Lesson Nine GmbH | Babbel End User Terms
1. General | Scope
1.1 These Babbel End User Terms (“Terms”) apply to all contracts between Lesson Nine GmbH, Max-Beer-Str. 2, 10119 Berlin, Germany (“Babbel”) and its customers who are consumers within the meaning of § 13 of the German Civil Code, i.e. individuals who enter into a legal transaction for purposes which are predominantly neither commercial nor self-employment (“Users”) to whom Babbel provides Services (as defined below).
1.2 Accessibility - any issues in accessing these Terms can be reported through Babbel’s Help Center page.
1.3 These Terms shall govern each ordering document and any online, email or in-app ordering process by which a customer affirmatively registers or otherwise signs up for the Services, which may include subscription services (each an “Order”). The terms and conditions of each agreed Order shall incorporate these Terms.
1.4 These Terms shall also apply as a framework agreement to future similar contracts between Babbel and the User without Babbel being required to refer to them in each individual case. These Terms shall be deemed to be confirmed by the User at the latest when the User accesses the Services.
1.5 These Terms apply to the exclusion of all others. Different, conflicting or supplementary terms of business of the User shall only become part of an Order if and to the extent that Babbel has consented to their application in writing.
1.6 Individual agreements with the User in specific cases shall take priority over these Terms if made in writing.
1.7 Where the expressions ‘in writing’, ‘written form’ or variations thereof are used in these Terms, this shall mean ‘in writing’ within the meaning of § 126 of the German Civil Code. The electronic exchange of copies of documents signed by hand as well as documents signed with a simple electronic signature (such as provided by e.g. DocuSign or Adobe Sign) shall suffice. Unless expressly stated otherwise in these Terms, simple emails shall not suffice.
1.8 Any notices and declarations submitted by the User to Babbel, including but not limited to notices of termination or setting of deadlines, shall be made at least in text form within the meaning of § 126b of the German Civil Code to be valid (for greater clarity: a simple email shall suffice) if not stated otherwise in these Terms.
1.9 References herein to the application of statutory provisions shall be for clarification purposes only. Consequently, statutory provisions shall apply even without such clarification provided that they are not directly amended by or expressly excluded in these Terms.
2. Free Services and Paid Services | Trial Use
2.1 Subject to the terms and conditions agreed in each Order, Babbel grants the User access to its language learning software which is offered as software-as-a-service including to any related websites, spaces, services, applications and the respective learning contents and features as specified in the Order (“Services”). The Services may comprise one or more Babbel products as described on Babbel’s website from time to time. The Services may be offered free of charge with limited functionalities (“Free Services”) or against payment of a Service Fee (as defined below) with certain agreed functionalities (“Paid Services”) each as specified in the Order.
2.2 Babbel shall have the right to downgrade, limit or otherwise modify Free Services at any time without notice. Subject to Clause 16, no guarantee, indemnity, Maintenance or Support (as defined below) and availability obligations of Babbel shall apply to Free Services. Free Services are not a guarantee of (future) product features of Paid Services and should not be relied upon by the User in making any purchasing decisions for Paid Services.
2.3 Babbel may grant the User access to Paid Services free of charge or at reduced Service Fees as part of a trial evaluation for a period determined by Babbel in its sole discretion (“Trial Use”). Babbel shall have the right to downgrade, limit or otherwise modify the Services provided for Trial Use at any time without notice. Subject to Clause 16, no guarantee, indemnity, Maintenance or Support and availability obligations of Babbel shall apply to Trial Use. Babbel has the right to immediately revoke and terminate any Trial Use at any time. Trial Use is not a guarantee of (future) product features and should not be relied upon by the User in making any purchasing decisions for Paid Services. Subject to the terms and conditions agreed in the Order, Trial Use of Services may end and will then automatically transform into regular Paid Services.
2.4 Babbel shall be entitled to retain subcontractors, including third-party software suppliers, for the performance of any of its obligations under any Order.
3. User Account | Conclusion of an Order
3.1 In order to use the Services, the User is required to create a user account by accepting these Terms, entering certain personal details and by setting a password of their choice in a registration form provided by Babbel online (“User Account”). After submitting the completed registration form, the User will receive a confirmation email from Babbel allowing the User to activate the User Account. Through the creation of the User Account, a binding contract is concluded between the User and Babbel, entitling the User to use Free Services.
