Preamble
This Institutional Services Agreement (the “Agreement”) is entered into between Xeropan International Ltd., a company incorporated under the laws of Hungary, having its registered office at 4034 Debrecen, Vágóhíd utca 2., Building 4, Floor 2, Suite 206/B, Hungary, company registration number 09-09-031715 (hereinafter referred to as the “Service Provider” or “Xeropan”), and the institution identified in the applicable Order Form or Individual Agreement executed in connection with this Agreement (hereinafter referred to as the “Institution”).
Xeropan operates a technology platform providing digital language-learning and communication skills development services and content (including related administrative interfaces) accessible through web-based, mobile, and.
The Institution wishes to use the Platform to support its educational, training, or skills development activities.
The Parties hereby agree as follows.
1. Definitions
For the purposes of this Agreement, the following terms shall have the meanings set forth below:
“Platform” means the web-based, mobile systems operated by Xeropan, including educational content, reporting functionalities, API integrations, and artificial intelligence-powered features, and related administrative functionalities.
“Services” means the services made available by Xeropan to the Institution through the Platform.
“User” means any natural person authorized by the Institution to access and use the Platform.
“Learner” means a User designated by the Institution to use the Platform for learning purposes.
“Instructor” means a User designated by the Institution to use the educational, organizational, or progress-monitoring functionalities of the Platform.
“Institutional Administrator” means a User designated by the Institution and authorized to access and use the Platform’s institutional administration functionalities.
“Subscription Term” means the fixed period set forth in the Order Form during which the Institution is entitled to access and use the Platform and thereby the Services.
“Order Form” means a document executed by the Parties setting out the commercial terms of a subscription, including, without limitation, the number of licenses, applicable fees, and the Subscription Term.
“Data Processing Agreement” or “DPA” means the separate data processing agreement entered into between the Parties governing the processing of personal data in connection with the Services.
“Parties” means Xeropan and the Institution jointly.
“Business Day” means a day on which banks are open for general business in Budapest, Hungary, excluding Saturday, Sunday, and any public holiday or non-working day recognized under Hungarian law.
2. Scope of services
2.1. Subject to the terms and conditions of this Agreement, Xeropan shall provide the Institution with access to the Platform and the related Services.
2.2. The Services may include, without limitation: access to digital language-learning content; functionalities for tracking learning progress and outcomes; institutional reporting and analytics capabilities; and AI-powered educational features made available as part of the Platform. To be referenced in a separate Annex.
2.3. Where enabled and configured by the Institution, the Platform may activate or suppress automated educational or marketing communications based on communication preferences and eligibility information provided or maintained on behalf of the Institution, and solely in accordance with the Institution's documented instructions and the applicable Data Processing Agreement.[1] [2]
2.4. Xeropan shall provide the Services solely in accordance with this Agreement, the applicable Order Form, and any other governing documents expressly incorporated herein. Xeropan shall only be responsible for compliance with those laws, regulations, legal requirements, information security, IT security, data protection, business continuity, auditing, certification or similar standards and/or other requirements which Xeropan has expressly undertaken in writing. Xeropan shall bear no liability for any requirement, expectation or compliance obligation with any requirements, conditions or specific expectations not expressly stipulated shall not be expected from Xeropan, and no liability shall attach to it in this respect; in particular, it shall not be responsible for requirements arising from the Institution’s internal policies, industry standards, or the expectations or certification schemes of third parties (e.g. authorities, partners, auditors).
2.5. Xeropan shall only undertake to ensure service level, level of availability (uptime) expressly specified in the mutually signed Order Form; in absence of such a commitment, Xeropan shall have no obligation or liability in this respect. When calculating compliance with any service level the following downtime shall be disregarded: any downtime due to planned maintenance or development, announced in advance by Xeropan at least 15 days prior in, the duration of any force majeure events, outages attributable to the conduct of the Institution or any User, including without limitation improper or overload-inducing use, and outages attributable to third parties. Neither this provision nor any provision of any agreement with Xeropan shall constitute a warranty of continuous or uninterrupted service.
