Terms of Service

  1.  General Information

This website www.smart-prep.com (hereinafter: “Website”) and web app www.app.smart-prep.com (hereinafter: “Web App”) is operated by the Hsquared Education GmbH, Stefan-George-Ring 19, 81929 Munich, Germany. For the purpose of these Terms of Service (hereinafter: “Terms of Service”, “Terms”), the terms “we”, “us” and “our” refer to Hsquared Education GmbH and the terms “you”, “user” or “customer” refer to users of the Website and/or Web App, and/or customers and/or users of physical products (hereinafter: “Physical Products”) and/or digital products (hereinafter: “Digital Products”, “Vouchers”, “ePapers”, “eBooks”) from this Website and/or Web App. 

Hsquared Education GmbH operates this Website and/or Web App, including all information, tools, services, Physical Products and Digital Products available from this Website and/or Web App to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting and/or using our Web App and/or Website, and/or purchasing something from the Website, you engage in our “Service” and agree to be bound by the following Terms of Service, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the Website and/or Web App, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.

Please read these Terms of Service carefully before accessing or using our Website and/or Web App. By accessing or using any part of the Website and/or Web App, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website and/or Web App, purchase something from the Website, or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features, tools or products that are added to the current Website and/or Web App shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our Website and/or Web App. The new Terms of Service then apply for transactions or purchases made after their publication on our Website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Website and/or Web App following the posting of any changes constitutes acceptance of those changes. In case of material modifications to the Terms or Services or in case of modifications that are advantageous to you, such modified version of the Terms only applies after you have accepted it.

Our Website is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our Physical Products, Digital Products and services to you. 

Our Web App is hosted on Hetzner Online GmbH in Germany. They provide us with the server that allows us to make available our Web App to you.

Some clauses in these Terms of Service contain special provisions for users that reside within the EU/EEA (see sub-headings). Please read these clauses carefully to ensure you are familiar with the respective provision that applies to you.

 

  1. Offerings of Hsquared Education GmbH; Products

The Hsquared Education GmbH offers Physical Products and Digital Products through our Website and/or Web App (together “SMARTPREP Product(s)”).

“In-App Subscriptions” are all Digital Products listed in the "Subscriptions" menu  (hereinafter: “Subscriptions Menu”) of the Web App. They are sold to you and processed by our exclusive global reseller, ManageBac LLC (hereinafter: “ManageBac”, contracting partner is confirmed on invoice and order confirmation), within the meaning of § 3 Abs. 11a UStG. A purchase of Subsciptions does not constitute a buy-sell relationship between you and us. 

Unless stated otherwise, In-App Subscriptions belong to Digital Products.

The SMARTPREP Products and the Web App are brought to you through our product brand SMARTPREP. The knowledge in the wide field of learning and teaching materials is subject to constant change and development. Although every care has been taken to provide you with high quality SMARTPREP Products and a high quality Web App, we cannot fully exclude that certain information is either incomplete or incorrect. Of course, however, opinions change, interpretations vary and literature is updated. We will try to keep up with these developments with updates or new releases. If you spot any mistake or gap, please send us your feedback to:

info@smart.prep.com

 

  1. Website Terms

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Website and/or Web App. 

3.1 Accounts on Website

When making purchases on our Website, you have the possibility to register as a user by creating an account (hereinafter: “Account(s)”). Purchases on our Website can also be made as a guest, i.e. without creating an Account. The data requested for registration must be stated accurately for purposes of invoicing and payment.

You are prohibited from entering data of any third-parties and must keep your personal information up-to-date (see Section 5). Sending us your complete registration form is considered an offer by you to open an Account. You will receive a confirmation by E-Mail with personal Login-Data (hereinafter: “Login-Data”) when applicable. When receiving the confirmation E-Mail, we are accepting your offer. We have the right to reject registrations without giving any reason and without penalty.

3.2 App Accounts on Web App

To use the Web App, you will need to create an app account (hereinafter: “App Account(s)”). You can create an App Account by registering as a user on the Web App or by clicking the “Login with ManageBac” button and authorizing a data transfer from your ManageBac account (hereinafter: “MB Account(s)”).

