General terms and conditions

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

Section 1 Scope of the General Terms and Conditions

The following General Terms and Conditions (hereinafter "GTC") of Memberspot GmbH (hereinafter "Memberspot") regulate the legal relationship between Memberspot and the Admin who accesses the Internet portal of Memberspot at "app.memberspot.de" (hereinafter "Portal" and "Portal Memberspot").
These GTC apply exclusively in the relationship with the Admin. The validity of general terms and conditions of business, ordering or purchasing of the Admin is expressly rejected.
These GTC only apply to users of the portal who are “Admins" (in all roles e.g. as "coach", "trainer" or "consultant"). These GTC do not apply to "Members". If a user is an “Admin" and a “Member", he/she is subject to these GTC as an “Admin" and to the separate GTC applicable to him/her as a “Member".
The German version of these GTC shall take precedence over any other language version.

Section 2 Description of services, technical requirements for use

The portal is a portal that provides areas for Members and on which an Admin can interact with Members, in particular in the form of Admins posting videos, audios or text content for Members. Admins can be coaches, trainers or advisors, depending on the circumstance. Further service descriptions and limits result from the individual contract. A detailed description can be found at https://www.memberspot.de/#pricing.
Memberspot may make changes and improvements to the portal, such as changes to the design and addition of further functions, provided that the contractually agreed services can still be used as a result.
Memberspot makes the portal available for use by the Admin in accordance with the provisions of these GTC and the terms and conditions agreed in individual contracts. The use of the portal by the Admin is technically carried out via a standard, current Internet browser. The portal is available to the extent described in Section 6.
Which of the aforementioned services are made available to the Admin and to what extent by Memberspot is regulated in the individual contract agreed with the Admin. The Admin has the option of ordering further services by sending an email to "info@memberspot.de" or via the Internet portal "app.memberspot.de", stating his or her member area.
Services not provided by Memberspot (in particular with regard to compliance with legal and tax requirements) are presented in Section 15.

Section 3 Exclusion of consumers

Contract offers are only permitted to entrepreneurs in the sense of Section 14 BGB. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his or her commercial or independent professional activity; a partnership with legal capacity is a partnership endowed with the capacity to acquire rights and incur liabilities. A consumer, on the other hand, is any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his or her commercial nor to his or her independent professional activity.

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

The contract for access to the portal can be concluded by email or outside the Internet ("offline"). In this case, the Admin will be provided with - possibly provisional - access data for using the portal. The Admin can also order additional services at a later date.

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

The contract for access to the portal can be applied for via the internet portal "app.memberspot.de" by completing and submitting the registration form. The Admin can identify and, if necessary, correct any input errors in the registration form before submitting his or her application. If the Admin registers via his/her email address, he/she will be asked to confirm that the email address provided is correct. The confirmation (so-called double opt-in procedure) is a prerequisite for activating access to the portal. The contract is concluded as soon as Memberspot technically activates the access and informs about this, e.g. via a corresponding email or a notice in the internet browser.
The Admin can subsequently apply for chargeable service packages via the menu item "Tariffs". For this purpose, the Admin must select the service package desired by him or her, enter his or her billing and payment data and, by sending the data, submit an offer to conclude a fee-based contract for access to the portal. Before submitting his or her contractual declaration, the Admin can identify any input errors before sending the contractual offer and correct such errors. The system accepts the contract offer. The Admin automatically receives a confirmation of receipt of his/her contract offer generated by the system to the email address he/she has provided (confirmation of receipt). The confirmation of receipt does not yet constitute acceptance of the contractual offer. However, an acceptance of the contract offer usually takes place at the same time as the confirmation of receipt, but if necessary it can take place by a separate email to the Admin.
At a later date, the Admin can also order additional services via the portal. The Admin receives an automatic confirmation from the system that he/she has placed an order for further services. As a rule, Memberspot also declares acceptance of the contract in this email.
The information provided by the Admin during registration must be complete and correct. Subsequent changes to the data (e.g. company, address, email address) must be communicated to Memberspot immediately. If the Admin culpably fails to comply with these obligations, he/she shall bear all disadvantages arising for the Admin as a result.
The text of the contract will not be stored by Memberspot after the conclusion of the contract. Only basic data relating to the contract (company, address, email address, rough description of the commissioned services) shall be displayed within the portal for the duration of the contract. The Admin will also receive the text of the contract and these GTC by email together with confirmation of receipt.
The contract may be concluded in the German language.
Memberspot is not subject to any special codes of conduct not mentioned above.

