General terms and conditions
Terms of Sale for Provider, Sellers and Tutors
This Agreement for a subscription to teachr Software-as-a-Service (the “Agreement”) is entered into as of the date you (“Customer”) jointly sign an order form with the subscription provider (“teachr”) referring to this Agreement (“Order Form”). This date shall then be deemed to be the “Effective Date”.
(A) teachr has developed an over the web accessible learning platform that it makes available to subscribers over the internet on a subscription basis.
(B) The Customer wishes to use teachr’s service for its business activities.
(C) Subject to the terms of this Agreement, teachr has agreed to provide, and Customer has agreed to subscribe to and pay for, the teachr Service.
Terms not otherwise defined in the Agreement shall have the following meanings:
Affiliate: legal entity that directly or indirectly controls, is controlled by, or is under common control with one of the parties to this Agreement. For the purposes of the foregoing, “control” means ownership of (i) more than 50% (fifty percent) of the voting rights to elect directors (board members) of the legal entity, or (ii) more than fifty percent (50%) of the ownership rights in the legal entity.
Authorized Users: all employees, agents and independent contractors of Customer to whom Customer has permitted use of the Services, as further defined in Section. 2.3 described;
Authorized User Data: personal data and information provided to teachr by Authorized Users and/or entered by the Customer into the Authorized User Account Setup Service, but not Customer Data and teachr Data;
teachr data: denotes (i) the information and data communicated to the Customer within the scope of teachr’s Services; (ii) the metadata taken by teachr from Customer’s use of the Services and used to provide the Services; and (iii) Feedback or suggestions from Customer or Authorized Users to teachr regarding the Services ;
Customer Data: Data and information provided by the Customer to teachr and/or data entered by the Customer, Authorized Users, or teachr on behalf of the Customer for the purpose of using the Services or enabling the Customer to use the Services, or data collected and processed by or for the Customer through the Customer’s use of the Services, but not teachr data and data of Authorized Users;
Eligibility Year: means each successive period of twelve (12) months running from the Effective Date of this Agreement;
Confidential Information: proprietary or confidential information of a Party that is either clearly designated as such or identified as Confidential Information in Section 10 and/or reasonably believed to be confidential or proprietary at the time of its disclosure;
Working day: as described in the teachr Service Level Agreement (SLA);
Business Hours: as described in the teachr Service Level Agreement (SLA);
Disaster Recovery Policy: the current teachr disaster recovery policy as amended from time to time by teachr;
Fee: means the subscription fee and any additional charges or expenses resulting from the Order Form;
Initial subscription term: the initial subscription term is specified in the order form;
Inappropriate Content: Content which (a) are unlawful, harmful, threatening, defamatory, obscene, in violation of copyright, harassing, racially or ethnically offensive; (b) encourage unlawful acts; (c) show sexually explicit images; (d) Promote violence in violation of law; (e) discriminate on the basis of race, sex, color, creed, sexual orientation, disability; or (f) Cause personal injury or property damage;
Intellectual property rights: in particular, patent rights, trademark rights, service mark rights, trade names, other symbols identifying commercial activity, as well as inventions, copyrights, design rights, database rights, know-how rights, trade secrets and all other intellectual property rights arising anywhere in the world, whether registered or unregistered, and including applications for the purpose of granting such rights;
Order Form: the order form submitted by the Customer to teachr with all the details of the Services, which is an integral part of this Contract;
Renewal period: has not exceeded the period specified in sec. 14.1 meaning set forth;
Service(s): denoted (i) the use of the Software in accordance with this Agreement; (ii) the use of the teachr data; (iii) providing support services; and (iv) Access to the teachr hosting platform;
Software: the software applications for internal communication provided by teachr as part of the Services as further specified in the Order Form;
Subscription Fee: the subscription fee payable by the Customer to teachr for the User Subscriptions, as specified in more detail in the Order Form;
Subscription Term: means the initial term of the Subscription and any subsequent renewal periods;
Support Services: means the teachr standard support services provided by teachr in accordance with the Support Services Policy with respect to the Software, including any available Software Maintenance Upgrades;
Policy SLA Support Services: teachr policy for the provision of support services to Customer and, where applicable, Customer-purchased extended support services that may be provided to Customer from time to time;
Taxes: in particular, withholding, sales, use, excise, value added and similar taxes, but not taxes based on gross teachr sales;
User Subscriptions: the User Subscriptions purchased by Customer pursuant to this Agreement for the number of Authorized Users specified in the Order Form granting such Authorized Users the right to access and use the Services in accordance with this Agreement; and
Virus: any thing or device (including software, code, files or programs) that prevents, interferes with or otherwise impairs access to, or the operation, reliability or user experience of, computer software, hardware or networks, telecommunications services, equipment or networks or other services or facilities, including worms, Trojan horses, viruses and similar things or devices.
