General
Terms and Conditions

Memberspot GmbH, Rilkestraße 26, 71642 Ludwigsburg for access to the portal of Memberspot as Admin

(Valid until 08.2022)

§ 1 Scope of the General Terms and Conditions

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 "Portal Memberspot").
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.
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".
4. The German version of these GTC shall take precedence over any other language version.

§ 2 Service description, technical requirements for use

1. The portal is a portal that enables member areas and allows an administrator to interact with members, in particular by posting videos, audio files, or text content for members. Depending on the circumstances, administrators can be coaches, trainers, or consultants. Further service descriptions and limitations are set out in the individual contract. A detailed description can be found at https://www.memberspot.de/#pricing.
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.
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 individual contracts. The use of the portal by the Admin is technically carried out via a standard, up-to-date Internet browser. The portal is available to the extent described in § 6.
4. Which of the aforementioned services are made available to the administrator by Memberspot and to what extent is regulated in the individual contract agreed with the administrator. The administrator can contact Memberspot by email at info@memberspot.de or via the Internet portal "app.memberspot.de" by specifying their member area.
5. Services not provided by Memberspot (in particular with regard to compliance with legal and tax requirements) are described in § 15.

§ 3 Exclusion of consumers

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 ability 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.

§ 4 Conclusion of the contract for access to the portal by email or outside the Internet ("offline"), commissioning of additional services

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.

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

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.
2. The administrator can apply for paid service packages via the "Tariffs" menu item. To do this, the administrator must select the desired service package, enter their billing and payment details, and submit the data to submit an offer to conclude a paid contract for access to the portal. The administrator can identify any input errors before submitting their contractual declaration and before sending the contract offer and can correct any input errors. The system accepts the contract offer. The administrator receives an automatically generated confirmation of receipt of their contract offer at the email address they provided (confirmation of receipt). The confirmation of receipt does not yet constitute acceptance of the contract offer. However, acceptance of the contract offer usually takes place at the same time as the confirmation of receipt, but may be sent in a separate email to the admin.
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.
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 meet these obligations, he/she must bear all disadvantages arising for the admin as a result.
5. The contract text is not stored by Memberspot after the contract has been concluded. Only the basic data relating to the contract (company name, address, email address, rough description of the services ordered) is displayed on the portal for the duration of the contract. The admin also receives the contract text and these GTC by email together with the confirmation of access.
6. The language available for the conclusion of the contract is "German".
7. Memberspot is not subject to any special codes of conduct not mentioned above.

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

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/her access data made possible by his/her conduct and the associated unauthorized use of his/her portal account, insofar as he/she 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.
2. Multiple registrations by an administrator are prohibited. Each company, including companies affiliated with the administrator, must have a separate contract for access to the portal if it is to be used there.
3. An administrator may set up additional access to the portal for their employees without incurring any additional fees (hereinafter referred to as "employee access"). The administrator can set up and manage employee access themselves in the portal. The administrator is obliged to oblige employees to comply with the above No. 1 and with § 7 and § 8. Employees are only those persons who work for the administrator as employees or freelancers. If an employee leaves the company, the administrator must delete the employee access immediately. For clarification: Third parties, including persons contractually employed by companies affiliated with the administrator, are not employees of the administrator.
4. The portal account is not transferable.
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 is only entitled to use the portal within the scope of 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).
6. It is the administrator's responsibility to regularly back up their own data.

§ 7 Permissible content, handling of content, control of metadata, granting of rights of use, liability for content, indemnification

