With the online services Fitness Nation (hereinafter the "Online Services"), Fitness Nation GmbH (hereinafter the "Operator") offers companies in the fitness industry a comprehensive, web-based online system that fitness companies (hereinafter "Premium Partners") ) in the areas of member retention and member recruitment and includes other professional services. The type and scope of the online services depend on the premium packages booked by the premium partner, such as "Management", "Entertainment", "Support", "Marketing", "Shop" and "Fitness Nation Community - Premium Membership".
1.1 The present General Terms and Conditions (hereinafter "GTC") apply to all contracts concluded between the operator and the premium partner for the online services and any additional services in connection with the online services (e.g. purchase or rental of hardware or fulfillment services).
1.2 The inclusion of the Premium Partner's own terms and conditions is hereby rejected, unless otherwise agreed in text form. These General Terms and Conditions also apply exclusively if the operator carries out the service/delivery to the premium partner without any special reservation in the knowledge of conflicting or deviating terms and conditions of the premium partner.
2.1 The subject of the contract is access to the online services for the intended use by the premium partner via an internet connection via a browser or the app for the online services for a fee for the agreed term.
The type and scope of the online services depend on the premium packages booked by the premium partner and their content in the Fitness Nation service description. The exact scope of services for each booked package and, if ordered, additional services as well as the system requirements result from the service description, which is attached to the respective contract offer as an annex. In the event of a contradiction between the service description and these GTC, the provisions of the service description apply.
The premium packages can be booked individually or together. Optionally, additional services in connection with the online services can be ordered in coordination with the operator (including hardware purchase or fulfillment services).
2.1.1 The premium partner is given the technical opportunity to access the booked online services, which are hosted on a server of the operator or on a third party commissioned by the operator, using an internet connection via a browser or the app for the online services and to use the functionalities within the framework of the contractual agreements for the duration of the contract period. The premium partner receives access to the online services with the booked premium packages via their personal, password-protected online account. He receives a personal, password-protected administration account (admin). The booked range of functions is activated. The admin can create additional "users" for employees of the premium partner. These users have no administrative rights,
2.1.2 The core of the platform is the online community with an affiliated online shop and benefit program. The online community that brings fitness enthusiasts, athletes and fitness companies together. Users registered for the community are entitled to use it. The users are consumers (e.g. studio members or other people interested in sports) or entrepreneurs such as fitness studios and other companies in the fitness industry. Membership is generally free of charge for consumers, and for a fee for entrepreneurs.
2.1.4The premium partner will use the online services within the scope of the technical possibilities in the current program status if the change is reasonable for the premium partner, taking into account the interests of the operator. However, the premium partner has no claim to the use of a new program version. The operator will activate updates of the online services under the above conditions for the premium partner. With regard to apps that the premium partner has downloaded via platforms (iOS AppStore or Google Playstore), the operator will only provide information about such updates; in these cases, the premium partner is responsible for downloading and installing the updates from the respective platform onto his hardware. This does not apply if a fee-based update service has been expressly contractually agreed between the premium partner and the operator. In the event of such an agreement, the operator will import all updates for the premium partner. if a fee-based update service has been expressly contractually agreed between the premium partner and the operator. In the event of such an agreement, the operator will import all updates for the premium partner. if a fee-based update service has been expressly contractually agreed between the premium partner and the operator. In the event of such an agreement, the operator will import all updates for the premium partner.
2.1.5 The online services are available to the premium partner in German, Italian, Dutch or English, at his choice.
2.1.6The set-up by the operator includes the technical installation and activation of the system for the premium partner (activation of the online services for using the booked premium packages, i.e. the activation of the access for the premium partner and the transmission of the access data and passwords to the premium partner). After activation, the premium partner will immediately check whether access to the online services is functional and whether the online services have the agreed functionalities. The premium partner confirms the successful activation via the button "Acceptance onboarding and setup" within the provided content management system (CMS). If functional restrictions are determined during this test, Section 8 applies accordingly.
2.1.7 On-site services at the premium partner are not owed unless otherwise agreed.
2.1.8 The operator grants the Premium Partner storage space on a virtual server, ie storage space on a storage medium that is also used and usable by other Premium Partners, to store its data and content within the scope of the intended use of the online services.
