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Mandarin9 Terms and Conditions

 

Last Updated: June 2022

1. General | Scope
1.1 These Mandarin9 Terms and Conditions (“Terms”) apply to all contracts
between Mandarin9 (“Mandarin9”) and its customers, i.e. individuals (“Users”) who
enter into a legal transaction for purposes which are predominantly for Services, and
to whom Mandarin9 provides said Services (as defined below).
1.2 These Terms shall govern each ordering document and any online, email or in-
app ordering process by which a customer affirmatively registers or otherwise signs
up for the Services, which may include subscription services (each an “Order”). The
terms and conditions of each agreed Order shall incorporate these Terms.
1.3 These Terms shall also apply as a framework agreement to future similar
contracts between Mandarin9 and the User without Mandarin9 being required to
refer to them in each individual case. These Terms shall be deemed to be confirmed
by the User at the latest when the User accesses the Services.
1.4 These Terms apply to the exclusion of all others. Different, conflicting or
supplementary terms of business of the User shall only become part of an Order if
and to the extent that Mandarin9 has consented to their application in writing.
1.5 Individual agreements with the User in specific cases shall take priority over
these Terms if made in writing.
1.6 Where the expressions ‘in writing’, ‘written form’ or variations thereof are used in
these Terms, this shall mean ‘in writing’ within the meaning of US Federal Law. 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 Any notices and declarations submitted by the User to Mandarin9, including but
not limited to notices of termination, shall be made at least in text form within the
meaning of US Federal Law to be valid (for greater clarity: a simple email shall
suffice) if not stated otherwise in these Terms.
1.8 References herein to the application of statutory provisions shall be for
clarification purposes only. Consequently, statutory provisions shall apply even
without such clarification provided that they are not directly amended by or expressly
excluded in these Terms.

2. Free Services and Paid Services | Trial Use
2.1 Subject to the terms and conditions agreed in each Order, Mandarin9 grants the
User access to its language learning software which is offered as software-as-a-
service including to any related websites, spaces, services, applications and the
respective learning contents and features as specified in the Order (“Services”). The
Services may comprise one or more Mandarin9 products as described on
Mandarin9’s website from time to time. The Services may be offered free of charge
with limited functionalities (“Free Services”) or against payment of a Service Fee (as
defined below) with certain agreed functionalities (“Paid Services”) each as
specified in the Order.
2.2 Mandarin9 shall have the right to downgrade, limit or otherwise modify Free
Services at any time without notice. Subject to Clause 16, no guarantee, indemnity,
Maintenance or Support (as defined below) and availability obligations of Mandarin9
shall apply to Free Services. Free Services are not a guarantee of (future) product
features of Paid Services and should not be relied upon by the User in making any
purchasing decisions for Paid Services.
2.3 Mandarin9 may grant the User access to Paid Services free of charge or at
reduced Service Fees as part of a trial evaluation for a period determined by
Mandarin9 in its sole discretion (“Trial Use”). Mandarin9 shall have the right to
downgrade, limit or otherwise modify the Services provided for Trial Use at any time
without notice. Subject to Clause 16, no guarantee, indemnity, Maintenance or
Support and availability obligations of Mandarin9 shall apply to Trial Use. Mandarin9
has the right to immediately revoke and terminate any Trial Use at any time. Trial
Use is not a guarantee of (future) product features and should not be relied upon by
the User in making any purchasing decisions for Paid Services. Subject to the terms
and conditions agreed in the Order, Trial Use of Services may end and will then
automatically transform into regular Paid Services.
2.4 Mandarin9 shall be entitled to retain subcontractors, including third-party
software suppliers, for the performance of any of its obligations under any Order.

3. User Account | Conclusion of an Order
3.1 In order to use the Services, the User is required to create a user account by
accepting these Terms, entering certain personal details and by setting a password
of their choice in a registration form provided by Mandarin9 online (“User Account”).
After submitting the completed registration form, the User will receive a confirmation
email from Mandarin9 allowing the User to activate the User Account. Through the
creation of the User Account, a binding contract is concluded between the User and
Mandarin9, entitling the User to use Free Services.