1. The administrator can post various types of content on the portal, in particular videos, individual texts, and, if applicable, other files (content).
2. If the admin posts content and releases it for certain third parties, this data will be made accessible to the designated third parties via the portal.
3. The admin undertakes to post only factual and truthful content. Content that
   • are not related to the portal in accordance with § 2, e.g. videos or images unrelated to coaching, training or consulting,
   • are punishable by law (in particular incitement to hatred, insult, defamation, threats),
   • are considered pornographic, vulgar or obscene, harassing or offensive in any other way,
   • are anti-constitutional, extremist, racist or xenophobic or contain content originating from banned groups, and/or
   • 
     , are prohibited and may not be posted.
4. Content posted by administrators is not reviewed by Memberspot.
5. Memberspot reserves the right to temporarily or permanently block content posted by the administrator. In particular, Memberspot is entitled to block content if there is sufficient suspicion that a statement is untrue or irrelevant or contains prohibited content (see No. 3 above). Reasonable suspicion exists in particular if Memberspot receives a warning from an alleged injured party, unless the warning is obviously unfounded, or if Memberspot becomes aware of investigations by state authorities. Memberspot will, as far as possible, limit the blocking to the allegedly infringing content. The admin will be informed of the blocking immediately, stating the reasons. The blocking must be reversed as soon as the suspicion is refuted. The obligation to pay remuneration continues even in the event of a justified blocking.
6. Rights of use:
   • 6.1. The administrator warrants that he/she holds the rights to the content he/she posts, insofar as this is necessary for the use of the content on the portal, in particular for storage and making it publicly available to members and other portal members, as well as for the reproductions required for this purpose.
   • 6.2. The admin grants Memberspot a spatially and temporally unrestricted, transferable, sublicensable, and free right of use to the content posted by him/her. The right of use includes, in particular, the right to store, reproduce, make publicly available, 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 in accordance with its intended purpose, including the creation of data backups.
7. The administrator is liable for the content they post and indemnifies Memberspot against all claims by third parties, including those by members and other portal members, who assert such claims against Memberspot on the basis of such content. This applies in particular to legal violations due to the storage, publication, provision of access to, or disclosure of content via or in connection with the portal, as well as any claims relating to the content itself (e.g., with regard to its accuracy, suitability, fitness for purpose, and risks arising from the implementation of recommendations). The admin is obliged to compensate Memberspot for any damage incurred by Memberspot as a result of such third-party claims, including the costs of a reasonable legal defense. This only applies if the admin is at fault. The limitation period for Memberspot's claim for indemnification against the admin only begins when the relevant claim of the third party against Memberspot becomes due.

§ 8 General rules for using the portal

The administrator undertakes not to perform any actions that could impair, damage, or destroy the software or hardware or the performance of a Memberspot computer or a server used by Memberspot to provide services, in particular not to post content containing malicious code, send unsolicited emails ("spam"), or bring the portal or parts thereof to a standstill ("denial of service").

§ 9 Blocking

Memberspot may temporarily or permanently block the portal account, employee access, or individual content set by the administrator or for the administrator if there is suspicion or it has already been established that the administrator is violating legal regulations or these Terms and Conditions in a significant manner, infringing on the rights of third parties, or if Memberspot otherwise has a legitimate interest in blocking access.

Memberspot has a legitimate interest in blocking a portal account, in particular if the block is necessary to protect one or more other administrators or other portal members—for example, if there is suspicion that the account is being used for fraudulent or otherwise significantly damaging activities, or if the administrator has provided false contact details (grounds for suspicion).

The suspension shall be limited to the extent necessary. A permanent suspension of the portal account shall only occur in the event of particularly serious or repeated violations. The administrator shall be informed of the suspension immediately, stating the reasons. The suspension shall be reversed as soon as the grounds for suspicion have been refuted. The obligation to pay remuneration shall continue to apply even in the event of a justified suspension.

§ 10 Access for members of the administration

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. Members must register to access the members' area and accept the terms and conditions for members 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 any other suitability, including the evaluation of recommendations made in the content.
4. Memberspot may temporarily or permanently block members' access if there is suspicion or it has already been established that the member has violated legal regulations or significantly violated the provisions of these General Terms and Conditions, which apply accordingly between Memberspot and the admin (in particular § 6 No. 1, 4 and § 7 No. 3), infringes the rights of third parties, or Memberspot otherwise has a legitimate interest in blocking access.
5. Memberspot has a legitimate interest in blocking a member's access, in particular if the block is necessary to protect one or more other administrators or other portal members—for example, if there is suspicion that the account is being used for fraudulent or otherwise significantly damaging activities, or if false contact details have been provided (grounds for suspicion).
6. The suspension shall be limited to the extent necessary. A permanent suspension of member access shall only occur in the event of particularly serious or repeated violations. The member and, if applicable, the administrator shall be informed of the suspension immediately, stating the reasons. The suspension shall be reversed as soon as the grounds for suspicion have been refuted. The obligation to pay remuneration shall continue even in the event of a justified suspension.
7. 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.

§ 11 Voluntary hotline

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 guaranteed.
2. The hotline provides the following services: Acceptance of orders, acceptance of inquiries from administrators regarding the portal, and acceptance of reports of any defects or suggestions for improvement. Success, in particular success in maintenance or troubleshooting, is not guaranteed by the hotline and does not occur.
3. There is no entitlement to use the hotline. Memberspot reserves the right to discontinue the hotline at any time.

