Affiliate Agreement

This agreement (the “Agreement”) is entered into by and between Lesson Nine GmbH (hereinafter “Babbel“) and Affiliate (together “Parties” or each individually as “Party”) effective as of the latest date set forth in the signature block below (the “Effective Date”).

1. Background

1.1       Affiliate is an individual or business entity that owns and operates an online internet presence using a platform such as a blog, webpage, YouTube, Instagram, Snapchat, Pinterest, etc. (all of Affiliate’s platforms are collectively referred to as “Affiliate Website”).  Affiliate uses its Affiliate Website, in whole or in part, to promote the brands, products, or services of third parties in exchange for remuneration. 

1.2       Babbel seeks to expand its brand, product, and service awareness and obtain customers through placing Babbel branded advertising (e.g. banner advertisements, button links, texts links, etc.) on the Affiliate Website.

2. Enrollment and Advertising

2.1       Affiliate agrees to provide to Babbel the location of each website in the Affiliate Website that which Affiliate desires to promote Babbel’s products and services. Affiliate agrees that any information provided to Babbel will always be accurate, correct and up to date and not used for any illegal or unauthorized purpose.

2.2       Affiliate agrees that it will not bid on any of Babbel’s trademarked terms including any variations or misspellings thereof for search or content based campaigns on Google, MSN, Yahoo, Facebook, Microsoft or any other network.  Likewise, Affiliate agrees that it will not engage in any URL hijacking, competitive brand bidding, unauthorized link cloaking, or other fraudulent brand bidding.

2.3       Affiliate agrees that it will not advertise coupon codes obtained from any non-affiliate marketing channel, including coupon codes from Babbel’s email, paid search or any other non-affiliate advertising campaigns.

3.  Term and Cancellation

3.1       The term of this Agreement shall be exactly one (1) year from the Effective Date. At the end of this term, this Agreement will automatically renew on a month to month basis unless cancelled by either party in accordance with Paragraph 3.2

3.2       Either Party may cancel this Agreement for any reason by providing 48 hours written notice to the other party (expiration of this time is the “Cancellation Date”).  Unless otherwise set forth in this Agreement, Babbel shall pay any validated and pending Commission (as defined below) owed to Affiliate through the Cancellation Date.

3.3       Affiliate’s failure to comply with any term of this Agreement shall be a breach of this Agreement, granting Babbel the immediate right to cancel this Agreement without notice or right to cure, in Babbel’s sole discretion. The date of the breach will be the “Breach Date”.  Affiliate shall have no right whatsoever to any Commission that occurred after the Breach Date.

4.  Promotional Materials

4.1       Babbel shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate Website (collectively the “Promotional Materials”). Affiliate shall display the Promotional Materials on the Affiliate Website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms, conditions and specifications of this Agreement. Babbel may, from time to time, change the Promotional Materials, in its sole discretion, and Affiliate must update the same according to any changes by Babbel within a reasonable time.

4.2       Affiliate’s use and display of the Promotional Materials on the Affiliate Website shall conform to the following terms, conditions and specifications:

4.2.1    Affiliate may not use any graphic, textual or other materials to promote Babbel products or services other than the Promotional Materials provided by Babbel, unless Babbel approved such other materials in writing prior to their display.       

4.2.2    Affiliate may only use the Promotional Materials for the purpose of promoting Babbel’s products and services.

4.2.3    Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by Babbel. If Affiliate wishes to alter or modify the Promotional Materials, Affiliate must obtain prior written consent from Babbel for such alteration or modification.   

4.2.4    The Promotional Materials will be used to link only to the specific web site page specified by Babbel.

4.3       Babbel reserves the right to change its policies and procedures, pricing structure, add or cancel any special offers, discontinue products or services, or change the terms under which products or services are offered at any time, without any advanced notice to Affiliate or customers purchasing through the Affiliate’s Link (defined below).

5.  Limited License to Use Babbel’s Intellectual Property

5.1       As of the Effective Date, Babbel grants Affiliate a revocable, non-exclusive, non-sublicenseable, royalty-free license to use the Promotional Materials provided by Babbel during the term of this Agreement.

5.2       Affiliate may only display the Promotional Materials on the Affiliate Website, and for the sole purpose of promoting Babbel’s products and services.

5.3       Affiliate shall have no right or license to use any of Babbel’s intellectual property or proprietary material other than the Promotional Materials.

5.4       Affiliate is prohibited from distributing, reproducing, modifying, amending, or creating derivative works of the Promotional Materials.

5.5       Any license or right to use Babbel’s intellectual property ends immediately on the Cancellation Date or Breach Date, whichever occurs first.

5.6       Affiliate shall immediately cease any use of the Promotional Materials or any other marketing materials related to Babbel upon the Cancellation Date or Breach Date, whichever occurs first.

6.  Commission and Payment

6.1       Affiliate will be paid a referral fee (“Commission”), for each completed Action (as defined below) that is not cancelled, returned or refunded.  An “Action” means a customer’s purchase of a Babbel subscription on the Babbel website or registering on Babbel website, using the unique affiliate link assigned to Affiliate (“Link”) within thirty (30) days of the last use of the Link, and that has been tracked and validated by Babbel.

