General Terms and Conditions

§ 1 Scope of the General Terms and Conditions

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1. The following General Terms and Conditions (hereinafter "GTC") of Memberspot GmbH (hereinafter "Memberspot") govern the legal relationship between Memberspot and the Admin who accesses the Memberspot Internet portal at "app.memberspot.de" (hereinafter "Portal" and "Memberspot Portal").

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2. These GTC apply exclusively in relation to the Admin. The validity of the Admin's general terms and conditions of business, ordering or purchasing is expressly rejected.

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3. These GTC only apply to users of the portal who are "admins" (in all roles, e.g. as "coach", "trainer" or "consultant"). These GTC do not apply to "Members". If a user is both an "Admin" and a "Member", these GTC apply to them as an "Admin" and the separate GTC applicable to them as a "Member".

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4. The German version of these GTC shall take precedence over any other language version.

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§ 2 Service description, technical conditions of use

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1. The portal is a portal that enables member areas and on which an admin can interact with members, in particular in the form that the admins post videos, audios or text content for members. Depending on the circumstances, admins can be coaches, trainers or consultants. Further service descriptions and limits are set out in the individual contract. A detailed description can be found at https://www.memberspot.de/#pricing.

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2. Memberspot may make changes and improvements to the portal, such as changes to the design and the addition of additional functions, provided that the contractually agreed services can continue to be used as a result.

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3. Memberspot makes the portal available for use by the Admin in accordance with the provisions of these GTC and the terms and conditions agreed in the individual contract. The use of the portal by the Admin is carried out technically via a standard, up-to-date Internet browser. The portal is available to the extent described in § 6.

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4. Which of the aforementioned services are made available to the admin and to what extent by Memberspot is regulated in the individual contract agreed with the admin. The Admin has the option of ordering further services by sending an e-mail to "info@memberspot.de" or via the Internet portal "app.memberspot.de", specifying his member area.

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5. Services not provided by Memberspot (in particular with regard to compliance with legal and tax requirements) are described in § 15.

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§ 3 Exclusion of consumers

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Contract offers are only permitted to entrepreneurs within the meaning of Section 14 BGB. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity; a partnership with legal capacity is a partnership with the capacity to acquire rights and enter into obligations. A consumer, on the other hand, is any natural person who enters into a legal transaction for purposes that are predominantly outside their trade, business or profession.

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§ 4 Conclusion of the contract for access to the portal by e-mail or outside the Internet ("offline"), commissioning of further services

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The contract for access to the portal can be concluded by e-mail or outside the Internet ("offline"). In this case, the Admin will be provided with - possibly provisional - access data for using the portal. The Admin can also order additional services at a later date.

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§ 5 Conclusion of the contract for "app.memberspot.de" ("online"), commissioning of further services

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1. The contract for access to the portal can be applied for via the internet portal "app.memberspot.de" by completing and submitting the registration form. The admin can recognize any input errors in the registration form before submitting his application and correct them if necessary. If the admin registers via his/her e-mail address, he/she will be asked to confirm the accuracy of the e-mail address provided. The confirmation (so-called double opt-in procedure) is a prerequisite for activating access to the portal. The contract is concluded as soon as Memberspot technically activates access and informs the user of this, e.g. via a corresponding e-mail or a notice in the Internet browser.

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2. The admin can subsequently apply for chargeable service packages via the "Tariffs" menu item. To do this, the Admin must select the desired service package, enter their billing and payment details and submit an offer to conclude a fee-based contract for access to the portal by sending the data. The Admin can recognize any input errors before submitting his contract declaration and before sending the contract offer and correct any input errors. The system accepts the contract offer. The admin receives an automatic confirmation of receipt of his contract offer from the system to the e-mail address he has provided (confirmation of receipt). The confirmation of receipt does not yet constitute acceptance of the contract offer. However, the contract offer is usually accepted at the same time as the confirmation of receipt, but if necessary by a separate e-mail to the Admin.

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3. The admin can also order additional services via the portal at a later date. The system automatically confirms receipt of the admin's order for the additional service. As a rule, Memberspot also declares acceptance of the contract in this e-mail.