§ 12 Contract term, contract extension, termination, data backup by the administrator, consequences of termination

1. The admin has a one-off test period of 14 days. The trial period continues even if the admin purchases a paid version for access to the portal during 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. After expiry of the contract period, the contract shall be extended for one contract period at a time unless it is terminated beforehand. The admin may terminate the contract at any time without notice at the end of the next contract period. A notice period of one month applies to the ordinary termination of Memberspot.
3. Termination must be declared in writing or text form. Termination by the administrator can be sent to info@memberspot.de . Termination by Memberspot can be sent to the email address stored in the admin's portal account.
4. The right to terminate without notice for good cause remains unaffected. An extraordinary reason for termination by Memberspot exists in particular if the admin violates his obligations under § 6 No. 1 to 4, § 7 No. 3 or § 8. Memberspot shall also have grounds for extraordinary termination if the administrator fails to pay the remuneration in accordance with § 13 in full or in part despite a reminder – in particular if this is the first or second remuneration payment after the start of the contract.
5. Memberspot is entitled to delete all content and other data belonging to the administrator upon termination taking effect. This includes content and other data belonging to members of the administrator. It is the responsibility of the administrator to export or otherwise back up all data beforehand. Once the termination takes effect, Memberspot is entitled to deny the administrator's members access to the portal.

§ 13 Remuneration, due date, offsetting

1. There is no fee for the test period.
2. The amount of the remuneration 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. Memberspot's remuneration claims may only be offset against undisputed or legally established claims. The same applies to the exercise of a right of retention. The admin is only authorized to exercise a right of retention if it is based on the same contractual relationship.

Section 14 Amendment of these General Terms and Conditions

Changes to these Terms and Conditions will be communicated to the Admin in text or written form—for example, via email to the address provided by the Admin—at least one month before the proposed date of their entry into force.

The administrator's consent shall be deemed to have been given if he has not indicated his rejection before the proposed date on which the changes are to take effect. This shall not apply if the change affects main performance obligations, such as the amount of remuneration or the services pursuant to § 2.

Memberspot specifically draws the administrator's attention to the above approval effect in the offer for change.

§ 15 Limitations of liability, personal responsibilities of the administrator

1. The administrator 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 their own expense.
2. The admin is responsible for complying with legal requirements (including telemedia law (imprint), cancellation policy, data protection (including GDPR), competition law, general terms and conditions, e-commerce law) in their commercial activities and on their websites. 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 must be designed by the admin on their own responsibility.
3. The admin can only demand compensation:
   • for damages resulting from injury to life, limb, or health based on an intentional or negligent breach of duty by Memberspot or a legal representative or vicarious agent of Memberspot;
   • for damages resulting from an intentional or grossly negligent breach of duty by Memberspot or from an intentional or grossly negligent breach of duty by a legal representative, executive employee, or vicarious agent of Memberspot;
   • for damages resulting from the intentional or negligent breach of essential contractual obligations (cardinal obligations) by Memberspot, a legal representative, executive employee, or vicarious agent. Essential contractual obligations (cardinal obligations) are obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the Admin regularly relies;
   • for damage that falls within the scope of protection of a warranty (assurance) expressly granted by Memberspot or a quality or durability warranty.

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 expected and foreseeable at the time of conclusion of the contract, applying due care. This does not apply to damage resulting from injury to life, limb, or health.

Claims for damages by the administrator in the event of a simple negligent breach of a material contractual obligation shall become time-barred one year after the start of the statutory limitation period. This does not apply to damages resulting from injury to life, limb, or health.

Claims for damages against Memberspot arising from mandatory statutory liability, for example under the Product Liability Act, remain unaffected by the above provisions and shall exist to the extent permitted by law within the statutory time limits.

Any strict liability on the part of Memberspot for a defect existing at the time of conclusion of the contract in accordance with Section 536a (1) Alt. 1 BGB (German Civil Code) is excluded, unless it is an expressly warranted characteristic or Memberspot has fraudulently concealed the defect.

§ 16 Data protection, conclusion of an order processing agreement

The Admin shall conclude the agreement on the processing of data on behalf of others (hereinafter also referred to as "DPA") between the Admin and Memberspot, which can be accessed here https://www.memberspot.de/datenschutz or is attached as an appendix, before the Admin enters personal data of third parties into the portal or otherwise processes it via the portal. The DPA can also be concluded in the member area of the portal.

Section 17 Severability clause

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.

§ 18 Choice of law, agreement on place of jurisdiction

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 Convention on Contracts for the International Sale of Goods.
2. The exclusive place of jurisdiction for all disputes arising from and/or in connection with the contract and these General Terms and Conditions is the registered office of Memberspot, provided that the Admin is a merchant, a legal entity under public law or a special fund under public law, or the Admin does not have a general place of jurisdiction in the Federal Republic of Germany or has moved its place of jurisdiction abroad.
3. As an exception to this, Memberspot is also entitled to take legal action against the administrator at its general place of jurisdiction.
4. 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 administrator has its general place of jurisdiction abroad if it has its place of business abroad.

Status: December 2020