General Terms and Conditions ("GTC") of Fitogram GmbH for the registration and use of fitogram.de and the Fitogram marketplace
1. Subject matter and scope of these terms and conditions; amendments
1.1 The fitogram.de platform ("platform") is an offer from Fitogram GmbH, Probsteigasse 15-17, 50670 Cologne ("Fitogram" or "we").
1.2 The registration on the platform and its use by users ("users") is done in accordance with these terms and conditions. The use of individual functionalities of the platform may take place on the basis of supplementary contractual conditions; In this case, we will inform users separately. Deviating and supplementary provisions of such supplementary contract terms shall prevail over the provisions of these GTC.
1.3 These GTC as well as the supplementary terms and conditions for individual services and functionalities are available at any time at https://en.fitogram.pro/agb/.
1.4 We reserve the right to change these terms and conditions to a reasonable extent for the user as well as supplementary terms and conditions. The latest version of the GTC as well as the supplementary terms and conditions of contract shall apply, provided that the user does not object to the validity of the new regulations within 4 weeks after we have expressly informed him of these and the consequences of his silence.
Beginning and duration of the user agreement and the individual contracts concluded hereunder; Marketplace functionalities
2.1 Upon completion of the registration process, the user and Fitogram concludes a user agreement ("master contract ") on the use of the platform by the user. This authorizes the user to enter certain information available to all users of the platform and to use certain functions of the platform, possibly on the basis of supplementary terms and conditions.
2.2 Upon completion of the registration, the user receives a password-protected access to his user account ("user account"), in which he can view and change his user data after logging in to the user area ("user area").
2.3 The platform offers free and paid services and functionalities. In that regard, the following applies here:
2.3.1 With regards to services not provided by us but by other providers registered on the platform ("Providers"), the services may come with the acquisition of other necessary services. For example, Fitness studios are offered and provided on the platform, but they come with fitness course, nutrition consultation etc. at such, an exclusive contract is entered between the user and the provider. In this regard, the platform is a marketplace where providers offer their own services for free or for a fee. The content of the respective contracts is based exclusively on the provisions agreed upon by the user and the respective provider.
2.3.2 If the user selects free or paid services and functionalities for the extended presentation and provision of his services (e.g. fitness courses, memberships, etc.) according to 2.3.1 above, he concludes a single contract ("individual contract") with us under supplementary contract conditions. We do not conclude individual contracts with consumers. The user is solely responsible for the data and information uploaded by him as well as the services offered by him, particularly - but not exclusively - with regard to compliance with legal regulations, such as the regulations on distance selling and electronic commerce.
2.3.3 The purchase of services can only be made by users registered on the platform.
3. User obligations
3.1 The user is prohibited from misusing the services and functionality of the platform. Therefore, users are particularly required to
3.1.1 Ensure all information required in the course of the registration is correct and complete, particularly –but not limited to- giving false identity information;
3.1.2 Use the Services and functionalities of the Platform solely in accordance with applicable national and international laws and regulations, particularly not to infringe upon any third party rights, such as privacy rights, copyrights, trademarks, names, and other intellectual property rights of third parties;
3.1.3 Not to post or link any information containing illegal or immoral content, particularly - but not limited to - contents that are(1) racist, (2) violence and / or war glorifying or trivializing, (3) sexually objectionable or pornographic, ( 4) children or young people who are morally endangering or impairing their well-being;
3.1.4 Review all files (such as logos and other images) prior to uploading them to the platform with an up-to-date test kit for viruses, worms, Trojan horses and similar components that pose threats to the integrity of files and / or computer hardware and software and to only upload files that are free of such components.
3.2 If users post information of third parties (e.g. employers, fitness studios, etc.) on the platform, we are entitled at any time to request the user to proof the authorization to act on behalf of these third parties, and the user is obliged to comply with such a request immediately. If the user does not comply with such a demand without delay, we are entitled to block the user's access in whole or in part until provision of the corresponding proof; the possibility of termination according to clause 2 above remains unaffected.
4. Posting copyrighted or otherwise protected content by the user; Exemption of claims of third parties
4.1 Insofar as the user uploads and / or posts copyrighted or otherwise protected contents on the platform, particularly - but not limited to - image files, photos, logos, company marks, trademarks, etc., he simultaneously declares that he is entitled to do so. At the same time, the user grants us the gratuitous, revocable, temporally and spatially unlimited right to use such protected content on the platform within the scope of the services and functionalities for which the user has uploaded / posted it.
