Terms of Service
General Terms and Conditions (“Terms and Conditions”) 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 platform Fitogram (“Platform”) is an offer of Fitogram GmbH, Probsteigasse 15-17, 50670 Cologne (“Fitogram” or “we”).
1.2 The registration on the platform and its use by users (“users”) takes place 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 the users separately. Deviating and supplementary provisions of such supplementary terms and conditions shall prevail over the provisions of these GTC.
1.3 These GTC and the supplementary terms and conditions for individual services and functionalities are available at any time at www.Fitogram.pro/agb-2.
1.4 We reserve the right to change these terms and conditions as well as supplementary terms and conditions to a reasonable extent for the user. The latest version of the GTC, as well as the supplementary terms and conditions of the 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.
2. Start and duration of the (framework) user contract and the individual contracts concluded thereunder
2.1 Upon completion of the registration process, the user and Fitogram conclude a (framework) user agreement (“framework agreement”) 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 functionalities of the platform, possibly on the basis of supplementary contractual terms.
2.2 Upon completion of the registration, the user receives 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 If the user chooses free as well as paid services and functionalities under the validity of supplementary contract conditions, he concludes a single contract (“individual contract”) with us.
2.3.1 In the case of services provided by other service providers (“service providers”) not registered by us, but by other service providers registered on the platform, the services may be linked to the purchase of other necessary services. For example, gyms are offered and made available on the platform, but they include fitness classes, nutritional advice, etc. An exclusive contract is concluded between the user and the service provider. In this context, the platform is a marketplace where service providers offer their own services free of charge or for a fee. The content of the respective contracts is based exclusively on the contractual terms agreed between 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 (eg fitness courses, memberships, etc.) in accordance with 2.3.1, he concludes an individual contract (“individual contract”) with 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, in particular – but not exclusively – with regard to the observance of the legal provisions, e.g. the rules on distance and e-commerce.
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 to make all information required in the course of the registration correct and complete, in particular – but not exclusively – not to give false identity information;
3.1.2 to use the Platform’s services and functionalities solely in accordance with applicable national and international laws and regulations, in particular not to infringe upon any third party rights, such as privacy rights, copyrights, trademarks, name and other intellectual property rights of third parties;
3.1.3 not to post or link any information containing immoral or disturbing content, in particular – but not limited to – information containing (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 check all files (eg logos and other images) uploading them to the platform beforehand with an up-to-date test program for viruses, worms, Trojan horses and similar components affecting the integrity of files and / or computer hardware and software and only upload files that are free of such components.
3.2 If users post information and information for third parties (eg employers, gyms, etc.) on the platform, we are entitled at any time to request the user to prove the eligibility to act for 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 immediately, we are entitled to block the user 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 proprietary content by the user; Exemption of claims of third parties
4.1 Insofar as the user uploads and / or terminates copyrighted or otherwise protected contents, in particular – but not exclusively – 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 framework of the services and functionalities for which the user has uploaded/posted it.
4.2 The user indemnifies us from all claims by third parties 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 framework of the services and functionalities for which the User has uploaded / discontinued it to have. This includes the reimbursement of the reasonable costs of a defense against such claims of third parties; 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 framework agreement 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 functionality of the platform is at least 99% on average for the 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 this time or limited in availability. We also do not take into account any availability restrictions that may be outside 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 the discovery of such data. Should such data compromise the integrity and/or usability of the Platform’s services and functionality, we may also delete such data without prior notice to prevent (further) damage.
6.1 We are fully liable for damages resulting from culpable injury to life, body or health.
6.2 We are liable for other damages only if the damages are based on intent or gross negligence on the part of our legal representatives, employees or vicarious agents. In addition, we are liable for slight negligence in the context of paid services and functionalities only if essential contractual obligations (“cardinal obligations”) 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 according to 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 and information uploaded to the platform by users or other third parties, neither in terms of their completeness, accuracy or timeliness nor that they are free of third party rights or the user or third parties lawful act by uploading or posting data to the platform.
6.4 Compulsory statutory provisions such as the Product Liability Act remain unaffected by the limitations of liability of the preceding paragraphs.
We use the e-mail address provided by users during the registration process for the purpose of advertising the services and functionality of the platform as well as promoting our fitness-related events. Users may object to the processing and use for the purpose of advertising at any time with effect for 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 (for example 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 when registering on the platform.
9.2 For the purchase of services via the platform functionalities of the platform is the existence or non-existence of a right of withdrawal from the contract between the user and the provider.
10.1 This contract and the individual contracts concluded hereunder are subject to the law of the Federal Republic of Germany to the exclusion of its conflict of laws rules and to the exclusion of the UN sales law. The place of jurisdiction for all legal disputes arising from the framework contract and any individual contract concluded thereunder as well as arising from the emergence and the effectiveness is the registered office of Fitogram. However, Fitogram is entitled to also call the courts competent for the place of business of the user.