2.2 The content of the storage space intended for the premium partner is backed up daily. The data is backed up on a rolling basis so that the data backed up for one day of the week is overwritten when the data is backed up for the next day of the same week. The partner can request the operator to issue a daily backup or to restore the system from the last available data backup. If the operator is not at fault for the circumstances that make the return or restoration necessary, the operator is entitled to calculate the expenses incurred for this in accordance with the then current price list.
2.3 The premium partner support is available to the premium partner by e-mail and by telephone for user questions and to receive fault reports on working days Mon-Fri, excluding public holidays in North Rhine-Westphalia, from 9 a.m. to 6 p.m. (CET). Support for user questions is included for up to one hour per week, any additional user support will be billed at cost according to the agreed fee.
2.4 The operator is entitled to transfer services in whole or in part to one or more subcontractors. This applies without prejudice to the rights of the premium partner from Art. 28 DS-GVO, insofar as applicable.
2.5 Additional services are to be agreed separately and paid for according to the current price list (e.g. training courses; individual adjustments) or the purchase price is to be paid when purchasing hardware.
2.6 Fulfillment Services. If the premium partner uses the online shop module of the online services provided, or if the premium partner would like to offer its end customers goods for sale in another way (e.g. direct sale in the studio), the operator offers fulfillment services for this in accordance with the following provisions. Unless expressly regulated otherwise in this section 2.6, the remaining provisions of these GTC also apply accordingly to the area of fulfillment services.
2.6.1 The Premium Partner is entitled to designate the address specified by the operator for the delivery of goods as the delivery address to manufacturers, freight forwarders, etc. as well. The type of goods and the scope and date of each planned delivery must be agreed in writing with the premium partner at least two weeks before the planned delivery date. If the premium partner fails to coordinate, or if the delivered quantity exceeds the announced quantity, the operator is not obliged to accept the delivery; Any additional costs incurred as a result shall be borne by the premium partner.
2.6.2 The operator will store delivered goods for the premium partner. In view of the daily incoming goods, the operator cannot check the quality or quantity of the delivered goods. In particular, the operator is not obliged to examine whether the goods delivered for the customer also meet the requirements desired by him and whether they have been delivered in the correct quantity. The operator will insure stored goods against fire/burglary, robbery, vandalism/tap water/storm, hail/natural damage up to an amount of 50,000.00.
2.6.3 The premium partner can call up individual deliveries from the warehouse stock of the goods from the operator. The operator will send the individual delivery to the address of the premium partner (or one of the studios operated by the premium partner) specified when it was called up.
The premium partner can also commission the operator to process individual orders from the premium partner's online shop to its customers on behalf of the premium partner.
For the delivery of the goods to the premium partner or its customers, Section 9.1 applies accordingly to the relationship between the parties.
2.6.4 Irrespective of the liability regulation in Clause 14, the parties make it clear that the operator is not liable to customers of the premium partner as a seller for the delivered goods. The seller of the goods is exclusively the premium partner. The premium partner therefore remains solely responsible for all warranty and liability claims in relation to the customers of its web shop.
3.1 Offers for the online services apply exclusively to entrepreneurs. An entrepreneur within the meaning of these terms and conditions is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their independent professional or commercial activity (§ 14 BGB). By submitting his declaration of contract conclusion, the premium partner declares that he is acting as an entrepreneur.
3.2 The operator's product descriptions and price lists are non-binding as long as they do not become part of a contractual agreement or an offer marked as binding. In particular, the provision of online services by the operator does not constitute a legally binding contract offer, but only a non-binding request to the premium partner to submit binding offers for the conclusion of contracts in electronic commerce (see Section 3.3).
3.3 The operator enables the conclusion of a contract via the online services in various ways. The premium partner can either request an offer from the operator, which is then sent individually to the premium partner in text form (section 3.3.1). Or the premium partner submits an offer using the order forms provided online by the operator (Section 3.3.2.). The following conditions apply to the processes described for the conclusion of the contract.
