Babbel GmbH | Babbel End User Terms
1. General | Scope
1.1 These Babbel End User Terms (“Terms”) apply to all contracts between Babbel GmbH with registered office address at Andreasstraße 72, 10243 Berlin, Germany (“Babbel”) and its customers who are consumers entering into a legal transaction for purposes which are predominantly neither commercial nor self-employment (“you”) to whom Babbel provides Services.
1.2 These Terms shall govern all documents related to orders of Babbel’s Services, including any online, email or in-app ordering processes that are agreed between you and Babbel (each an “Order”). Each agreed Order shall incorporate these Terms.
1.3 These Terms shall also apply as a framework for future contracts between you and Babbel even if Babbel does not refer to them in each individual case. These Terms shall be deemed to be confirmed by you at the latest when you access the Services.
1.4 These Terms apply to the exclusion of all others. Different, conflicting or supplementary terms shall only become part of an Order if and to the extent that Babbel has agreed to such terms in writing.
1.5 Individual agreements between you and Babbel in specific cases shall take priority over these Terms if made in writing.
1.6 Where these Terms use the expressions ‘in writing’, ‘written form’ or variations thereof, this shall mean ‘in writing’ within the meaning of the German Civil Code. This means 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.
1.7 Unless stated otherwise in these Terms, any notices and declarations given or made by you to Babbel, must be made at least in text form within the meaning of the German Civil Code to be valid (simple email shall suffice).
2. Free Services and Paid Services | Updates | Trial Use
2.1 Subject to the terms and conditions agreed in each Order, Babbel grants you access to its language learning software which is offered as software-as-a-service as well as any related websites, spaces, services, applications and the respective learning content and features as specified in the Order (“Services”). Babbel may offer free of charge services with limited functionalities (“Free Services”) or services against payment of Service Fees with certain agreed functionalities (“Paid Services”), each as specified in the Order.
2.2 Babbel may implement new versions and upgrades of Paid Services including, but not limited to, modifications to the design, operational method, technical specifications, systems, and other functions of Paid Services, at any time in accordance with applicable law, in particular to the extent that such changes are necessary to maintain the contractual compliance of Paid Services or for compelling technical, economic or legal reasons.
2.3 Babbel may downgrade, limit or otherwise modify Free Services at any time without notice. Subject to Clause 17, Babbel shall have no obligations with regard to any guarantee, indemnity, Maintenance or Support and availability pertaining to Free Services. Free Services are not a guarantee of (future) product features of Paid Services.
2.4 Babbel may grant you access to Paid Services free of charge or at reduced Service Fees as part of a trial evaluation for a period determined by Babbel in its sole discretion (“Trial Use”). Babbel may downgrade, limit or otherwise modify the Services provided for Trial Use at any time without notice. Subject to Clause 17, Babbel shall have no obligations with regard to any guarantee, indemnity, Maintenance or Support and availability pertaining to Trial Use. Babbel may revoke or terminate any Trial Use at any time without giving prior notice to you. Trial Use is not a guarantee of (future) product features. Subject to the terms and conditions agreed in the Order, Trial Use of Services may end and shall then automatically transform into regular Paid Services.
2.5 Babbel may retain subcontractors, including third-party software suppliers, for the performance of any of its obligations under any Order at any time.
3. User Account | Conclusion of an Order
3.1 In order to use the Services, you must create a user account (“User Account”) by accepting these Terms, providing certain personal details, and by either setting a password of your choice in a registration form provided by Babbel online or, if offered by Babbel in its sole discretion, by using an existing account with a third-party service provider (such as e.g., Google, Facebook or Apple). After registering, you will receive a confirmation email from Babbel allowing you to activate the User Account. By creating a User Account, a binding Order is concluded between you and Babbel entitling you to use Free Services.
3.2 You must be at least eighteen (18) years of age to create a User Account and/or to place an Order. If you are considered to be underaged by applicable law, you may only create a User Account and/or place an Order if you are at least fourteen (14) years of age and your legal representatives have provided their prior written consent. Babbel may ask you to present proof of your identity, your legal age, and/or your legal representatives’ consent at any time.