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4. The information provided by the admin during registration must be complete and correct. Subsequent changes to the data (e.g. company, address, e-mail address) must be communicated to Memberspot immediately. If the admin culpably fails to fulfill these obligations, he/she shall bear all disadvantages arising for the admin as a result.

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5. The text of the contract is not stored by Memberspot after the contract has been concluded. Only the basic data relating to the contract (company, address, e-mail address, rough description of the services ordered) will be displayed within the portal for the duration of the contract. The admin also receives the text of the contract and these GTC by e-mail together with confirmation of receipt.

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6. The language available for the conclusion of the contract is "German".

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7. Memberspot is not subject to any special codes of conduct not mentioned above.

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§ 6 Portal account, contractual obligations of the admin, functionality of the portal

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1. The Admin undertakes to protect access to the portal account against unauthorized use by third parties. Access data (user ID and password) may not be passed on. The Admin shall be liable for any unauthorized use of his access data made possible by his conduct and the associated unauthorized use of his portal account, insofar as he is at fault. As soon as the Admin becomes aware that his/her access data has become accessible to third parties, he/she is obliged to change his/her password immediately. If this is not possible, Memberspot must be informed immediately.

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2. Multiple registrations by an Admin are prohibited. A separate contract for access to the portal is required for each company, including companies affiliated with the Admin, if it is to be used there.

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3. An Admin may set up an additional access to the portal for each of his employees without incurring additional remuneration (hereinafter "employee access"). The Admin can submit and manage the employee accesses in the portal himself. The Admin is obliged to obligate the Employees in accordance with the above No. 1 and in accordance with § 7 and § 8. Employees are only those persons who work for the Admin as employees or freelancers. If an employee leaves, the Admin must delete the employee access immediately. For clarification: Persons contractually employed by third parties, including companies affiliated with the Admin, are not employees of the Admin.

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4. The portal account is non-transferable.

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5. Memberspot provides the portal for use as described in these GTC and in individual contracts and guarantees a technical availability of the portal of up to 99.99% per calendar year. The Admin's right to use the portal is limited to the current state of the art. Memberspot may temporarily restrict the availability of Memberspot's services if this is necessary with regard to capacity limits, to carry out maintenance work or for security reasons. In doing so, Memberspot shall take into account the legitimate interests of the admin by informing them in advance of the access restrictions, insofar as the individual case permits (e.g. not in the case of any urgent security measures).

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6. The admin is responsible for regularly backing up their own data.

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7. If the admin has entered an e-mail address to which the admin no longer has access and if the admin is therefore no longer able to log in to the portal, the admin must inform Memberspot of this immediately, e.g. by sending an e-mail to info@memberspot.de. The admin must then re-authenticate. For this purpose, Memberspot shall send a confirmation code by letter to the address provided by the Admin; the Admin shall then communicate the confirmation code to Memberspot, stating the new access codes. Memberspot may send the change request to the e-mail address previously stored in the portal with a request for comment. If an objection to the intended change is received via this e-mail address, the admin must dispel any remaining doubts about his identity, e.g. by submitting documents. Memberspot is not obliged to block access to the portal until the new authentication.

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§ 7 Permitted content, handling of content, granting of rights of use, liability for content, indemnification

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1. The admin can add various content to the portal, in particular videos but also individual texts and possibly other files (content).

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2. If the Admin enters content and releases it for certain third parties, this data will be made accessible to the designated third parties via the portal.

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3. The Admin undertakes to only post factual and truthful content. Content that
- is not related to the portal in accordance with § 2, e.g. videos or images unrelated to coaching, training or counseling,
- are punishable by law (in particular incitement to hatred, insult, defamation, threats),
- are considered pornographic, vulgar or obscene, harassing or otherwise offensive,
- are anti-constitutional, extremist, racist or xenophobic, racist or xenophobic or content originating from banned groups and/or
- interfere with the rights of third parties (in particular personal rights, copyrights, trademark rights, patent rights or other rights of third parties),
are prohibited and may not be posted.

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4. Content posted by admins is not checked by Memberspot.

