BABBEL B2B TERMS & CONDITIONS
(North America)
1. General | Scope
1.1 These Babbel for Business Terms (“Terms”) apply to all contracts between Babbel GmbH, Andreasstraße 72, 10243 Berlin, Germany (“Babbel”) and its customers which are businesses located in North America (“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 upon between Babbel and Customer from time to time (each an “Order”), regardless of whether there is a master services agreement in place between Babbel and Customer. The terms and conditions of each Order shall automatically 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 accepted 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 any form purchase order or other pre-printed terms, linked terms incorporated into, or additional terms added by, Company’s purchase order shall not be applicable to the Services, Babbel hereby expressly rejects the same, and these Terms shall be the exclusive terms applicable to each Order.
2. Services | Customer Account and Control Panel | Trial Use
2.1 Subject to the terms and conditions of each Order and Customer’s payment of all applicable Service Fees (as defined in Section 10.1), Babbel grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted herein) right to access and use the Services described in one or more Orders solely for Customer’s internal business purposes. The Services may comprise one or more Babbel products as described on Babbel’s website from time to time. Services will be offered in consideration of the applicable Service Fees with certain agreed functionalities (“Paid Services”), each as specified in the applicable Order.
2.2 As part of the Services, Babbel may provide Customer with a dedicated online account (“Customer Account”) or with access to the Babbel online administrator portal (“Control Panel;”) where Customer shall manage its Services Agreements and Services. Babbel may offer Customer support in managing the Customer Account via telephone or e-mail through a telephone number and/or an e-mail address that Babbel may provide from time to time.
2.3 Babbel shall be entitled to retain subcontractors, including but not limited to third-party software suppliers, for the performance of any of its obligations under any Order.
3. Rights of Use | Permitted Users
3.1 Subject to the terms and conditions of the applicable Order, Babbel grants to Customer, during the applicable Term (as defined in Section 11.2), a limited, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted herein) right to access and use the Services described in one or more Orders solely for Customer’s internal business purposes (“License”). The Services are offered as described on Babbel’s website including the user onboarding process (if any) as well as the frequently asked questions sections, in each case as updated from time to time (“Documentation”).
3.2 Each named individual who is an employee, consultant, contractor, or agent of Customer who has been supplied a user identification and password for Services by Customer or by Babbel at Customer’s request (each, a “Permitted User”) must have a subscription for the Services. Permitted User subscriptions are for named users only and cannot be shared or used by more than one Permitted User. Babbel reserves the right to monitor Customer’s and its Permitted Users’ compliance with any usage restrictions herein.
3.3 Permitted Users may access and use the Services only if (a) Customer has obtained a License for each such Permitted User; (b) each such Permitted User has accepted vis-à-vis Babbel the then-current Babbel End User Terms (“End User Terms”) found at https://about.babbel.com/ (“Babbel’s Website”); (c)Customer shall ensure that such Permitted Users comply with these Terms and the End User Terms; (d) Customer shall remain responsible and liable to Babbel for all acts and omissions of such Permitted Users; and (e) the Services are used solely for the benefit of or in connection with the business of Customer.
4. Use Restrictions
4.1 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) record, tape, save or copy the Services onto or share or broadcast the Services on any private, 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 in writing or authorized within the Services); (e) modify any proprietary rights notices that appear in the Services or components thereof; (f) use any Services in violation of any applicable laws and regulations (including any export laws and restrictions, national security controls and regulations) or outside of the scope of rights as set forth in this Section; (g) configure the Services to collect (i) any data that is defined as sensitive or non-public personal data, protected health information, or “special categories of data” within the meaning of the EU General Data Protection Regulation (“GDPR”), the California Consumer Protection Act (“CCPA”), the California Privacy Rights Act (“CPRA”), or any other applicable data protection law or regulation; (ii) passwords or other authentication credentials; (iii) any payment or other financial data, biometric data or genetic data; or (iv) any data relating to a person under the age of sixteen (16) years (collectively, “Prohibited Data”); or (h) use the Services to (i) store, download or transmit infringing, libelous or otherwise unlawful or tortious material, or malicious code or malware; or (ii) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of third party systems, or the services or data contained therein; (iv) attempt to gain unauthorized access to the Services or Babbel’s systems or networks; or (v) perform, or engage any third party to perform, penetration testing, vulnerability assessments or other security assessments.