6.2       Babbel will validate all Commissions for Affiliate, which is necessary prior to payment of any Commission.  This will usually take place monthly, and occur on the 20th day of each calendar month for purchases completed during the previous month.  Babbel’s own methods, processes, and procedures for validation are the sole way to validate Commissions, and shall be final.

6.3       Commissions will be paid to Affiliate on a monthly basis. Commissions will be reduced for any Actions that are cancelled, returned, or where payment is otherwise refunded to the purchaser.

6.5       Payment to Affiliate will only be made after Affiliate’s submission of a proper invoice to Babbel. Affiliate will be paid within thirty (30) days of Babbel’s receipt of such proper invoice which shall state the correct amount of the Commission, include the name of the Affiliate, list the tax identification number of the Affiliate (if any), and contain all necessary payment information for Affiliate (including Affiliate’s banking information, if not already provided).

7.  Affiliate’s Duties

7.1       Affiliate is solely responsible for the development, maintenance and operation of Affiliate’s website and for placing Links on Affiliate’s website in compliance with the terms of this Agreement.

7.2       Affiliate is responsible for complying with all laws, including but not limited to disclosing that any Link or other advertising provided on its website or marketed to potential customers are affiliated links and Affiliate may receive a commission.

7.3       Affiliate is responsible for all materials that appear on Affiliate’s website and for ensuring that such items do not infringe upon the rights of any third party including, but not limited to, copyright, trademark, privacy or other intellectual or proprietary rights.

8.  Warranties

8.1       Babbel’s Warranties: Babbel represents, warrants and covenants that it has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully provide the Promotional Materials to Affiliate.

8.2       Affiliate’s Warranties: Affiliate represents, warrants and covenants that (i) it has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Affiliate’s obligations or duties set forth hereunder, whether performance is due now or hereafter, (ii) its website(s) do not and will not contain any materials that are illegal and are not operated for any illegal purpose or in an illegal manner, and (iii) it will comply with all laws and regulations applicable to it, including all disclosure requirements.

8.3       EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.

9.  Limitation of Liability

9.1       Babbel shall only be liable in accordance with the applicable law in case of (i) intent, (ii) gross negligence, (iii) loss of life, bodily injury or damage to health as well as (iv) in case of claims based on the German Product Liability Act (Produkthaftungsgesetz).  In all other cases, Babbel will only be liable if it has infringed fundamental contractual obligations (wesentliche Vertragspflichten).  Fundamental contractual obligations are duties which must be complied with in order to ensure the proper performance of this contract and upon the performance of which Affiliate relied or could be reasonably expected to rely on.  In this event, the liability shall however be limited to the foreseeable, typical damage.

10.  Indemnification

10.1      Affiliate agrees to indemnify, defend and holds harmless Babbel, its officers, directors, employees, contractors, affiliates, agents, successors and assigns from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, (including all costs and attorneys’ fees related thereto), whether or not involving a third party claim, arising out of or relating to (i) Affiliate’s use of the Promotional Materials or other intellectual property of Babbel, (ii) any allegations that any of Affiliate trademarks and other intellectual property and proprietary material infringe upon the rights of any third party, (iii) any breach or alleged breach by Affiliate of any term, covenants, condition, representation or warranty contained in this Agreement or Affiliate’s promotion of Babbel, or (iv) any claim related directly or indirectly to Affiliate’s use, operation or the content of Affiliate’s website.

11.  Miscellaneous Provisions

11.1      This Agreement, together with any appendices hereto, states the entire agreement between the Parties regarding its subject matter and supersedes and terminates any prior oral or written proposals, agreements or other communications between the Parties regarding the subject matter.  Amendments or supplements to this agreement shall only be binding if made in written form.

11.2      All Agreements between the Parties shall be governed by and construed in accordance with the laws of Germany, and the Parties submit unconditionally to the exclusive jurisdiction of the courts of Berlin, Germany.

11.3      Babbel and Affiliate shall perform their obligations hereunder as independent contractors. Nothing herein is intended to, or shall be construed to create a partnership, agency, joint venture, employment or similar relationship between the Parties. Neither Party has any right or ability to bind or enter into any obligation on behalf of the other. Each Party shall bear its own costs and expenses of its performance of its obligations under this Agreement.

11.4      Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced with a valid provision that comes closest to the purpose and objective of the invalid provision.

11.5      Unless otherwise expressly stated, all amounts stated in this Agreement and any attachments are in Euros (€) and exclude taxes.

11.6      “Written” or “written form” means that it be in a written, textual form, signed by the corresponding party, which can be sent via mail, fax or e-mail (scanned). 

11.7      This Agreement may be executed in one or more counterparts and by way of electronic signature, each of which when executed and delivered electronically in PDF format or in hardcopy shall be deemed an original, but all of which taken together shall constitute one and the same document. Counterpart signature pages may be delivered and exchanged by email or other means of electronic transmission.