Section 6 Portal Account, Contractual Obligations of the Admin, Functionality of the Portal

The Admin undertakes to safeguard access to the portal account against unauthorised use by third parties. Access data (user ID and password) may not be given to anyone else. The Admin shall be liable for any unauthorised use of his/her access data which was made possible by his/her behaviour together with the associated unauthorised use of his/her portal account, insofar as he/she is at fault. As soon as the Admin becomes aware that his or her access data have become accessible to third parties, he or she is obliged to change his or her password immediately. Should this not be possible, Memberspot is to be informed immediately.
Multiple registrations by an Admin are prohibited. A separate contract for access to the portal is required for each company, including companies associated with the Admin, if use is to be made there.
An Admin may set up one additional access to the portal for each of his or her employees without incurring any additional cost (hereinafter "Employee Access"). The Admin may set up and manage the access for employees in the portal. The Admin is obliged to require the employees to comply with no. 1 above as well as with Sections 7 and 8. Employees here are only those persons who are employed by the Admin as staff or freelancers. If an employee leaves, the Admin must delete the employee’s access immediately. For clarification: Persons employed via contracts with third parties, including companies affiliated with the Admin, are not employees of the Admin.
The portal account is not transferable.
Memberspot provides the portal for use as described in these GTC and in individual contracts. It also guarantees a technical accessibility of the portal of up to 99.99 % per calendar year. The admin's entitlement to use the portal exists only within the scope of the present state of the art. Memberspot may temporarily restrict the availability of the services of Memberspot should this be necessary due to capacity limits, to carry out maintenance work or for security reasons. Memberspot takes into account the legitimate interests of the Admin by informing him or her in advance about the access restrictions, as far as the individual case allows (e.g. not in case of urgent security measures).
It is the responsibility of the Admin to regularly make backups of the data.

Section 7 Permitted content, handling of content, control of metadata Granting rights of use, liability for content, indemnification

The Admin can post various contents on the portal, especially videos but also individual texts and possibly other files (contents).
If the Admin posts content and releases it for certain third parties, this data will be made accessible to the designated third parties via the portal.
The Admin undertakes to post only materiel and truthful content. Contents that

have no connection with the portal pursuant to Section 2, e.g. videos or pictures without reference to coaching, training or counselling,
are subject to criminal prosecution (in particular incitement of the people, insult, defamation, threat),
be considered pornographic, vulgar or obscene, harassing or otherwise offensive,
are anti-constitutional, extremist, racist or xenophobic or contain 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 must not be posted.

4. Content posted by Admins will not be reviewed by Memberspot.

5. Memberspot reserves the right to temporarily or permanently block content posted by the Admin. In particular, Memberspot is entitled to block content if there is sufficient suspicion that a statement is untrue or not objective or contains prohibited content (no. 4 above). Sufficient suspicion exists in particular if Memberspot is warned by an alleged infringed party, unless the warning is obviously unfounded, or if Memberspot becomes aware of investigations by state authorities. Memberspot will, as far as possible, limit the blocking to the allegedly infringing content. The Admin will be informed immediately of the blocking and the reasons will be stated. The blocking is to be reversed as soon as the reason for suspicion is invalidated. The obligation to make payment shall continue to exist even in the event of a justified blocking.

6. Rights of use:

6.1. The Admin assures that he or she holds the rights to the content posted by him or her, insofar as this is necessary for the use of the content on the portal, in particular for storage as well as for making it publicly available to members and other portal members as well as for the copies required for this purpose.

6.2. The Admin grants Memberspot a spatially and temporally unrestricted right of use to the content posted by him or her. This right is free of charge, transferable and sublicensable. The right of use covers in particular the right to store, reproduce, make publicly accessible and edit the contents and remains independent of the contract (abstract right of use). The right of use serves to make the contents accessible via the portal as designated and includes the production of data backups.

7. The Admin is liable for the contents posted by him or her and, in this respect, indemnifies Memberspot from all claims of third parties, including those of Members and other portal members, which these assert against Memberspot due to such contents. This applies in particular to infringements of rights due to the storage, publication, availability or forwarding of the content via or in connection with the portal as well as any claims due to the content itself (e.g. with regard to its correctness, suitability, appropriateness and risks due to the implementation of recommendations). The Admin 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 defence. This only applies if the Admin is at fault. The statute of limitations for the indemnification claim of Memberspot against the Admin only begins when the claim in question of the third party against Memberspot becomes due.