3.2 If the User wishes to use certain Paid Services, the User may place a respective
Order with Mandarin9 through the User Account. Offers made by Mandarin9 for Paid
Services are not binding. By placing an order, the User makes a binding offer to
conclude a respective contract. The ordering process includes the following steps:
choosing an option, verifying the choice and/or correcting it, inserting relevant data,
selecting the method of payment, reading any applicable material terms of the
subscription plans and affirmatively accepting such material terms and agreeing to
these Terms, and completing a binding submission of the order by clicking an order
button and/or checking the box to proceed, as applicable. The User’s offer only
becomes binding for both parties when Mandarin9 confirms acceptance of the offer
in an email (“Order Confirmation”). The Order Confirmation also includes detailed
information in relation to the User’s Order and an Order number.
3.3 Mandarin9 will not store the contract text (these Terms and the terms and
conditions of the respective Order) after conclusion of an Order. The contract text will
then not be accessible to the User.

4. Rights of Use | Use Restrictions
4.1 Subject to the terms and conditions of the Order, Mandarin9 grants to the User,
during the Free Term (as defined below), the Initial Service Term, the Lifetime
Subscription Term and any Renewal Service Term (each as defined below), a non-
exclusive, non-transferable, non-sublicensable world-wide right and license to use
the Services for the User’s private purposes only (“License”). The Services are
offered as prescribed in the relevant description on Mandarin9’s website including
the User on-boarding process (if any) as well as the frequently asked questions
sections, in each case as updated from time to time (“Documentation”).
4.2 The User shall not (and shall not permit any third party to) directly or indirectly:
(a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any
external commercial use of, outsource, use on a timeshare or service bureau basis,
or use in an application service provider or managed service provider environment,
or otherwise generate income from the Services; (b) copy the Services onto any
public or distributed network; (c) decompile, reverse engineer or disassemble any
portion of the Services, or otherwise attempt to discover any source code, object
code or underlying structure, ideas, know-how or algorithms or other operational
mechanisms of the Services, in each case, unless permitted by mandatory statutory
law; (d) modify, adapt, translate or create derivative works based on all or any part of
the Services (except to the extent expressly permitted by Mandarin9 or authorized
within the Services); (e) modify any proprietary rights notices that appear in the
Services or components thereof; (f) use any Services in violation of any applicable
laws and regulations, including any export laws & restrictions, national security
controls & regulations, or outside of the scope of rights as set forth in this Clause 4;

(g) configure the Services to collect (i) any data that is defined as sensitive personal
data or ‘special categories of data’ within the meaning of the Federal Laws of the
USA relating to Data Protection Regulations (“USA-DPR”) or any applicable data
protection law or regulation; (ii) passwords or other authentication credentials; (iii)
any payment or other financial data, biometric data or genetic data; or (iv) any data
relating to a person under the age of eighteen (18) years (collectively, “Prohibited
Data”); or (h) use the Services to (i) store, download or transmit infringing, libelous,
or otherwise unlawful or tortious material, or malicious code or malware; or (ii)
engage in phishing, spamming, denial-of-service attacks or other fraudulent or
criminal activity; (iii) interfere with or disrupt the integrity or performance of third party
systems, or the services or data contained therein; (iv) attempt to gain unauthorized
access to the Services or Mandarin9’s systems or networks; or (v) perform, or
engage any third party to perform, penetration testing, vulnerability assessments or
other security assessments.
4.3 The User shall not duplicate, process, distribute, share, or use for public
reproduction any content of the Services without the prior written consent of
Mandarin9, unless expressly permitted by sharing options that may be integrated in
the Services.
4.4 The User shall not export or re-export, directly or indirectly, any Services or
technical data or any copy, portions or direct product thereof in breach of any
applicable laws and regulations.
4.5 The User may only use the Services as prescribed in the Documentation.
4.6 Mandarin9 may monitor the User’s use of the Services and may prohibit any use
of the Services it believes may be in violation of this Clause 4.

5. User’s Responsibilities
5.1 The User represents and warrants to use the Services only in full compliance
with all applicable laws and regulations.
5.2 The User shall be responsible for obtaining and maintaining any equipment and
ancillary services needed to connect to, access or otherwise use the Services,
including, without limitation, modems, hardware, servers, software, operating
systems and networking (collectively “Equipment”) at their own cost. Mandarin9’s
current Equipment requirements (as amended from time to time) may be accessed
on Mandarin9’s website.
5.3 The User shall also be responsible for maintaining the security of the Equipment,
the User Account, passwords (including but not limited to user passwords) and files,
and for all uses of the User Account or the Equipment with or without the User’s
knowledge. The User must not share any passwords or access codes with
unauthorized third parties.