4.2 Without limiting the generality of Section 4.1, with respect to any Virtual Classroom (as defined in Section 5.1) Services, Customer shall not and shall not allow its Permitted Users to record, tape, copy, save, replay or broadcast such Services on any public or private radio networks, television networks, direct satellite radio, pay-to-listen services(s) or computer transmission(s) such as the worldwide web and internet and intranet service(s).
4.3 Customer shall not and shall not allow any Permitted Users to 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. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals, if any, required for Customer’s or its Permitted Users’ use of or access to the Services.
4.4 Customer shall not and shall not allow its Permitted Users to 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.
4.5 Customer and its Permitted Users may only use the Services as prescribed in the Documentation.
4.6 Babbel may monitor Customer’s and its Permitted Users’ use of the Services and may prohibit and/or suspend any use of the Services it believes may be in violation of this Section 4.
4.7 Customer acknowledges that any threatened or actual breach of this Section shall constitute immediate, irreparable harm to Babbel for which equitable remedies may be awarded by a court of competent jurisdiction without the need to post a bond or other security.
5. Virtual Classroom
5.1 If specified in an Order, Babbel shall provide Services allowing Customer and its 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, subject to the additional provisions of this Section 5.
5.2 Babbel provides Virtual Classroom Services against certain credits (“Credits”) which are either included in the Order or purchased separately by Customer. If not used, any Credits (including the right to attend a Virtual Classroom session) shall expire (a) twelve (12) months following the date of their purchase and issuance, or (b) as of the termination or expiration 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 seat in the desired session for Babbel Live. Upon confirmation of the booking request, the agreement to participate in 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. Customer shall be responsible for fulfilling Babbel’s additional Equipment (as defined in Section 6.2) requirements with regard to Babbel Live Services as amended from time to time, which Equipment requirements may be accessed on Babbel’s Website.
5.5 In order to be able to use Virtual Classroom Services, Customer and its Permitted Users may be required to use third-party video conferencing software and services, such as Zoom, or as otherwise specified by Babbel in the Equipment requirements, as amended from time to time. Customer shall be solely responsible for obtaining such video conferencing software and services including any usage rights thereto at Customer’s own cost, if any. Babbel does not make any representations or warranties with regard to the availability or certain functionalities of such third-party video conferencing software and services.
5.6 Babbel shall strive to make the desired language teacher available to Customer and its Permitted Users under Virtual Classroom Services. However, Babbel reserves the right to staff Virtual Classrooms or replace a designated language teacher with an equally qualified language teacher at any time before the start of a Virtual Classroom session without giving a reason for such change or prior notice of such change.
5.7 The content and scope as well as the time and duration of each 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 order to more specifically provide Services to Customer.
5.8 Babbel and the respective language teacher shall be free to determine the specific content and/or design of any Virtual Classroom session at their own discretion. With regard to Babbel Live Private Classes, Babbel will use commercially reasonable efforts to accommodate any reasonable requests from Customer and its Permitted User regarding the specific content 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 session but is excluded after the session is scheduled to begin.
5.10 Babbel and the language teacher reserve the right to exclude a Permitted User from a Virtual Classroom session at any time if the Permitted User is disrespectful or disruptive, uses profanity, engages in harassment based on age, race, gender, color, religion, national origin, disability, marital status, covered veteran status, sexual orientation, status with respect to public assistance and other characteristics protected under state, federal or local law, or otherwise behaves in an unprofessional manner. In such case, the respective Credits for such session shall be forfeited and shall not be refundable to Customer.