3.3 If you wish to access Paid Services, you may place an Order with Babbel through your User Account. Offers made by Babbel for Paid Services are not binding. By placing an order, you make a binding offer to conclude an Order. The ordering process usually includes the following steps: choosing an option, verifying the choice and/or correcting it, inserting relevant data, selecting the method of payment, reading the applicable commercial terms and accepting such terms, agreeing to these Terms, and submitting a binding order by clicking an order button and/or checking the box to proceed. Your offer shall only turn into a binding Order when Babbel confirms acceptance of your offer in an email (“Order Confirmation”). The Order Confirmation also includes detailed information in relation to your Order and an order number.
3.4 You may save these Terms and any other terms and conditions applicable to the Order. Babbel will not store the text of the contract after conclusion of an Order. This means it will then not be accessible to you.
4. Rights of Use | Use Restrictions
4.1 Subject to the terms and conditions of the Order, Babbel grants to you, during the Free Term, the Initial Service Term, the Lifetime License Term and any Renewal Service Term, a non-exclusive, non-transferable, non-sublicensable world-wide right and license to use the Services for your private purposes only (“License”). Babbel offers you the Services as described 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 You must not (and must 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, 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 or outside of the scope of rights as set forth in this Clause 4; or (g) use the Services to (i) store, download or transmit infringing, libellous, 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) gain unauthorised access to the Services or Babbel’s systems or networks; or (v) perform, or engage any third party to perform, penetration testing, vulnerability assessments or other security assessments.
4.3 The Services may be subject to export and/or re-export control laws and regulations of the European Union, the United States of America, or to similar laws applicable in other jurisdictions. You warrant that (a) you are not located in any country to which the European Union and/or the United States of America have embargoed goods or have otherwise applied any economic sanctions, and (b) you are (i) not a denied party as specified in any applicable export and/or re-export laws and regulations of the European Union, the United States of America, or to similar laws applicable in other jurisdictions, or (ii) otherwise listed on any European Union and/or United States of America government list of prohibited or restricted parties.
4.4 You must not export or re-export, directly or indirectly, any Services or data relating thereto in breach of any applicable laws and regulations. In particular, you must comply with the sanctions imposed by the European Union and the United States of America, in each case, insofar as this does not result in a violation of or a conflict with mandatory laws, in particular with anti-boycott statutes applicable to you. You must, at your own expense, obtain all necessary customs, import, or other governmental authorisations and approvals.
4.5 You must not duplicate, process, distribute, share, or use for public reproduction any content of the Services without Babbel’s prior written consent, unless expressly permitted by sharing options that may be integrated in the Services.
4.6 You may only use the Services as prescribed in the Documentation.
4.7 Babbel may monitor your use of the Services and may prohibit and/or suspend any use of the Services that Babbel believes may be in violation of this Clause 4.
5. User’s Responsibilities
5.1 You shall be responsible for obtaining and maintaining any technical equipment and related ancillary services required to connect to, access or otherwise use the Services, including, without limitation, hardware, software (collectively “System”), networks and internet connections at your own cost. Babbel’s current System requirements (as amended from time to time) may be accessed on Babbel’s website (“System Requirements”).
5.2 You must keep the information in your User Account up to date and correct. You must ensure that your user identities, passwords and similar credentials used for accessing the Services are used and stored in a secure manner, cannot be accessed and used by unauthorised third parties and are immediately changed in the event of unauthorised disclosure. You must notify Babbel promptly of any unauthorised use of any password or account or any other known or suspected breach of security or misuse of the Services.
5.3 You shall be solely responsible for the content of all data and any other material displayed, posted, uploaded, stored, exchanged or transmitted by you on or through the Services (“Content”). Babbel cannot control the information submitted by you during the use of the Services and cannot guarantee the accuracy of any information submitted.
5.4 Babbel may, without notice or liability, investigate any complaints or suspected violations of the Order including these Terms that come to its attention and may take any action that it believes is appropriate, including, but not limited to, rejecting, refusing to post, or removing any Content, or other data, or restricting, suspending, or terminating your access to the Services.
5.5 Subject to Clause 17, you shall be liable for losses or damage incurred by Babbel if you intentionally or negligently revealed your identity/password to a third party or, if your identity and password has otherwise become known to an unauthorised party.