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5. Memberspot reserves the right to temporarily or permanently block content posted by the admin. In particular, Memberspot is entitled to block content if there is sufficient suspicion that a statement is untrue or unobjective or contains prohibited content (no. 3 above). Sufficient suspicion exists in particular if Memberspot receives a warning from an alleged infringer, unless the warning is obviously unfounded, or if Memberspot becomes aware of investigations by state authorities. As far as possible, Memberspot will limit the blocking to the allegedly infringing content. The admin will be informed of the blocking immediately, stating the reasons. The blocking shall be reversed as soon as the suspicion is invalidated. The obligation to pay remuneration shall continue to exist even if the blocking is justified.

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6. Rights of use:

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6.1 The Admin assures that he has the rights to the content he has posted, insofar as this is necessary for the use of the content on the portal, in particular for storage and making it publicly accessible to members and other portal members as well as for the reproductions required for this purpose.

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6.2 The Admin grants Memberspot a spatially and temporally unrestricted, transferable, sublicensable and free right of use to the content posted by him. The right of use includes in particular the right to store, reproduce, make publicly accessible and edit the content and remains independent of the contract (abstract right of use). The right of use serves to make the content accessible via the portal as intended, including the creation of data backups.

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7. The Admin shall be liable for the content posted by him and in this respect shall indemnify Memberspot against all claims of third parties, including those of members and other portal members, which they assert against Memberspot due to such content. This applies in particular to legal violations due to the storage, publication, making available or forwarding of the content via or in connection with the portal as well as any claims due to the content itself (e.g. with regard to its correctness, suitability, fitness and risks due to the implementation of recommendations). The Admin is obliged to compensate Memberspot for any damage incurred by Memberspot as a result of the assertion of such third-party claims, including the costs of a reasonable legal defense. This shall only apply if the Admin is at fault. The limitation period for Memberspot's right of indemnification against the Admin shall not commence until the relevant claim of the third party against Memberspot becomes due.

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§ 8 General rules for the use of the portal

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The Admin undertakes not to take any actions that may impair, damage or destroy the software or hardware or the performance of a computer of Memberspot or a server used by Memberspot for the provision of services, in particular not to post any content containing malicious code, to send unsolicited e-mails ("spam") or to bring the portal or parts thereof to a standstill ("denial of service").

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§ 9 Blocking

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Memberspot may temporarily or permanently block the portal account, employee access or individual content posted by the admin or for the admin if it is suspected or already established that the admin is violating legal regulations or these GTC in a significant way, infringing the rights of third parties or if Memberspot otherwise has a legitimate interest in blocking the account. Memberspot has a legitimate interest in blocking a portal account if the blocking is necessary to protect one or more other admins or other portal members, in particular if there is a suspicion that the account is being used for fraudulent or otherwise not only insignificantly damaging activities or if the admin has provided false contact details (grounds for suspicion). Blocking will be limited to the extent necessary. The portal account will only be permanently blocked in the event of particularly serious or repeated violations. The admin will be informed of the blocking immediately, stating the reasons. The blocking shall be reversed as soon as the reason for suspicion is invalidated. The obligation to pay remuneration shall continue to exist even in the event of a justified blocking.

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§ 10 Access for members of the Admin

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1. During the term of his contract with Memberspot and in accordance with the scope agreed in the individual contract, the Admin may allow members to access the Admin's member area in the portal.
2. A member must register for access to the member area and accept the GTC for members with the conditions listed at "www.memberspot.de/nutzungsbedingungen-mitglied".
3. Memberspot has no obligation to check or monitor the content posted by the Admin for accuracy, suitability or other suitability, including the evaluation of recommendations made in the content.
4.Memberspot may temporarily or permanently block the access of members if it is suspected or has already been established that the member violates legal regulations or significantly violates provisions of these GTC that apply accordingly between Memberspot and the Admin (in particular § 6 No. 1, 4 and § 7 No. 3), violates the rights of third parties or Memberspot otherwise has a legitimate interest in blocking. Memberspot has a legitimate interest in blocking a member account if the blocking is necessary to protect one or more other admins or other portal members, in particular if there is a suspicion that the account is being used for fraudulent or otherwise not only insignificantly damaging activities or if false contact details have been provided (grounds for suspicion). Blocking will be limited to the extent necessary. Member access will only be permanently blocked in the event of particularly serious or repeated violations. The member and, if applicable, the admin will be informed of the blocking immediately, stating the reasons. The blocking shall be reversed as soon as the reason for suspicion is invalidated. The obligation to pay remuneration shall continue to exist even in the event of a justified blocking.
5. At the request of Memberspot, the admin must prove that a specific account is assigned to an actual customer of the admin as a member.