3.2 If the User wishes to use certain Paid Services, the User may place a respective Order with Babbel through the User Account. Offers made by Babbel for Paid Services are not binding. By placing an order, the User makes a binding offer to conclude a respective contract. The ordering process includes the following steps: choosing an option, verifying the choice and/or correcting it, inserting relevant data, selecting the method of payment, reading any applicable material terms of the subscription plans and affirmatively accepting such material terms and agreeing to these Terms, and completing a binding submission of the order by clicking an order button and/or checking the box to proceed, as applicable. The User’s offer only becomes binding for both parties when Babbel confirms acceptance of the offer in an email (“Order Confirmation”). The Order Confirmation also includes detailed information in relation to the User’s Order and an Order number.
3.3 Babbel will not store the contract text (these Terms and the terms and conditions of the respective Order) after conclusion of an Order. The contract text will then not be accessible to the User.
4. Rights of Use | Use Restrictions
4.1 Subject to the terms and conditions of the Order, Babbel grants to the User, during the Free Term (as defined below), the Initial Service Term, the Lifetime Subscription Term and any Renewal Service Term (each as defined below), a non-exclusive, non-transferable, non-sublicensable world-wide right and license to use the Services for the User’s private purposes only (“License”). The Services are offered as prescribed in the relevant description on Babbel’s website including the User on-boarding process (if any) as well as the frequently asked questions sections, in each case as updated from time to time (“Documentation”).
4.2 The User shall not (and shall not permit any third party to) directly or indirectly: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or managed service provider environment, or otherwise generate income from the Services; (b) copy the Services onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of the Services, or otherwise attempt to discover any source code, object code or underlying structure, ideas, know-how or algorithms or other operational mechanisms of the Services, in each case, unless permitted by mandatory statutory law; (d) modify, adapt, translate or create derivative works based on all or any part of the Services (except to the extent expressly permitted by Babbel or authorized within the Services); (e) modify any proprietary rights notices that appear in the Services or components thereof; (f) use any Services in violation of any applicable laws and regulations (including any export laws and restrictions, national security controls and regulations) or outside of the scope of rights as set forth in this Clause 4; (g) configure the Services to collect (i) any data that is defined as sensitive personal data or ‘special categories of data’ within the meaning of the EU General Data Protection Regulation (“GDPR”) or any applicable 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.
4.3 The User shall not duplicate, process, distribute, share, or use for public reproduction any content of the Services without the prior written consent of Babbel, unless expressly permitted by sharing options that may be integrated in the Services.
4.4 The User shall not export or re-export, directly or indirectly, any Services or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations.
4.5 The User may only use the Services as prescribed in the Documentation.
4.6 Babbel may monitor the User’s use of the Services and may prohibit any use of the Services it believes may be in violation of this Clause 4.
5. User’s Responsibilities
5.1 The User represents and warrants to use the Services only in full compliance with all applicable laws and regulations.
5.2 The User 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 their own cost. Babbel’s current Equipment requirements (as amended from time to time) may be accessed on Babbel’s website.
5.3 The User shall also be responsible for maintaining the security of the Equipment, the User Account, passwords (including but not limited to user passwords) and files, and for all uses of the User Account or the Equipment with or without the User’s knowledge. The User must not share any passwords or access codes with unauthorized third parties.
5.4 The User shall be solely responsible for the content of all data and any other material displayed, posted, uploaded, stored, exchanged or transmitted by the User on or through the Services (“Content”). Babbel cannot control the information submitted by the User during the use of the Services and cannot guarantee the accuracy of any information submitted. Babbel may, without notice or liability, investigate any complaints or suspected violations of the Order that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating the User’s access to the Services.
5.5 The User shall keep the information in the User Account up to date and correct. The User 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.
6. Virtual Classroom
6.1 If specified in an Order, Babbel shall provide Paid Services to the User allowing them to participate in language training sessions with language teachers in an online live stream, either in one-to-one sessions (“Babbel Intensive”) or in group sessions (“Babbel Live”) (collectively “Virtual Classroom”) subject to the additional provisions of this Clause 6. Virtual Classroom Services are services within the meaning of § 611 German Civil Code.
6.2 Babbel provides Virtual Classroom Services against certain credits (“Credits”) which are either included in the Order and/or purchased separately. If not used, any Credits (including the right to attend a Virtual Classroom session) shall expire (a) thirty (30) days following their purchase, or (b) as of termination or expiry of the relevant Order, whichever occurs earlier. Credits will not be refunded and no interest shall accrue on them. Credits are not the property of the User.