6. Virtual Classroom
6.1 If specified in an Order, Babbel shall provide Paid Services to you allowing you 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 provisions of this Clause 6. Virtual Classroom Services are services within the meaning of the German Civil Code.
6.2 Subject to Clause 3.2, you must be at least sixteen (16) years of age in order to participate in Babbel Live.
6.3 In order to book a Virtual Classroom session, you must log into your User Account and place a booking request by clicking a booking button. Each booking request is subject to availability of the requested language teacher at the requested time as well as the availability of a free seat in the desired session. Upon Babbel’s confirmation of the booking request, the Virtual Classroom session shall become binding on you and Babbel.
6.4 The booking of Virtual Classroom sessions is limited to the specific user. Virtual Classroom Services are limited to a maximum number of sessions per user per calendar month as described in the Documentation.
6.5 Virtual Classroom Services are usually provided via web browser, via third-party video conferencing software or in the Babbel app. You shall be responsible for fulfilling the System Requirements with regard to Virtual Classroom Services.
6.6 If third-party video conferencing is required to participate in a Virtual Classroom session you shall be solely responsible for obtaining such video conferencing software including any usage rights thereto at your 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.
6.7 Babbel shall strive to make the desired language teacher and language level available to you at the desired time under Virtual Classroom Services. However, availabilities may be limited and changes may be required at short notice on important grounds. In particular, Babbel may replace any designated language teacher with an equally qualified language teacher at any time before the start of a Virtual Classroom session without giving reasons.
6.8 The content and scope as well as the time and duration of a Virtual Classroom session are set out on Babbel’s website or in the Babbel app. Babbel may adapt and/or supplement the content and scope of a Virtual Classroom session at any time in a relevant manner in accordance with applicable law and in your interest. Clause 2.2 applies.
6.9 Babbel and the 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 shall use commercially reasonable efforts to accommodate your requests 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.
6.10 The Babbel Live student code of conduct for Virtual Classroom sessions (“Babbel Live Code of Conduct”) can be viewed here, and form an integral part of these Terms and any Order for Virtual Classroom Services. You must comply with the Babbel Live Code of Conduct at all times. Babbel shall not be responsible for the conduct of other users taking part in Virtual Classroom Services.
6.11 Babbel and/or the language teacher may exclude you from a Virtual Classroom session at any time if you behave inappropriately, in particular if you violate applicable laws and/or the Babbel Live Code of Conduct.
6.12 Babbel may cancel any Virtual Classroom session without giving reasons up to twenty-four (24) hours before its scheduled starting time. In the event of illness of the designated language teacher or situations under Clause 17.7, Babbel may cancel any Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time. In this case, Babbel shall be released of its obligation to provide the respective Virtual Classroom Services.
6.13 In order to be effective, any cancellation of a Virtual Classroom session by you must be made via your User Account.
6.14 If (a) you cancel a booked Virtual Classroom session less than twenty-four (24) hours before its scheduled starting time, or (b) you do not attend a Virtual Classroom session in whole or in part, you shall pay to Babbel a compensation as specified in the Babbel Live Code of Conduct. In either case, you are free to prove that Babbel has not suffered any loss or that such loss is significantly lower than the compensation you owe. Babbel reserves the right to claim further damages.
6.15 You may use any training material provided by Babbel and/or a language teacher in connection with Virtual Classroom Services solely for the purpose of personal training preparation and follow-up as well as for personal information purposes. You may not duplicate, process, distribute or use for public reproduction any training material without the prior written consent of Babbel. You must not (and must not permit any third party to) make any video and/or audio recordings of Virtual Classroom sessions.
7. Maintenance and Support for Paid Services
7.1 Subject to your payment of the Service Fees, Babbel shall provide Maintenance and Support for Paid Services to the extent specified in the Order. “Support” shall mean Babbel’s obligation to use commercially reasonable efforts to respond to your reasonable support requests with regard to Paid Services by troubleshooting issues and providing assistance within reasonable time. “Maintenance” shall mean 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 Babbel provides Support to you via email through 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 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 in the locations where Babbel operates service centres.