5.4 The User shall be solely responsible for the content of all data and any other
material displayed, posted, uploaded, stored, exchanged or transmitted by the User
on or through the Services (“Content”). Mandarin9 cannot control the information
submitted by the User during the use of the Services and cannot guarantee the
accuracy of any information submitted. Mandarin9 may, without notice or liability,
investigate any complaints or suspected violations of the Order that come to its
attention and may take any action that it believes is appropriate, including, but not
limited to, rejecting, refusing to post, or removing any Content, or other data, or
restricting, suspending, or terminating the User’s access to the Services.
5.5 The User shall keep the information in the User Account up to date and correct.
The User shall notify Mandarin9 promptly of any unauthorized use of any password
or account or any other known or suspected breach of security or misuse of the
Services.

6. Online Lessons
6.1 If specified in an Order, Mandarin9 shall provide Paid Services to the User
allowing them to participate in language training sessions with language teachers in
an online live stream, either in single class one-to-one sessions (“Private Lessons”)
or in single class group sessions (“Small Groups Lessons”) or in single class
8-week intensive sessions (“Intensive Lessons”) (collectively “Online Lessons”)
subject to the additional provisions of this Clause 6. Online Lesson Services are
services within the meaning of applicable Federal Statutes of the United States of
America.
6.2 Mandarin9 also provides multi class packages of Online Lesson Services which
can be purchased.
6.3 If, at any time, sessions in a multi class purchase (whether Private Lessons or
Small Group Lessons), or an 8-week intensive sessions purchase, are NOT used,
any refunds extended by Mandarin9 for unused classes are hereby governed by
Clause 17, contained herein.
6.4 In order to book an Online Lesson session, the User must access the Mandarin9
online platform located at a web address provided by Mandarin9 (“Online
Platform”). Each booking request made by the User is subject to availability of the
requested language teacher at the requested time as well as the availability of a free
seat in the desired session. Upon confirmation of the booking request, the Online
Lesson session shall become binding on Mandarin9 and the User.
6.5 Online Lesson Services are provided via web browser. The User shall be
responsible for fulfilling Mandarin9’s additional Equipment requirements with regard
to Mandarin9 Online Lesson Services as amended from time to time, which may be
accessed on Mandarin9’s website.

6.6 In order to be able to use Online Lesson Services, the User may be required to
use third-party video conferencing software as specified by Mandarin9 in the
Equipment requirements as amended from time. The User shall be solely
responsible for obtaining such video conferencing software including any usage
rights thereto at their own cost and Mandarin9 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 Mandarin9 shall strive to make the desired language teacher available to the
User under Online Lesson Services. However, Mandarin9 reserves the right to
replace a designated language teacher with an equally qualified language teacher at
any time before the start of an Online Lesson session without giving reasons.
6.8 The content and scope as well as the time and duration of an Online Lesson
session are set out on the Online Platform. Mandarin9 reserves the right to adapt
and/or supplement the content and scope of a session at any time in a relevant
manner and in the interest of the User.
6.9 Mandarin9 and the respective language teacher shall be free to determine the
specific contents and/or design of any Online Lesson session at their own discretion.
With regard to Mandarin9 Online Lesson Services, Mandarin9 will use commercially
reasonable efforts to accommodate any requests from the User on the specific
contents and/or design of a session. Each Online Lesson session may include up to
five (5) minutes of administrative activities (e.g. designation of homework,
preparation of notes).
6.10 The booking of an Online Lesson is limited to the specific User.
6.11 Mandarin9 and the language teacher reserve the right to exclude the User from
an Online Lesson session at any time if the User behaves inappropriately. In this
case, the respective session shall be forfeited and shall not be refundable.
6.12 The User may cancel their attendance in a session, and/or Mandarin9 may
cancel any session, of an Online Lesson without giving reason, up to twenty-four
(24) hours before its scheduled starting time and reschedule, with no incurred loss to
either. In addition, in the event of illness of the designated language teacher, force
majeure, or other unforeseeable events beyond Mandarin9’s control, Mandarin9 may
cancel any Online Lesson session less than twenty-four (24) hours before its
scheduled starting time and reschedule, with no incurred loss. In the case of the
User cancelling their attendance in any Online Lesson session with less than twenty-
four (24) hours before its scheduled starting time, this shall result in the forfeiture of
the User’s session and the session shall not be refundable to the User.
6.13 In order to be effective, any cancellation of an Online Lesson session must be
made via the Online Platform.