Section 8 General rules for the use of the portal

The Admin 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 emails ("spam") or to bring the portal or parts thereof to a standstill ("denial of service").

Section 9 Blocking

Memberspot may temporarily or permanently block the portal account, employee accesses or individual contents posted by the Admin or for the Admin should it already have been established or there be a suspicion that the Admin is violating legal regulations or in a significant way violates these GTC, violates the rights of third parties or Memberspot otherwise has a legitimate interest in blocking. Memberspot has a legitimate interest in blocking a portal account if the blocking is necessary to protect one or more other Admins or other portal members, in particular if there is a suspicion that the account is being used for fraudulent or otherwise not only insignificantly damaging activities or the Admin has provided false contact details (grounds for suspicion). Blocking will be limited to what is necessary. The portal account will only be permanently blocked in the event of particularly serious or repeated violations. The Admin will be informed immediately of the blocking and the reasons will be stated. The blocking is to be reversed as soon as the reason for suspicion is invalidated. The obligation to make payment shall continue to exist even in the event of a justified blocking.

Section 10 Accesses for Members of the Admin

During the term of its contract with Memberspot and in accordance with the scope agreed in the individual contract, the Admin may allow Members to access the Admin's member area in the portal.
A Member must register for access to the members' area and accept the General Terms and Conditions for Members with the conditions listed under "www.memberspot.de/nutzungsbedingungen-mitglied".
Memberspot has no duty to control or monitor the content posted by the Admin for accuracy, appropriateness or any other suitability, including the evaluation of any recommendations made on the content.
Memberspot may temporarily or permanently block the access of Members if it is suspected or already established that the Member violates legal regulations or in a significant way violates regulations of these GTC, which apply accordingly between Memberspot and the Admin (especially Section 6 no. 1, 4 and Section 7 no. 3), or violates the rights of third parties or Memberspot has another justified interest in blocking. Memberspot has a legitimate interest in blocking a Member's access if the blocking is necessary to protect one or more other Admins or other portal Members, in particular if there is a suspicion that the account is being used for fraudulent or otherwise not only insignificantly damaging activities or false contact details have been provided (grounds for suspicion). Blocking will be limited to what is necessary. A permanent blocking of Member access will only take place in the case of particularly serious or repeated violations. The Member and, if applicable, the Admin will be informed immediately of the blocking and the reasons will be stated. The blocking is to be reversed as soon as the reason for suspicion is invalidated. The obligation to make payment shall continue to exist even in the event of a justified blocking.
Upon the request of Memberspot, the Admin has to demonstrate that a certain Member access has been assigned to a real customer of the Admin.

Section 11 Voluntary hotline

Memberspot can communicate availability by email (hotline). Email availability is continuous. There is expressly no commitment on a response time, fault elimination period or similar.
The following services are provided via the hotline: The reception of orders, receipt of requests from Admins about the portal and the reception of notices about any deficiencies or suggestions for improvement. A success, in particular a maintenance or fault elimination success, is not owed via the hotline and does not take place.
There is no entitlement to the use of the hotline. Memberspot reserves the right to discontinue the hotline at any time.

Section 12 Contract term, contract extension, termination, data backup by the Admin, consequences of termination

The Admin has the right to a one-time test period of 14 days. The test period will continue even if the Admin signs up for a paid variant for access to the portal during the test period.
The contract period results from the individual contract. If no contract period is specified in the individual contract, the contract period shall be one month. After expiry of the contract period, the contract shall be extended by one contract period at a time if it is not terminated beforehand. The Admin may terminate the contract at any time without observing a period of notice to the end of the next contract period. A notice period of one month applies for an ordinary termination by Memberspot.
Notice of termination must be given in text or written form. A notice of termination by the Admin can be sent to "info@memberspot.de". A notice of termination by Memberspot can be sent to the email address deposited with Memberspot by the Admin in the 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 Admin violates his or her obligations under Section 6 nos. 1 to 4, Section 7 no. 3 or Section 8. Memberspot shall also have a reason for extraordinary termination if the Admin does not make payment pursuant to Section 12 or does not pay it in full despite receiving a formal reminder, in particular if it is the first or second payment after the commencement of the contract.
Memberspot is entitled to delete all content and other data of the Admin as soon as the termination becomes effective. This includes content and other data from Members of the Admin. It is the responsibility of the Admin to export or otherwise back up all data beforehand. After the termination has become effective, Memberspot is entitled to deny the Members of the Admin access to the portal.