4.2 The User indemnifies us from all third party claims in connection with the use of the content uploaded and / or posted by the user, insofar as we use this content on the platform within the scope of the services and functionalities for which the user has uploaded / posted it. This includes the reimbursement of the appropriate expenses of a defense against such third party claims; the user will support us adequately with the defense.
5. Availability of the platform, elimination of malware etc.
5.1 Insofar as we provide free services and functionalities under the master contract and / or the individual contracts, these are not contractually owed unless otherwise provided in an individual contract and may be changed or discontinued at any time without prior notice.
5.2 The availability of the paid services and functionalities of the platform is at least 99% on average per year. The calculation of availability does not take into account any maintenance that may cause the platform or some services and functionalities to be unavailable at a time or only limited in availability. We also do not take into account any available restrictions that may be beyond our area of responsibility.
5.3 We may not allow data and user input that we believe to contain computer viruses or similar content to be stored and accessed on the Platform. If possible, we will inform the affected users immediately upon discovery of such data. Should such data compromise the integrity and / or usability of the Platform's services and functionalities, we may also delete such information without prior notice to prevent (further) damage.
6.1 We are liable without limitation for damages resulting from culpable injury to life, body or health.
6.2 We are only liable for other damages if the damages are based on intent or gross negligence on the part of our legal representatives, employees or virtual assistants. In addition, in the case of slight negligence within the scope of paid services and functionalities, we are only liable if essential contractual obligations ("cardinal duties") are violated. Cardinal duties are those duties whose fulfillment only makes the proper execution of the contract possible and on whose fulfillment the user may regularly rely. In the case of non-intentional damage, the liability for damages under this paragraph shall in any case be limited to the foreseeable damage typically occurring in such contracts.
6.3 We are not liable for the data, information and offers uploaded to the platform by users or other third parties or providers, neither in terms of their completeness, correctness or timeliness nor for the fact that they are free from third party rights or the Users. Providers or third parties act lawfully by uploading or posting data on the platform or providing services.
6.4 Compulsory statutory provisions such as the Product Liability Law remain unaffected by the limitations of liability of the preceding paragraphs.
7. Data Protection; Use of the e-mail address for purposes of advertising, right of objection
We use the e-mail address provided by users during the registration process for the purpose of advertising the services and functionalities of the platform as well as promoting our Fitness-related events. Users can object to the processing and use for the purpose of advertising at any time in the future. In the event of a disagreement, we will no longer process and use the specified e-mail address for the purpose of advertising. The objection can be made in text form (e.g. e-mail, letter, fax) to the contact addresses specified in the imprint of the platform.
8. No participation in a dispute resolution procedure
Fitogram does not participate in a dispute settlement procedure before a consumer arbitration board.
9. Right of Withdrawal
9.1 Consumers have a legal right of withdrawal with regards the registration on the platform.
9.2 With regard to the acquisition of services via the platform's marketplace functionalities, the existence or non-existence of a right of withdrawal is governed by the contract between the user and the provider
10. Other matters
10.1 This contract and the individual contracts concluded hereunder are subject to the laws of the Federal Republic of Germany to the exclusion of its conflicting laws rules and to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for all contracts arising from the master contract and any individual contract concluded hereunder, as well as any resulting legal disputes, is the registered office of Fitogram. Fitogram is however entitled to call the courts responsible for the place of business of the user. If the user is a consumer in accordance with § 14 BGB (German Civil Code), the place of residence of the user is the place of jurisdiction, notwithstanding the above sentences.
10.2 Contract language is German
10.3 When one or more of the aforementioned clauses are or becomes invalid over time, the remaining clauses remain unaffected.
10.4 The user may only assign rights and responsibilities under the master contract and the individual contracts concluded hereunder with our prior express consent.
10.5 The User is not entitled to offset any counterclaims against Fitogram unless they are undisputed or legally enforceable.
As of: April 2019
Supplementary conditions of the contract ("EVB-FitogramPrp") of the Fitogram GmbH for the studio management with FitogramPro on fitogram.de
Subject matter and scope of this EVB
1.1 The fitogram.de platform ("platform") is provided by Fitogram GmbH, Probsteigasse 15-17, 50670 Cologne ("Fitogram" or "we"). The use of the platform is done in accordance with the General terms and conditions of fitogram ("GTC").