6.14 Any training material provided by Mandarin9 and/or a language teacher in
connection with Online Lesson Services may only be used by the User for the
purpose of personal training preparation and follow-up as well as for personal
information purposes. Training material may not be duplicated, processed,
distributed or used for public reproduction without the prior written consent of
Mandarin9. Video and/or audio recordings of Online Lesson Services sessions by
the User are prohibited.

7. Lifetime Subscription Term
7.1 As a Lifetime Subscription (“Lifetime”) member, a User is entitled to access the
Services defined in the applicable Order for as long as the respective language is
offered by Mandarin9. The Lifetime Subscription applies only to Services defined in
the applicable Order and does not extend to any future Services that may be
developed.
7.2 Lifetime Subscriptions are intended for private, non-commercial use only. User’s
may not assign, transfer or resell in any way Lifetime Subscriptions to any other
person.
7.3 Mandarin9 reserves the right to revise the terms or make changes to the Lifetime
Subscription which will be communicated in our general terms & conditions.
7.4 Once a User has purchased a lifetime subscription, their membership will last the
earlier of, 99 years, or for as long as Mandarin9 continues to offer the Services
defined in the applicable Order or up until the User chooses to cancel their
membership under the terms set out in Clause 11 or in the event that Mandarin9
ceases to trade or exist.
7.5 Mandarin9 makes no warranties as to the expected duration of access to the
Lifetime Subscription and its related Services.
7.6 In receiving a Lifetime Subscription under the applicable Order, the User
acknowledges and agrees that the Services defined in the applicable Order could
change or terminate in the future.
7.7 The Lifetime Subscription is valid for use only at Mandarin9.com.
7.8 Lifetime Subscriptions are not redeemable for cash or credit, nor are they
applicable towards previous purchases.

8. Maintenance and Support for Paid Services
8.1 Subject to the User’s payment of the Service Fees, Mandarin9 shall provide
Maintenance and Support for Paid Services to the extent specified in the Order.
“Support” is defined as Mandarin9’s obligation to respond to reasonable support
requests of the User with regard to Paid Services by troubleshooting issues and
providing assistance. “Maintenance” means Mandarin9’s obligations with regard to
Paid Services related to error resolution, bug fixes and the provision of updates and
upgrades made generally available by Mandarin9 at its sole discretion.
8.2 Support is provided to the User via email through [email protected] or
any other email address that Mandarin9 may provide from time to time and/or via the
live chat on Mandarin9’s website, in each case, at least from Monday to Friday
during regular business hours.
8.3 Mandarin9 shall use reasonable efforts consistent with prevailing industry
standards to provide Maintenance for Paid Services in a manner which minimizes
errors and interruptions in the Services. The User may notify Mandarin9 of any errors
via [email protected] or any other email address that Mandarin9 may
provide from time to time and/or via the live chat on Mandarin9’s website. Mandarin9
shall use commercially reasonable efforts to timely correct any notified errors,
subject to (a) the User providing a detailed description of the error and its
reproducibility to Mandarin9, and (b) depending on the priority of the error to be
reasonably determined by Mandarin9 at its sole discretion.
8.4 If Mandarin9’s analysis shows that an error notified by the User has actually not
occurred or is not attributable to Paid Services, Mandarin9 may charge the User for
the costs demonstrably incurred by Mandarin9 in connection with such analysis.
8.5 The fees for Maintenance and Support are included in the Service Fees.

9. Availability of Paid Services
9.1 Subject to the User’s payment of the Service Fees, Mandarin9 shall make Paid
Services available to the User in accordance with this Clause 9.
9.2 Mandarin9 shall use reasonable efforts to ensure, that Paid Services are
available to the User over the internet, however no less than ninety-nine point five
percent (99.5%) per calendar year (based on twenty-four (24) hours a day and seven
(7) days a week) excluding (a) any temporary unavailability for scheduled or for
unscheduled Maintenance, either by Mandarin9 or by third-party providers, and (b)
unavailability for causes beyond Mandarin9’s reasonable control. Mandarin9 shall
use reasonable efforts to provide advance notice of any scheduled service
disruption.

