Memberspot GmbH, Rilkestraße 26, 71642 Ludwigsburg for access to the Memberspot portal as a member
(Valid until 08.2022)
§ 1 Scope of the General Terms and Conditions
- The following General Terms and Conditions (hereinafter referred to as "GTC") of Memberspot GmbH (hereinafter referred to as "Memberspot") govern the legal relationship between Memberspot and the member who accesses the Memberspot Internet portal (hereinafter referred to as "Portal" and "Portal Memberspot").
- These General Terms and Conditions apply exclusively in relation to the member. The validity of the member's general terms and conditions of business, order, or purchase is expressly rejected.
- These Terms and Conditions apply only to users of the portal who are "Members." These Terms and Conditions do not apply to "Admins" (in any role, e.g., as "Coach," "Trainer," or "Consultant"). If a user is both a "member" and an "admin," these Terms and Conditions apply to them as a "member" and the separate Terms and Conditions applicable to "admins" apply to them as an "admin."
- The German version of these GTC shall take precedence over any other language version.
§ 2 Service description, technical requirements for use
- The portal is a portal that enables member areas and allows administrators and members to interact, in particular in the form of administrators posting videos for members. Memberspot only provides the technical infrastructure. Memberspot does not control or evaluate the content in any way.
- The member's access to certain content from individual administrators is based solely on any contract between the member and a coach, trainer, or consultant, which may be initiated and concluded entirely outside the portal.
- 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 still be used.
- Memberspot provides the portal for use by members in accordance with the provisions of these General Terms and Conditions and, where applicable, individually agreed terms and conditions. Members use the portal technically via a standard, up-to-date Internet browser. The portal is available to the extent described in § 4.
- Services not provided by Memberspot are described in § 9.
§ 3 Conclusion of the contract ("online"), commissioning of additional services
1 The contract for access to the portal can be concluded via the Memberspot internet portal by completing and submitting the registration form. In this case, the access data for using the portal will be determined during the registration process. There are two options for this:
1.1. The member completes the registration form and, by submitting the data, submits an offer to conclude a contract for access to the portal. 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 before submitting the contract offer. The system accepts the contract offer. The member 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 constitute acceptance of the contract offer. Acceptance of the contract offer is made by means of a separate email to the member. The contract between Memberspot and the member is only concluded with this separate email. With the email confirming acceptance of the contract offer by Memberspot, the member is also asked to confirm the accuracy of the email address provided. Only after confirmation (known as the double opt-in procedure) is access to the portal technically activated. The contract between Memberspot and the member is also concluded without confirmation of the email address by the member.
1.2. The member shares their data with an administrator, who stores the data in the portal and sends the member an email for registration to the email address provided by the member. The member checks and, if necessary, supplements or corrects the data in the registration form and, by sending it, submits an offer to conclude a contract for access to the portal. The member can identify any input errors on an overview page as the last step before sending the contract offer and correct any input errors. The system accepts the contract offer. The member 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 constitute acceptance of the contract offer. Acceptance of the contract offer is made by means of a separate email to the member. Only with this separate email is the contract between Memberspot and the member concluded and access to the portal is technically activated.
2. The information provided by the member during registration must be complete and accurate. Any subsequent changes to the data (e.g., name, email address) must be communicated to Memberspot immediately. If the member culpably fails to comply with these obligations, they shall bear all resulting disadvantages themselves.
3. The contract text will not be stored by Memberspot after the contract has been concluded. Only the basic data relating to the contract (name, email address, rough description of the services ordered) will be displayed within the portal for the duration of the contract. The member will also receive the contract text and these General Terms and Conditions by email together with the confirmation of access.