5.11 Customer and any Permitted User may cancel any Virtual Classroom session with written notice to Babbel via the Online Platform for any reason and at any time prior to the scheduled start of theVirtual Classroom session. Babbel may cancel any Virtual Classroom session for any reason or no reason 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 Section 5.11, Babbel shall be released of its obligation to provide the respective Virtual Classroom Services to Customer during the scheduled session, and the Parties will cooperate to reschedule the Virtual Classroom session.
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 cancels a Virtual Classroom session at least twenty-four (24) hours before its scheduled start time, the Credits for the relevant session will not be used and will be available for a subsequent session.
5.14 If Customer or a Permitted User (i) cancels a Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time, or (ii) does not attend a Virtual Classroom session in whole or in part, the Credits for the relevant session shall be forfeited by Customer and will not be available for subsequent use.
5.15 Any training material provided by Babbel or a language teacher in connection with Virtual Classroom Services may only be used by Customer or its 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 or use by another user without the prior written consent of Babbel, which consent Babbel may withhold in its sole discretion. Video, audio or other recordings of Virtual Classroom sessions by Customer or its Permitted Users are strictly prohibited.
6. Customer’s Responsibilities
6.1 Customer represents and warrants that Customer and its Permitted Users shall use the Services only in full compliance with all applicable laws and regulations.
6.2 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.
6.3 Customer shall also be responsible for maintaining the security of the Equipment, the Customer Account, passwords (including but not limited to administrative and Permitted User passwords) and files, and for all uses of the Customer Account or the Equipment with or without Customer’s knowledge. Customer and its Permitted Users must not share any passwords or access codes with unauthorized third parties.
6.4 Customer shall be solely responsible for the content of all data and any other information and material displayed, posted, uploaded, stored, exchanged or transmitted by Customer, any Permitted User or any other user accessing the Services by or through the Customer Account or by or through Customer or its Permitted Users (“Content”).
6.5 Babbel cannot control the Content submitted by or through Customer or its Permitted Users during their use of the Services and cannot guarantee the accuracy of any Content so 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, its Permitted Users’ or any users’ (by or through Customer or its Permitted User) access to the Services.
6.6 Customer shall timely provide Babbel with all information reasonably required by Babbel to implement any Order. Customer shall keep the information in the Control Panel 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.
7. Maintenance and Support for Paid Services
7.1 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 via telephone and e-mail support. “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.
7.2 Support is provided to Customer via e-mail through [email protected] or any other e-mail address that Babbel may provide from time to time, via the live chat on Babbel’s Website or via the telephone numbers as indicated on Babbel’s Website, in each case, on each business day during regular business hours, which are 9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday, excluding holidays.
7.3 Babbel shall use commercially 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 [email protected] or any other e-mail 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 errors about which it has been notified, 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.
7.4 If Babbel’s analysis shows that an error reported by Customer has actually not occurred or is not attributable to Services, Babbel may charge Customer for the costs demonstrably incurred by Babbel in connection with such analysis.
7.5 Except as set forth in Section 7.4, the fees for Maintenance and Support are included in the Service Fees.
8. Availability of Paid Services
8.1 Subject to Customer’s payment of the Service Fees, Babbel shall make Paid Services available to Customer in accordance with this Section 8.
8.2 Babbel shall use commercially reasonable efforts to ensure that Paid Services are available to Customer over the internet, ninety-nine point five percent (99.5%) of the time per calendar year (based on twenty-four (24) hours a day and seven (7) days a week operation) excluding (a) any temporary unavailability of Services 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 by posting the same on Babbel’s Website.
8.3 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.
9. Additional Services
9.1 Babbel may provide additional professional services (such as onboarding training) requested by Customer from time to time if and to the extent described in a mutually agreed upon Order (“Additional Services”). Each party shall designate a primary contact (each, a “Contact”) with full authority to act for such Party with respect to the Additional Services.
9.2 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.
9.3 Any queries arising in connection with Additional Services must be addressed by and through Customer’s Contact and Babbel’s Contact designated in the Order. Neither Party shall have the right to rely on responses from other than the other Party’s designated Contact.