2.1 teachr shall provide the Services during the term of the Subscription in accordance with the terms and conditions of this Agreement.
2.2 Subject to Customer’s purchase of the User Subscription(s) and subject to the limitations and terms of the Agreement set forth in this Section 2, teachr hereby grants Customer the non-exclusive, non-transferable right to permit Authorized Users to use the Services during the term of the Subscription solely for Customer’s internal communications.
2.3 The Customer undertakes with respect to the Authorized Users that:
2.3.1 the maximum number of Authorized Users to whom it permits access to and use of the Services does not exceed the number of User Subscriptions purchased by the Customer from time to time. Customer further agrees not to allow a User Subscription to be used by more than one per Individually Authorized User unless the Subscription has been fully transferred to another Individually Authorized User, in which case the original Authorized User will no longer be authorized to access and use the Services;
2.3.2 each Authorized User shall create a secure password for the use of the Services by such Authorized User, and that such password shall be changed frequently and kept confidential by each Authorized User.
2.4 When using the Services, the Customer shall not access viruses or other material, in particular Customer Data and data of Authorized Users that:
2.4.1 are unlawful, harmful, threatening, defamatory or obscene, infringe copyright, constitute harassment, are racially or ethnically offensive;
2.4.2 encourage unlawful acts; or
2.4.3 are otherwise unlawful or cause personal injury or property damage, or stores, distributes or transmits the same, and teachr reserves the right, without obligation and without prejudice to its other rights against the Customer, to block the Customer’s access to any material that violates the provisions of this clause.
2.5 The customer will:
2.5.1 not attempt to copy, modify, duplicate, create derivative works of, frame, mirror, republish, download, display, transmit or distribute the Software or any part thereof in any form or by any means; or
2.5.2 not attempt to decompile, disassemble, reverse engineer or otherwise convert the Software or any part thereof into a human-readable format; or
2.5.3 not access the Services or any part thereof to build a product or provide a service that competes with the Services; or
2.5.4 not use the Services to provide services to third parties; or
2.5.5 not sublicense, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit the Services or make them available to any third party other than Authorized Users; or
2.5.6 not attempt to gain access to the Services in any manner other than as set forth in this Section 2 or assist any third party in doing so.
2.6 The Customer shall use its best efforts to prevent unauthorized access to or use of the Services and shall notify teachr immediately in the event of such unauthorized access or use.
- Additional user subscriptions
At any time during the term of the Subscription, the Customer may purchase additional User Subscriptions beyond the number specified in the Order Form and for the additional fee specified in the Application Form. teachr grants the Customer access to the Services for these additionally authorized users in accordance with the provisions of this Agreement.