3. Term of the agreement
3.1. This Agreement shall enter into force on the date of execution of the Order Form by both Parties.
3.2. Unless otherwise specified in the applicable Order Form, this Agreement shall remain in effect for a fixed term of twelve (12) months.
3.3. Any extension or renewal of this Agreement shall require the prior written agreement of both Parties.
3.4. Termination or expiration of this Agreement shall not affect any provisions which by their nature are intended to survive termination, including, without limitation, provisions relating to confidentiality, data protection, intellectual property, payment obligations accrued prior to termination, limitations of liability, and dispute resolution.
4. License and access and usage rights
4.1. Subject to the terms of this Agreement, Xeropan grants the Institution a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right to access and use the Platform and the Services during the applicable Subscription Term, limited to the number of Teachers, Learners, Institutional Administrators set forth in the Order Form. End users of the Platform and Services under this Agreement may only be natural persons who are: (a) employed by, or otherwise engaged in a similar legal relationship with, the Institution, in the case of Teachers and Institutional Administrators; and (b) persons duly enrolled as students of the Institution, in the case of Learners.
4.2. The Institution may use the Platform solely for its internal educational, training, or skills development purposes, in accordance with any and all documentation and user manuals provided by Xeropan. The right of access and use is limited to this intended purpose.
4.3. The Institution shall not sell, lease, sublicense, distribute, make available to third parties, or otherwise commercially exploit the Platform or any part thereof.
4.4. All intellectual property rights, including copyrights, trademarks, trade secrets, database rights, and other proprietary rights relating to the Platform and the Services, shall remain the exclusive property of Xeropan or its licensors. Except for the limited rights expressly granted under this Agreement, no ownership rights are transferred to the Institution.
4.5. The Institution shall ensure that all Users comply with this Agreement and any applicable policies, guidelines, or documentation governing the use of the Platform.
5. Provision of the services
5.1. Xeropan shall make the Platform available to the Institution during the Subscription Term.
5.2. Xeropan may modify, update, maintain, enhance, or develop the Platform from time to time, provided that such changes do not result in the unreasonable removal of the material functionality of the Services.
5.3. Xeropan shall use commercially reasonable efforts to maintain an annual service availability level of ninety-nine percent (99%). Availability calculations shall exclude scheduled maintenance, force majeure events, and outages caused by third-party network, telecommunications, hosting, cloud infrastructure, or other service providers outside Xeropan's reasonable control.
5.4. Xeropan may engage subcontractors, technology providers, and other third-party service providers in connection with the provision of the Services. The use of such providers shall not relieve Xeropan of its contractual obligations under this Agreement.
6. General obligations of the parties
6.1. Xeropan shall provide the Services with reasonable skill, care, and professional diligence and shall maintain the technical and organizational measures necessary for the proper operation of the Platform.
6.2. The Institution shall provide all information reasonably required for the provision of the Services and shall ensure that its use of the Platform complies with applicable laws, regulations, and internal institutional policies.
6.3. Nothing herein, in the Order Form, or any other agreement, document, annex, exhibit shall limit Xeropan in conducting its business and providing services (e.g. the Services) and/or giving access to the Platform to any third party (including without limitation any consumers, and any other institution) at its own discretions. Nothing herein, in the Order Form, or any other agreement, document, annex, exhibit shall be construed as restricting any Party’s ability to compete independently, enter any market, set prices, or otherwise conduct business freely.
6.4. The Institution shall be responsible for designating Users, managing access rights (including assigning roles as Instructor, Learner, Institutional Administrator), and ensuring the lawfulness of any data uploaded to, submitted through, or otherwise processed using the Platform and the Services by its Users, Xeropan shall act as a data processor (or sub-processor) of the Institution. The Institution represents and warrants that it has independently audited, reviewed, and assessed the Platform and the Services and has satisfied itself as to their suitability, functionality, and compliance with applicable laws and regulations for all intended use cases. The Institution acknowledges and agrees that it shall bear sole and full responsibility and liability for ensuring that its use of the Platform and the Services is lawful in each jurisdiction and context in which it operates. The Institution further agrees that it shall not rely on Xeropan for any legal, regulatory, or compliance assessment relating to its use of the Platform and the Services, except to the extent that Xeropan has expressly provided written representations.