3.3.1 Contracts are formed through offer and acceptance subject to these General Terms and Conditions. The operator sends the premium partner an offer by e-mail, fax or letter upon request. The premium partner can accept this offer by submitting a declaration of acceptance to the operator by fax, email or letter within 4 weeks of receipt of the offer. The day of receipt of the offer is not included in the calculation of the deadline. The contract under the validity of these terms and conditions comes into effect with timely acceptance by the premium partner. If the premium partner does not accept the offer within this period, the operator is no longer bound to the offer.
3.3.2 Prices and the most important product and service information can be called up by the premium partner when using the order forms provided online before submitting their offer. All prices are shown as net prices and do not include the respective statutory value-added tax. They apply to deliveries of goods ex works and therefore do not include costs for packaging, freight, postage and insurance or other shipping costs. Such additional costs will be shown separately before completing the ordering process.
A contract in electronic commerce is concluded as follows when using the order forms provided online:
(1) The premium partner can select goods for purchase and/or services from the area of online services for booking by placing them in a shopping cart by clicking on the corresponding button. If the premium partner wants to complete the order, he can go to the shopping cart, where he will be guided through the rest of the ordering process. Part of this further ordering process is in particular the specification of contact and billing data of the premium partner. Only the displayed payment methods are available. If fees are charged for individual payment methods, the operator will show these separately. However, at least one common and reasonable free payment method is available to the premium partner
(2) After clicking on the "Next" button, the premium partner is given the opportunity to correct input errors. There, the desired number of items can be changed at any time or selected goods or services can be removed completely. The entries can be corrected by clicking on the "Edit" button.
(3) By clicking on the "Order now for a fee" button, the premium partner makes a binding offer to conclude a contract for the selected online services or goods.
(4) The operator immediately confirms receipt of this offer by sending a confirmation email to the email address provided. The operator declares acceptance of the contract offer in a separate email. The contract is only concluded when this second e-mail is received by the premium partner. The text of the contract is not stored after the conclusion of the contract for the purpose of making it accessible to the premium partner.
4.1 Unless otherwise agreed, the monthly payment is to be paid beginning on the agreed start date. Thereafter, the monthly remuneration is to be paid in advance each calendar month. If a price is to be calculated for parts of a calendar month, this will be calculated at 1/30 of the monthly price for each day.
4.2 The set-up fee is due for payment upon conclusion of the contract and must be paid within 10 days of the date of conclusion of the contract. This also applies to other one-time payments agreed upon conclusion of the contract (e.g. for training courses, hardware purchase).
4.3 The operator is entitled to broadcast third-party advertising within the software system and to market the advertising space integrated into the software. This applies in particular to the software package Community and Fitness Nation TV. With the Fitness Nation TV software package, the possible display of advertising by the operator is limited to a maximum of 10 minutes per hour. The advertising of product and brand partners generally takes place without any form of reimbursement. For further advertising marketing, the premium partner receives a percentage of the income generated by the operator (e.g. participation in advertising income) of between 2% and 30%. A precise and up-to-date list of advertising spaces, media data and advertising partners is available at support.fitness-nation.comavailable. The operator is entitled to change the advertising space and the remuneration at any time.
4.4 The remuneration is determined according to the prices valid at the time the contract is concluded, unless otherwise agreed. The prices quoted are net prices in euros plus the statutory sales tax. Packaging and shipping costs, loading, insurance (in particular transport insurance for hardware), customs duties and levies will be charged separately if they are incurred.
4.5 If additional services have been agreed, these will be billed at cost according to the agreed hourly or daily rate, unless a fixed price has been agreed (e.g. one-off set-up fee, purchase price). Hourly rates are billed in 6-minute increments). A daily rate refers to 8 hours.
4.6 If the premium partner creates its own web shop as part of the use of the online services, the operator is entitled to a percentage of the net sales generated in accordance with the agreement reached between the parties ("sales commission"). The premium partner is obliged to send the operator a monthly list of all sales made via his web shop as part of the use of the online services in text form. The rule here is that the turnover of a month must be reported to the operator by the 5th of the following month. The operator will bill the premium partner for the sales commission with the next monthly invoice.