- Availability of services and support
4.1 teachr shall use commercially reasonable efforts to make the Services (other than Third Party Applications) available 24 hours a day, seven days a week, for at least 98% of the time, except:
4.1.1 during planned downtimes outside business hours, provided that the customer is notified of this 24 hours in advance;
4.1.2 in case of overload such that a high user frequency leads to the interruption of operation caused by the Customer exceeding the agreed capacity;
4.1.3 in case of unreachability of the Customer: if the Customer cannot be reached for any reason to solve an availability problem, then the time will not continue to run until teachr is able to contact the Customer so that the remedy of the availability problem can be started;
4.1.4 in the case of circumstances arising from problems based on the Customer’s non-compliance with agreed procedures or caused by unauthorized changes to the Services by the Customer;
4.1.5 in the event of a material breach of contractual terms by the Customer; or
4.1.6 in the event of force majeure (see Clause 15.8).
4.2 teachr shall provide its standard support services free of charge to the Customer as part of the Services during business hours in accordance with its policy on support services for standard support services in effect at the time such support services are provided. teachr may change the policy SLA Support Services at any time for improvements at its sole discretion.
4.3 The Customer may purchase extended support services separately as a package, as offered by teachr from time to time and as set forth in detail in the Order Form, at teachr’s then-current fee rates for such additional support services (as notified to the Customer by teachr in due course).
- Cost and payment
5.1 The Customer shall pay the Subscription Fee and all other applicable fees in respect of the Services as set out in the Order Form to teachr in accordance with this clause 5. Unless otherwise agreed in the Order Form, teachr may invoice the Subscription Fee annually in advance on or after the Effective Date, and thereafter on each anniversary of the original invoice date for the duration of the term of the Subscription.
5.2 Unless otherwise stated in the Order Form, all fees and approved disbursements shall be paid by Customer in full and without deduction within thirty (30) days of the invoice date.
5.3 If teachr has not received payment on invoices by the respective due date, teachr may, without prejudice to its other rights and remedies:
5.3.1 upon thirty (30) business days prior written notice to Customer, without liability to Customer, disable Customer’s password, account and access to the Services or any portion thereof, and teachr shall have no obligation whatsoever to provide the Services or any portion thereof during any period in which the applicable invoice or invoices remain outstanding; and
5.3.2 Interest on these amounts due in the amount of (i) an annual interest rate of 4% or (ii) the statutory default interest rate under applicable law, whichever is higher.
5.4 All amounts and charges referred to in this Agreement are non-refundable and are stated exclusive of taxes. Customer is responsible for all taxes related to this Agreement, use of or access to the Services, and payment thereof.
5.5 teachr is entitled to increase the annual fee for User Subscriptions by ten percent (10%) from the beginning of each renewal period.
- Obligations of the customer
6.1 The Customer:
6.1.1 shall provide all necessary cooperation and give all information reasonably required by teachr for the provision of the Services. In the event of delays in support by the customer, teachr may reasonably adjust agreed schedules or delivery dates;
6.1.2 shall ensure that Authorized Users use the Services in accordance with the terms of this Agreement, comply with all applicable laws and regulations regarding actions taken pursuant to this Agreement, and use the Services solely for lawful purposes. The customer is liable for breaches of contract by the authorized users;
6.1.3 shall be solely responsible for the provision and maintenance of its network connectivity and telecommunication links and for any problems, conditions encountered, delays and delivery failures arising from or related to Customer’s network connectivity or telecommunication links;
6.1.4 shall use its best efforts to prevent unauthorized access to or use of the Services and shall notify teachr thereof without undue delay in the event of such unauthorized access or use;
6.1.5 does not insert inappropriate content or viruses, other information or other material which in whole or in part or access to or use of which constitutes a criminal offense or is otherwise unlawful, including infringement of third party intellectual property rights. teachr reserves the right, but is not obligated, to remove such content from where teachr, in its own reasonable discretion, deems such content to be inappropriate, with appropriate notice to the customer;
6.1.6 is solely responsible for moderating the content posted by Authorized Users and for instructing Authorized Users with Customer’s own policies as to what they may and may not post using the Services;
6.1.7 is solely responsible for the accuracy, completeness, design, adequacy, creation, maintenance and updates of all Customer Data used in the use of the Services. teachr shall not be liable for any errors or inaccuracies in the Customer Data or beyond its responsibility to accurately reflect the Customer Data as directed by the Customer; and
6.1.8 shall be responsible for obtaining, and Customer warrants and represents that such approvals and authorizations have been obtained, all necessary approvals and authorizations required to use Customer Data (including, if applicable herein, approvals and authorizations of third party information owners or permission holders) and as part of the Services.