6.5. The Institution acknowledges and agrees that:
a) the Institution acts as the Data Controller with respect to any communication preferences collected through the Platform;
b) the Institution is solely responsible for determining whether consent is required under applicable law;
c) the Institution is solely responsible for determining which Users are eligible to provide such consent;
d) where age-based eligibility is applied, the Institution shall ensure that the learner eligibility status (including any 18+/under-18 designation) provided to Xeropan is accurate and kept up to date;
e) Xeropan shall rely exclusively on the eligibility information provided by the Institution and shall not independently verify a learner's age.[3] [4]
6.6. The Institution shall promptly notify Xeropan of any circumstance that may affect the provision, security, integrity, or lawful use of the Services and the Platform.
6.7. The Parties shall cooperate in good faith and act in a manner consistent with the purpose of this Agreement.
6.8. This Agreement, including any Order Form, annex, exhibit, schedule, or any other document incorporated into or referenced by this Agreement, is entered into solely between the Institution and Xeropan and shall create rights and obligations exclusively between those Parties. Nothing in this Agreement shall confer upon any User or any other third party any direct contractual right, claim, remedy, or cause of action against Xeropan. Any provision of this Agreement referring to any User, including any right, obligation, restriction, or requirement applicable to a User, shall be construed as imposing the corresponding obligation on the Institution, including, without limitation, the obligation to ensure that its Users comply with the applicable terms governing access to and use of the Platform and the Services. The Institution represents and warrants that it has provided, and shall continue to provide, all notices, information, and transparency disclosures required under applicable Data Protection Laws to its Users, and that it has obtained, and shall maintain, all legal bases, consents, authorisations, permissions, and other declarations required under applicable law for the collection, use, disclosure, analysis, storage, and other Processing of Personal Data in connection with this Agreement, the Platform, and the Services. Xeropan shall reasonably assist the Institution, upon request, by providing information necessary for the Institution to comply with its obligations under applicable Data Protection Laws, to the extent required under the applicable Data Processing Agreement.
7. Fees and payment terms
7.1. The Institution shall pay the fees specified in the applicable Order Form or Individual Agreement.
7.2. Unless expressly stated otherwise, all fees are exclusive of value-added tax (VAT) and any other applicable taxes, duties, or governmental charges.
7.3. Xeropan shall issue invoices for the applicable fees, and the Institution shall pay each undisputed invoice by bank transfer within thirty (30) days from the invoice date.
7.4. In the event of late payment, Xeropan shall be entitled to charge default interest in accordance with applicable law.
7.5. If the Institution remains in payment default for more than thirty (30) days after receiving written notice, Xeropan may suspend or restrict access to all or part of the Services until the outstanding amounts have been paid in full.
8. Support and incident management
8.1. Xeropan warrants that the Platform and Services have been tested in accordance with industry standards to minimize the risk, at the time of delivery, of harmful code (e.g., computer viruses, worms, trap doors, time bombs, disabling code, or any similar malicious mechanism designed to interfere with the intended operation of, or cause damage to, computers, data, or software). Unless otherwise specified in the mutually signed Order Form, or a separate document signed by the Parties mutually, and to the extent such limitation is not prohibited by law: (i) Xeropan does not warrant that the Platform and Services are error-free or that it will run and can be accessed without interruption. (ii) Xeropan does not warrant and will have no responsibility for a claim to the extent that it arises directly from: a modification made by the Institution (including any Users) unless such modification is approved or directed by Xeropan; use of software in combination with or on products other than as specified by Xeropan; or misuse or unauthorized use by the Institution (including any Users).
