General Terms and Conditions (GTC) for the use of the platform EMS-TRAINING.US
ems-training.de services GmbH
Rollnerstr. 14
90408 Nuremberg
Germany
1 Definitions and scope of application
a) ems-training.de services GmbH ‒ hereinafter referred to as "provider" ‒ operates an online platform for the presentation and mediation of EMS training sessions at www.ems-training.us. The following General Terms and Conditions of Business apply to the use of the platform, registration, conclusion of contracts and all further activities via the platform.
b) The use of the platform, the registration for a profile entry, the booking of a paid profile entry as well as the conclusion of further contracts via the platform are only permitted to natural persons of 18 years of age and of full legal capacity as well as legal entities ‒ hereinafter referred to as "Customer(s)".
c) These General Terms and Conditions regulate the contractual relations between the parties with regard to the booking, creation and use of online profiles and publications on the platform www.ems-training.us. Other offers of the provider are not subject to these GTC.
d) The provider ems-training.de services GmbH and the customers are hereinafter collectively referred to as "the parties".
e) Any terms and conditions deviating from these Terms and Conditions of Business shall not apply unless the provider expressly agrees to them.
2 Authorised users
a) Only commercial or freelance providers of EMS training (e. g. EMS studios, fitness studios, personal trainers, physiotherapists, cosmetic studios and similar institutions) can book a customer profile on www.ems-training.us. Other persons or service providers are excluded from the booking of a profile entry.
b) By registering, the customer confirms that he or she is a member of the authorised user group.
c) Customers who register as legal entity or company for a profile entry must name a natural person as contact person within the scope of the registration in order to enable a proper contract drafting and fulfilment.
d) The customer undertakes to provide correct and complete information on the data collected during registration. In particular, he undertakes not to infringe any rights of third parties (e. g. rights to names, copyrights or rights of use). The customer is obliged to process every change of the data immediately in the login area on www.ems-training.us/meinems/login to inform the provider of the change. For liability in case of breach of these obligations, please refer to clause 9 of the General Terms and Conditions below. The provider is entitled to demand proof of the existence of the registration requirements and the correctness of the information at any time.
3 Conclusion of contract
a) The customer can book a profile entry in writing, by telephone, fax or online. In all cases, the customer only submits an offer to conclude a contract. This also applies to online registration on the provider's online portal.
b) In all cases, a contract is only concluded when the provider confirms the registration or provides the services.
4 The profile
a) The customer can choose between different profile models with different functions and prices. The current overview of profile models and prices can be found at www.ems-training.us/for-providers.
b) The customer receives access to a personal login area. The profile can be created by the customer directly after registration. If the profile is to be created by the provider within the scope of a VIP profile, the customer is obliged to expressly request the creation of the profile from the provider in writing, by telephone or by e-mail.
c) After successful contact with the customer, the profile creation and online activation of the profile are usually carried out by the provider within three working days. Insofar as the customer does not provide any data or materials going beyond the registration data, the provider will create the profile from the registration data. In this case, revisions of the profile are possible at no additional cost via customer service.
d) Insofar as the profile is to be created from additional data, in particular text and image material, the customer expressly authorises the provider to use data, text and image material from his website to create the profile. The customer shall grant the provider the rights of use necessary for this purpose, limited in terms of content, space and time to the contractual relationship between the parties. The customer assures the topicality, correctness and completeness of the data used on his website. The customer warrants that no rights of third parties will be infringed by granting the aforementioned rights of use. Insofar as he is not entitled to grant the corresponding rights to data on his website, he informs the provider of this for the respective data concerned before profiling by the provider.
e) Published profiles are linked to Google Maps. The customer undertakes to provide the correct and complete address for his training sessions in the closed login area so that they can be linked to Google Maps.
f) The provider does not undertake any legal examination of the profile. The customer is solely responsible for the content of the profile, even if the provider creates a profile. The customer shall be obliged to observe and monitor applicable laws independently. The customer alone is liable for violations and infringements of third party rights, and the provider's liability in this regard is excluded.
g) The customer is not entitled to the publication of certain contents or a certain form of presentation of his profile. In particular, hyperlinks referring to pages outside of the provider's website can be removed from it.
h) The customer is obliged to regularly check the profile for completeness and correctness of content and to inform the provider of errors and relevant changes (e. g. address, telephone number) without delay.
i) The customer is obligated not to pass on his access data to unauthorised third parties and to keep them protected from access by unauthorised third parties.
j) Insofar as the customer does not publish an acquired profile package in whole or in part, no refund of the price can be demanded. Even in case of premature termination or removal of the profile entry before the end of the contract period, no refund of the price can be demanded.