4.7 The regular ongoing remuneration is due for payment without discount upon receipt of the invoice.
4.8 If the payment method direct debit (direct debit) is agreed, the operator is revocably authorized to collect the invoice amount from the specified account of the premium partner. If the direct debit is not redeemed due to insufficient funds in the account or because incorrect bank details have been provided, or if the premium partner objects to the debit although he is not entitled to do so, he must bear the fees incurred as a result of the chargeback from the respective bank if he is responsible for this.
4.9 A payment is deemed to have been received as soon as the equivalent value has been credited to an account of the operator. In the event of late payment, the operator is entitled to interest on arrears in the amount of 9 percentage points above the respective base interest rate. The statutory rights of the operator in the event of a default in payment by the premium partner remain unaffected.
4.10 In the case of deliveries/services to countries outside the European Union, additional costs may arise in individual cases for which the operator is not responsible and which are to be borne by the premium partner. These include, for example, costs for money transfers by banks (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs can also be incurred in relation to the money transfer if the delivery is not made to a country outside the European Union, but the premium partner makes the payment from a country outside the European Union.
4.11 The offsetting of claims of the premium partner against claims to which the operator is entitled is only permissible if the claims of the premium partner are undisputed or have been legally established. This does not apply if the counterclaim is based on additional costs for remedying defects or for additional production.
5.1The premium partner ensures that the cooperation required for the fulfillment of the contractual services is available in good time at his own expense. In particular, he will provide the operator with the information required for the provision of the contractual services in good time and ensure that his hardware, the necessary operating system, the necessary browser, his Internet access, the online connection and the pre-installation of necessary software are in the contractual condition. He grants the operator trouble-free access to his router on site in the studio or another agreed place of performance and enables access for the necessary technical work by the operator. The Premium Partner shall ensure at its own expense that a suitable power source is available and usable at the respective transmission points that are required to operate the online services. The premium partner is responsible for the data connection between the workstations/end devices intended for use and the transfer point (router exit of the data center in which the online services are hosted). Further obligations to cooperate may result from the service description.
5.2 The premium partner is obliged
5.3 The premium partner takes appropriate precautions within the framework of its damage mitigation obligations (e.g. through timely fault diagnosis, regular checking of the data processing results) in the event that the online services do not work properly.
5.4 The Premium Partner is obliged to ensure through suitable contractual agreements with its employees that the online services are used by them as intended and in accordance with the contract. He is also responsible for ensuring that they comply with Sections 5.1 to 5.3. The premium partner is responsible for compliance with commercial and tax regulations, such as compliance with retention periods.
5.5 The content stored by the premium partner on the storage space intended for him may be protected by copyright and data protection law. The premium partner hereby grants the operator the right to make the content stored on the server available to the premium partner for queries via the Internet and, in particular, to reproduce and transmit it for this purpose and to be able to reproduce it for data backup purposes. This applies accordingly to making it publicly available when third-party queries are made via the Internet.
6.1 The operator grants the premium partner a simple (non-exclusive) right, limited to the duration of this contract, to access the online services by means of telecommunications (Internet connection) and to use the functionalities of the online services as intended to the extent booked. The premium partner does not receive any further rights, in particular to the software or the operating software of the online services.
6.2 Rental and other transfer or making accessible to third parties is not permitted, whether for a fee or free of charge. Source/object code of the software is not provided. For the use of apps for the online services, however, the premium partner is entitled to install the app in object code on a device for the booked duration and to use it as intended; in this respect, the app attached to the relevant app or the standard license terms of the operator of the app platform (iOS AppStore or Google Playstore) apply.
6.3 The Premium Partner is not entitled to use the online services and/or storage space beyond the use permitted in accordance with the contractual agreement or to have them used by third parties or to make them accessible to third parties.
The operator is liable for all contractual, quasi-contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:
7.1 The operator is liable for any legal reason without limitation in the event of intent, fraudulent intent or gross negligence, in the event of injury to life, limb or health, on the basis of a guarantee promise, unless otherwise agreed in this regard. Furthermore, the operator's liability under the Product Liability Act is unlimited.
7.2 If the operator negligently violates an essential contractual obligation, liability is limited to the foreseeable damage that is typical for the contract, unless liability is unlimited in accordance with clause 7.1 above. Essential contractual obligations are obligations which the contract imposes on the operator according to its content in order to achieve the purpose of the contract, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the premium partner can regularly rely.