9.3 The User is aware and acknowledges that the User-side access to Paid Services
such as an internet access cannot be guaranteed and that Mandarin9 shall not be
liable for any deficiencies in the User’s own internet connections or equipment.

10. Fees | Payment Terms | No Set-off
10.1 The User shall pay to Mandarin9 the fees for Paid Services as specified in the
Order in accordance with the terms therein (the “Service Fees”).
10.2 Mandarin9 reserves the right to change the Service Fees for the following
Renewal Service Term upon at least sixty (60) days prior to the end of the Initial
Service Term or the end of the then-current Renewal Service Term.
10.3 The User shall make payment of the Services Fees using any of the payment
methods offered on Mandarin9’s website.
10.4 Mandarin9 reserves the right to bill through an electronically transmitted invoice,
in which case, full payment for invoices must be received by Mandarin9 within the
due date listed on the invoice (which is equal to 15 calendar days after the emailing
of the invoice).
10.5 Following notice to the User in writing (simple email to be sufficient), Mandarin9
shall be entitled to suspend the User’s access to Paid Services in accordance with
Federal Laws of the USA if payments are not received by Mandarin9 within the due
date listed on the invoice (which is equal to 15 calendar days after the emailing of
the invoice).
10.6 The User may only invoke a right to set-off to the extent that its claims have
been, (a) finally established by a court of law, or (b) have been acknowledged by
Mandarin9.
10.7 The information in the Services may contain typographical errors or other errors
or inaccuracies and may not be complete or current. We therefore reserve the right
to correct any errors, inaccuracies or omissions and to change or update information
at any time without prior notice. We do not, however, guarantee that any errors,
inaccuracies or omissions will be corrected. We reserve the right to refuse to fill any
orders that you may place based on information on the Services that may contain
errors or inaccuracies, including, without limitation, errors, inaccuracies or out-of-
date information regarding pricing, shipping, payment terms, or return policies.

11. Term | Termination
11.1 Any Order shall begin on the date specified therein.
11.2 Any Order for Free Services shall remain in effect for an indefinite period of
time, unless terminated in accordance with the Order including these Terms (“Free
Term”). Mandarin9 or the User may terminate any Order for Free Services for
convenience at any time with immediate effect.
11.3 Any Order for Paid Services shall remain in effect for an initial term as specified
in the Order (“Initial Service Term”). The Initial Service Term shall automatically and
continuously renew for additional periods as specified in the Order (“Renewal
Service Term”), unless terminated at any time by Mandarin9 or by the User with a
72 hour prior written notice for Online Lesson Services or for Paid Services other
than Online Lesson Services, in each case with effect as of the end of the then-
current term by contacting Mandarin9 at [email protected].
11.4 The parties’ right to immediately terminate any Order for good cause shall
remain unaffected. Such good cause shall in particular exist, if (a) a party commits a
material breach of the Order, and such breach has not been cured within thirty (30)
days after receipt of written notice thereof (simple email to be sufficient); (b) the User
is in default of payment by more than thirty (30) days; (c) the User breaches the use
restrictions under Clause 4; or (d) the User ceases its due payments or suffers a
significant deterioration in its asset situation.

12. Limited Warranty for Paid Services
12.1 The User has checked that the specification of the Services as described in the
Documentation meets User’s needs and wishes. The User is aware of the essential
functionalities and features of the Services. The extent, nature and quality of the
Services are determined by these Terms, the Order, and the Documentation. Any
other information or requirements do only form part of the Order if the User and
Mandarin9 so agree in writing or if Mandarin9 so confirms in writing. Product
descriptions, illustrations, test programs, etc. do not constitute guarantees or
agreements on certain specifications. In order to be valid, an agreement on a
guarantee requires the written confirmation from a director of Mandarin9.
12.2 Mandarin9 warrants that Paid Services will, in all material respects, conform to
the functionality described in then-current Documentation for the applicable Paid
Services version. In case of a breach of this warranty Mandarin9 shall be required to
use commercially reasonable efforts to modify the Paid Services to conform in all
material respects to the Documentation, and if Mandarin9 is unable to materially
restore such functionality within thirty (30) days from the date of written notice of said
breach, the User shall be entitled to terminate the Order upon written notice and
receive a pro-rata refund of the unused Services Fees which have been paid in
advance (if any) for unused access to Paid Services.