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§ 11 Voluntary hotline

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1. Memberspot can communicate availability by e-mail (hotline). Availability by e-mail is continuous. A response time, error correction time or similar is expressly not promised.
2. The following services are provided via the hotline: Acceptance of orders, receipt of inquiries from admins about the portal and receipt of information about any defects or suggestions for improvement. Success, in particular maintenance or troubleshooting success, is not owed via the hotline and does not take place.
3. There is no entitlement to the use of the hotlines. Memberspot reserves the right to discontinue the hotlines at any time.
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§ 12 Contract term, contract extension, termination, data backup by the admin, consequences of termination

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1. The admin has a one-off trial period of 14 days. The trial period shall continue to run even if the Admin concludes a paid version for access to the portal during the trial period. If a trial period expires without a contract for a paid version having been concluded, the contract shall be deemed terminated with effect from the end of the trial period.
2. The contract period is specified in the individual contract. If no contract period is specified in the individual contract, the contract period shall be one month. At the end of the contract period, the contract shall be extended by one contract period if it is not terminated beforehand. The Admin can terminate the contract at any time without notice to the end of the next contract period. A notice period of one month applies to ordinary termination by Memberspot.
3. Termination must be declared in text or written form. Notice of termination by the admin can be sent to "info@memberspot.de". A termination by Memberspot can be sent to the e-mail address stored by the admin in the portal account at Memberspot.
4. The right to terminate without notice for good cause remains unaffected. An extraordinary reason for termination for Memberspot exists in particular if the admin violates his obligations under § 6 nos. 1 to 4, § 7 no. 3 or § 8. A reason for extraordinary termination also exists for Memberspot if the admin does not pay the remuneration according to § 12 or does not pay it in full despite a reminder, especially if it is the first or second remuneration after the start of the contract.
5. Memberspot is entitled to delete all content and other data of the admin when the termination takes effect. This includes content and other data of the admin's members. The admin is responsible for exporting or otherwise backing up all data beforehand. After the termination takes effect, Memberspot is entitled to deny the admin's members access to the portal.

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§ 13 Remuneration, due date, offsetting

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1. There is no fee for the test period.
2. The amount of the fee to be paid by the admin to Memberspot is determined by the individual contract, if one has been concluded. Payment is due in advance for the respective contract period, unless otherwise agreed in the individual contract.
3. Only undisputed or legally established claims may be offset against Memberspot's claims for remuneration. The same applies to the exercise of a right of retention. The Admin is otherwise only authorized to exercise a right of retention if it is based on the same contractual relationship.

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§ 14 Amendment of these GTC

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1. Offer of amendment
Amendments to these GTC shall be offered to the Admin in text form no later than two months before the proposed date of their entry into force. The offer can be sent to the email address provided by the admin in the portal.
2. Acceptance by the admin
The changes offered by Memberspot shall only become effective if the admin accepts them, if necessary by way of the fictitious consent regulated below.
3. Acceptance by the Admin by way of fictitious consent
The Admin's silence shall only be deemed acceptance of the offer of change (fictitious consent) if
a) the offer of change by Memberspot is made in order to restore the conformity of the contractual provisions with a changed legal situation because a provision of the GTC
- due to a change in the law, including directly applicable European Union legislation, no longer corresponds to the legal situation, or
- becomes ineffective or may no longer be used due to a legally binding court decision, including by a court of first instance, or
- due to a binding order by a national or international authority responsible for Memberspot (e.g. a data protection supervisory authority). (e.g. a data protection supervisory authority) can no longer be brought into line with these requirements
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b) the Admin has not rejected Memberspot's change offer before the proposed date of entry into force of the changes. Memberspot will inform the Admin of the consequences of his silence in the change offer.