1.2 On the platform, providers of fitness and wellness services ("users") are presented in the Company Profiles ("company portraits"). The information that we provide there are the subject of separate terms and conditions. Subject of this EVB-FitogramPro is the additional use of the cloud-based services (software as a service) of Fitogram for the management of fitness and wellness services ("studio management") by the user.
1.3 The studio management is provided exclusively for the purpose of the commercial or independent occupational activity of the user.
1.4 The General terms and conditions continue to apply with regard to the use of studio management. In the event of an inconsistency between the GTC and this EVB-FitogramPro, the latter, however, precedes.
2. Our services
2.1 Studio Management adds several new features to our platform, which are available at https://en.fitogram.pro/agb/. We are entitled at any time to make changes in the studio management, except as a result of impairment or removal of those functionalities that we have identified as essential features when the User books the Studio Management.
2.2 One of the several features of the studio management is the integration of individual functions into the user's own homepage, the user is responsible for creating the technical prerequisites for such integration. Insofar as the essential features of studio management include the integration of individual functions in its corporate websites in social networks (such as Facebook), the possibility of integration is crucially dependent on whether and to what extent the respectively applicable terms and conditions of the corresponding social network or its technical specifications and settings enable a corresponding integration and whether the required interface parameters are made available. The user is also aware that policies, terms and conditions and others on social networks are subject to constant change, so that maintenance of such functions, which are affected by the policies, terms and conditions and similar social networks, is not owned by Fitogram.
2.3 Provision of studio management is a service. Copyright rights are not granted to the user; however, should these be required for the use of the studio management, Fitogram will only concede them to the extent necessary for the contractual use. With regard to the posting of copyrighted or otherwise protected content by the user and the release of claims by third parties, reference is expressly made to Section 4 of the Terms.
2.4 Fitogram reserves the availability of the studio management according to clause 6.2 of the GTC. Availability refers to the ability of the user to successfully log in to the studio management and use the functions provided. The calculation of availability excludes periods when logging into the studio management is not possible due to force majeure or according to the following paragraphs 2.5 to 2.7. In the event of an unscheduled disruption in availability, Fitogram will endeavor to restore availability as soon as possible.
2.5 Fitogram may restrict access to studio management provided that the security of the studio management or stored data (such of the user, other users and from Fitogram) requires this.
2.6 The user is notified in advance regarding scheduled maintenance work. A notice period of at least three (3) calendar days as well as delays due to delays in the filtering for which the user is responsible shall not be included in the calculation of the availability.
2.7 We provide our services at the point of connection to the data center we use for the operation of the studio management on the Internet. It is the sole responsibility of the user to maintain the access equipment (e.g. PC, tablet, Smartphone, etc.) required for the use of the studio management, which must fulfil the minimum requirements stated under https://en.fitogram.pro/faq/.If these minimum requirements are not fulfilled, appropriate interruptions of availability may occur and will not be included in the calculation of availability.
2.8 The user is responsible for setting up the studio management (individual settings, input / import of data, implementation of plug-ins), unless it was expressly agreed that appropriate support and maintenance services are to be provided by us.
2.9 We provide the user with free e-mail support to assist with technical challenges when using the studio management. This support does not include: General advice or training on marketing, legal advice, or set-up work (see 2.8 above). Technical support on the homepage of the user is provided in the context of support only as far as the involvement of the studio management is directly affected in the homepage of the user. The support services are provided by us from Monday to Friday from 9:00 am to 5:00 pm (CET). Exceptions to this are nationwide public holidays as well as the 24th and 31st December of each year. The time it takes to respond to e-mail inquiries for the first time is not more than 48 hours within the aforementioned support hours. Requests received outside of support hours will be considered as received on the next business day.
2.10 If the package selected by the user includes the provision of studio management and the service and support provided in clause 2.9 above, or if the user books paid services or services in the course of using the studio management, these will be charged according to the package or service/ Description of functions provided.