6.3 In order to book a Virtual Classroom session, the User must access the Babbel online platform located at a web address provided by Babbel (“Online Platform”). Each booking request made by the User is subject to availability of the requested language teacher at the requested time as well as the availability of a free seat in the desired session. Upon confirmation of the booking request, the Virtual Classroom session shall become binding on Babbel and the User.
6.4 Virtual Classroom Services are provided via web browser or in the Babbel app. The User shall be responsible for fulfilling Babbel’s additional Equipment requirements with regard to Babbel Intensive Services and/or Babbel Live Services as amended from time to time, which may be accessed on Babbel’s website.
6.5 In order to be able to use Virtual Classroom Services, the User may be required to use third-party video conferencing software as specified by Babbel in the Equipment requirements as amended from time. The User shall be solely responsible for obtaining such video conferencing software including any usage rights thereto at their own cost and Babbel does not make any representations or warranties with regard to the availability and/or certain functionalities of such third-party video conferencing software.
6.6 Babbel shall strive to make the desired language teacher available to the User under Virtual Classroom Services. However, Babbel reserves the right to replace a designated language teacher with an equally qualified language teacher at any time before the start of a Virtual Classroom session without giving reasons.
6.7 The content and scope as well as the time and duration of a Virtual Classroom session are set out on the Online Platform. Babbel reserves the right to adapt and/or supplement the content and scope of a session at any time in a relevant manner and in the interest of the User.
6.8 Babbel and the respective language teacher shall be free to determine the specific contents and/or design of any Virtual Classroom session at their own discretion. With regard to Babbel Intensive Services, Babbel will use commercially reasonable efforts to accommodate any requests from the 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).
6.9 The booking of Virtual Classroom sessions is limited to the specific User.
6.10 Babbel and the language teacher reserve the right to exclude the User from a Virtual Classroom session at any time if the User behaves inappropriately. In this case, the respective Credits for such session shall be used up in full and shall not be refundable.
6.11 The User may cancel any Virtual Classroom session at any time without giving reasons. Babbel may cancel any Virtual Classroom session without giving reasons up to twenty-four (24) hours before its scheduled starting time. In the event of illness of the designated language teacher, force majeure or other unforeseeable events beyond Babbel’s control, Babbel may cancel any Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time. In each case described in this Clause 6.11, Babbel shall be released of its obligation to provide the respective Virtual Classroom Services.
6.12 In order to be effective, any cancellation of a Virtual Classroom session must be made via the Online Platform.
6.13 If the User or Babbel cancels a Virtual Classroom session at least twenty-four (24) hours before its scheduled starting time, no Credits shall be used up for the relevant session.
6.14 If the User (a) cancels a Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time, or (b) does not attend a Virtual Classroom session in whole or in part, all respective Credits shall be used up in full and shall not be refundable.
6.15 Any training material provided by Babbel and/or a language teacher in connection with Virtual Classroom Services may only be used by the User for the purpose of personal training preparation and follow-up as well as for personal information purposes. Training material may not be duplicated, processed, distributed or used for public reproduction without the prior written consent of Babbel. Video and/or audio recordings of Virtual Classroom sessions by the User are prohibited.
7. Lifetime Subscription Term
7.1 As a Lifetime Subscription (“Lifetime Subscription”) member, a User is entitled to access the Services defined in the applicable Order for as long as the respective language is offered and the Babbel app is available and supported by Babbel. The Lifetime Subscription applies only to Services defined in the applicable Order and does not extend to any future Services that may be developed.
7.2 Lifetime Subscriptions are intended for private, non-commercial use only. User’s may not assign, transfer or resell in any way Lifetime Subscriptions to any other person.
7.3 Babbel reserves the right to revise the terms or make changes to the Lifetime Subscription which will be communicated in our general terms & conditions.
7.4 Once a User has purchased a lifetime subscription, their membership will last the earlier of, 99 years, or for as long as Babbel continues to offer the Services defined in the applicable Order or up until the User chooses to cancel their membership under the terms set out in Clause 11 or in the event that Babbel ceases to trade or exist.
7.5 Babbel makes no warranties as to the expected duration of access to the Lifetime Subscription and its related Services.
7.6 In receiving a Lifetime Subscription under the applicable Order, the User acknowledges and agrees that the Services defined in the applicable Order could change or terminate in the future.
7.7 The Lifetime Subscription is valid for use only at babbel.com and on the Babbel app.
7.8 Lifetime Subscriptions are not redeemable for cash or credit, nor are they applicable towards previous purchases.
8. Maintenance and Support for Paid Services
8.1 Subject to the User’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 the User with regard to Paid Services by troubleshooting issues and providing assistance. “Maintenance” means Babbel’s obligations with regard to Paid Services related to error resolution, bug fixes and the provision of updates and upgrades made generally available by Babbel in its sole discretion.