9.4 If expressly provided for in an Order for Additional Services or as otherwise agreed by the Parties, Customer shall reimburse Babbel for any travel and other expenses incurred in connection with the Additional Services at Babbel’s cost.
10. Fees | Payment Terms
10.1 Customer shall pay to Babbel the fees for Services and Additional Services specified in the respective Order in accordance with the terms therein (the “Service Fees”).
10.2 Customer shall pay to Babbel the Service Fees arising from Customer exceeding the capacity of Paid Services set forth in the Order or any other additional fees that may become payable.
10.3 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 (as such terms are defined in Section 11.2), Customer shall remain obliged to pay to Babbel the full amount of the corresponding Service Fees for such Licenses initially ordered.
10.4 Babbel reserves the right to change the Service Fees applicable to a Renewal Service Term upon providing at least sixty (60) days’ notice prior to the end of the Initial Service Term or the end of the then-current Renewal Service Term.
10.5 Unless otherwise specified, Customer shall make all payments via wire transfer according to the wire transfer instructions which will be provided on the Order. Babbel may also choose to bill through an electronically transmitted invoice, in which case full payment for such invoices must be received by Babbel within thirty (30) days after the mailing date of each such invoice.
10.6 All Service Fees are exclusive of, and Customer shall pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Service Fees.
10.7 Following notice to Customer in writing (simple email to be sufficient), Babbel shall be entitled to suspend Customer’s access to Services if payments of Service Fees or other amounts due hereunder are not received by Babbel within fourteen (14) days of the due date.
11. Term | Termination
11.1 Any Order shall begin on the date specified therein.
11.2 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 shall be the same length of time as the Initial Service Term (“Renewal Service Term” and collectively with the Initial Service Term, the “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 without cause with effect prior to the end of the then current Term.
11.3 Each Party shall have the immediate right to terminate any Order for cause, if (a) 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 to be sufficient); (b) Customer is in default of payment by more than fourteen (14) days; (c) Customer breaches the use restrictions under Section 4; (d) Customer shall become bankrupt or insolvent, or file a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Customer’s property; (e) a petition or answer proposing the adjudication of Customer as a bankrupt or its reorganization under any present or future federal or state bankruptcy or similar law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or (f) Customer makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement, or suffers this Order to be taken under any writ of execution.
12. Limited Warranty for Paid Services
12.1 Customer has verified, or by use of the Services is deemed to have verified, that the specifications of the Services as described in the Documentation meet Customer’s needs and requirements. 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 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.
12.2 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 use commercially reasonable efforts to modify the Paid Services so they conform in all material respects to the Documentation. If Babbel is unable to provide Paid Services that materially conform to the Documentation 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 Service 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. THE REMEDIES SET FORTH IN THIS SECTION 12 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND BABBEL’S SOLE AND EXCLUSIVE LIABILITIES FOR A BREACH OF THIS WARRANTY.
12.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND BABBEL DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE (A) OF MERCHANTABILITY OR SATISFACTORY QUALITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, (C) OF NON-INFRINGEMENT, (D) ARISING FROM CUSTOM, TRADE USAGE, COURSE OF PRIOR DEALING, OR COURSE OF PERFORMANCE, AND (E) WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE SERVICES.
12.3 Under no circumstances shall Customer be entitled to obtain the source code of the Services.
13. Confidentiality | Customer Data
13.1 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”). Confidential Information also includes the content of the Orders.
13.2 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 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 from the other Party; 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.
13.3 Notwithstanding anything herein 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 (“De-identified Data”) in connection with its business.
14. Proprietary Rights | Trade Names and Logos | Updates | Feedback
14.1 Babbel and its suppliers own and shall retain all proprietary rights, including all copyrights, database rights, patents, trade secrets, trademarks and all other intellectual property rights and technical solutions (collectively, “IP Rights”), in and to the Services (including but not limited to any learning content and didactic methods). Customer acknowledges that the rights granted under any Order do not provide Customer with title to or ownership of the Services or any IP Rights therein.
14.2 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 or as De-identified Data. Babbel shall have no liability for the Customer Data and any Content.