7.3 Apart from that, liability on the part of the operator is excluded. In particular, there is no liability for initial defects unless the requirements of 7.1 and 7.2 are met.
7.4 A change in the burden of proof to the detriment of the premium partner is not associated with the above provisions.
7.5 Except in the cases of 7.1, the limitation period for claims for damages or reimbursement of expenses by the premium partner against the operator is one year from the knowledge of the circumstances giving rise to the claim.
7.6 The above regulations also apply with regard to the operator's liability for its vicarious agents and legal representatives.
8.1.1 The operator guarantees that the online services and hardware rented to the premium partner will essentially function in accordance with the contractual agreements of the parties when used in accordance with the line description and other usage instructions.
8.1.2 In the event of defects or disruptions that are attributable to the operator, the operator can first remedy the defect. Subsequent performance is at the option of the operator either by eliminating the defect or by providing a defect-free new online service or defect-free new hardware. Subsequent performance also includes the delivery of updates or upgrades that do not contain the defect, or a patch that corrects the defect.
8.1.3 If the supplementary performance fails, the premium partner can choose to reduce the price or, if the defect does not only slightly affect the contractual use of the online services or the hardware, terminate this contract for good cause and, if necessary, request a refund in the demand payment in advance. However, subsequent performance is only deemed to have failed if the premium partner has given the operator sufficient opportunity to remedy the defect within a reasonable period of time without the necessary success being achieved. The provision of a temporary solution that circumvented the defect (“workaround”) must be taken into account when setting the deadline.
8.2 If the premium partner becomes aware of an accusation by a third party that the provision and/or use of the online services violates their industrial property rights or those of other third parties, the premium partner is obliged to inform the operator immediately. As far as possible, the operator will, at its own expense, take on the defense against claims due to the alleged infringement of property rights and conduct negotiations to settle the legal dispute. The premium partner will support the operator in this regard to the extent that this is appropriate and conducive to defense and settlement discussions. The operator's liability for legal defects remains unaffected.
8.3The parties are aware and acknowledge that the operator does not control the transmission of data via communication facilities, including the Internet, and that the online services may be subject to limitations, delays and other issues associated with the use of such communication facilities. Furthermore, the operator is not liable if the use of the online services is impaired by improper installation, operation or maintenance by the premium partner or a third party on its behalf. In particular, the warranty for impairments that arise from the fact that (a) the online services are used under conditions that do not correspond to the hardware and software environment specified in the service description is excluded,
If a purchase contract for hardware is concluded in connection with the online services (e.g. via a touch stele / HDMI stick / vending machine), the following special provisions apply to the purchase contract - in addition to and in the event of contradictions taking precedence over the general provisions of these General Terms and Conditions Conditions:
9.1 Delivery and Shipping Conditions
9.1.1 Goods are delivered to the delivery address specified by the premium partner, unless otherwise agreed. The premium partner agrees that all deliveries are made either by the shipping company commissioned by the operator or directly by the manufacturer or wholesaler of the goods ordered by the premium partner ("drop shipping").
9.1.2 The operator is entitled to make partial deliveries if this is reasonable for the premium partner. In the case of permissible partial deliveries, the operator is also entitled to issue partial invoices.
9.1.3 The operator reserves the right to withdraw from the contract in the event of incorrect or improper delivery. This only applies in the event that the operator is not responsible for the non-delivery and the operator has not concluded a specific hedging transaction with the supplier despite the necessary care. In the case of unavailability or only partial availability of the goods, the premium partner will be informed immediately and the consideration will be reimbursed immediately.
9.1.4 The risk of accidental loss and accidental deterioration of the goods sold is transferred to the premium partner as soon as the operator has delivered the item to the freight forwarder, the carrier or the person or institution otherwise responsible for carrying out the shipment. This also applies if the operator bears the costs of transport. Transport insurance is only provided on special request and at the expense of the premium partner. If the operator is responsible for the installation and assembly, the risk passes to the Premium Partner upon completion of the installation and assembly work and handover.