2.11 As long as we offer third-party payment options (such as PayPal) or a collection via us for the settlement of payments by the user's customers, these shall be accepted in accordance with the terms and conditions applicable to them and accepted by the user when activating the corresponding payment options in the studio management. Provided the user is aware that we have no influence on the terms and conditions of payment offered by third parties and the possibility of use depends on whether this is made possible by the respective provider; if necessary, a separate agreement between the user and the respective provider of payment options is required. Unless otherwise agreed, we are not obliged to offer certain payment options within the scope of studio management.
2.12 Provided functions according to the above section 2.2 make it possible for third parties ("retailer") to book user services (such as fitness courses, memberships, etc.), we will only provide the technical means to conclude the respective agreement between the user and the retailer, Such agreements are concluded exclusively between the user and the retailer. The provisions of Section 2.3 of the GTC apply accordingly. Retailers can only book services of the user if they are registered on the platform.
3. Supplemental Terms for the Branded Studio App
3.1 These supplemental terms (the “Supplemental Terms”), together with the overhead General Terms and Conditions as being applicable between the user and Fitogram govern the user’s use of the Branded Studio App and related Services.
Initial terms used in these Supplemental Terms but not otherwise defined herein will have the meanings given to them elsewhere in the Fitogram Terms and Conditions.
These supplemental terms are effective between the user and fitogram as of the date the user indicates his acceptance, either by executing an order form that references these supplemental terms, by requesting an app and our delivery of the app materials to the user through an email as further described below, or by accessing or using the applicable app or services, whichever comes first.
these supplemental terms are needed to address requirements and processes imposed by third parties (e.g., app stores) and other matters. if the user does not agree to these supplemental terms, please note that fitogram may need to suspend or discontinue services, including the user access and use of the branded app.
3.2 App Store & Google Play store General Acknowledgement
The user acknowledges and agrees that the use and availability of the Apps are dependent on the third party from whom you received the Apps license or who administers certain activities relating to the Apps, e.g., the Apple App Store, Google Play, or a similar source (“App Store”). The user acknowledges that these Supplemental Terms and the Fitogram Terms and Conditions are between the user and Fitogram and not with the App Store.
As service provider Fitogram assumes the responsibility of the service in conjonctions with additional third parties.The user agrees to pay all fees charged by the App Store in connection with the Apps. All payment obligations are non-cancelable and all fees paid are non-refundable.The user agrees to comply with all applicable third-party terms of agreement (e.g., App Store’s terms and policies).
The user acknowledges that the App Store (and its subsidiaries) are third-party beneficiaries of these Supplemental Terms and the Fitogram Terms and Conditions and will have the right to enforce them.
3.3 App Store Administration and Access Rights.
In connection with the Branded Studio App (and other applicable Apps), the App Store may (a) impose certain requirements or fees, and/or (b) require the user authorizes Fitogram to undertake certain activities to facilitate the user’s access to or use of the Apps or Fitogram’s performance of certain Services for the user. These third-party App Store requirements and fees may change over time and are outside the control of Fitogram.
The user agrees to:
- (i) comply with such then current requirements of App Stores,
- (ii) pay such fees to the App Store every year,
- (iii) commit to a term of 12 months that will be automatically renewed on a yearly basis unless providing notice to the other Party at least thirty (30) days before the end of the subscription term. Unless otherwise specified, subscription fees during any automatic renewal term will revert to the current pricing in effect at the time such renewal term. In no event will any termination relieve the user of his obligation to pay any fees payable to Fitogram for the period prior to the effective date of termination.
- (iv) authorize Fitogram to undertake applicable activities on the user’s behalf and otherwise reasonably cooperate with and facilitate Fitogram’s interactions with the App Store, as and if necessary, for Fitogram to provide the Services and make available the Apps.
Fitogram will use commercially reasonable efforts to assist the user with addressing these App Store requirements through documentation or assistance programs as and if generally made available by Fitogram.
If the users requests to receive or use the branded app or another applicable App, we may send the user an email that contains a download link for the App and a guide to facilitate your set-up and/or use of the App (the “App Materials”).
3.4 Right to Terminate or Suspend Services.
We may suspend or terminate the user’s access and/or use of the Apps (or any portion thereof) at any time without notice if we believe (a) that any activity or use of the Apps in connection with the user’s account infringes the intellectual property rights of Fitogram or any third party or otherwise violates any applicable laws, (b) that we are required to do so by law, or (c) the user has not completed applicable App Store requirements or have not granted Fitogram sufficient rights with the App Store for Fitogram to provide the Services. Unless prohibited by law, we will use commercially reasonable efforts to provide prompt notice of any suspension or termination of the user’s access and/or use of the App.