When creating an App Account you are prohibited from entering data of any third-parties. Sending us your complete registration form or authorizing a data transfer from your MB Account is considered an offer of you to open an App Account. You will receive a confirmation by E-Mail (hereinafter: “App Login-Data”) when applicable. When receiving the confirmation E-Mail, we are accepting your offer. We have the right to reject registrations without giving any reason and without penalty. You must keep your personal information up-to-date. By clicking the “Merge Account With ManageBac” button you are authorizing us to keep your App Account data synchronised with your MB Account data.

 

  1. General Conditions

We reserve the right to refuse service to anyone for any reason at any time. 

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the SMARTPREP Products, the Service, use of the Service, or access to the Service or any contact on the Website and/or Web App through which the Service is provided, without express written permission by us.

The headings used in this Agreement are included for convenience only and will not limit or otherwise affect these Terms of Service.

4.1 General Conditions Website

You understand that your content (not including credit card information), may be transferred to us unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks. 

4.2 General Conditions Web App

You understand that your content may be transferred to us unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

  

  1. Accuracy of Billing and Account Information

5.1 Accuracy of Billing and Account Information Website

You agree to provide current, complete and accurate purchase and account information for all purchases made on our Website. You agree to promptly update your Account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

All orders placed through our Website are subject to our acceptance. We reserve the right to refuse or cancel any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same Account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the E-Mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

5.2 Accuracy of Billing and Account Information In-App Subscriptions

All In-App Subscriptions are sold to you and processed by our exclusive global reseller ManageBac (contracting partner is confirmed on invoice and order confirmation) within the meaning of § 3 Abs. 11a UStG. A purchase of In-App Subscriptions does not constitute a buy-sell relationship between you and us. Please review carefully the Terms of Service of ManageBac before you engage in any transaction.

 

  1. Right to withdraw from purchase

You have a right to withdraw from a purchase. For more detail, please review our Returns Policy: Version for customers residing WITHIN the EU/EEA and version for customers residing OUTSIDE the EU/EEA.

 

  1. Access Data; Indemnification and termination in case of abuse

You must keep your password and Login-Data and/or App Login-Data secure. You are fully responsible for all use of your Account and/or App Account and for any actions that take place using your Account and/or App Account.

It is prohibited for you to allow others to use your Login-Data and/or App Login-Data or Account and/or App Account. Maintaining the confidentiality and security of your Account and/or App Account is solely your responsibility. In the case of any unauthorized use of your Login-Data/App Login-Data and/or Account/App Account, you agree to notify us immediately. We will not be held liable for any losses arising out of the unauthorized use of your Login-Data/App Login-Data and/or Account/App Account. Within the boundaries of your liability for damages, you further agree to indemnify and hold us harmless or any associated companies, agents, affiliates and/or licensors, as applicable, for damages caused by unauthorized uses of your Account/App Account.

If you violate these Terms of Service: (a) by submitting false information during the registration process (Website and Web App); and/or (b) due to unauthorized disclosure of Login-Data/App Login-Data, especially passwords, we are entitled to terminate the use of your Account/App Account temporarily or permanently and/or block access to your Account/App Account with immediate effect or withdraw access within a time period set by us at our discretion and/or terminate the user agreement extraordinarily and with immediate effect. In such a case, you may not register for a new Account/App Account without former explicit written consent by us.

  

  1. SMARTPREP Products and Services

Any SMARTPREP Products provided to you by us are for your personal use only.

We have made every effort to display as accurately as possible the colors and images of our SMARTPREP Products that appear on our Website and/or Web App. We cannot guarantee that your computer monitor's display of any color will be accurate.

The images on our Website and/or Web App may contain elements that are subject to change, as we always try to further improve the design and the usage of our SMARTPREP Products. We do not warrant that the final product will look exactly the same.

Certain SMARTPREP Products or Services may be available exclusively online through the Website and/or Web App. These SMARTPREP Products or Services may have limited quantities.

We reserve the right, but are not obligated, to limit the sales of our SMARTPREP Products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any SMARTPREP Products or Services that we offer. All descriptions of SMARTPREP Products or product pricing are subject to change at anytime without notice, at the sole discretion of us. New descriptions and prices apply for purchases made after their publication on our Website and/or Web App. While we attempt to provide accurate descriptions of the SMARTPREP Products and Services available on our Website and/or Web App, we do not warrant that the descriptions are accurate, complete, reliable, current or error-free. We reserve the right to discontinue any SMARTPREP Product and Service at any time. Any offer for any SMARTPREP Product or Service made on this Website and/or Web App is void where prohibited.