8.2. Other than as expressly set forth in Section 8.1. of this Agreement, no warranty of any kind, express, implied, or statutory, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, is given by Xeropan. The sole remedy provided by Xeropan is the warranty expressly provided herein.
8.3. Xeropan shall provide support services to the Institution during Business Days through its designated electronic support and incident reporting channels.
8.4. Xeropan shall use commercially reasonable efforts to provide an initial response to properly submitted support requests and incident reports within one (1) Business Day.
8.5. Incidents and support requests shall be prioritized and addressed based on their severity, impact on the Services, operational risks, and business priorities.
8.6. Xeropan does not guarantee resolution of all incidents within a specified timeframe but shall commence investigation and remediation activities within a reasonable period and shall take professionally reasonable measures to resolve identified issues.
8.7. Xeropan may perform scheduled maintenance activities necessary for the operation, security, or improvement of the Platform. Xeropan shall use reasonable efforts to schedule such maintenance in a manner that minimizes disruption to normal educational activities.
8.8. Support services do not include issues arising solely from the Institution's own IT environment, network infrastructure, hardware, software, internet connectivity, or third-party systems not controlled by Xeropan.
9. Confidentiality
9.1. Each Party shall keep confidential all non-public business, financial, technical, operational, commercial, or other information disclosed by the other Party in connection with this Agreement ("Confidential Information").
9.2. Confidential Information may be used solely for the purposes of performing or exercising rights under this Agreement and may not be disclosed to any third party except with the prior written consent of the disclosing Party.
9.3. Confidential Information shall not include information that:
a) is or becomes publicly available through no breach of this Agreement;
b) was lawfully known to the receiving Party prior to disclosure;
c) is lawfully obtained from a third party without restriction; or
d) is required to be disclosed pursuant to applicable law, regulation, court order, or governmental authority.
9.4. The confidentiality obligations set forth in this Section shall survive for a period of five (5) years following termination or expiration of this Agreement.
9.5. Nothing in this Agreement shall limit the protection afforded to trade secrets under applicable law.
10. Data protection
10.1. The Parties acknowledge that the use of the Platform implies the processing of personal data. The Institution hereby accepts and agrees that Xeropan is its data processor, and processes personal data in accordance with their agreement on behalf of the Institution.
10.2. The Parties' respective rights and obligations relating to the processing of personal data shall be governed by the separate Data Processing Agreement entered into between the Parties.
10.3. In the event of any conflict between this Agreement and the DPA with respect to matters relating to the Processing of Personal Data, the DPA shall prevail.
10.4. The Institution represents and warrants that it has obtained and shall maintain all necessary legal bases, authorizations, notices, and permissions required for the lawful processing of personal data in connection with the use of the Platform and the Services.
10.5. The Institution acknowledges that communication preference records maintained by Xeropan constitute Personal Data processed solely on behalf of the Institution under the applicable Data Processing Agreement.
10.6. The Institution warrants that any communication preferences collected through the Platform are requested in accordance with applicable law and that any required notices or consents have been obtained.[5] [6]
10.7. Xeropan shall process personal data solely in accordance with the DPA and Hungarian and EU data protection laws.
11. Information security
11.1. Xeropan shall implement and maintain appropriate technical and organizational measures designed to protect the security, confidentiality, integrity, and availability of the Platform and the Services.
11.2. Xeropan shall maintain access management, authentication, logging, incident management, monitoring, and backup procedures appropriate to the nature of the Services and the risks associated with the processing of data.
11.3. Xeropan may modify, enhance, replace, or update its security measures from time to time, provided that such changes do not materially reduce the overall level of security of the Services.
11.4. Detailed information regarding security measures and data protection safeguards is set out in the DPA and its annexes.
11.5. The Institution shall promptly notify Xeropan of any actual or suspected unauthorized access, security incident, misuse of the Platform or the Services, or other event that may affect the security, integrity, or lawful operation of the Platform and the Services.