9.1.5 Insofar as delivery is not possible for reasons for which the Premium Partner is responsible, e.g. because the goods do not fit through the Premium Partner’s front door, front door or stairwell, or because the Premium Partner cannot be found at the delivery address specified by him , although the premium partner was informed of the delivery time within a reasonable period of time, the premium partner bears the costs for the unsuccessful delivery and is obliged to pay a flat-rate compensation for delay. This amounts to 1% for each full week of delay, but no more than 8% of the value of the total delivery or the unaccepted part of the total delivery. The parties are free to prove higher or lower damage.
9.1.6 In the event that the shipment of the goods to the premium partner is delayed for reasons for which the premium partner is responsible, the transfer of risk takes place when the premium partner is notified that the goods are ready for shipment. Any storage costs incurred must be borne by the Premium Partner after the transfer of risk.
9.2 Hire Purchase
9.2.1 If the operator grants the premium partner the option of paying the purchase price in installments, the payment plan agreed there applies to the due date of the installments. The purchase price is - without prejudice to any interest on arrears - not subject to interest. The installments are payable to the operator on the due date.
9.2.2 If the premium partner defaults on the payment of an installment, the entire purchase price claim minus payments made up to that point becomes due immediately. This also applies if the buyer is in arrears with a partial installment amount.
9.3 Retention of Title
9.3.1 The operator retains title to the delivered goods until the purchase price owed has been paid in full; this applies in particular in the cases of Section 9.2. Furthermore, the operator retains ownership of the delivered goods until all of their claims from the business relationship with the premium partner have been fulfilled.
9.3.2The premium partner undertakes to treat, clean and, if necessary, repair the purchased items properly and with care until the transfer of ownership. He will report any damage to the operator immediately. The premium partner bears the risk of damage and loss of the device. Until the purchase price has been paid in full, the premium partner will not lend, sell, rent, pledge or dispose of the purchased items in any other way. In the event that third parties intend to seize the purchased items from the premium partner, they will inform the operator immediately. All court and out-of-court costs incurred for the removal of attachments and retentions and for the replacement of the purchased items are to be reimbursed to the operator by the premium partner.
9.4 Liability for defects / warranty If the purchased item is defective, the statutory liability for defects applies. Notwithstanding this, the following applies:
9.4.1 Claims for defects do not arise in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment or due to special external influences that are not provided for in the contract. If the premium partner or third parties make improper changes or repair work, there are no claims for defects for these and the resulting consequences, unless the premium partner can prove that the fault reported was not caused by these changes or repair work.
9.4.2 The limitation period for claims for defects is one year from the transfer of risk.
9.4.3 The limitations of liability and reductions in the limitation period set out above do not apply
9.4.4 In the event of supplementary performance, the operator has the right to choose between repair or replacement delivery.
9.4.5 If a replacement delivery is made as part of the liability for defects, the limitation period does not begin again.
9.4.6 If the supplementary performance has taken place by way of a replacement delivery, the Premium Partner is obliged to return the goods that were first delivered to the operator within 30 days.
9.4.7 If the operator delivers a defect-free item for the purpose of supplementary performance, the operator can claim compensation for use from the premium partner in accordance with Section 346 (1) BGB. Other legal claims remain unaffected.
9.5 Assignment of Warranty Claims
The operator hereby transfers the existing claims for defects against the manufacturer of the purchased items delivered under retention of title, handing over the guarantee certificate that may have been issued for the purchased items to the premium partner who accepts this assignment.
9.6 Guarantees when purchasing vending machines
9.6.1 If the premium partner purchases a vending machine from the operator as an additional service to the online services, the operator grants the premium partner a durability guarantee (§ 443 Para. 2 BGB) in accordance with the following provisions, subject to a deviating agreement in individual cases. Warranty claims of the premium partner according to Section 9.4 remain unaffected.
9.6.2 The operator guarantees that the vending machines delivered will be free from defects in materials and workmanship for a period of four years from the transfer of risk in accordance with section 9.1.4 (“Warranty Period”). Material or processing defects in the vending machine that occur within the guarantee period (“guarantee damage”) will be remedied by the operator at his discretion by repairing or delivering new or refurbished parts within a reasonable period of time, in some cases free of charge (“guarantee services”).