8.1 SMARTPREP Products through the Website

By clicking on the “Add to Cart” button on the Website and proceeding with the ordering process, the customer can order SMARTPREP Products. The customer’s offer is submitted by clicking on the „Complete order“ button. As soon as the customer receives a confirmation of the order via E-Mail, the contract for purchase of the SMARTPREP Products takes effect.

8.2 In-App Subscriptions through ManageBac

Purchases of In-App Subscriptions are only possible through our exclusive global reseller ManageBac (see Section 5.2). The contract for purchase is made between you and ManageBac.

 

  1. Technical Requirements for using Digital Products and Web App

To use the Web App and/or to make use of the Digital Products and to read and/or save them, you require a customary internet connection, and may require an up-to-date browser and a program that enables you to view documents in electronic format. You are responsible for all hardware, software, network availability and internet connectivity.

  

  1. Delivery Terms

The customer bears any shipping costs that may be involved in the delivery of Physical Products, unless explicitly stated otherwise. Digital Products will be: (a) available for download from the Website; or (b) will be sent to you via E-Mail in a PDF and/or docx format; or (c) available for use on the Web App. To use the Web App, you will need to create an App Account (see Section 3.2). All In-App Subscriptions for use on the Web App are sold to you and processed by our  exclusive global reseller ManageBac (contracting partner is confirmed on invoice and order confirmation) within the meaning of § 3 Abs. 11a UStG. A purchase of In-App Subscriptions does not constitute a buy-sell relationship between you and us.

The delivery times stated on our Website are estimates. We are not responsible for any non-compliance with estimated delivery times as usually third-party service providers carry out the delivery of our products.

You will receive a full refund of your payment if, due to copyright issues or for good cause, we cannot deliver the SMARTPREP Products.

We are entitled to make partial deliveries as long as it will be economically reasonable and technically feasible for the other party. We retain the capacity to stop sales of single SMARTPREP Products and the availability of the Web App and/or Website should there be a case of copyright infringement or any other substantial reasons. If, for such a reason, the SMARTPREP Products are no longer available on the Website or for download and/or you have not yet been able to download the file completely and free of technical error in one of the provided electronic formats within twelve months after the purchasing agreement has been concluded, you are entitled to a full refund of the purchase price.

 

  1. Prices and Terms of Payment

11.1 Prices and Terms of Payment on the Website

Only the prices stated in our order confirmation are binding. We reserve the right to change prices without notice. The price of subscriptions, which have been ordered prior to the publication of the change in prices of subscriptions on the Website, is not affected.

The prices stated on our Website are gross prices (net prices plus the valid legal sales tax which might apply under German law) for all deliveries within Germany and/or to other countries. You are subject to the net prices (gross prices less the valid legal sales tax which might apply under German law) when you provide us with a valid VAT registration number or when you provide us proof of your business status. You are responsible to pay any taxes and other levies (for instance at customs), which are subject to the laws of your jurisdiction.

Billing will be issued only in Euro.

The purchase price for individual orders is to be paid in advance and immediately upon completion of the ordering process.

We are offering you multiple methods of payment on our Website. The purchase price of the order on our Website can be paid via credit cards or PayPal.

Digital Products (excl. In-App Subscriptions) will be made available to you, after your payment has been authorized (see Section 9).

If payments are not authorized for orders made on our Website, we will notify you about the cancellation of your order. If the order has already been sent, you must return it at your own expense.

The access to In-App Subscriptions via the Web App will be made available to you by ManageBac, after your subscription has been confirmed on ManageBac (see Section 9).

If the payment process is carried out via payment system providers, their terms of use apply exclusively. An account might be required by the payment system providers to carry out transactions.

All SMARTPREP Products that are part of one order remain our property until the full payment for that order has been received.

We will compile an invoice about the ordered SMARTPREP Products on our Website and send this to your E-Mail address upon request. We may charge additional fees should you request a paper invoice.

11.2 Prices and Terms of Payment on the Web App 

The prices for all In-App Subscriptions are gross prices (net prices plus the valid legal sales tax which might apply) for all deliveries within Germany and/or to other countries and are stated only for informational purposes.

All In-App Subscriptions are sold to you and processed by our exclusive global reseller ManageBac within the meaning of § 3 Abs. 11a UStG. They are responsible for all billing and invoicing. For more information see Section 5.2.

