§ 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 member accessing the Memberspot Internet portal at "memberspot.de" (hereinafter "Portal" and "Memberspot Portal").
2. These GTC apply exclusively in relation to the member. The validity of the member'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 "members". These T&Cs do not apply to "Admins" (in all roles, e.g. as "Coach", "Trainer" or "Consultant"). If a user is both a "Member" and an "Admin", these T&Cs apply to them as a "Member" and the separate T&Cs applicable to them as an "Admin".
4. The German version of these GTC shall take precedence over any other language version.
§ 2 Service description, technical conditions of use
1. The portal is a portal that enables member areas and on which admins and members can interact, in particular in the form of admins posting videos for members. Memberspot only provides the technical infrastructure. Memberspot does not control or evaluate the content in any way.
2. The member's ability to access certain content from individual admins is governed solely by any contract between the member and an admin, which may be initiated and concluded entirely outside the portal.
3. The full use of the community area may depend on the granting of voluntary consent to the admin. The member may be informed of this separately. If the member does not consent or revokes consent, the community functions are available to the extent that consent is not required.
4. Updates to the portal:
4.1 Memberspot shall ensure that members are provided with updates during the term of the contract that are necessary to maintain the portal's compliance with the contract and that the user is informed of these updates.
4.2 Memberspot may also make further updates, namely (a) further adaptations to the advancing state of the art (e.g. updated browser versions and standards) (b) further adaptations to changed contractual conditions (e.g. due to specifications of technology platforms such as cell phone manufacturers) (c) additions of additional functions (e.g. additional interaction and communication options) (d) adaptations of the design. Such updates are not associated with any additional costs for the member. Furthermore, the member will be informed clearly and comprehensibly about such changes.
5. Memberspot shall make the portal available for use by the member in accordance with the provisions of these GTC and, where applicable, the terms and conditions agreed in individual contracts. Members may use the portal technically via a standard, up-to-date Internet browser. The portal is available to the extent described in § 4.
§ 3 Conclusion of the contract via "memberspot.de" ("online"), commissioning of further services
1. The contract for access to the portal can be concluded via the internet portal "memberspot.de" by completing and submitting the registration form. In this case, the access data for use of the portal will be specified during the registration process. There are two options for this:
1.1 The member completes the registration form and submits an offer to conclude a contract for access to the portal by sending the data. The member can identify any input errors on an overview page as the last step before submitting the contract offer and correct any input errors. The system accepts the contract offer. The member receives an automatic confirmation of receipt of their contract offer from the system to the e-mail address they have provided (confirmation of receipt). The confirmation of receipt does not constitute acceptance of the contract offer. Acceptance of the contract offer is made by a separate e-mail to the member. The contract between Memberspot and the member is only concluded with this separate e-mail. With the e-mail of acceptance of the contract offer by Memberspot, the member is also requested to confirm the accuracy of the e-mail address provided. Only after confirmation (so-called double opt-in procedure) will access to the portal be technically activated. The contract between Memberspot and the member is concluded even without confirmation of the e-mail address by the member.
1.2 The member provides his/her data to an administrator, who stores the data in the portal and sends the member an e-mail for registration to the e-mail address provided by the member. The member checks and, if necessary, completes or corrects the data in the registration form and submits an offer to conclude a contract for access to the portal by sending it. The member can identify any input errors on an overview page as the last step before submitting the contract offer and correct any input errors. The system accepts the contract offer. The member receives an automatic confirmation of receipt of their contract offer from the system to the e-mail address they have provided (confirmation of receipt). The confirmation of receipt does not constitute acceptance of the contract offer. Acceptance of the contract offer is made by a separate e-mail to the member. The contract between Memberspot and the member is only concluded and access to the portal technically activated with this separate e-mail.
2. The information provided by the member during registration must be complete and correct. Subsequent changes to the data (e.g. name, e-mail address) must be communicated to Memberspot without delay. If the member culpably fails to comply with these obligations, he/she must bear all disadvantages arising for the member as a result.
3. The text of the contract is not stored by Memberspot after the contract has been concluded. Only the basic data relating to the contract (name, e-mail address, rough description of the services ordered) will be displayed within the portal for the duration of the contract. The member also receives the text of the contract and these GTC by e-mail together with the confirmation of access.
4. The language available for the conclusion of the contract is "German".
5. Memberspot is not subject to any special codes of conduct not mentioned above.
6. Access to the portal is available to the member immediately after successful completion of registration and confirmation of the e-mail address.
7. Instructions are available as online help. No accessories or customer service are required or owed.
§ 4 Portal account, contractual obligations of the member, functionality of the portal
1. The member 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 member 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 member 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 a member are prohibited. A separate contract for access to the portal is required for each company, including companies affiliated with the member, if it is to be used there.
3. The portal account is non-transferable.
4. 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 99.9% per calendar year. The member can only 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 member 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).
5. Members are responsible for regularly backing up their own data.
§ 5 General rules for the use of the portal
The member 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").
§ 6 Permitted content, handling of content, granting of rights of use, liability for content, indemnification
1. The member can post various content on the portal, in particular texts, images and, if applicable, videos and other files (content).
2. If the member 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 member undertakes to post only factual and truthful content. Content that
- is not related to the portal in accordance with § 2, e.g. texts 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.