7.1 teachr warrants that the Services (excluding Third Party Applications) will be provided with sufficient skill and care over the term of the Subscription.
7.2 The provisions set forth in sec. 7.1 shall not apply if the deviation is due to the fact that the Customer has not used the Services in accordance with teachr’s instructions or that the Services have been modified or changed by persons other than teachr or its vicarious agents. If the Services deviate from the warranty pursuant to sec. 7.1, teachr shall, at its own expense, make all economically reasonable efforts to remedy the deviation without delay or provide the customer with an alternative solution with which the desired service can be provided. Such remedy or replacement shall be the sole and exclusive remedy of the Customer and the sole and exclusive liability of teachr for breach of warranty. Notwithstanding the foregoing:
7.2.1 teachr does not warrant that the use of the Services by the Customer will be uninterrupted or trouble-free or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
7.2.2 teachr is not responsible for delays, delivery failures or other damages resulting from the Customer’s access to and use of the Services via third party applications (such as Google, Matterport or Sketchfab, affects in particular the VR, 3D functions or image libraries) or data transfer via communication networks and facilities, including the internet. Customer acknowledges that the Services may be subject to limitations, delays or other problems inherent in the use of such communications facilities;
7.2.3 teachr is not responsible for viruses that were not detected by teachr despite the use of commercially reasonable up-to-date virus detection methods;
7.2.4 neither teachr nor its suppliers shall be liable in any way for the accuracy, completeness or timeliness of any Customer Data or for any decision made or action taken by the Customer, any Authorized User or any other third party based on any Customer Data.
7.3 Except as expressly provided in this Section 7, teachr (and its affiliates and suppliers) disclaim all other warranties, express, implied or statutory, including warranties and conditions of merchantability, accuracy, conformity to description, fitness for a particular purpose or use and satisfactory quality, and non-infringement.
7.5 Services may also be limited in other ways as specified in the Order Form, e.g. by limiting storage capacity, bandwidth and/or file size for attachments, such as photos or files.
- Customer data
8.1 Customer shall have all rights and title in and to all Customer Data and shall be solely responsible for the legality, adequacy, completeness, reliability, integrity, accuracy and quality of Customer Data and Authorized User Data.
8.3 The Customer acknowledges that the responsibility for all Customer Data as well as any communication with others or the Authorized Users among themselves using the Services lies exclusively with the Customer and that teachr disclaims any liability whatsoever for infringements of copyrights or of rights of other persons or violations of the law, in particular for the infringement or unlawful use of copyrights, trademarks or of any other proprietary rights of natural or legal persons arising out of or in relation to the Customer Data. The Customer agrees to indemnify and hold teachr harmless against any losses, damages, actions or causes of action, suits, claims, penalties, and interest arising out of or in connection with such Customer Data, if and to the extent that such losses, damages, suits, claims, penalties, and interest are not due to teachr’s willful misconduct.
8.4 teachr shall follow its protection procedures for Customer Data and Authorized User Data as set forth in the Disaster Recovery Policy, as amended from time to time by teachr in its discretion, which shall be made available to Customer upon request. In the event of loss or corruption of Customer Data, Customer’s sole and exclusive remedy shall be for teachr to use commercially reasonable efforts to restore the lost or corrupted Customer Data from the most recent backup of such Customer Data maintained by teachr in accordance with the archival procedure described in the Disaster Recovery Policy. teachr shall not be liable for any loss, destruction, alteration or disclosure of customer data caused by third parties (with the exception of subcontractors commissioned by teachr to provide services in the context of customer data maintenance and backup), unless such loss, destruction, alteration or disclosure is exclusively due to teachr’s negligence or intent.