 

  1. Rights of use for Digital Products

The Web App and the Digital Products are made available to you by us (see Section 8).

Copyright law applies to all Digital Products, the Website and Web App.

The Web App and all Digital Products (excl. In-App Subscriptions) provided to you by us are for your personal use only.

All In-App Subscriptions for use on the Web App are purchased from ManageBac. Please refer to their Terms of Service.

You are entitled to save any downloads of Digital Products (excl. In-App Subscriptions), made available by us as a document in electronic format, to your personally used terminal device. You are not permitted to allow commercial access to the Digital Products (excl. In-App Subscriptions) and/or Web App to anyone else but yourself. The unauthorized reproduction of all Digital Products (excl. In-App Subscriptions) and/or Web App, especially on, but not limited to, terminal devices used by third parties, its modification and the disclosure of the result is strictly prohibited. This extends to any Intra- or Extranets. You are also obliged to not give, lease, assign, license, sub-license, transfer, distribute, disclose, disseminate or publish the Digital Products (excl. In-App Subscriptions) and/or Web App in any form to any third party. This also applies to individual articles, photos and other individual components as well as components of such that are subject to any legal protection and/or are protected by copyright law.

To protect the Digital Products (excl. In-App Subscriptions) and/or Web App from misuse, we may watermark the Digital Products (excl. In-App Subscriptions) and/or Web App and/or use other technical means of identification by including the customer’s name and E-Mail address. We reserve the right to mark the Digital Products (excl. In-App Subscriptions) and/or Web App and it’s individual components by applying additional measures, which might not be immediately apparent to the customer, and use other technological protection measures to prevent copyright (anderweitig schutzrechtswidriger Handlungen) infringing activities.

If the customer/user of the Digital Products (excl. In-App Subscriptions) and/or Web App acts in conflict with the terms stated above, Hsquared Education GmbH reserves the right to block the access to the Web App and/or to download the Digital Products (excl. Subscriptions) and/or to use the In-App Subscriptions via the Web App. Hsquared Education GmbH also reserves the right to block and/or prohibit access to downloaded Digital Products if the customer/user acts in conflict with the stated above.

For customers residing WITHIN the EU/EEA: In deviation from the above, you are permitted to transfer, resell or sublicense the Digital Product (excl. In-App Subscriptions) to a third party if you have permanently deleted and destroyed all copies of the products and/or access to them in your possession.

 

  1. Intellectual Property

The Hsquared Education GmbH owns the copyrights: (a) of all materials on the Website and/or Web App, the SMARTPREP Products and Services; or (b) has reproduced these with the copyright owners permission. All materials and products may only be used for strictly personal purposes.

You may not use any names, trademarks or registered trademarks of products or services provided by us. “SMARTPREP“ is a trademark of Hsquared Education GmbH.

Please contact us at:

info@smart.prep.com

should you require further information regarding permission to use our materials and/or products/services in any other than for a strictly personal use.

 

  1. Accuracy, Completeness and Timeliness of Information

We are not responsible if information made available on this Website and/or Web App is not accurate, complete or current. The material on this Website and/or Web App is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Website and/or Web App is at your own risk.

This Website and/or Web App may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Website and/or Web App at any time, but we have no obligation to update any information on our Website and/or Web App. You agree that it is your responsibility to monitor changes to our Website and/or Web App.

  

  1. Modifications to the Service

Hsquared Education will make reasonable efforts to keep the Hsquared Education Service operational. However, we reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. However, you always have a right to terminate at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service. You understand and agree that Hsquared Education has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service.

 

  1. Optional Tools

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the Website and/or Web App is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the Website and/or Web App (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

 

  1. Third-Party Links

Certain content, products and services available via our Service and/or Website and/or Web App and/or SMARTPREP Products may include materials from third-parties.

Third-party links on the Website and/or Web App and/or SMARTPREP Products may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

 

  1. User Comments, Feedback and other Submissions

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service. 

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false E-Mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. 

 

  1. Personal Information, Privacy

Our Privacy Policy governs your submission and our processing of personal information through the Website and/or Web App.

 

  1. Errors, Inaccuracies and Omissions

Occasionally there may be information on our Website and/or Web App and/or SMARTPREP Products and/or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and/or availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related Website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service and/or on any related Website and/or Web App and/or SMARTPREP Products, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service and/or on any related Website and/or Web App and/or SMARTPREP Products, should be taken to indicate that all information in the Service and/or on any related Website and/or Web App and/or SMARTPREP Products has been modified or updated.