9.6.3The operator provides the premium partner with spare parts or necessary software updates free of charge in the event of warranty damage. Necessary service work by the operator for error analysis and correction (whether remotely or at the installation site of the vending machine) within the scope of warranty services as well as costs for the arrival and departure of technicians, collection of defective vending machines and the delivery of replacement devices are not free of charge, but will be charged by the operator actual seizure calculated. The agreed remuneration and cost rates apply; in the absence of a corresponding agreement, a fee appropriate to the effort is to be paid by the premium partner or costs are to be reimbursed to an appropriate extent. Other claims of the premium partner against the operator, in particular for damages due to lost profit,
9.6.3 Warranty claims of the Premium Partner according to Section 9.6.2 above do not exist for damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment or due to special external influences that are not required under the contract. Warranty claims of the Premium Partner according to Section 9.6.2 above are also excluded if the vending machine has features that indicate repairs or other interventions by workshops not authorized by the operator, accessories not authorized by the operator installed in the vending machine by the Premium Partner or at its instigation was removed or the serial number of the vending machine was removed or made unrecognizable.
9.6.4 Claims by the premium partner for warranty services can only be asserted against the operator within a cut-off period of two months after the occurrence of the warranty damage or, in the case of errors that are not immediately recognizable, within two months of their discovery upon presentation of the original invoice with the date of purchase.
9.6.5 The guarantee also applies to the above-mentioned scope, for the guarantee period and under the above-mentioned other conditions (including the submission of proof of purchase in the event of resale) for any subsequent future owner of the vending machine resident in the premium partner's country of domicile.
10.1 The contract comes into force upon conclusion of the contract and has the term specified in the order from the agreed start of the term. The contract can be terminated for the first time with a notice period of three months to the end of the minimum term. It is extended by a further 12 months at the end of the minimum term or at the end of the respective 12-month period if it is not previously terminated by one of the parties with a notice period of 3 months to the end of the respective 12-month period.
10.2 The right of both parties to extraordinary termination for good cause remains unaffected. In particular, the operator is entitled to extraordinary termination if the premium partner is more than 30 days in arrears with a payment after the second reminder or has allowed third parties access in breach of contract.
10.3 Notices of termination must be in writing, whereby the transmission of written documents by telephone (e.g. fax, PDF in the e-mail attachment) is sufficient (§ 127 Para. 2 BGB).
10.4With the termination of the contract, the access data of the premium partner are no longer active and access to the online services is blocked. Premium partner data will be deleted by the operator no later than four weeks after the end of the contract, unless there is a legal obligation for the operator to retain it. Within this deletion period, the premium partner must send a corresponding request for return to the operator, at least in text form, if and to the extent that it needs data beyond the end of the contract. The operator will then release the data in a common, machine-readable format to the premium partner or a third party named by them. The operator is entitled to calculate the expenses incurred for this in accordance with the then valid price list and can make the release of the data dependent on
10.5 After the end of the contract period, the premium partner must return the rented hardware to the operator within 10 days by sending it back to the operator by post. If the hardware is not returned on time, the operator will charge the premium partner for the period of withholding for each calendar day or part thereof the value of one day, calculated from the agreed periodic remuneration, as compensation and the costs caused by the return delay.
10.6If the premium partner uses the operator's fulfillment services, the following applies in the event of termination: the operator will inform the premium partner about goods still stored by the operator at the end of the contract, provided that the quantities involved are not inconsiderable in relation to the order. The remaining goods will be made available to the Premium Partner for collection or, at their express request, sent freight collect to the Premium Partner's business address. If the premium partner fails to collect the goods and if the premium partner does not request shipping by the operator either, the operator is entitled to destroy the remaining goods 30 days after the end of the contract after prior notification to the last known address of the premium partner;
11.1 The operator and the premium partner are obliged to keep all confidential information, business and trade secrets obtained within the framework of the contractual relationship secret, in particular not to pass them on to third parties or to use them for anything other than contractual purposes.