12. AI - powered services
12.1. Certain features of the Platform and Services utilize artificial intelligence technologies for educational support, language feedback, communication skills development, and related learning purposes.
12.2. The Parties acknowledge that such AI-enabled features are intended solely as support tools and shall not replace the professional judgment, supervision, or decision-making of natural persons (especially, but without limitation Teachers), educational institutions, or other qualified professionals. Xeropan does not warrant that AI-generated outputs will be error-free, complete, accurate, or suitable for any particular purpose.
12.3. Feedback, recommendations, assessments, or other outputs generated by AI-enabled features shall not constitute (and shall not be interpreted as) official grades, academic assessments, examination results, certifications, or educational qualifications.
12.4. The Institution shall ensure that Users utilize AI-enabled features under appropriate human supervision in all use-cases, especially, but without limitation where required by the nature of the educational environment and applicable institutional policies.
12.5. Unless expressly stated otherwise in this Agreement, AI-enabled features form part of the Platform and are subject to the terms and conditions of this Agreement.
13. Intellectual property rights
13.1. All intellectual property rights relating to the Platform, the Services, educational content, software, databases, documentation, visual materials, trademarks, trade names, and other proprietary materials made available by Xeropan shall remain the exclusive property of Xeropan or its licensors.
13.2. Except for the limited rights expressly granted under this Agreement, no intellectual property rights are assigned, transferred, or licensed to the Institution.
13.3. The Institution and the Users shall not, and shall not permit any third party to, reverse engineer, decompile, disassemble, copy, modify, adapt, create derivative works from, or otherwise use the Platform beyond the rights expressly granted under this Agreement, except to the extent such restriction is prohibited by applicable law.
13.4. To the extent the Institution uploads, submits, or otherwise provides content through the Platform, ownership of such content shall remain with the Institution. The Institution grants Xeropan a non-exclusive, worldwide, royalty-free license for the duration of the Agreement to use, host, process, transmit, and display such content solely to the extent necessary to provide the Services.
14. Liability
14.1. Xeropan shall not be liable for damages arising from:
A) inaccurate, incomplete, or misleading information provided by the Institution or its Users;
B) failures, deficiencies, or interruptions attributable to the Institution's IT environment, infrastructure, equipment, networks, or third-party systems; or
C) circumstances beyond Xeropan's reasonable control.
14.2. To the fullest extent permitted by applicable law, Xeropan's aggregate liability arising out of or in connection with this Agreement shall not exceed the total Fees actually paid by the Institution during the six (6) months immediately preceding the event giving rise to the claim. Furthermore to the fullest extent permitted by applicable law in no case shall Xeropan be liable for (I) third-party claims against the Institution and (II) any claim relating to the use of third-party products or Institution products in combination with the Platform the Services and any other Xeropan products, services or software or (III) for claims regarding specifications or instructions given by Institution, or (IV) for any loss of profit, business or goodwill, loss of or corruption of Confidential or other Information or Data, for business interruption, for loss of use of equipment, or any other indirect, special, consequential, incidental or punitive cost, damages or expense, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if Xeropan has been advised of the possibility of such damage, and whether or not any remedy provided should fail of its essential purpose. Third Party suppliers or licensors shall have no monetary liability to the Institution for any cause (regardless of the form of action) under or relating to this Agreement.
14.3. The limitation of liability set out in this Section shall not apply to:
A) willful misconduct or intentional wrongdoing;
B) intentional breach of confidentiality obligations; or
C) any liability that cannot be excluded or limited under applicable law.
14.4. Nothing in this Agreement shall limit or exclude liability arising under mandatory Data Protection Laws or other statutory provisions that prohibit such limitation.
14.5. Xeropan does not warrant that AI-generated outputs will be error-free, complete, pedagogically, linguistically, or educationally optimal or appropriate and shall bear no liability for such outputs.
14.6. The Institution shall be responsible for the acts and omissions of its Users as if such acts or omissions were its own.