 

  1. Prohibited Uses

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Web App and/or Website and/or SMARTPREP Products or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related Website or Web App or SMARTPREP Products, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related Website or Web App or SMARTPREP Products, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related Website or Web App or SMARTPREP Products for violating any of the prohibited uses.

 

  1. Disclaimer of Warranties;

22.1. For customers residing OUTSIDE the EU/EEA, the following applies:

IN ORDER TO PROVIDE YOU WITH THIS SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS, WE ARE UNABLE TO OFFER ANY WARRANTIES OR MAKE ANY REPRESENTATIONS ABOUT ANY BENEFITS OR OPPORTUNITIES WHICH YOU MAY OBTAIN ON THIS WEBSITE AND/OR WEB APP AND/OR THROUGH SMARTPREP PRODUCTS. WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY MATERIAL AT THE WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS, AND WITHOUT ANY REPRESENTATIONS OR GUARANTEES. IN ADDITION, WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THIS WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS WILL BE SECURE, ACCESSIBLE CONTINUOUSLY AND WITHOUT INTERRUPTION, OR ERROR FREE.

TO THE EXTENT THAT YOU MIGHT OTHERWISE BELIEVE THAT ANY WARRANTIES, GUARANTEES OR REPRESENTATIONS HAVE BEEN MADE TO YOU, YOU HEREBY AGREE THAT SUCH STATEMENTS, WHETHER MADE ORALLY OR IN WRITING, ARE TO BE CONSTRUED AS MERELY NON-BINDING EXPRESSIONS OF POLICY RATHER THAN AFFIRMATIVE REPRESENTATIONS, OBLIGATIONS, GUARANTEES OR WARRANTIES. IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION AND OTHER TERMS OR PROVISIONS OF THIS AGREEMENT, THIS SECTION SHALL BE CONSTRUED TO TAKE PRECEDENCE.

 

22.2 For customers residing IN the EU/EEA, the following applies:

Defect. Hsquared Education warrants that, at the time of transfer of risk of loss the SMARTPREP Products and/or Web App are capable of complying with the specifications contained in the Documentation for the SMARTPREP Product (the "Performance Description"). If a SMARTPREP Product (i) is not capable of complying to the Performance Description, or (ii) violates intellectual property rights or proprietary rights, the SMARTPREP Product for purposes of this agreement shall qualify as defective ("Defective Product" or "Defect"). Minor deviations from the Performance Description shall not qualify as Defect.

Remedies. In case a SMARTPREP Product contains a Defect, customer shall set a reasonable period for Hsquared Education to remedy the Defect. Customer’s right to renewed performance (Nacherfüllung) shall be modified so that Hsquared Education at its option may (i) either repair or (ii) deliver a replacement for the Defective Product. If Hsquared Education does not succeed within a reasonable period to remedy a Defect, customer shall be entitled, to either (i) rescind the applicable Order of the Defective Product, (ii) lower the price for the Defective Product (Minderung), or (iii) to set one final reasonable period for Hsquared Education to remedy the Defect. If such final period lapses and Hsquared Education has not been successful in its remedial efforts, Hsquared Education reserves the right to refuse to provide renewed performance. As soon as the customer has exercised its right to rescission of the respective Order, customer's right to use the ordered SMARTPREP Product shall end. In this case and to this extent, customer shall return the SMARTPREP Product and destroy all copies thereof as directed by Hsquared Education and, if requested, will certify in writing to Hsquared Education as to the destruction or return of the SMARTPREP Products and all copies thereof. 

Warranty Period. The warranty period shall be 24 months starting with delivery of the Product.

 

  1. Limitation of Liability

23.1 For customers residing OUTSIDE the EU/EEA, the following applies:

IN ORDER TO PROVIDE YOU WITH THIS SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS, WE ARE UNABLE TO ACCEPT LIABILITY FOR ANY CONDUCT, ACTS OR OMISSIONS OCCURRING ON THIS WEBSITE AND/OR WEB APP AND/OR THROUGH SMARTPREP PRODUCTS OR ANY LOSSES YOU MAY INCUR IN CONTEXT OF OUR SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS. IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS, EVEN IF YOU CLAIM TO HAVE NOTIFIED US ABOUT SUCH DAMAGES, OR FOR ANY CLAIMS BY ANY THIRD-PARTIES. IN NO CASE SHALL HSQUARED EDUCATION GMBH, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS OR ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE AND/OR WEBSITE AND/OR WEB APP AND/OR SMARTPREP PRODUCTS, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

