babbel to enable the provision of the Services or during the use of the Services (“Partner Data”).
12.2. The Partner 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 such Confidential Information. The aforementioned obligation of the parties shall not apply with respect to any information after two (2) years following the disclosure thereof or to any information that the Partner or Babbel respectively can document (a) is or has become generally available to the public; (b) was in the Partner’s or Babbel’s respective possession or known by the Partner or Babbel prior to receipt; (c) was rightfully disclosed to the Partner or Babbel respectively without restriction by a third party; (d) was independently developed without use of any Confidential Information or (e) is required to be disclosed by law.
12.3. Babbel shall have the right to collect and analyse 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 Partner Data and data derived therefrom), and Babbel shall be free (during and after the term of the Order) 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 | Exploitation of 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. The Partner acknowledges that the rights granted under any Order do not provide the Partner with title to or ownership in the Services.
13.2. The Partner shall retain all rights, title and interest in and to the Partner Data and any Content, as well as any data that is based on or derived from the Partner Data and any Content. The Partner grants to Babbel a non-exclusive, non-transferable, sublicensable, worldwide and unlimited right and license to use the Partner Data and any Content solely in connection with providing the Services. Babbel shall have no liability for the Partner Data and any Content.
13.3. The Partner agrees that Babbel may refer to the Partner by its trade names and logos, and may briefly describe the Partner’s business in Babbel’s marketing materials and on Babbel’s websites.
13.4. The Partner 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. The Partner grants to Babbel, without charge, the fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose.
14. Data Privacy
14.1. The Partner and Babbel shall comply with the requirements of any applicable privacy and data protection legislation including but not limited to the EU General Data Protection Regulation (“GDPR“).
14.2. In the event that the provision of the Services includes the processing of personal data relating to the Partner, Babbel processes such data solely as a ‘processor’ on behalf of the Partner 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 the Partner.
14.3. The processing of personal data by Babbel is described in Babbel’s privacy policy which can be accessed here.
14.4. The Partner is solely responsible to ensure that processing of personal data of the Partner’s employees by Babbel is in compliance with any relevant employment contract, collective agreements, works council agreements, and applicable labour law.
15. Indemnity
15.1. Without prejudice to any other liability of the Partner under contract or statutory law, the Partner 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 the Partner’s breach of Clause 3 or a violation of the Babbel Live Code of Conduct by the Partner or a Permitted User or otherwise from the Partner’s use of Services, and the Partner shall pay all costs and damages finally awarded against Babbel by a court of competent jurisdiction as a result of any such claim. “Affiliate” shall mean 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’ shall mean 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 shall promptly provide the Partner 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 the Partner of its obligations under this Clause 15, except to the extent that such failure materially prejudices the Partner’s defence of such claim. Babbel may, at its own expense and at its sole discretion, assist in the defence but the Partner shall control the defence 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 shall not be unreasonably withheld, conditioned or delayed.
15.3. Babbel shall at its expense defend the Partner 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 the Partner 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 claim, then Babbel, at its option and expense, may: (a) replace the applicable Services with functionally equivalent non-infringing services; (b) obtain a license for the Partner’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 the Partner or by any third party for which the Partner 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 unauthorised use of the Services.
15.4. The Partner’s rights under this Clause 15 shall be the Partner’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 vicarious agents (b) damage caused intentionally or with gross negligence by Babbel or its legal representatives; (c) damage caused intentionally by Babbel’s vicarious agents 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 or vicarious agents. Primary obligations are such basic duties which form the essence of the Order and on the performance of which the Partner 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 vicarious agents 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 by: (a) simple negligence of Babbel or its legal representatives; or (b) simple or gross negligence of Babbel’s vicarious agents not mentioned in (a).
16.4. 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 the Partner.
16.5. Subject 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 the Partner under the relevant Order.
16.6. Babbel does not guarantee, represent or warrant any specific language learning progress or language learning success to be achieved by the Partner and Permitted Users by using the Services.
16.7. Neither Babbel nor the Partner shall be liable for any failure or delay in performance under the Order including these B2B-Terms to the extent that such failure or delay is caused by events outside the reasonable control of a party and occurring without that party’s fault or negligence.
16.8. Any other liability of Babbel not covered by this Clause 16 is excluded on the merits.
17. Assignment | Novation
17.1. The Partner may not assign any Order without the prior written approval of Babbel and any purported assignment in breach of this Clause 17 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.
17.2. The Partner 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 17.
17.3. Without prejudice to mandatory applicable law, the Partner shall not assign any of its rights or obligations under any Order and these B2B-Terms without the prior written consent of Babbel.
18. Entire Agreement | Severability | Changes
18.1. The Order including these B2B-Terms represents the entire agreement between the Partner and Babbel in respect of its subject matter and supersedes all prior negotiations and agreements made between Babbel and the Partner in relation to its subject matter, whether written or oral.
18.2. Should any provision of an Order including these B2B-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 Babbel and the Partner would have agreed, pursuant to the meaning and purpose of the original provision and of the Order if they had recognised 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 timescale (deadline or fixed date), such ineffective or invalid level of performance or timescale shall be replaced by the level of performance or timescale which comes as close as legally possible to the original level of performance or timescale. The foregoing shall also apply to any possible omission in the Order including these B2B-Terms that was not intended by Babbel and the Partner.
18.3. Without prejudice to Clause 19, valid amendments or supplements to any Order must be mutually agreed and made in writing (exchange of simple emails shall suffice). The same shall apply to any agreement to deviate from or cancel this requirement of written form.
19. Revision of these B2B-Terms
19.1. Babbel may amend and/or update these B2B-Terms for existing Orders from time to time with future effect and as necessary for technical, economic or legal reasons. Any revision of these B2B-Terms shall be announced to the Partner in text form (simple email to be suffice) no later than four (4) weeks before their proposed effective date. The Partner may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by the Partner, unless the Partner objects to the revision before their proposed effective date. Babbel shall expressly inform the Partner thereof in the respective announcement.
19.2. Babbel may amend and/or update these B2B-Terms for future Orders at any time for any reason without notice.
20. Governing Law | Venue
20.1. 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.
20.2. 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.
21. Miscellaneous
21.1. The person signing or otherwise accepting the Order including these B2B-Terms for the Partner represents that it is duly authorised by all necessary and appropriate corporate action to enter into the Order on behalf of the Partner.
21.2. No agency, partnership, joint venture, or employment is created as a result of any Order and the Partner 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.
Babbel GmbH District Court of Berlin Charlottenburg, Germany HRB 110215 July 2022