10.2 Contract language is German.
10.3 Insofar as one or more of the aforementioned clauses are or become invalid over time, the remaining clauses remain unaffected.
10.4 The user may assign rights and obligations under the framework agreement and the individual contracts concluded hereunder only with our prior express consent.
10.5 The user can only set off against claims of Fitogram with undisputed or legally established claims.
As of 02.04.2019
Supplementary contractual conditions (“EVB-FitogramPro”) of Fitogram GmbH for the studio management with FitogramPro on Fitogram.de
1. Subject matter and scope of this EVB
1.1 The platform Fitogram.de (“Platform”) is an offer of Fitogram GmbH, Probsteigasse 15-17, 50670 (“Fitogram” or “we”). The use of the platform is subject to the terms and conditions of Fitogram (“Terms”).
1.2 On the platform, providers of fitness and wellness offers (“users”) are presented in company portraits (“company portraits”). The information that we provide there is the subject of separate terms and conditions. The subject of this EVB-FitogramPro is the additional use of Fitogram’s cloud-based services (software as a service) for the management of fitness and wellness offers (“studio management”) by the user.
1.3 The studio management is provided exclusively for the purposes of the commercial or independent professional activity of the user.
1.4 The terms and conditions continue to apply with regard to the use of studio management. In the event of an inconsistency between the terms and conditions and this EVB-FitogramPro, the latter, however, proceed.
2. Our services
2.1 Studio Management adds numerous new features to our platform, which are available at https://www.fitogram.pro/agb. We may make changes to the Studio Management at any time, except as a result of impairment or removal of those functionalities that we have identified as essential features when the User booked the Studio Management.
2.2 Insofar as the integration of individual functions into the user’s own homepage is one of the essential features of studio management, the latter is responsible for creating the technical prerequisites for such integration. Insofar as the essential features of studio management include the integration of individual functions into its corporate pages in social networks (such as Facebook), the possibility of integration depends largely on whether and to what extent the respective applicable terms and conditions of the corresponding social network or its technical specifications and settings enable appropriate integration and whether the necessary interface parameters are made available. The user also understands that policies, terms and conditions and similar 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 owed by Fitogram.
2.3 Provision of studio management is a service. Copyright rights are not granted to the user; If these are nevertheless required for the use of the studio management, Fitogram only admits 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 third-party claims, reference is expressly made to clause 4 of the GTC.
2.4 Fitogram owes the availability of the studio management according to clause 6.2 of the Terms and Conditions. Availability refers to the ability of the user to log in successfully in the studio management and to use the provided functions. 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 of availability, Fitogram will endeavor to restore availability as soon as possible.
2.5 Fitogram may restrict access to studio management if the security of the studio management or stored data (such as the user, other users and Fitogram) so requires.
2.6 Scheduled maintenance work, which has been notified to the user in advance with 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, are not included in the calculation of the availability.
2.7 We provide our services at the point of connection of the data center used by us for the operation of the studio management to the Internet. The user is solely responsible for the access equipment required for the use of the studio management (for example PC, tablet, smartphone, etc.), which can be found at www.fitogram.pro/faq. meet the minimum requirements. If these minimum requirements are not met, appropriate interruptions of availability are not 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 has been expressly agreed that appropriate support and furnishing services are provided by us.
2.9 We provide the user with free e-mail support to assist with technical problems when using the studio management. This support does not include: General advice or training on marketing, legal advice, or set-up work (see paragraph 2.8 above). Technical support to 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.
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 If 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 obligated to offer certain payment options within the framework of studio management.
3. Additional terms and conditions for your own studio app
3.1 These Additional Terms (the “Additional Terms”), together with the terms and conditions between the User and Fitogram, govern the use of the Studio App and related services by the User.
Original terms used in these supplemental terms but not otherwise defined herein have the meaning given to them in the Fitogram Terms.
These Additional Terms shall apply between the User and Fitogram as of the date on which the User gives his consent, either by executing an order form that refers to these Additional Terms, by requesting an App and by delivering the App to the User by email, as further described below, or by accessing or using the applicable app or services, whichever comes first.
These supplemental conditions are needed to meet the requirements and processes of third parties (e.g., App Stores) and other requirements. If the user disagrees with these supplemental terms, please be aware that Fitogram may need to suspend or discontinue services, including user access and use of the Studio app.
3.2 App Store & Google Play Store General Notes
The user acknowledges and agrees that the use and availability of the apps will depend on the third party from whom you have obtained the Apps license or who manages certain activities related to the apps, e.g. the Apple App Store, Google Play, or a similar source (“App Store”). User acknowledges that these Additional Terms and the Fitogram Terms and Conditions apply between the user and Fitogram and not the App Store.
As a service provider, Fitogram assumes responsibility for the Service in conjunction with other third parties and the user agrees to pay all fees charged by the App Store in connection with the Apps. User agrees to abide by the license to use the Apps, and the user’s license to use the Apps is subject to the user’s compliance with all applicable third party terms and conditions (such as the terms and conditions of the App Store).