The User must notify Mandarin9 in writing of any warranty breaches and the User
must have installed and configured the Services in accordance with the
Documentation to be eligible for the foregoing remedy. Any no-fault liability of
Mandarin9 for the existence of initial errors under Federal Laws of the USA shall be
excluded. The User’s claims for damages for a breach of this warranty are subject to
the limitations set forth in Clause 16.
12.3 Under no circumstances shall the User be entitled to obtain the source code of
the Services.
12.4 Platform providers, such as Apple Inc. and Google Inc., that make our app
available for download (“Platform Providers”) are not parties to these Terms.
Platform Providers have no obligation whatsoever to furnish any maintenance and
support services with respect to the app. In the event of any failure of the app to
conform to the warranties herein, you may notify the applicable Platform Provider,
and such Platform Provider may refund any purchases made through the app (if
applicable). To the maximum extent permitted by applicable law, Platform Providers
will have no other warranty obligation whatsoever with respect to the app. You
acknowledge that Platform Providers are not responsible for addressing any claims
relating to the app or your possession and/or use of the app, including but not limited
to: (i) product liability claims; (ii) any claim that the app fails to conform to any
applicable legal or regulatory requirement; and (iii) claims arising under consumer
protection or similar legislation. We, not the Platform Providers, will be solely
responsible for the investigation, defense, settlement and discharge of any such
intellectual property infringement claim. Platform Providers are third-party
beneficiaries of these Terms, and Platform Providers will have the right (and will be
deemed to have accepted the right) to enforce these Terms against you as a third-
party beneficiary thereof. You represent that you are not located in a country that is
subject to a U.S. Government embargo, or that has been designated by the U.S.
Government as a “terrorist supporting” country; and you are not listed on any U.S.
Government list of prohibited or restricted parties.

13. Proprietary Rights | User Data | Updates
13.1 Mandarin9 and its suppliers own and shall retain all proprietary rights, including
all copyright, database rights, patent, trade secret, trademark and all other
intellectual property rights and technical solutions, in and to the Services, including
but not limited to any learning contents and didactic methods. The User
acknowledges that the rights granted under any Order do not provide the User with
title to or ownership of the Services.
13.2 The User shall retain all right, title and interest in and to the User data and any
content, as well as any data that is based on or derived from the User data and any
content. The User grants to Mandarin9 a non-exclusive, non-transferable,
sublicensable, worldwide and unlimited right and license to use the User data and
any content solely in connection with providing the Services. Mandarin9 shall have
no liability for the User data and any content.

13.3 Mandarin9 reserves the right to implement new versions and upgrades of the
Services including, but not limited to, changes that effect modifications to the design,
operational method, technical specifications, systems, and other functions, etc. of the
Services, at any time without prior notice.

14. Data Protection
14.1 The User and Mandarin9 shall at all times comply with the requirements of any
applicable privacy and data protection legislation including but not limited to the
USA-DPR.
14.2 The processing of personal data by Mandarin9 is further described in
Mandarin9’s Privacy Policy which can be accessed here.  

15. Indemnity
15.1 Without prejudice to any other liability of the User under contract or statutory
law, the User shall defend, indemnify and hold harmless, at its expense, Mandarin9
and its Affiliates, its employees, subcontractors, suppliers and resellers against any
third-party claim to the extent such claim arises from or is made in connection with
the User’s breach of Clause 4 or otherwise from the User’s use of Services, and the
User shall pay all costs and damages finally awarded against Mandarin9 by a court
of competent jurisdiction as a result of any such claim. “Affiliate” means any entity
that directly or indirectly controls, is controlled by, or is under direct or indirect
common control with Mandarin9 owners respectively, or which is a wholly owned
subsidiary of the parent owner of Mandarin9 respectively, whereby ‘control’ means
owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities
or equity interests of an entity.
15.2 In connection with any claim for indemnity under this Clause15, Mandarin9
must promptly provide the User with notice of any claim that Mandarin9 believes is
within the scope of the obligation to indemnify, provided, however, that the failure to
provide such notice shall not relieve the User of its obligations under this Clause 15,
except to the extent that such failure materially prejudices the User’s defense of such
claim. Mandarin9 may, at its own expense, assist in the defense if it so chooses, but
the User shall control the defense and all negotiations related to the settlement of
any such claim. Any such settlement intended to bind Mandarin9 shall not be final
without Mandarin9’s written consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
15.3 Mandarin9 agrees at its expense to defend the User against (or, at Mandarin9’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 Mandarin9 shall pay all costs and damages finally awarded against the
User by a court of competent jurisdiction as a result of any such claim.