8.5 The Customer acknowledges that teachr is not obliged to edit, moderate or modify Customer Data (including third party information). However, teachr reserves the right to remove any Customer Data (or third party information) that teachr reasonably believes violates any law or regulation or infringes the rights of any third party or this Agreement, and/or is deemed inappropriate content. teachr shall notify the Customer of the removal of Customer Data (or third party information) in accordance with this provision. teachr is not liable in any way with respect to customer data, third party information or other material that may be accessed using the Services. teachr expressly disclaims any liability for fraud committed in connection with the Services.
- Data protection
9.1 teachr acknowledges that the Customer acts as the data controller with respect to Authorized User Data (or Customer Data that includes personal data). To the extent that teachr has access to and processes the data of Authorized Users (or Customer Data that includes personal data) in the course of providing the Services, teachr shall use its best efforts:
9.1.1 to data security of the personal data of the Customer and its Authorized Users and the existence of appropriate technical and organizational measures ensuring an adequate level of security in the processing of the personal data of the Customer and its Authorized Users, as well as the protection of the personal data of the Customer and its Authorized Users against unauthorized or unlawful processing or accidental destruction or damage;
9.1.2 to maintain the integrity of the personal data of the Customer and its Authorized Users and to prevent the loss of or damage to the personal data of the Customer and its Authorized Users;
9.1.3 to process the personal data of the Customer and its Authorized Users only in accordance with the Customer’s and its Authorized Users’ instructions and directions; and
9.1.4 to provide Customer with reasonable assistance and information as may be necessary to enable Customer to comply with its obligations under the statutory data protection regulations applicable to it.
9.2 For purposes of this Section 9, “Data Controller”, “Personal Data”, and “Processing” shall have the meanings set forth in the General Data Protection Regulation (EU) 2016/679.
9.3 teachr shall at all times comply with all applicable data protection laws.
10.1 Both parties may be given access to confidential information of the other party in order to fulfill their contractual obligations. Confidential information does not include information that:
(a) are or become publicly known, and this has not occurred as a result of an act or omission of the Receiving Party;
(b) were already in the lawful possession of the other party prior to the disclosure;
(c) were lawfully disclosed to the Receiving Party by a third party without the existence of restrictions on disclosure;
(d) have been independently developed by the Receiving Party and such independent development can be demonstrated in writing; or
(e) required to be disclosed by law, by order of a court of competent jurisdiction, or by a regulatory or administrative authority.
10.2 The parties shall treat the confidential information of the respective other party as confidential and shall not make the confidential information available to any third party except on the basis of statutory requirements. Nor shall you use the Confidential Information for any purpose other than the performance of this Agreement. The Parties shall take reasonable steps to ensure that the other Party’s Confidential Information accessible to them is not disclosed or disseminated by its employees or agents in violation of the terms of the Agreement.
The parties are not responsible for any loss, destruction, modification or disclosure of confidential information caused by third parties.
10.3 The Customer acknowledges that the details of the Software, Services, teachr data and the results of the performance tests conducted with respect to the Services constitute confidential information of teachr. teachr acknowledges that the Customer Data constitutes confidential information of the Customer.
10.4 teachr is entitled to name the customer as a reference for advertising purposes, unless the customer has expressly informed teachr otherwise in writing and the customer’s request in this regard is reasonable.
- Intellectual property rights of teachr
The customer acknowledges and agrees that teachr and/or its licensors hold all intellectual property rights to the software, the services and the teachr data. Except as otherwise expressly provided herein, this Agreement does not give Customer any rights to any patents, copyrights, database rights, trade secrets, trade names, trademarks (registered or unregistered), or other rights or licenses with respect to the Software, the Maintenance Releases, the Services, or the teachr Data.