23.2. For customers residing WITHIN the EU/EEA, the following applies:

  1. Subject to Section 2 hereof Hsquared Education contractual and statutory liability for damages shall, irrespective of its legal ground, be limited as follows:
    • Hsquared Education shall only be liable up to the amount of the foreseeable damages typical for this type of contract for damages caused by a slightly negligent breach of a material contractual obligation.
    • Hsquared Education shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation and the slightly negligent breach of any other duty of care applicable.
  1. The aforesaid limitations of liability shall not apply to any mandatory statutory liability, in particular to liability under the German Product Liability Act (Produkthaftungsgesetz), liability for assuming a specific guarantee and liability for culpably caused personal injuries.

  

  1. Indemnification

You agree to indemnify, defend and hold harmless the Hsquared Education GmbH and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

  

  1. Severability

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

 

  1. Termination 

The obligations and liabilities of the parties incurred prior to the termination date, including, but not limited to any purchase of SMARTPREP Products and/or use of the Web App made, shall survive the termination of this agreement for all purposes. 

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services by contacting us at:

info@smart.prep.com

or mailing us at:

Hsquared Education GmbH
Stefan-George-Ring 19
81929 München
Germany 

or when you cease using our Website and/or Web App.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services and/or Website and/or Web App and/or SMARTPREP Products (or any part thereof).

  

  1. Entire Agreement

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules referenced therein constitute the entire agreement and understanding between you and us and govern your use of the Service and/or Website and/or Web App and/or SMARTPREP Products, superseding any prior agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

 

  1. Governing Law, Mandatory Arbitration, and Venue

28.1 For customers residing OUTSIDE the EU/EEA, the following applies:

Applicable Law. Unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction, or the terms of this Section, these Terms of Service are subject to the law of the State of California, United States, without regard to choice or conflicts of law principles. Further, you and Hsquared Education agree to the exclusive jurisdiction of the state and federal courts in Los Angeles County, California to resolve any dispute, claim or controversy that arises in connection with these Terms of Service.

Binding Arbitration. You and Hsquared Education agree that any dispute, claim or controversy arising out of or relating in any way to the Service and/or SMARTPREP Products and/or Website and/or Web App or your use thereof, including these Terms of Service or other Agreements, shall be determined by mandatory binding arbitration. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Hsquared Education GmbH are each waiving the right to a trial by jury and the right to participate in a class or multi-party action. This arbitration provision shall survive termination of these Terms of Service and the termination of your Hsquared Education GmbH Account and/or App Account. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (the “AAA Rules”), as modified by these Terms of Service, and as administered by the AAA. You and Hsquared Education GmbH agree that these Terms of Service involve interstate commerce and are subject to the Federal Arbitration Act. Furthermore, you agree that any dispute, claim or controversy with an amount of $75,000.00 or less shall be determined by one arbitrator, and the parties shall submit written evidence to the arbitrator without a hearing.

YOU AND Hsquared Education AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING. Further, no arbitrator shall consolidate any other person’s claims with your claims, and may not otherwise preside over any form of a multi-party or class proceeding. If this specific provision is found to be unenforceable in any way, then the entirety of this arbitration section shall be null and void. The arbitrator may not award declaratory or injunctive relief.

Any arbitration must be commenced by filing a demand for arbitration with the AAA within one (1) year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitations period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA’s Consumer Rules with the remainder to be paid by Hsquared Education GmbH. Any arbitration costs or fees deemed “excessive” will be paid by Hsquared Education GmbH.

28.2. For customers residing WITHIN the EU/EEA, the following applies:

Applicable Law. These Terms of Service shall be governed by and interpreted in accordance with the laws of Germany excluding its conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

Venue. Any dispute between the parties relating to the validity, performance, interpretation or construction of there Terms of Service or the agreement between the parties will be submitted to courts located within Munich, Germany which courts have exclusive jurisdiction.

                                                            

  1. Contact Information 

Questions about the Terms of Service should be sent to us at: 

info@smart.prep.com

or mailing us at:

Hsquared Education GmbH
Stefan-George-Ring 19
81929 München
Germany

 

 

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March 2019