In the event that the use of the Services is, or in Mandarin9’s sole opinion is likely to
become, subject to such a claim, Mandarin9, at its option and expense, may (a)
replace the applicable Services with functionally equivalent non-infringing
technology; (b) obtain a license for the User’s continued use of the applicable
Service; or (c) where relevant, immediately terminate the Order in whole or in part
and provide a pro-rata refund of the Service Fees that have been paid in advance for
the applicable Services (beginning on the date of termination). The foregoing
indemnity obligation of Mandarin9 shall not apply: (i) if the Services are modified by
the User; (ii) if the Services are combined with other non- Mandarin9 products,
applications, or processes, but solely to the extent the alleged infringement is caused
by such combination; or (iii) to any unauthorized use of the Services. The provisions
in this Clause 15.3 shall be the User’s sole remedy with respect to any claim of
infringement of third-party intellectual property rights and trade secrets.

16. Limitation of Liability
16.1 Mandarin9 shall be unrestrictedly liable for (a) injury to life, body or health
caused by Mandarin9, its legal representatives or assistants in performance; (b)
damage caused intentionally or with gross negligence by Mandarin9, its legal
representatives or assistants in performance; (c) damage resulting from the absence
of any guaranteed characteristics; and (d) claims under US Federal Product Liability
Law.
16.2 Mandarin9 shall be liable for damage resulting from the breach of its primary
obligations hereunder by Mandarin9, its legal representatives, senior executives or
assistants in performance. Primary obligations are such basic duties which form the
essence of the Order and on the performance of which the User may rely. If the
breach of such primary obligation was caused through simple negligence by
Mandarin9, its legal representatives or assistants in performance; Mandarin9’s
ensuing liability shall be limited to the amount which was foreseeable by Mandarin9
at the time the respective Service was performed.
16.3 Subject always to Clauses 16.1 and 16.2, Mandarin9 shall not be liable for
damage resulting from the breach of non-primary obligations through simple
negligence of Mandarin9, its legal representatives or executive staff or Mandarin9’s
assistants in performance.
16.4 Mandarin9 shall not be liable for any loss, damage or harm suffered by the User
that is directly or indirectly caused by the User’s unauthorized use of the Services to
process Prohibited Data.
16.5 Mandarin9 shall be liable for loss of data only up to the amount of typical
recovery costs which would have arisen if proper and regular data backup measures
had been taken by the User.

16.6 Subject always to Clause 16.1, the total liability of Mandarin9 arising out of or in
connection with any Order, whether in contract or tort or otherwise shall in no
circumstances exceed a sum equal to one hundred and fifty percent (150%) of the
total Service Fees paid or payable by the User under the relevant Order.
16.7 Mandarin9 does not guarantee, represent or warrant any specific language
learning progress or language learning success to be achieved by the User by using
the Services.
16.8 Any other liability of Mandarin9 not covered by this Clause 16 is excluded on
the merits.

17. Notice of Right of Withdrawal | Refunds
17.1 Any rights of the User to withdraw from consummated contracts with Mandarin9
are defined within the following Notice:

Notice of your Right of Withdrawal

Right of Withdrawal
Paid Monthly Membership: The User may not withdraw from this contract at any
time, and NO REFUND will be allowed for any paid Monthly membership, or any
portion thereof, at any time.
Paid Annual Membership: The User may withdraw from this contract within the first
30 days and be eligible for a 70% refund.
Paid Life Long Membership: The User may withdraw from this contract within the first
30 days and be eligible for a 70% refund.
Paid Multi (10 Lessons) Online Lesson Service: Mandarin9 shall reimburse the User
for the amount paid minus the full value of each Online Private Lesson or Online
Small Group Lesson attended, until the withdrawal has been executed, whether it is
a Private session, or Small Group session.
Paid 8 Week Intensive Online Lesson Service: The User may not withdraw from this
contract at any time, and NO REFUND will be allowed for any paid 8 Week Intensive
Online Lesson Service, or any portion thereof, at any time.
To exercise your right of withdrawal from Annual, Life Long Memberships, and Multi
(10 Lessons) Online Lesson Services (whether Private Lesson or Small Group
Lesson), you must inform Mandarin9 by sending an unequivocal written statement,
sent by you via email at support@ Mandarin9.com, or a letter by post, or by a fax,
informing Mandarin9 of your decision to withdraw from said contract. IN ADDITION,
if withdrawing from an Annual or Life Long Membership contract, your withdrawal
statement must be sent prior to the withdrawal deadline.