7.3 Babbel shall use reasonable efforts consistent with prevailing industry standards to provide Maintenance for Paid Services in a manner which minimises errors and interruptions in the Services. You may notify Babbel of any errors via 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. Babbel shall use commercially reasonable efforts to timely correct any notified errors, subject to (a) you 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. Availability of Paid Services
8.1 Subject to your payment of the Service Fees, Babbel shall make Paid Services available to you in accordance with this Clause 8.
8.2 Babbel shall use reasonable efforts to ensure, that Paid Services are available to you via the internet, however, no less than ninety-nine point five percent (99.5%) per calendar year (based on twenty-four (24) hours a day and seven (7) days a week) excluding (a) any temporary unavailability for scheduled or for unscheduled Maintenance, and (b) unavailability for causes beyond Babbel’s reasonable control. Babbel shall use reasonable efforts to provide advance notice of any scheduled service disruption.
8.3 You are aware and acknowledge that your access to Paid Services such as internet access cannot be guaranteed and that Babbel shall not be liable for any deficiencies in your internet connections or System.
9. Fees | Payment Terms | Limitation of Right to Set-off
9.1 You must pay the fees for Paid Services as specified in the Order in accordance with the terms therein (the “Service Fees”).
9.2 Babbel may change the Service Fees for the following Renewal Service Term upon at least sixty (60) days’ prior notice to the end of the Initial Service Term or to the end of the then-current Renewal Service Term.
9.3 You must make payment of the Service Fees using any of the payment methods offered on Babbel’s website.
9.4 Babbel may bill through an electronically transmitted invoice, in which case, full payment for invoices must be received by Babbel thirty (30) days after the date the invoice was sent from Babbel.
9.5 Following notice to you in writing (simple email shall suffice), Babbel may suspend your access to Paid Services in accordance with applicable law if payments are not received by Babbel within fourteen (14) days of the due date.
9.6 You may only set-off your claims against Babbel’s claims to the extent that your claims have been: (a) finally established by a court of law; (b) are uncontested; or (c) have been acknowledged by Babbel.
10. Babbel as a Gift
10.1 To the extent offered by Babbel, you may purchase vouchers for the Services under an Order (“Gift Vouchers”). Gift Vouchers may only be redeemed for the purchase of Services but not for the purchase of other Gift Vouchers.
10.2 Unless otherwise agreed, a Gift Voucher consists of an electronic voucher code and Babbel shall deliver the Gift Voucher to you by email to the email address provided by you.
10.3 Unless otherwise agreed, Gift Vouchers are transferable. Subject to these Terms, you may use a Gift Voucher to pay for Paid Services under a corresponding Order by entering the voucher code upon completion of the Order. In order to redeem a Gift Voucher, you must enter the voucher code before completing the Order process.
10.4 Babbel will not pay out the credit balance of any Gift Voucher to you and Gift Vouchers will not accrue interest.
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”). You or Babbel may terminate any Order for Free Services for convenience at any time with immediate effect.
11.3 Unless otherwise agreed, any Order for Paid Services shall remain in effect for an initial term as specified in the Order (“Initial Service Term”). The Initial Service Term shall automatically and continuously renew for additional periods as specified in the Order (“Renewal Service Term”), unless terminated by Babbel or by you at any time (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. You may not terminate any Order for Paid Services for convenience with effect prior to the end of the Initial Service Term or any Renewal Service Term.
11.4 Babbel’s and your right to immediately terminate any Order for good cause shall remain unaffected. Such good cause shall in particular exist for both parties, if the other party commits a material breach of the Order, and such breach has not been cured within thirty (30) days after receipt of written notice thereof (simple email shall suffice). Such good cause shall also exist for Babbel if (a) you are in default of payment by more than forty-five (45) days; (b) you breach the use restrictions under Clause 4; (c) you violate the Babbel Live Code of Conduct; or (d) you cease your due payments or suffer a significant deterioration in your asset situation.
12. Lifetime License
12.1 A “Lifetime License“ shall mean a License for the use of Paid Services granted to you by Babbel with the proviso that, by way of derogation from Clauses 11.2 and 11.3, the Order is concluded for your lifetime and shall, in accordance with this Clause 12, only terminate (a) upon the end of your life, or (b) if Babbel ceases to provide the Services in their entirety, or (c) if Babbel ceases its business operations in their entirety. A Lifetime License is granted to you personally and the rights and obligations associated therewith shall not pass to your heirs. Babbel may ask you to present proof of identification at any time.