12.1 teachr shall defend Customer against any third party claim, demand, action or proceeding against Customer alleging that Customer’s use of a Purchased Service in accordance with the Agreement infringes or misappropriates the intellectual property rights of such third party (“Claim”) and shall indemnify Customer against damages, attorneys’ fees and costs awarded against Customer by final judgment on account of, or to the extent of, amounts paid by Customer in settlement of the Claim as approved by the court, provided that Customer shall (a) notifies teachr in writing of any claim, (b) give teachr exclusive control of the defense and settlement of the claim (provided, however, that teachr may settle a claim by compromise only if it unconditionally releases the customer from liability); and (c) adequately supports teachr at their expense. When teachr is notified of a claim, teachr may, at its discretion and at no cost to the customer (i) modify the Service so that it no longer constitutes infringement or unlawful use without giving effect to the warranty set forth in sec. 7.1 (Warranties) to be breached, (ii) obtain a license for Customer’s continued use of this Service in accordance with this Agreement; or (iii) cancel Customer’s subscription to such Service and refund to Customer any fees paid in advance for the remaining term of the subscription. The foregoing defense and indemnification obligations shall not apply if a claim is based on the following:
(a) Third-party applications or their use by the customer;
(b) Modification of the Services by anyone other than teachr or its contractors;
(c) Customer’s use of the Services in a manner not in accordance with the Agreement and/or the Order Form;
(d) Customer’s use of the Services in connection with third party applications or other third party services or products, which services or products caused the claim; or
(e) use of the Services by the Customer after notification by teachr or the competent authority of the alleged or actual claim.
2 The Customer shall defend teachr against any third party claim, demand, action or suit against teachr alleging that the Customer Data or the Customer’s use of a Service infringes or misappropriates the intellectual property rights of such third party or violates any applicable law (“Claim against teachr”) and indemnify teachr against damages, attorneys’ fees and costs to which teachr is finally awarded on the basis of, or in the amount of, amounts paid by teachr in settlement of a court-approved settlement of the Claim against teachr, provided that teachr shall (a) immediately notifies the customer in writing of any claim against teachr, (b) give the Customer exclusive control of the defense and compromise of the claim against teachr (provided, however, that the Customer may not settle a claim against teachr by compromise unless it unconditionally releases teachr from liability); and (c) provides reasonable support to the Customer at the Customer’s expense.
13.1 The exclusions set forth in this Clause shall apply to the fullest extent permitted by law. However, the parties do not exclude their liability for death or personal injury caused by their negligence or that of their officers, employees, agents or servants, based on fraud or fraudulent misrepresentation, or any other liability that cannot be excluded under applicable law.
13.2 With the exception of amounts owed by the Customer to teachr under this Agreement and subject to the provisions of sec. 12, the aggregate liability of the parties for any loss or damage (whether in contract, tort (including negligence) or otherwise) suffered by the other party arising out of or in connection with this Agreement for each claim year shall be limited to the aggregate amount of the Fee paid by Customer in such claim year.
- 3 To the extent permitted by applicable law, in no event shall either party be liable to the other for any indirect, consequential, or other incidental damages arising out of this Agreement, or for any loss of profits, anticipated savings, business opportunity, goodwill, or revenue, loss of use or data (including corruption of data), or for the cost of procurement of substitute goods or services, regardless of cause or underlying theory of liability (including in contract, tort, negligence or otherwise), even if the other party has been advised of the possibility of such damages.
13.4 In addition to the other exclusions set out in this Clause 13, teachr shall not be liable if the failure to provide the Services is due to any of the following:
13.4.1 network, hardware or software failure in the equipment for which teachr is not responsible;
13.4.2 Acts or omissions of the Customer;
13.4.3 use of the Services in breach of this Agreement; or
13.4.4 unauthorized access to the Services, including a malicious breach of security.
13.5 In the event of loss or damage to Customer Data, Customer’s sole and exclusive remedies shall be those set forth in sec. 8.4.