14.3 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.
14.4 Customer agrees that Babbel may refer to Customer by its trade names and logos, and may briefly describe Customer’s business, in Babbel’s marketing materials and Website.
14.5 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, a fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose.
14.6 Each Party acknowledges that any threatened or actual breach of this Section shall constitute immediate, irreparable harm to the disclosing Party for which equitable remedies may be awarded by a court of competent jurisdiction without the need to post a bond or other security.
15. Data Protection
15.1 It is the intent of the Parties that neither shall provide, use, access or process Prohibited Data of the other in connection with the use or provision of the Services. Notwithstanding the foregoing, however, 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, CCPA and CPRA.
15.2 If, despite the express intent of the Parties, the provision of the Services includes the processing of personal data relating to Customer, Babbel processes such data solely as a “processor” on behalf of Customer who acts as a “controller”, each as defined in any applicable privacy and data protection legislation including but not limited to the GDPR, CCPA and CPRA. Where required by such legislation, Babbel shall enter into a written data processing agreement with Customer.
15.3 The processing of personal data by Babbel, including without limitation the processing of personal data of California and Nevada residents, is further described in Babbel’s Privacy Policy which can be accessed on Babbel’s Website.
15.4 Customer is solely responsible for ensuring that processing of personal data of Customer’s employees by Babbel is in compliance with any relevant employment contract, collective bargaining agreements, works council agreements, and applicable labor and data privacy laws.
16. Indemnity
16.1 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, and its and their respective 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 Section 4 or otherwise from Customer’s use of the 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, whereby “control” means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.
16.2 In connection with any claim for indemnity under this Section 16, Babbel must promptly provide Customer with written 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 Section 16, 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.
16.3 Subject to Section 17, 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 SECTION 16.3 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BABBEL’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS AND TRADE SECRETS.
17. Limitation of Liability
17.1 IN NO EVENT SHALL BABBEL’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY ORDERS, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER UNDER SUCH ORDER(S) IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, TO THE EXTENT SUCH LIMIT ON LIABILITY IS PERMISSIBLE UNDER APPLICABLE LAW.
17.2 IN NO EVENT SHALL BABBEL HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF USE, LOSS OR CORRUPTION OF DATA, COSTS OF COVER, LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER BABBEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17.3 Except as expressly and specifically provided in these Terms, Customer assumes sole responsibility for results obtained and conclusions drawn from the use of the Services by Customer and its Permitted Users. Babbel shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to Babbel by the Customer in connection with the Services, or any actions taken by Babbel at the Customer’s direction.
17.4 Babbel shall not be liable for any loss, damage or harm suffered by Customer or its Permitted Users that is directly or indirectly caused by Customer’s or its Permitted Users’ unauthorized use of the Services to process Prohibited Data.
17.5 Babbel does not guarantee, represent or warrant any specific language learning progress or language learning success to be achieved by Customer and its Permitted Users by using the Services.
18. IT Security
18.1 Customer shall ensure that Permitted 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.
18.2 Where it is suspected that any unauthorized person has become aware of a Permitted User identity or password, Customer shall immediately inform Babbel thereof in writing and also change such Permitted User identity or password.
18.3Customer shall be liable for losses or damage incurred by Babbel where Customer intentionally or negligently reveals a Permitted User identity or password to a third party or where a Permitted User identity and password otherwise become known to an unauthorized party, unless Customer notifies Babbel immediately upon suspicion that such event has occurred.
18.4 Babbel shall adopt reasonable measures to ensure that the security of the Services meets relevant industry standards. These measures are detailed in Babbel’s Technical and Organizational Measures (“TOM”).
19. No Assignment I No Third-Party Beneficiaries
19.1 Customer may not assign any of its benefits or delegate any of its duties under these Terms or any Order without the prior written consent of Babbel, which consent Babbel may withhold in its sole discretion. Notwithstanding the foregoing, Customer may assign its rights and delegate its duties under these Terms to a successor to all or substantially all of Customer’s assets and operations, provided that such successor is (a) not a direct or indirect competitor of Babbel or any of its Affiliates, and (b) reasonably deemed by Babbel to be creditworthy. These Terms will be binding upon and inure to the benefit of each Party and its permitted successors and assigns.