"Confidential Information" within the meaning of these GTC means any information provided by or on behalf of the Operator or the Premium Partner ("Disclosing Party") in any form or medium to the respective other party ("Receiving Party"). disclosed and clearly identified as confidential or proprietary at the time of disclosure. Neither party will mark as confidential or proprietary any information that is not believed in good faith to be confidential or privileged data, trade secrets or other data meriting such marking or protection.
11.2 The Receiving Party: (a) shall take all reasonable measures to maintain the secrecy of the Disclosing Party's Confidential Information, (b) shall not disclose any Confidential Information of the Disclosing Party to any person other than its representatives who may use the Confidential Information by reason of their position in the Receiving Party's business must know and have agreed to non-disclosure agreements that provide at least the same level of protection for the Confidential Information as this Agreement, disclose or make available, and (c) shall disclose (the Disclosing Party's) Confidential Information solely for the purposes of the Agreement governing the use of the Fitness use nation.
11.3 The restrictions on the use or disclosure of Confidential Information set forth in clause 11.2 shall not apply to any Confidential Information of the Disclosing Party which: (a) is developed by the Receiving Party without relation to the Confidential Information or which it is lawfully free from restrictions imposed by a disclosure of such confidential information to authorized third parties; (b) has been made generally available to the public without breach by the Receiving Party of this Agreement; (c) was already known to the Receiving Party without restriction at the time of disclosure to the Receiving Party; or (d) are free from such restrictions upon the written consent of the Disclosing Party.
11.4If the Receiving Party is required or required by law or legal process to disclose Confidential Information of the Disclosing Party, the Receiving Party shall promptly notify the Disclosing Party so that the Disclosing Party (a ) can apply for an appropriate protection order or other legal remedy; (b) consult with the Receiving Party as to what action the Disclosing Party may take to avoid or limit any such request or obligation; or (c) waive any or all of the terms of this Agreement.
11.5Upon the Disclosing Party's written request, the Receiving Party shall surrender or destroy any and all Confidential Information (of the Disclosing Party). This includes any copy, reproduction, summary, analysis or extract (in paper or electronic form such as mail or computer files) made from the Confidential Information and in the possession of the Receiving Party. This must first be confirmed in writing by a duly (authorised) representative of the Receiving Party, subject to the following provisions: (a) If there is a judicial proceeding in which disclosure of the Confidential Information is sought, such material may be retained pending the resolution of the proceeding or pronouncement of final judgment shall not be destroyed;
11.6 In the event of a culpable violation of the above obligations, the receiving party undertakes to pay the disclosing party a contractual penalty that is appropriate in terms of amount and fully verifiable by a court with regard to its appropriateness.
12.1 For the purposes of this clause 12, the terms “personal data”, “controller”, “processor” and “processing” have the meaning given to them by the General Data Protection Regulation (GDPR) or other applicable data protection laws.
12.2 As part of the provision of services by the operator, it may be necessary for the operator to process personal data as a processor for the premium partner as the person responsible on its own IT systems. This may affect fulfillment services in accordance with clause 2.6 of these terms and conditions.
The processing of personal data by the operator takes place in the manner specified in Section 12.2. cases mentioned in accordance with the agreement on order processing according to Art. 28 DS-GVO, which is available here for the premium partner in the form available at the time the contract is concluded:
The subject of the order processing in Section 12.2. In the cases mentioned, the following categories of persons may be affected: end customers and suppliers of the premium partner or their employees as well as the premium partner's own employees. Order processing concerns the following types of personal data from these data subjects: personal master data, communication data, contract master data, customer history, billing and payment data, system access, usage and registration data.
13.1 The law of the Federal Republic of Germany applies to all legal relationships between the parties, excluding conflict of laws and excluding the laws on the international sale of goods (CISG).
13.2 The place of fulfillment is the seat of the operator, unless the nature of the matter indicates that the place of fulfillment is different. If the premium partner acts as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes arising from this contract is the registered office of the operator. If the premium partner has its registered office outside the territory of the Federal Republic of Germany, the operator's registered office is the exclusive place of jurisdiction for all disputes arising from this contract if the contract or claims arising from the contract can be attributed to the professional or commercial activity of the premium partner. In the above cases, however, the operator is also entitled in any case
13.3 The contract language is German.