User acknowledges that the App Store (and its affiliates) are third parties to these Additional Terms and have the right to enforce them.
3.3 App Store Administration and Access Permissions.
In conjunction with its own Studio app (and other applicable apps), the App Store may (a) impose certain requirements or fees and / or (b) require the user to author Fitogram to perform certain activities to give the user access to or facilitate the use of the apps or the provision of certain services by Fitogram for the user. These third-party App Store requirements and fees may change over time and are beyond the control of Fitogram.
The user agrees:
- (i) meet these then applicable App Store requirements;
- (ii) pay these fees to the App Store each year,
- (iii) commit to a term of 12 months, which will be renewed automatically and annually, unless they notify the other party at least thirty (30) days prior to the expiration of the subscription term. Unless otherwise stated, subscription fees will be reset to the rate applicable at the time of renewal during an automatic renewal period. In no event shall termination terminate the user’s obligation to pay Fitogram fees for the period prior to the termination taking effect.
- (iv) authorize Fitogram to perform activities that are applicable on behalf of the User and to otherwise cooperate and facilitate the activities of Fitogram and the App Store, if necessary so that Fitogram can provide the Services and provide the Apps.
Fitogram will make commercially reasonable efforts to assist the user in fulfilling these requirements of the App Store through documentation or supporting programs, as well as generally provided by Fitogram.
If the user wishes to receive or use their own studio app or another appropriate app, we may send the user an email containing a download link for the app and instructions to facilitate the setup and/or use of the app (which contains “App Materials”).
3.4 The right to terminate or discontinue services.
We may suspend or terminate access to and/or use of the user’s (or any part of it’s) apps at any time and without notice if we believe that (a) any activity or use of the apps in conjunction with the user’s account the intellectual property rights of Fitogram or a third party violates or otherwise violates any applicable law, (b) that we have a legal obligation, or (c) the user has not met the requirements of the App Store or Fitogram does not grant sufficient rights with the App Store has for Fitogram to provide the services. Unless prohibited by law, we will use commercially reasonable efforts to promptly notify you of any suspension or termination of User’s access and/or use of the App.
The user acknowledges that the personalized app is a service and that these supplemental terms are hereby incorporated into the Fitogram terms and conditions and become part of these terms as if they have been signed by the user unless otherwise provided. These supplemental terms shall prevail over conflicting terms in the Fitogram Terms and Conditions relating to the subject matter of these Additional Terms. Except as expressly provided herein, any disputes or claims arising out of or relating to these Additional Terms or the Apps shall be subject to the warranties and disclaimers, limitations and exclusions of liability, applicable law and all other provisions of Fitogram’s General Terms and Conditions.
4. Booking the studio management by the user; notice periods
4.1 The booking of the studio management by the user takes place by selecting the appropriate package in a cooperation agreement with us and is effective if we either expressly confirm the conclusion of the individual contract or provide the user with the package booked functionalities according to paragraph 2. We expressly reserve the right to conclude the individual contract. It is expressly stated in section 3.2 of our terms and conditions. The booking 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) at the end of the term of the individual contract.
4.2 The individual contract for the use of studio management is concluded as a subscription contract with the initial term specified in the cooperation agreement. The contract is automatically renewed for the period specified in the cooperation 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 (eg e-mail, letter, fax).
5. Terms of payment; Prices
5.1 The prices and billing periods specified for the package chosen by the user application. 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 period or the individual package. Unless an annual form of payment has been expressly agreed (in this case, twelve months count as the billing period), the month is the billing period, whereby the decisive 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 the billing).
5.3 If Fitogram provides separately remunerated service and support services in accordance with section 2.10 above or if remuneration is agreed for the use of payment options within the meaning of clause 2.11 or for other fee-based functions used in the studio management, Fitogram shall unless expressly agreed otherwise, agree otherwise. invoiced monthly in arrears for the expired calendar month.
5.4 If Fitogram provides individual services that are to be remunerated separately, they will be billed separately for each billing period, regardless of the 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 collection takes place after invoicing.
6. Data usage and data access
6.1 The user expressly agrees that Fitogram has the right to use aggregated or statistical usage data (such as the number of registered customers, monthly transactions, etc.) for the purposes of evaluation, studies, market analysis and marketing, provided the relevant data does not contain personal data of Represent customers and other third parties in the data protection law sense.
6.2 In the context of support services, in particular with regard to error messages communicated by the user, it may possibly be possible for the Fitogram support staff to gain 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 to the processing of the data. Fitogram will restrict access to personal information to what is strictly necessary to provide the relevant support service.
7. Data backup and data output when the contract is terminated by Fitogram
7.1 The user is obliged to perform 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 is not responsible.
7.2 The user may at any time request from Fitogram the publication of the data stored within the scope of the use of the studio management.
Last updated on 09.08.2019