14 Term and termination
14.1 This Agreement shall run from the Effective Date for the initial term of the Subscription, unless otherwise provided for in sec. 12.1 or this Clause 14 is terminated. Unless the Order Form states otherwise, this Agreement shall thereafter be automatically renewed for successive terms of 12 months each (each, a “Renewal Term”) unless terminated by either party upon 30 days written notice to the end of the Initial Subscription Term or the applicable Renewal Term or as otherwise provided in the Agreement. The initial term of the Subscription and any subsequent renewal periods shall constitute the “Term of the Subscription”. Without a renewal period, access to and use of the Services by the Customer shall terminate automatically.
14.2 Without prejudice to any other rights or remedies which may be available to the parties, either party may terminate this Agreement without notice in writing to the other party at any time if the other party:
14.2.1 has materially breached its obligations under the Contract and, in the case of a breach which may be remedied, has failed to remedy such breach within thirty days after giving notice thereof; and
14.2.2 files a voluntary petition under bankruptcy or insolvency laws; an insolvency or receivership order is made over the party or its assets; or if an asset administration order is made over the other party or if it enters into a debt settlement with its creditors or ceases or threatens to cease to carry on business; or if such party is subject to a corresponding process or proceeding in the relevant jurisdiction.
14.3 In the event of termination of this Agreement for any reason whatsoever:
14.3.1 all rights granted under this Agreement shall terminate immediately;
14.3.2 the Customer ceases to use the Services;
14.3.3 Customer shall promptly make all payments due under this Agreement;
14.3.4 each party shall return and cease to use all equipment, property, software and services and other things (including all copies thereof) belonging to the other party;
14.3.5 teachr may destroy or otherwise dispose of all Customer Data in its possession unless teachr receives a written request to hand over the most recent backup of the Customer Data no later than thirty (30) days after the effective date of termination of the Agreement. teachr shall hand over the backup to the customer upon receipt of this written request. teachr shall deliver the backup to the Customer upon receipt of such written request.After such 30-day period, teachr shall have no obligation to maintain or release the Customer Data and may thereafter delete it and destroy all copies of Customer Data under its control, except to the extent prohibited by law.
15.1 Comprehensive character. 15.1 Comprehensive characteraThis Contract, together with the Order Form, constitutes the complete agreement between the Parties and supersedes all previous agreements between the Parties on the subject matter of the Contract. Unless otherwise expressly agreed in writing, this Agreement shall apply in lieu of, and take precedence over, any terms or conditions contained or referred to in correspondence or elsewhere, or the application of which is implied by custom or regular practice. General terms and conditions or other conditions from an order or other documents issued by the customer in connection with this contract are not binding for teachr. By entering into this Agreement, each party acknowledges and agrees that it has not relied on any representations made by the other party that are not contained in this Agreement. Such assurances are excluded. Nothing in this provision limits liability for representations made fraudulently.
15.2 Waiver. The waiver of any right under this Agreement shall be effective only if made in writing and shall apply only to the party to whom the waiver is made and only to the circumstances upon which such waiver is based. Unless otherwise expressly agreed, the rights arising from this Agreement shall be cumulative and not exclusive of any statutory rights.
15.3 Severability Clause. If any provision of the Agreement (or any part thereof) is found to be invalid, unenforceable or illegal by any court or authority having jurisdiction, the remaining provisions shall remain in full force and effect. If an invalid, unenforceable, or illegal provision would become valid, enforceable, or lawful by partial deletion of the provision, then that provision applies with such modification as is necessary to give effect to the parties’ economic intent.
15.4 Applicable law and place of jurisdiction. Unless otherwise agreed in the order form:
15.4.1 For all customers located in North America (USA, Canada, Mexico), the parties hereby exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods to this Agreement. Rather, this Agreement and any dispute arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in the agreed venue in the State of Delaware. The parties consent and submit to the personal and exclusive jurisdiction and venue of such courts. In the event of litigation between the parties, the prevailing party shall be entitled to reasonable attorneys’ fees and all costs incurred in enforcing this Agreement.