Section 13 Payment, due date, set-off

No payment is due for the test period.
The amount to be paid by the Admin to Memberspot results from the individual contract, insofar as such a contract has been concluded. Payment shall be due in advance for the respective contract period, unless otherwise agreed in individual contracts.
Only undisputed or legally established claims can be offset against payment claims of Memberspot. The same applies to exercising the right of retention. Moreover, the Admin is only authorised to exercise a right of retention if it is based on the same contractual relationship.

Section 14 Amendment of these GTC

Amendments to these GTC shall be offered to the Admin in text or written form, such as via an email to the address provided by the Admin, at least one month before their proposed effective date. The consent of the Admin shall be deemed to have been given if he or she has not indicated his or her disagreement 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 to be paid or the services pursuant to Section 2. Memberspot specifically draws the Admin's attention to the aforementioned approval effect in the offer for amendment.

Section 15 Limitations of Liability, Personal Responsibilities of the Admin

The Admin is obliged to provide the necessary technical requirements for the use of the portal, in particular the necessary software and hardware (e.g. internet browser) as well as access and transmission services at his or her own expense.
The Admin is responsible for complying with the legal provisions in his or her commercial business and Internet presence (including telemedia law (imprint), instructions on revocation, data protection (including GDPR), competition law, general terms and conditions, e-commerce law). Memberspot is not permitted to provide legal advice under the Legal Services Act. Text fields provided by Memberspot via the portal for legal explanations, if applicable, are to be designed by the Admins on their own responsibility.
The Admin can only claim damages:

for damages resulting from injury to life, body or health, which are 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 based on an intentional or grossly negligent breach of duty by Memberspot or on an intentional or grossly negligent breach of duty by a legal representative of Memberspot, executive employees or vicarious agents;
for damages based on the intentional or negligent breach of essential contractual obligations (cardinal obligations) of Memberspot, a legal representative of Memberspot, executive employees or vicarious agents. Material contractual obligations (cardinal obligations) are obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the Admin regularly relies.
for damages that fall within the scope of protection of a guarantee (assurance) expressly given by Memberspot or a guarantee of quality or durability;

In cases of simple negligent breach of an essential contractual obligation, Memberspot's liability is limited to the amount of the damage typically to be expected and foreseeable for Memberspot at the time of the conclusion of the contract when exercising due diligence. This does not apply to damages resulting from injury to life, body or health.

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

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

A possible strict liability of Memberspot for a defect existing at the time of conclusion of the contract according to Section 536a para. 1 alternative 1 BGB (German Civil Code) is excluded unless the defect is an expressly warranted quality or we have fraudulently concealed the defect.

Section 16 Data protection, conclusion of an order processing contract

The Admin shall conclude an agreement with Memberspot on the processing of data on someone's behalf (hereinafter also referred to as "AVV"), which can be accessed here ("https://www.memberspot.de/datenschutz") or is attached as an appendix. The agreement shall be concluded between the Admin and Memberspot before the Admin posts personal data of third parties on the portal or processes such data in any other way via the portal. The AVV can also be concluded in the members' area of the portal.

Section 17 Severability clause

If one or more provisions of these GTC are or become invalid in whole or in part or if these GTC contain a loophole, this shall not affect the validity of the remaining provisions of these GTC.

Section 18 Choice of law, agreement on jurisdiction

The contract for access to the Memberspot portal, including these GTC, is subject to the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
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, insofar as the Admin is a merchant, a legal entity under public law or a special fund under public law or the Admin has no general place of jurisdiction in the Federal Republic of Germany or moves its place of jurisdiction abroad. As an exception to this, Memberspot is also entitled to bring a claim against the Admin at its general place of jurisdiction. 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 Admin has its general place of jurisdiction abroad if it has its place of business abroad.

Version dated: December 2020

Disclaimer: German law applies exclusively. The German version of these general terms and conditions is binding. The English version is for information purposes only.