8.2 Support is provided to the User via email through firstname.lastname@example.org or any other email address that Babbel may provide from time to time and/or via the live chat on Babbel’s website and/or via the telephone numbers as indicated on Babbel’s website, in each case, at least from Monday to Friday during regular business hours.
8.3 Babbel shall use reasonable efforts consistent with prevailing industry standards to provide Maintenance for Paid Services in a manner which minimizes errors and interruptions in the Services. The User may notify Babbel of any errors via email@example.com or any other email address that Babbel may provide from time to time and/or via the live chat on Babbel’s website. Babbel shall use commercially reasonable efforts to timely correct any notified errors, subject to (a) the User 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.
8.4 If Babbel’s analysis shows that an error notified by the User has actually not occurred or is not attributable to Paid Services, Babbel may charge the User for the costs demonstrably incurred by Babbel in connection with such analysis.
8.5 The fees for Maintenance and Support are included in the Service Fees.
9. Availability of Paid Services
9.1 Subject to the User’s payment of the Service Fees, Babbel shall make Paid Services available to the User in accordance with this Clause 9.
9.2 Babbel shall use reasonable efforts to ensure, that Paid Services are available to the User over the internet, however no less than ninety-nine point five percent (99.5%) per calendar year (based on twenty-four (24) hours a day and seven (7) days a week) excluding (a) any temporary unavailability for scheduled or for unscheduled Maintenance, either by Babbel or by third-party providers, and (b) unavailability for causes beyond Babbel’s reasonable control. Babbel shall use reasonable efforts to provide advance notice of any scheduled service disruption.
9.3 The User is aware and acknowledges that the User-side access to Paid Services such as an internet access cannot be guaranteed and that Babbel shall not be liable for any deficiencies in the User’s own internet connections or equipment.
10. Fees | Payment Terms | No Set-off
10.1 The User shall pay to Babbel the fees for Paid Services as specified in the Order in accordance with the terms therein (the “Service Fees”).
10.2 Babbel reserves the right to change the Service Fees for the following Renewal Service Term upon at least sixty (60) days prior to the end of the Initial Service Term or the end of the then-current Renewal Service Term.
10.3 The User shall make payment of the Services Fees using any of the payment methods offered on Babbel’s website.
10.4 Babbel will usually bill through an electronically transmitted invoice, in which case, full payment for invoices must be received by Babbel thirty (30) days after the mailing date of the invoice.
10.5 Following notice to the User in writing (simple email to be sufficient), Babbel shall be entitled to suspend the User’s access to Paid Services in accordance with § 320 German Civil Code if payments are not received by Babbel within fourteen (14) days of the due date.
10.6 The User may only invoke a right to set-off 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.
10.7 The information in the Services may contain typographical errors or other errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice. We do not, however, guarantee that any errors, inaccuracies or omissions will be corrected. We reserve the right to refuse to fill any orders that you may place based on information on the Services that may contain errors or inaccuracies, including, without limitation, errors, inaccuracies or out-of-date information regarding pricing, shipping, payment terms, or return policies.
11. Term | Termination
11.1 Any Order shall begin on the date specified therein.
11.2 Any Order for Free Services shall remain in effect for an indefinite period of time, unless terminated in accordance with the Order including these Terms (“Free Term”). Babbel or the User may terminate any Order for Free Services for convenience at any time with immediate effect.
11.3 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 as specified in the Order (“Renewal Service Term”), unless terminated at any time by Babbel or by the User (a) with seven (7) days’ prior written notice for Virtual Classroom Services or (b) with forty-eight (48) hours’ prior written notice for Paid Services other than Virtual Classroom Services, in each case with effect as of the end of the then-current term by contacting Babbel at firstname.lastname@example.org. The User shall not be entitled to terminate any Order for Paid Services for convenience with effect prior to the end of the Initial Service Term or any Renewal Service Term.
11.4 The parties’ right to immediately terminate any Order for good cause shall remain unaffected. Such good cause shall in particular exist, if (a) a party commits a material breach of the Order, and such breach has not been cured within thirty (30) days after receipt of written notice thereof (simple email to be sufficient); (b) the User is in default of payment by more than forty-five (45) days; (c) the User breaches the use restrictions under Clause 4; or (d) the User ceases its due payments or suffers a significant deterioration in its asset situation.