To meet the withdrawal deadline criteria, it is necessary for you to send your
communication concerning your exercise of the right of withdrawal before the
withdrawal period for said contract has expired.

Effects of Withdrawal
If you withdraw from this contract, we shall reimburse you any payments which you
are entitled to receive per the Terms herein, 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. IT Security
18.1 The User shall ensure that their passwords are stored and used in a secure
manner and cannot be accessed and thereby used by third parties. The User shall
be liable for any unauthorized use of the Services.
18.2 Where it is suspected that any unauthorized person has become aware of the
User’s identity and/or password, the User shall immediately inform Mandarin9
thereof and also change their user identity and/or password.
18.3 The User shall be liable for losses or damage incurred by Mandarin9 where the
User intentionally or negligently reveals their identity/password to a third party or
where their identity and password otherwise become known to an unauthorized
party, unless the User notifies Mandarin9 immediately upon suspicion that such
event has occurred.
18.4 Mandarin9 shall adopt reasonable measures to ensure that the security of the
Services meets relevant industry standards.

19. Assignment | Novation
19.1 Mandarin9 may assign any Order and/or any associated rights in whole or in
part to a third party, provided that such assignment shall not impair the User’s rights
under such Order.
19.2 At Mandarin9’s request, the User shall enter into a novation agreement with a
third party for any Order without undue delay in order to enable Mandarin9 to
exercise its rights pursuant to Clause 19.1.

19.3 The User shall not assign any of its rights or obligations under any Order and
these Terms without the prior written consent of Mandarin9.

20. Entire Agreement | Severability | Changes | Revision
20.1 The Order including these Terms represents the entire agreement between the
User and Mandarin9 in respect of its subject matter and supersedes all prior
negotiations and agreements made between the parties in relation to its subject
matter, whether written or oral.
20.2 Should any provision of the Order including these Terms be or become
ineffective or invalid in whole or in part, the effectiveness and validity of the other
provisions shall not be affected. Such ineffective or invalid provision shall be
replaced by a provision which comes as close as legally possible to what the parties
would have agreed, pursuant to the meaning and purpose of the original provision
and of the Order if they had recognized the ineffectiveness or invalidity of the original
provision. If the ineffectiveness or invalidity of a provision is based on the
determination of a certain level of performance or a certain time (deadline or fixed
date), such ineffective or invalid level or time shall be replaced by the level or time
which comes as close as legally possible to the original level or time. The foregoing
shall also apply to any possible omission in the Order including these Terms that
was not intended by the parties. It is the express intention of Mandarin9 and the User
that this savings clause does not just have the effect of shifting the burden of proof
but that US Federal Law is entirely followed.
20.3 Valid amendments or supplements to any Order must be made in writing
(exchange of simple emails shall be sufficient). The same shall apply to any
agreement to deviate from or cancel this requirement of written form.
20.4 Mandarin9 may amend and/or update these Terms from time to time with future
effect and as necessary for technical, economic or legal reasons. Any revision of
these Terms shall be announced to the User in text form (simple email shall suffice)
no later than six (6) weeks before their proposed effective date. The User may either
approve or object to the revision before their proposed effective date. The revision
shall be deemed approved by the User, unless the User objects to the revision
before their proposed effective date. Mandarin9 shall expressly inform the User
thereof in the respective announcement.

21. Governing Law | Consumer Dispute Resolution
21.1 Any Order and any issues, disputes or claims (whether contractual or non-
contractual) arising out of or in connection with it or its subject matter or formation
shall be governed by and construed in accordance with the mandatory laws of the
country of the User’s usual place of residence (i.e. the provisions of the law of that
country which cannot be derogated from by agreement). In all other respects, the
Federal Laws of The United States of America shall apply. The United Nations
Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
21.2 The Internet may provide an online dispute resolution platform which may be
available. However, Mandarin9 is neither obliged nor willing to participate in any
such dispute resolution proceedings or platform, nor in dispute resolution
proceedings before any other consumer arbitration board.

Mandarin9
Parent Owner Registered in the State of Delaware of the USA