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4. Exclusion of the fiction of consent

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The fiction of consent does not apply
- in the case of changes that affect the main performance obligations of the contract and the fees for main services,
- in the case of changes that are equivalent to the conclusion of a new contract,
- in the case of changes that would significantly shift the previously agreed ratio of performance and consideration in favor of Memberspot.
In these cases, Memberspot will obtain the Admin's consent to the changes by other means.

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5. Admin's right of termination in the event of fictitious consent
If Memberspot makes use of the fictitious consent, the Admin may also terminate the contract affected by the change without notice and free of charge before the proposed date of entry into force of the changes. Memberspot will specifically inform the Admin of this right of termination in its offer of changes.

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§ 15 Limitation of liability, personal responsibilities of the admin

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1. The Admin is responsible for providing the necessary technical requirements for using the portal, in particular the necessary software and hardware (e.g. Internet browser) as well as access and transmission services at his own expense.
2. The Admin is responsible for complying with the legal provisions (including telemedia law (imprint), revocation instructions, data protection (including DSGVO), competition law, general terms and conditions, e-commerce law) in his commercial business and his Internet presence. Memberspot is not permitted to provide legal advice under the Legal Services Act. Text fields provided by Memberspot via the portal for any legal explanations are to be designed by the admins on their own responsibility.
3. In the event of a simple negligent breach of a material contractual obligation, Memberspot's liability shall be limited to the amount of damage typically foreseeable for Memberspot when the contract is concluded if due care is exercised. Excluded from this are damages resulting from injury to life, body or health as well as liability under the Product Liability Act. Essential contractual obligations (cardinal obligations) are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the member regularly relies.
4. Any strict liability of Memberspot for a defect existing at the time of conclusion of the contract pursuant to § 536a para. 1 Alt. 1 BGB (German Civil Code) is excluded unless it is an expressly warranted characteristic or we have fraudulently concealed the defect.

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§ 16 Data protection, conclusion of a data processing agreement

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The Admin shall conclude the Data Processing Agreement (hereinafter also referred to as "DPA") between the Admin and Memberspot, which is available here ("https://www.memberspot.de/datenschutz") or attached as an annex, before the Admin enters personal data of third parties into the portal or otherwise processes them via the portal. The DPA can also be concluded in the member area of the portal.

§ 17 Reference

Memberspot may name the Admin as a customer of Memberspot in outdoor advertising ("reference"). For this purpose, the Admin grants Memberspot a simple, free right, unlimited in terms of space and content, to use the customer's company and logo for reference advertising. Reference advertising may, for example, take the form of the reproduction of the Admin's company and logo on Memberspot's website and social media channels. If the admin is a group company, the above authorizations extend to the group name and logo used in public for this group. The above provisions shall continue to apply even after termination of the contract. If the Admin does not wish to accept the above provisions in this section as a whole, the Admin may inform Memberspot of this in text form before or upon conclusion of the contract, e.g. via info@memberspot.de.

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§ 18 Severability clause

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If one or more provisions of these GTC are or become invalid in whole or in part, or if these GTC contain a loophole, this shall not affect the validity of the remaining provisions of these GTC.

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§ 19 Choice of law, agreement on jurisdiction

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1. The contract for access to the Memberspot portal, including these GTC, is subject to the substantive law of the Federal Republic of Germany to the exclusion of the UN Sales Convention.
2. The exclusive place of jurisdiction for all disputes arising from and/or in connection with the contract and these GTC is the registered office of Memberspot, insofar as the admin is a merchant, a legal entity under public law or a special fund under public law or the admin has no general place of jurisdiction in the Federal Republic of Germany or has relocated his place of jurisdiction abroad. As an exception to this, Memberspot is also entitled to take legal action against the Admin at his general place of jurisdiction. A merchant is any entrepreneur who is entered in the commercial register or who operates a commercial business and requires a commercially organized business operation. The Admin has its general place of jurisdiction abroad if it has its registered office abroad.

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Status: October 2024