3.5 Incorporation of the Terms
The user acknowledges that the customized app is a service and that these Supplemental Terms are hereby incorporated into and made part of the Fitogram Terms and Conditions as if signed by the user notwithstanding anything to the contrary. These Supplemental Terms take precedence over any conflicting terms in the Fitogram Terms and Conditions in connection with the subject matter of these Supplemental Terms. Except as expressly provided herein, any dispute or claim arising from or relating to these Supplemental Terms or the Apps is subject to the warranties and disclaimers, limitations and exclusions of liability, governing law and all other terms in the Fitogram Terms and Conditions.
4. Reservation of the studio management by the user; terms of notice
4.1 The reservation of the studio management by the user is done either by the selection of the appropriate package in a cooperative agreement with us or if the user selects the appropriate package after the registration in the studio management. The reservation becomes effective if we either expressly confirm the conclusion of the individual contract or if we make available the functionalities booked by the user with the package according to item 2. We expressly reserve the right to conclude the individual contract. Point 4.2 of our Terms and Conditions is strictly pointed out. The reservation of a package with a larger scope of service (upgrade) is possible at any time, the downgrade to a package with a lower scope of service (downgrade) is only possible with a notice period of 30 days and shall be excluded in case you subscribed to one of the packages including the branded Studio App.
4.2 If the conclusion of the individual contract is made by the use of the studio management, it is concluded as a subscription agreement with the initial term specified in the cooperative agreement. The contract is automatically renewed for the period specified in the cooperative agreement, unless one party terminates the individual contract for the package with four weeks' notice at the end of the individual contract in text form (e.g. e-mail, letter, fax).
5. Terms of payment; Prices
5.1 The prices and billing cycle specified for the package chosen by the user apply. Unless otherwise stated, these are net prices plus VAT.
5.2 The fees for the provision of the studio management are to be paid in advance for the respective billing cycle or the individual package. Unless an annual form of payment has been expressly agreed upon (in this case twelve months count as the billing cycle), the billing cycle is monthly, whereby the relevant date is the date of commencement of the contract (at the beginning of the contract on the 12th of February, the monthly payment always takes place on the 12th of the respective month of the billing).
5.3 If Fitogram provides separate service and support services to be remunerated according to section 2.10 above or if remuneration is agreed for the use of payment options as described in section 2.11 above or for other fee-based functions used in the studio management, Fitogram shall, unless expressly agreed otherwise, invoice monthly in arrears for the expired calendar month.
5.4 If Fitogram provides individual services that are to be remunerated separately, these will be billed separately for each billing cycle regardless of the number of invoices.
5.5 The invoices are sent to the user as PDF by email. In case of late payment we reserve the right to block the services according to clause 2 above until full payment.
5.6 The payment of the invoice amounts takes place - unless otherwise agreed - via SEPA direct debit. The user is obliged to grant us a corresponding SEPA direct debit mandate. The entry takes place after invoicing.
6. Data usage and data access
6.1 The user expressly agrees that Fitogram is entitled to use aggregated or statistical data (such as the number of registered customers, monthly transactions, etc.) for the purpose of evaluation, studies, market analysis and marketing, provided the corresponding data does not contain personal data of customers and other third parties in the data security-legal sense.
6.2 In the context of support services, particularly with regard to error messages communicated by the user, it may be possible that the support staff of Fitogram obtain knowledge of the personal data of the end customers stored there. In order to ensure this knowledge, the user must inform his respective customers about the purpose and scope of the data processing and, if necessary, obtain consent for the processing of the data. Fitogram will restrict the access to personal data to what is strictly necessary to provide the needed support services.
7. Data protection/backup by the user and data publication during contract completion through Fitogram
7.1 The user is obliged to carry out regular data backup with the help of the export function provided in the studio management. Due to the fact that payments are made by the user via the studio management, such data backup must be done once a day. For loss of data resulting from the failure of the user to comply with this obligation, Fitogram will not be held responsible.
7.2 The user may at any time request from Fitogram, the publication of the data stored in the framework during the use of the studio management.
As of: April 2019