1.1 Subject to the payment of the fees in accordance with clause 2 below, commencing on the Effective Date as set out in the Order Form and continuing for the duration of Order Form, the Customer shall be granted access to the busuu for Business Services (as defined in the Order Form) and may permit those employees that have been notified to busuu in advance (the “Authorised Users”) to access the busuu for Business Services platform (the “Platform”) and invite its students or employees (as the case may be) (the “Students”) to access and use the busuu paid for service, details of which can be found at www.busuu.com/subscribe (the “Premium Service”).
1.2 The Customer shall remain responsible for the Authorised Users use of the Platform and the Students use of the Premium Service and shall ensure that prior to their use of the Platform and/or Premium Service: (i) all Authorised Users agree to the administrative terms and conditions at www.busuu.com/terms/; and (ii) all Students agree to the busuu terms of service at www.busuu.com/terms/.
1.3 The Customer shall not knowingly permit anyone other than Authorised Users to access the Platform, nor shall they allow anyone other than Students to use the Premium Service. The Customer shall not (and shall ensure Authorised Users do not) share passwords or other login credentials provided by busuu for accessing the Platform with third parties and shall ensure Students do not share passwords or other login credentials for accessing the Premium Service with third parties or with other Students.
1.4 The Customer, its Authorised Users and Students shall only be permitted to access the Platform and Premium Service, as the case may be, for educational purposes, and shall have no right to use the Platform or the Premium Service for any purpose other than as set forth herein.
1.5 If requested by busuu, the Customer shall co-operate with busuu in the investigation of any unauthorised use of the Platform or Premium Service and shall use best efforts to remedy such unauthorised use and prevent its recurrence. In the event of any unauthorised use of the Platform or the Premium Service, in addition to any other available remedies, busuu may, as the case may be, suspend or terminate an Authorised User’s access to the Platform or a Student’s access to the Premium Service.
2. Payment and Taxes
2.1 The Customer shall pay busuu the fees set out in the Order Form for its use of the busuu for Business Services. The Customer shall pay the full amount invoiced to it by busuu in the currency and within the time frame stated in the Order Form. All amounts due under this Agreement shall be paid by the Customer to busuu in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If the Customer fails to make any payment due to busuu under this Agreement by the due date for payment, then, the Customer shall pay interest on the overdue amount at the rate of 3% per annum above HSBC Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
2.2 Except as otherwise provided, the fees set out in the Order Form are exclusive of any sales, use, value added, turnover, goods and services, or similar taxes, and such taxes, if applicable, will be invoiced by busuu and paid by the Customer.
3. Intellectual Property
As between the parties, busuu shall retain all ownership in the Platform, the busuu for Business Services and the Premium Service. Except for the access rights granted in clause 1 above, this Agreement does not transfer any right, title or interest in any intellectual property right of either party to the other. Any goodwill accruing to a party’s logos and trademarks due to activities under this Agreement inures to the benefit of the party that owns the logos and trademarks.
For the purpose of this clause, confidential information means information a party designates as confidential or reasonably considers as confidential, and includes any busuu pricing information. Confidential information does not include information that is or becomes publicly available through no fault of the recipient or received from a third party without a duty of confidentiality. Neither party will: (a) disclose the other party’s confidential information to any third party without the other party’s prior consent or as required by law, or (b) use the other party’s confidential information for any purpose, except performing this Agreement or furthering the relationship between the parties. Each party will return or destroy the other party’s confidential information upon written request. We may refer to our relationship with you as a customer, including on our website and in discussions with analysts, meetings with the press, or in regulatory filings.
Each party represents, warrants and undertakes that it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licences referred to in this Agreement; and that this Agreement is executed by its duly authorised representative and represents a binding commitment on it and that it shall comply with all applicable legislation in the performance of its obligations under this Agreement.
6. Disclaimer and Liability
6.1 To the extent permitted by applicable law, the Platform, the busuu for Business Services and the Premium Service, including all updates, bug fixes, workarounds, or error corrections, are provided on an “as-is” basis, without any warranties of any kind, express or implied, including any implied warranty of merchantability, fitness for a particular purpose, non-infringement, or title.
6.2 Except as set forth in clause 6.3 below, busuu will not be liable to the Customer in connection with this Agreement for: (a) any incidental or consequential damages, including lost profits or business opportunities, or any special or punitive damages; or (b) an amount that exceeds the total fees payable by the Customer to busuu during the 12-month period before the event giving rise to the liability.
6.3 Nothing in this Agreement limits either party’s liability for gross negligence or intentional misconduct, or for death or personal injury.
7. Term and Termination
7.1 This Agreement shall commence on the Effective Date as set out in an Order Form and will continue for the term set out in the Order Form unless terminated earlier in accordance with clause 7.2.
7.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of any term of this Agreement whose breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; or (c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
7.3 Upon termination of this Agreement, the rights of Authorised Users to access the Platform and of Students to use the Premium Service shall continue for the remainder of the respective license period.
Unless specifically provided for to the contrary in this Agreement, all notices to a party under this Agreement shall be delivered by hand or sent by express mail courier to such party’s address first stated above. Each party agrees to keep the other party informed of any changes to addresses. This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any prior or separate agreement or communication relating thereto. This Agreement may not be changed in whole or in part except by written agreement of the parties. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereto submit to the exclusive jurisdiction of the English courts.