12.2 Under any Order concluded for the granting of a Lifetime License, you are entitled to access the Services agreed in such Order for as long as the respective language(s) is/are offered and supported by Babbel as part of the Services (“Lifetime License Term”).
12.3 A Lifetime License shall only apply to Services defined in the applicable Order and shall not extend to any future services.
12.4 With regard to updates and modifications of Services under a Lifetime License, Clause 2.2 applies. However, Babbel may only modify the Services under a Lifetime License to the extent reasonable for you, taking into account your and Babbel’s legitimate interests.
12.5 Neither Babbel nor you may terminate any Order for a Lifetime License for convenience. Your and Babbel’s right to immediately terminate any Order for a Lifetime License for good cause in accordance with Clause 11.4 shall remain unaffected.
13. Limited Warranty for Paid Services
13.1 You represent and warrant that you have checked that the specifications of the Services as described in the Documentation meet your needs and wishes. You are 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 you and Babbel so agree in writing. Product descriptions, illustrations, test programs, etc. shall not constitute guarantees or agreements on certain specifications. In order to be valid, an agreement on a guarantee must be confirmed by a director of Babbel in writing.
13.2 Babbel warrants that Paid Services will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable Paid Services version. In case of a breach of this warranty, Babbel shall be required to use commercially reasonable efforts to modify the Paid Services to conform in all material respects to the Documentation, and if Babbel is unable to materially restore such functionality within thirty (30) days from the date of written notice of the breach, you may 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 Paid Services. In order to be eligible for a remedy in relation to the breach, you must notify Babbel in writing of any warranty breaches and you must have used the Services in accordance with the Documentation. Any no-fault liability of Babbel for the existence of initial errors under applicable law shall be excluded. Your claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 17. Your statutory warranty rights shall remain unaffected by this Clause 13.2.
13.3 You may not obtain the source code of the Services for any reason.
14. Proprietary Rights | User Data
14.1 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. You acknowledge that the rights granted under any Order do not provide you with title to or ownership in the Services.
14.2 You shall retain all rights, title and interest in and to your data and any content, as well as any data that is based on or derived from your data and any content. You grant to Babbel a non-exclusive, non-transferable, sublicensable, worldwide and unlimited right and license to use your data and any content solely in connection with providing the Services. Babbel shall have no liability for your data and any Content.
15. Data Privacy
16.1 Without prejudice to any other liability of you under contract or statutory law, you shall defend, indemnify and hold harmless, at your 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 a breach of Clause 4 or a violation of the Babbel Live Code of Conduct by you or otherwise from your use of Services, and you shall pay all costs and damages finally awarded against Babbel by a court of competent jurisdiction as a result of any such claim. “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with Babbel respectively, or which is a wholly owned subsidiary of Babbel respectively, whereby ‘control’ shall mean owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.
16.2 In connection with any claim for indemnity under this Clause 16, Babbel must promptly provide you 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 you of your obligations under this Clause 16, except to the extent that such failure materially prejudices your defence of such claim. Babbel may, at its own expense and at its sole discretion assist in the defence but you shall control the defence and all negotiations related to the settlement of any such claim. Any such settlement intended to bind Babbel shall not be final without Babbel’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
16.3 Babbel shall, at its expense defend you 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 you 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 your 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).
16.4 Clause 16.3 shall not apply (a) if the Services are modified by you or by any third party for which you are responsible (b) if the Services are combined with other non-Babbel products, applications, or processes, but solely to the extent that the alleged infringement is caused by such combination or (c) in the event of any unauthorised use of the Services.
16.5 Your rights under this Clause 16 shall be your sole remedy with respect to any claim of infringement of third-party intellectual property rights and trade secrets.
17. Limitation of Liability
17.1 Babbel shall be unrestrictedly liable for (a) injury to life, body or health caused by Babbel, its legal representatives or vicarious agents; (b) damage caused intentionally or with gross negligence by Babbel, its legal representatives or vicarious agents (c) damage resulting from the absence of any guaranteed characteristics; and (d) claims under the German Product Liability Act.