15. Reference use and public communications
15.1. Neither Party may use the other Party's name, logo, trademarks, service marks, trade names, or other identifying marks in any public communication, marketing material, customer reference, case study, publicity material, or press release without the other Party's prior written consent. If the use of the Institution’s name and logo is authorized in the Order Form (which shall be interpreted as the consent mentioned in the previous sentence), the Institution hereby grants to Xeropan a non-exclusive, worldwide, royalty-free right and license to use the Institution’s name, logo, and related trademarked or branded materials for marketing, promotional, public relations, and reference purposes, including the right to reproduce, copy (to any medium), display, broadcast, publish, and otherwise use such materials in any medium, until the withdrawal of this right (even after the termination of this Agreement as the case may be). Such authorization may be withdrawn by the Institution at any time upon written notice to Xeropan, and Xeropan shall cease any further use of the relevant materials promptly upon receipt of such notice, subject to any reasonable wind-down period required to discontinue pre-existing materials already in circulation.
15.2. The refusal or withdrawal of such consent shall not constitute a breach of this Agreement, and neither Party shall be required to provide reasons for withholding consent.
15.3. This Section shall not apply where disclosure of the existence of the contractual relationship is required by applicable law, regulation, public procurement requirements, governmental authority, court order, or other legally binding obligation.
16. Termination
16.1. This Agreement shall terminate automatically upon expiration of the fixed Subscription Term unless the Parties agree in writing to renew or extend the Agreement.
16.2. Either Party may terminate this Agreement upon thirty (30) days' written notice if the other Party commits a material breach of this Agreement and fails to remedy such breach within thirty (30) days following receipt of written notice specifying the breach.
16.3. Xeropan may terminate this Agreement with immediate effect if:
a) the Institution remains in payment default for more than sixty (60) days;
b) the Institution uses the Platform or the Services for unlawful purposes or for any purpose other than its intended purpose as permitted under this Agreement; or
c) the Institution compromises in any way the security, integrity, or operation of the Platform.
16.4. Upon termination, all rights granted to the Institution under this Agreement shall immediately cease, except for any period expressly provided under the DPA for the export, return, or retrieval of data.
16.5. The return, deletion, retention, and export of personal data shall be governed exclusively by the DPA.
17. Force Majeure
17.1. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent such failure or delay results from a Force Majeure Event beyond the reasonable control of the affected Party.
17.2. Force Majeure Events may include, without limitation:
a) natural disasters;
b) war or armed conflict;
c) acts of terrorism;
d) epidemics, pandemics, or extraordinary public health measures;
e) significant infrastructure failures; or
f) governmental, regulatory, or administrative actions that prevent performance.
17.3. The Party invoking a Force Majeure Event shall notify the other Party without undue delay after becoming aware of the relevant circumstances.
18. Miscellaneous
18.1. This Agreement, together with the applicable Order Form, the DPA, the Terms of Use ("TOU"), and any other documents expressly incorporated by reference, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements, understandings, negotiations, and communications relating thereto. Unless otherwise expressly agreed in writing by the Parties, in the event of any conflict or inconsistency between the documents comprising the Agreement, the following order of precedence shall apply: (a) the Data Processing Agreement (including annexes attached thereto); (b) the Order Form; (c) this Agreement; (d) any annexes, schedules, exhibits, or other attachments hereto; (e) Terms of Use.
18.2. Any amendment to this Agreement shall be valid only if made in writing and signed by both Parties.
18.3. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.
18.4. The Parties shall cooperate in good faith and promptly inform each other of any material circumstance that may affect the performance of this Agreement.
18.5. This Agreement shall be governed by and construed in accordance with the laws of Hungary, including, without limitation, the provisions of Act V of 2013 on the Civil Code of Hungary.
18.6. The Parties shall first seek to resolve any dispute arising out of or in connection with this Agreement through good-faith negotiations. If such negotiations are unsuccessful, the courts of Hungary shall have exclusive jurisdiction to resolve the dispute.