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.
20.3 Valid amendments or supplements to any Order must be made in writing signed by the Parties. The same shall apply to any agreement to deviate from or cancel this requirement of written form.
20.4 Babbel may amend or update these Terms from time to time as necessary for technical, economic or legal reasons. Any revision of these Terms shall be announced to Customer in written form (simple email to be sufficient) no later than six (6) weeks before the proposed effective date for such revision (the “Effective Date”). Customer may either approve or object to the revision before the Effective Date. The revision shall be deemed approved by Customer unless Customer objects to the revision before the Effective Date. Babbel shall expressly inform Customer thereof in the respective announcement.
21.Governing Law | Jurisdiction | Arbitration
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 State of New York without regard to any conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to any Order.
21.2 Arbitration. The Parties agree that any dispute, claim, or disagreements arising out of or relating in any way to Customer’s access to or use of the Services, any communications received by Customer, the Services, or any Orders (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) the Parties may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) the Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of these Terms, “Dispute” will also include claims that may arise after the termination of an Order.
21.3 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. The Parties are instead electing that all Disputes shall be resolved by arbitration under these Terms, except as specified in subsection 21.2 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
21.4 Waiver of Class and Other Non-Individualized Relief. THE PARTIES AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to these Terms, the arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by the Party’s individual claim. Notwithstanding anything to the contrary in these Terms, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), the Parties agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent the Parties from participating in a class-wide settlement of claims.
21.5 Rules and Forum. Notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of these Terms and any arbitration proceedings. Either Party shall have the right to finally resolve a Dispute through binding arbitration. The arbitration will be administered by the AmericanArbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of these Terms.
21.5.1 A Party who wishes to initiate arbitration must provide the other Party with a request for arbitration (the “Request”). If Customer initiates the arbitration, it must provide Babbel a copy of its Request by email at [email protected] or through Babbel’s registered agent for service of process. The Request must include: (1) the name, telephone number, mailing address, and email address of the Party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought, including an accurate, good faith calculation of the amount in controversy in United States Dollars; and (4) evidence that the requesting Party has paid any necessary filing fees in connection with such arbitration.
21.5.2 If the Party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
21.5.3 Disputes involving claims, counterclaims, or requests for relief under $25,000, not inclusive of attorneys’ fees and interest, will be conducted solely on the basis of documents the Parties submit to the arbitrator. If Customer’s claim exceeds $25,000, its right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the Parties, consistent with the expedited nature of the arbitration. In any case, the Parties agree that they will not request more than three depositions per side in each arbitration proceeding. If the AAA is not available to arbitrate, the Parties will select an alternative arbitral forum. Customer’s responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
21.5.4 The Parties agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the Parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
21.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the Parties from the AAA’s roster of consumer dispute arbitrators. If the Parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
21.7Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of these Terms, including the enforceability, revocability, scope, or validity of these Terms or any portion of these Terms, except for the following: (1) all Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (3) all Disputes about whether either Party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon both Parties. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by the “Limitation of Liability” section of this Agreement.
21.8 Attorneys’ Fees and Costs. The Parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If the Parties need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the Party that obtains an order compelling arbitration in such action shall have the right to collect from the other Party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing Party in any court action relating to whether either Party has satisfied any condition precedent to arbitration is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
22. Miscellaneous
22.1 The person signing or otherwise accepting the Order including these Terms for Customer represents that s/he is duly authorized by all necessary and appropriate corporate action to accept the Order on behalf of Customer.
22.2 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. Babbel will perform all Services as an independent contractor of Customer and will solely determine the means, method and manner of providing the Services. Babbel, in its sole discretion, shall determine how and where to utilize its resources (including Babbel’s staff) and plan its performances in accordance with the applicable Order.
May 2022