12. Limited Warranty for Paid Services
12.1 The User has checked that the specification of the Services as described in the Documentation meets User’s needs and wishes. The User is aware of the essential functionalities and features of the Services. The extent, nature and quality of the Services are determined by these Terms, the Order, and the Documentation. Any other information or requirements do only form part of the Order if the User and Babbel so agree in writing or if Babbel so confirms in writing. Product descriptions, illustrations, test programs, etc. do not constitute guarantees or agreements on certain specifications. In order to be valid, an agreement on a guarantee requires the written confirmation from a director of Babbel.
12.2 Babbel warrants that Paid Services will, in all material respects, conform to the functionality described in then-current Documentation for the applicable Paid Services version. In case of a breach of this warranty Babbel shall be required to use commercially reasonable efforts to modify the Paid Services to conform in all material respects to the Documentation, and if Babbel is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, the User shall be entitled to terminate the Order upon written notice and receive a pro-rata refund of the unused Services Fees which have been paid in advance (if any) for unused access to Paid Services. The User must notify Babbel in writing of any warranty breaches and the User must have installed and configured the Services in accordance with the Documentation to be eligible for the foregoing remedy. Any no-fault liability of Babbel for the existence of initial errors under § 536a German Civil Code shall be excluded. the User’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 16.
12.3 Under no circumstances shall the User be entitled to obtain the source code of the Services.
12.4 Platform providers, such as Apple Inc. and Google Inc., that make our app available for download (“Platform Providers”) are not parties to these Terms. Platform Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the app. In the event of any failure of the app to conform to the warranties herein, you may notify the applicable Platform Provider, and such Platform Provider may refund any purchases made through the app (if applicable). To the maximum extent permitted by applicable law, Platform Providers will have no other warranty obligation whatsoever with respect to the app. You acknowledge that Platform Providers are not responsible for addressing any claims relating to the app or your possession and/or use of the app, including but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. We, not the Platform Providers, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Platform Providers are third party beneficiaries of these Terms, and Platform Providers will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. You represent that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties.
13. Proprietary Rights | User Data | Updates
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 User acknowledges that the rights granted under any Order do not provide the User with title to or ownership of the Services.
13.2 The User shall retain all right, title and interest in and to the User data and any content, as well as any data that is based on or derived from the User data and any content. The User grants to Babbel a non-exclusive, non-transferable, sublicensable, worldwide and unlimited right and license to use the User data and any content solely in connection with providing the Services. Babbel shall have no liability for the User data and any content.
13.3 Babbel reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
14. Data Protection
14.1 The User 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.
15.1 Without prejudice to any other liability of the User under contract or statutory law, the User 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 User’s breach of Clause 4 or otherwise from the User’s use of Services, and the User shall pay all costs and damages finally awarded against Babbel by a court of competent jurisdiction as a result of any such claim. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with Babbel respectively, or which is a wholly owned subsidiary of Babbel respectively, whereby ‘control’ means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.
15.2 In connection with any claim for indemnity under this Clause15, Babbel must promptly provide the User 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 User of its obligations under this Clause 15, except to the extent that such failure materially prejudices the User’s defense of such claim. Babbel may, at its own expense, assist in the defense if it so chooses, but the User shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind Babbel shall not be final without Babbel’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
15.3 Babbel agrees at its expense to defend the User 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 User 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 the User’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 User; (ii) if the Services are combined with other non-Babbel products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (iii) to any unauthorized use of the Services. The provisions in this Clause 15.3 shall be the User’s sole remedy with respect to any claim of infringement of third-party intellectual property rights and trade secrets.
16. Limitation of Liability
16.1 Babbel shall be unrestrictedly liable for (a) injury to life, body or health caused by Babbel, its legal representatives or assistants in performance; (b) damage caused intentionally or with gross negligence by Babbel, its legal representatives or assistants in performance; (c) damage resulting from the absence of any guaranteed characteristics; and (d) claims under the German Product Liability Act.
16.2 Babbel shall be liable for damage resulting from the breach of its primary obligations hereunder by Babbel, its legal representatives, senior executives or assistants in performance. Primary obligations are such basic duties which form the essence of the Order and on the performance of which the User may rely. If the breach of such primary obligation was caused through simple negligence by Babbel, its legal representatives or assistants in performance; Babbel’s ensuing liability shall be limited to the amount which was foreseeable by Babbel at the time the respective Service was performed.