4. The language available for concluding the contract is German.
5. Memberspot is not subject to any special codes of conduct not mentioned above.
§ 4 Portal account, contractual obligations of the member, functionality of the portal
- The member undertakes to protect access to their portal account against unauthorized use by third parties. Access data (user ID and password) must not be disclosed to others. The member is liable for any unauthorized use of their access data and the associated unauthorized use of their portal account made possible by their behavior, insofar as they are at fault. As soon as the member becomes aware that their access data has become accessible to third parties, they are obliged to change their password immediately. If this is not possible, Memberspot must be informed immediately.
- Multiple registrations by one member are prohibited. Each company, including companies affiliated with the member, must have a separate contract for access to the portal if it is to be used there.
- The portal account is not transferable.
- Memberspot provides the portal for use as described in these General Terms and Conditions and in individual contracts and guarantees technical availability of the portal of up to 99.99% per calendar year. Members may only use the portal within the scope of the current state of technology. Memberspot may temporarily restrict the availability of services if this is necessary due to capacity limits, to carry out maintenance work, or for security reasons. Memberspot shall take into account the legitimate interests of the member by providing prior information about access restrictions, insofar as this is possible in individual cases (e.g., not in the case of urgent security measures).
- It is the responsibility of the member to regularly back up their own data.
§ 5 General rules for using the portal
The member undertakes not to take any action 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, no malicious content may be posted, no unsolicited emails ("spam") may be sent, and the portal or parts thereof may not be brought to a standstill ("denial of service").
§ 6 Blocking
Memberspot may temporarily or permanently block the portal account or individual content posted by the member if there is suspicion or it has already been established that the member 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 the account.
Memberspot has a legitimate interest in blocking a portal account, in particular if the block is necessary to protect one or more other members—especially if there is suspicion that the account is being used for fraudulent or otherwise significantly damaging activities, or if the member 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 member 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.
§ 7 No remuneration, termination at any time, data backup by the member, consequences of termination
- Members are not required to pay Memberspot any fees for accessing the portal.
- The member may terminate the contract at any time without notice. Memberspot may only terminate the contract with one week's notice.
- Termination must be declared in writing or text form. Termination by the member can be sent to Memberspot. Termination by Memberspot can be sent to the email address stored in the member's portal account.
- The right to terminate without notice for good cause remains unaffected. An extraordinary reason for termination by Memberspot exists in particular if the member violates his or her obligations under § 4 Nos. 1 to 3 or § 5.
- Memberspot is entitled to delete all content and other data belonging to the member upon termination taking effect.
Section 8 Amendment of these General Terms and Conditions
Changes to these Terms and Conditions will be communicated to the member in writing or text form—for example, via email to the address provided by the member—at least one month before the proposed date on which they are to take effect.
The member's consent shall be deemed to have been given if they have not indicated their 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 shall specifically draw the member's attention to the above approval effect in the offer for amendment.
§ 9 Limitations of liability, member's own responsibilities
- 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.
- The member 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 an intentional or negligent breach of duty by 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;
- 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 member 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 member 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.
§ 10 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.
§ 11 Choice of law, agreement on place of jurisdiction
- The contract, including these General Terms and Conditions, is subject to the substantive law of the Federal Republic of Germany, excluding 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 their habitual residence are more favorable to the member (Art. 6 Regulation (EC) 593/2008).
- If the member is an entrepreneur, the following applies:
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 that has the capacity to acquire rights and enter into liabilities. - 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 member's general place of jurisdiction is abroad if its place of business is abroad.
- 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 member is a merchant, a legal entity under public law or a special fund under public law, or the member does not have a general place of jurisdiction in the Federal Republic of Germany or has moved its place of jurisdiction abroad.
- As an exception to this, Memberspot is also entitled to take legal action against the member at their general place of jurisdiction.
Section 12 Dispute resolution procedure
- Memberspot is not willing and not obligated to participate in dispute resolution proceedings before a consumer arbitration board.
- European Commission platform for online dispute resolution (ODR): https://ec.europa.eu/consumers/odr/
- The email address for Memberspot is: info@memberspot.de
Status: December 2020