4. Content posted by the member is not checked by Memberspot.
5. Memberspot reserves the right to temporarily or permanently block content posted by the member. In particular, Memberspot is entitled to block content if there is reasonable 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 member will be informed of the blocking without delay, stating the reasons. The blocking shall be reversed as soon as the suspicion is invalidated. The obligation to pay remuneration shall continue to apply even if the blocking is justified.
6. Rights of use:
6.1 The member assures that he/she holds the rights to the content posted by him/her, insofar as this is necessary for the use of the content on the portal, in particular for storage and making it publicly accessible to other members and other participants of the portal as well as for the reproductions required for this purpose. This applies in particular to contributions in text and images as part of community functions, e.g. comments below a video.
6.2 The member 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 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.
7. The member is liable for the content posted by him/her and in this respect indemnifies Memberspot against all claims of third parties, including those of members and other participants in the portal, 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 violation of copyrights and related ancillary copyrights through the use of the content. The member 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 only applies if the member is at fault. The limitation period for Memberspot's right of indemnification against the member shall not commence until the relevant claim of the third party against Memberspot becomes due.
§ 7 Blocking
Memberspot may temporarily or permanently block the portal account, employee access or individual content posted by or for the member if it is suspected or has already been established that the member is violating legal regulations or these GTC in a significant manner, 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 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 member has provided false contact details (grounds for suspicion). Blocking shall be limited to the extent necessary. The portal account will only be permanently blocked in the event of particularly serious or repeated violations. The member will be informed of the blocking immediately, stating the reasons. The blocking shall be reversed as soon as the reason for suspicion has been invalidated.
§ 8 No remuneration, termination at any time, data backup by the member, consequences of termination
1. Members do not have to pay Memberspot for access to the portal. Any obligation to pay remuneration between the admin and the member is based exclusively on the contract between the admin and the member.
2. The member may terminate the contract at any time without notice. Memberspot may only terminate the contract by giving one week's notice.
3. Notice of termination must be given in text or written form. Notice of termination by the member can be sent to "info@memberspot.de". Notice of termination by Memberspot can be sent to the e-mail address stored by the Member in the portal account with 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 member breaches his/her obligations under § 4 nos. 1 to 3 or § 5.
5. Memberspot is entitled to delete all content and other data of the member when the termination takes effect.
§ 9 Amendment of these GTC
1. Amendment offer
Amendments to these GTC shall be offered to the member in text form no later than two months before the proposed date of entry into force. The offer can be sent to the e-mail address provided by the member in the portal.
2. Acceptance by the member
The changes offered by Memberspot only become effective if the member accepts them, if necessary by way of the fictitious consent regulated below.
3. Acceptance by the member by way of fictitious consent
The member's silence shall only be deemed acceptance of the offer of change (fictitious consent) if
a) the amendment offer 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
- no longer corresponds to the legal situation due to a change in the law, including directly applicable European Union legislation, or
- becomes ineffective or may no longer be used due to a legally binding court decision, including by a court of first instance, or
- can no longer be used 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
and
b) the Member has not rejected the Memberspot change offer before the proposed date of entry into force of the changes. Memberspot will inform the Member of the consequences of his or her silence in the change offer.
4. Exclusion of the fiction of consent
The fiction of consent does not apply
- in the case of changes that affect the main contractual obligations and the remuneration for main services,
- in the case of changes that go beyond § 2 no. 4,
- for changes to agreements that lead to an obligation to pay remuneration,
- for changes that are equivalent to the conclusion of a new contract,
- for changes that would significantly shift the previously agreed ratio of performance and consideration in favor of Memberspot.
In these cases, Memberspot will obtain the Member's consent to the changes by other means.
5. Member's right of termination in the event of fictitious consent
If Memberspot makes use of the fictitious consent, the member 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 member of this right of termination in its offer of changes.
§ 10 Limitation of liability
1. The member 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 statutory liability for defects applies to the digital products.
3. If the member is an entrepreneur (see the definition in § 12 No. 2), the following also applies: 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.
§ 11 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.
§ 12 Choice of law, agreement on jurisdiction
1. The contract, 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. This does not apply if mandatory consumer protection regulations in the country in which the member has his habitual residence are more favorable to the member (Art. 6 Regulation (EC) 593/2008).
2. If the member is an entrepreneur, the following applies:
An entrepreneur is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction; a partnership with legal capacity is a partnership that has the capacity to acquire rights and enter into obligations.
A merchant is any entrepreneur who is entered in the commercial register or who operates a commercial business and requires a business operation set up in a commercial manner. the member has its general place of jurisdiction abroad if it has its registered office abroad.
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, provided that the member is a merchant, a legal entity under public law or a special fund under public law or the member has no general place of jurisdiction in the Federal Republic of Germany or has relocated its place of jurisdiction abroad. As an exception to this, Memberspot is also entitled to take legal action against the member at his general place of jurisdiction.
§ 13 Dispute resolution procedure
1. Memberspot is not willing and not obliged to participate in dispute resolution proceedings before a consumer arbitration board.
2. Platform of the European Commission for online dispute resolution (OS): https://ec.europa.eu/consumers/odr/
3. The e-mail address of Memberspot is: info@memberspot.de
Status: May 2022