16.3 Subject always to Clauses 16.1 and 16.2, Babbel shall not be liable for damage resulting from the breach of non-primary obligations through simple negligence of Babbel, its legal representatives or executive staff or Babbel’s assistants in performance.
16.4 Babbel shall not be liable for any loss, damage or harm suffered by the User that is directly or indirectly caused by the User’s unauthorized use of the Services to process Prohibited Data.
16.5 Babbel shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen if proper and regular data backup measures had been taken by the User.
16.6 Subject always to Clause 16.1, the total liability of Babbel arising out of or in connection with any Order, whether in contract or tort or otherwise shall in no circumstances exceed a sum equal to one hundred and fifty percent (150%) of the total Service Fees paid or payable by the User under the relevant Order.
16.7 Babbel does not guarantee, represent or warrant any specific language learning progress or language learning success to be achieved by the User by using the Services.
16.8 Any other liability of Babbel not covered by this Clause 16 is excluded on the merits.
17. Notice of Right of Withdrawal | Declaration on Immediate Performance
17.1 The User shall have the following right of withdrawal:
Notice of your Right of Withdrawal
Right of Withdrawal
You have the right to withdraw from this contract within fourteen (14) days without giving any reasons.
The withdrawal period will expire after fourteen (14) days from the day on which the contract is concluded. To exercise your right of withdrawal, you must inform Lesson Nine GmbH (registered office: Max-Beer-Str 2, 10119 Berlin, Germany, Phone: +1 (888) 901-2932 (toll free US), +44 20 3322 1969 (UK), +49 30 568 373876 (Germany), email: email@example.com) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or email). You may use this model withdrawal form but this is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of Withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event no later than fourteen (14) days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
End of the Notice of your Right of Withdrawal
17.2 The User hereby expressly agrees that Babbel shall commence implementing the contract before the end of the withdrawal period set forth in Clause 17.1. The User acknowledges that by giving this consent they will lose the right to withdraw from the contract once Babbel has commenced implementing the contract. Where the User nonetheless withdraws from a contract involving Virtual Classroom Services, the User shall compensate Babbel for the value of such Services provided until the withdrawal taking effect.
18. IT Security
18.1 The User shall ensure that their passwords are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The User shall be liable for any unauthorized use of the Services.
18.2 Where it is suspected that any unauthorized person has become aware of the User’s identity and/or password, the User shall immediately inform Babbel thereof and also change their user identity and/or password.
18.3 The User shall be liable for losses or damage incurred by Babbel where the User intentionally or negligently reveals their identity/password to a third party or where their identity and password otherwise become known to an unauthorized party, unless the User 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.
19. Assignment | Novation
19.1 Babbel may assign any Order and/or any associated rights in whole or in part to a third party, provided that such assignment shall not impair the User’s rights under such Order.
19.2 At Babbel’s request, the User shall enter into a novation agreement with a third party for any Order without undue delay in order to enable Babbel to exercise its rights pursuant to Clause 19.1.
19.3 The User shall not assign any of its rights or obligations under any Order and these Terms without the prior written consent of Babbel.
20. Entire Agreement | Severability | Changes | Revision
20.1 The Order including these Terms represents the entire agreement between the User 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 the Order including these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what the parties would have agreed, pursuant to the meaning and purpose of the original provision and of the Order if they had recognized the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in the Order including these Terms that was not intended by the parties. It is the express intention of Babbel and the User that this savings clause does not just have the effect of shifting the burden of proof but that § 139 German Civil Code is entirely dispensed with.
20.3 Valid amendments or supplements to any Order must be made in writing (exchange of simple emails shall be sufficient). The same shall apply to any agreement to deviate from or cancel this requirement of written form.
20.4 Babbel may amend and/or update these Terms from time to time with future effect and as necessary for technical, economic or legal reasons. Any revision of these Terms shall be announced to the User in text form (simple email shall suffice) no later than six (6) weeks before their proposed effective date. The User may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by the User, unless the User objects to the revision before their proposed effective date. Babbel shall expressly inform the User thereof in the respective announcement.
21. Governing Law | Consumer Dispute Resolution
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 mandatory laws of the country of the User’s usual place of residence (i.e. the provisions of the law of that country which cannot be derogated from by agreement). In all other respects, the laws of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
21.2 The European Commission provides an online dispute resolution platform which may be accessed via this link. Babbel is neither obliged nor willing to participate in such dispute resolution proceedings or in dispute resolution proceedings before any other consumer arbitration board.
Lesson Nine GmbH
District Court of Berlin Charlottenburg, Germany, HRB 110215