15.4.2 All disputes arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware without reference to conflict of laws principles. All disputes shall be subject to the exclusive jurisdiction of the agreed courts, and the parties consent and submit to the personal and exclusive jurisdiction and venue of such courts. Im Falle eines Rechtsstreits zwischen den Parteien hat die obsiegende Partei Anspruch auf angemessene Anwaltsgebühren und alle Kosten, die bei der Durchsetzung dieser Vereinbarung entstehen.
15.5 Third Party Rights. Persons not party to this Agreement shall not have the authority to enforce, nor shall they have the benefit of, the provisions of this Agreement.
15.6 Subcontracting and Assignment. Neither teachr nor the Customer may assign or otherwise transfer this Agreement and the rights and obligations arising hereunder to any third party, or intend to take any such action under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary, either party shall have the right, upon written notice, to assign this Agreement to the other party, to any of its Affiliates or to any entity resulting from a merger, acquisition, reorganization or other business reorganization of the affected party. In addition, teachr may subcontract its obligations under this Agreement to a third party provided that teachr remains responsible for providing the Services under this Agreement. Any attempted assignment, subassignment or other transfer in violation of this provision shall be null and void.
15.7 No corporate relationship or agency. This Agreement does not effect or create an ordinary partnership between the parties, nor does it authorize either party to act as agent for the other party. Furthermore, the parties are not authorized to act in the name of or on behalf of the other party or to bind the other party in any other way (in particular by making representations or warranties, assuming an obligation or liability and exercising any other rights or powers).
15.8 Force Majeure. teachr shall have no liability to the Customer under this Agreement if it is prevented or delayed in the performance of its obligations under this Agreement or if it is prevented from carrying on its business due to any act, event, omission or accident beyond teachr’s reasonable control, in particular, strikes, lockouts or other labor disputes (whether involving teachr’s or third party personnel), failure of utilities or of transportation or telecommunications networks, natural disasters, war, riot, civil commotion, willful damage to property, fire, flood or storm. teachr will inform the customer about such events and their expected duration.
15.9 Communications. Notices to be given under this Agreement shall be given in writing in German to the address notified to each other in writing by the Parties. Notices regarding nonperformance, termination or renewal shall be hand delivered or sent by approved overnight courier service or certified mail/return receipt requested. Notifications from teachr about price changes, changes in the discount category, product settings, product changes, and changes in the logistics center can also be sent by e-mail to the persons named by the Customer in each case. All others not mentioned elsewhere in this Ziff. 15.9 above-mentioned notifications can be (i) by mail or (ii) e-mail ([email protected]) will be sent. All notices shall be deemed given and received either upon actual receipt or 3 (three) days from the date of postmark or date and time of email, whichever is earlier.
15.10 Modifications. Except as otherwise expressly provided herein, this Agreement may be modified or amended only in writing signed by the authorized representatives of both parties.
15.11 Continuance. In addition to those provisions which by their nature survive termination or expiration of this Agreement, the provisions of Sections 9, 10, 11, 12, 13, 14.3 and 15 of this Agreement shall also survive termination or expiration of this Agreement.
15.12 Export control. The Service, the Software and other teachr material are subject to export control laws of various countries, including without limitation those of the United States, Switzerland and the United Kingdom. The Customer agrees not to submit the Service and any other teachr material to any governmental authority for licensing or other regulatory approval without teachr’s prior written consent. Furthermore, the Customer shall not export the Service, the Software, teachr data and teachr material to countries or to natural or legal persons to which the export is prohibited by the aforementioned laws. Customer is further responsible for compliance with all applicable governmental regulations of the country in which Customer is registered and foreign regulations regarding Customer’s and its Authorized Users’ use of the Service or other teachr material. The Customer shall not take any action that causes teachr to violate such export control laws and regulations.