17.2 Babbel shall be liable for damage resulting from the breach of its primary obligations hereunder by Babbel, its legal representatives, or vicarious agents. Primary obligations are such basic duties which form the essence of the Order and of the performance on which you may rely. If the breach of such primary obligation was caused by simple negligence by Babbel, its legal representatives or vicarious agents, Babbel’s ensuing liability shall be limited to the amount which was foreseeable by Babbel at the time the respective Service was performed.
17.3 Subject to Clauses 17.1 and 17.2, Babbel shall not be liable for damage resulting from the breach of non-primary obligations through simple negligence of Babbel, its legal representatives or vicarious agents.
17.4 Babbel shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen if proper and regular data backup measures had been taken by you.
17.5 Subject always to Clause 17.1, 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 you under the relevant Order.
17.6 Babbel does not guarantee, represent or warrant any specific language learning progress or language learning success to be achieved by you by using the Services.
17.7 Neither Babbel nor you shall be liable for any failure or delay in performance under of the Order including these Terms to the extent that such failure or delay is proximately caused by events outside the reasonable control of a party and occurring without that party’s fault or negligence.
17.8 Any other liability of Babbel not covered by this Clause 17 is excluded on the merits.
18. Notice of Right of Withdrawal | Declaration on Immediate Performance
18.1 You shall have the following right of withdrawal:
Notice of your Right of Withdrawal
Right of Withdrawal
You may 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 Babbel GmbH (registered office: Andreasstraße 72, 10243 Berlin, Germany, Phone: +49 30 568 373836 (Germany), email: email@example.com) of your decision to withdraw from this contract by a clear statement (e.g. a letter sent by post 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
18.2 You hereby agree that Babbel shall commence implementing the Order before the end of the withdrawal period set forth in Clause 18.1. You acknowledge that by giving this consent you will lose the right to withdraw from the Order once Babbel has commenced implementing the Order. Where you nonetheless withdraw from an Order involving Virtual Classroom Services, you shall compensate Babbel for the value of such Services provided until the withdrawal takes effect.
18.3 Babbel shall not be liable for any fees that you may incur in relation to third parties commissioned by you (e.g. banks and payment service providers) or for any non-refundable taxes as part of the withdrawal process.
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 your rights under such Order.
19.2 At Babbel’s request, you 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 You must not assign any of your rights or obligations under any Order and these Terms without the prior written consent of Babbel. This shall not apply to any payment claims.
20. Entire Agreement | Severability | Changes
20.1 The Order including these Terms represents the entire agreement between you and Babbel in respect of its subject matter and supersedes all prior negotiations and agreements made between you and Babbel 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 you and Babbel would have agreed, pursuant to the meaning and purpose of the original provision and of the Order if they had recognised the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain timescale (deadline or fixed date), such ineffective or invalid level of performance or timescale shall be replaced by the level of performance or timescale which comes as close as legally possible to the original level of performance or timescale. The foregoing shall also apply to any possible omission in the Order including these Terms that was not intended by you and Babbel.
20.3 Without prejudice to Clause 21, valid amendments or supplements to any Order must be mutually agreed and made in writing (exchange of simple emails to suffice). The same shall apply to any agreement to deviate from or cancel this requirement of written form.
21. Revision of these Terms
21.1 Babbel may amend and/or update these Terms for existing Orders 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 you in text form (simple email shall suffice) no later than six (6) weeks before their proposed effective date. You may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by you, unless you object to the revision before their proposed effective date. Babbel shall expressly inform you thereof in the respective announcement.
21.2 Babbel may amend and/or update these Terms from time to time for future Orders at any time for any reason without notice.
22. Governing Law | Consumer Dispute Resolution
22.1 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 your habitual residence (i.e. the provisions of the law of that country which cannot be derogated from by agreement). The laws of the country of your habitual residence shall apply to Clause 11 of these Terms. In all other respects, the laws of the Federal Republic of Germany shall apply excluding its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
22.2 Babbel is neither obliged nor willing to participate in European Commission dispute resolution proceedings or in dispute resolution proceedings before any other consumer arbitration board.
District Court of Berlin Charlottenburg, Germany, HRB 110215