5 The profile models
a) The scope of services and the costs of the profile depend on the selected profile model at the time of contract conclusion. The customer can generally choose between a fixed-price model or a commission model. A detailed overview of the current profile models, the scope of services and prices can be found at www.ems-training.us/for-providers.
b) With the fixed-price model, the customer pays a monthly fee for the profile entry, either as a basic profile or as a VIP profile with additional services. With the fixed-price model, there is no additional commission if the customer concludes a contract with a training client through the provider.
c) In the commission model, the basic profile is free of charge for the customer. However, a commission payment is due for each contract concluded with a training client by the provider. There is no VIP profile in the commission model.
d) When registering and booking a profile for the first time, a one-time admission fee (for registration services, profiling etc.) is due in all cases. The current amount of this admission fee can be found at www.ems-training.us/for-providers.
e) All profiles are displayed on the provider's website in the search results in the form of a short view that links to the complete profiles. The profiles in the search results are sorted according to the relevance criteria defined by the provider. The ranking of the search results is determined dynamically in an automated process, which causes fluctuations of the search results. Users of the website can also search and display profiles sorted by average rating or distance.
f) VIP profiles are additionally displayed in the results list on positions 1 to 3 rotating. The more profiles in the respective results list that have booked this profile variant, the greater the distances between the repetitions of the insertion for the individual VIP profile.
6 Mediation of training clients
a) The provider advertises her website through a variety of additional marketing measures in order to generate inquiries from training clients for customers with profile entries.
b) With the fixed-price model, it mediates all concrete inquiries of prospective clients to a customer profile without additional agency commission.
c) In the commission model, the customer receives all direct inquiries and additional leads from advertising campaigns. A commission is due for each concluded contract mediated by the provider. A client is considered to be mediated via EMS-TRAINING.US if the initial contact between client and EMS provider was initiated in any way by EMS-TRAINING.US (e. g. independent use of the contact form, mediation of the client to the EMS provider in telephone or written form by EMS-TRAINING.US etc.).
d) The EMS provider is obliged to inform EMS-TRAINING.US immediately if a contract is concluded between the mediated client and the provider (via identification in the login area, by telephone or via e-mail). In the login area, the customer has the possibility to enter the respective status of a training client mediated by the provider (e. g."contact successful","trial session arranged","became client"). The EMS provider is also obliged to inform EMS-TRAINING.US immediately and, if necessary, to provide evidence of the presence of an already known prospective client or to establish initial contact by another means.
e) In case of breach of contract, such as false information on contracts, refusal of cooperation or information, deliberate circumvention of the platform or services of the provider, we charge 50 % of the agreed commission per individual case, but at least 50.00 Euros plus VAT as reimbursement of expenses. In addition, in the event of a refusal to negotiate with interested parties or culpable conduct on the part of the customer, a contractual penalty amounting to the total commission plus VAT is to be paid.
7 Magazine articles
a) As an additional marketing measure, the customer can send the provider texts for publication in the online magazine area of the provider by e-mail. The publication is carried out by the provider. The latter alone decides when the text is activated, how it is formatted and displayed.
b) Only self-written texts on topics from the fields of EMS training, fitness, health or the like are published, which show a high degree of uniqueness in the context of search engine optimisation and are not purely self-promotion. The provider reserves the right to make editorial changes within the limits of the moral rights of the author. The customer is not entitled to the publication of certain contents.
c) Contributions may not contain active hyperlinks, computer codes or similar. The provider does not undertake any legal or substantive examination of the contributions beyond the requirements set out in section 7, paragraph b) above.
d) The customer warrants that the texts do not violate current laws or infringe the rights of third parties. The provider excludes any liability for the published texts.
8 Copyright and rights of use
a) The customer is obliged not to violate any current laws or rights of third parties (in particular name, copyright or data protection rights) when publishing texts, images and/or video files. He commits himself to inform the provider immediately about possible violations of the law. In case of suspicion of legal infringements, the provider is entitled to immediately put the contribution or the profile of the customer offline.
b) The customer grants the supplier the simple, transferable, spatially and contentwise unrestricted and temporally limited right to texts, pictures or video files to the duration of the contractual relationship free of charge, which he uses for the presentation of his profile himself or which he lets use by the supplier for profile production. The right of use also includes the permission to use, duplicate and distribute the data for further advertising measures (especially on partner sites to increase the range of coverage) and to process them within the limits of the author's personal rights.
c) The customer also grants the provider the simple, transferable, spatially and contentwise unlimited right to use the texts submitted by him/her for publication in the provider's magazine free of charge. The aforementioned right of use shall exist indefinitely even after termination of the contractual relationship. It also includes permission to use, duplicate and distribute the texts for further advertising measures (especially on partner sites to increase their reach) and to process them within the limits of the moral rights of the author.
d) The customer warrants and guarantees that he is entitled to transfer the aforementioned rights of use, duplication and distribution and that no rights of third parties are opposed.
e) Insofar as the customer provides information about third parties in the profile or in texts, e. g. about employed trainers of the studio, he/she ensures that the parties concerned are in agreement with the corresponding publication of the information and, in particular, have granted consent under data protection law (e. g. also for the use of photos).
f) Insofar as the provider produces texts or other content for the customer, all copyrights and rights of use remain with the provider. Their use outside the profile on the provider's online portal by the customer is only permitted with the provider's express written consent.
g) The exclusive rights of use for the provider's website lie with her. A takeover of contents, structure or design is not permitted either in whole or in part.
9 Liability and exclusion of liability
a) The provider is liable according to the legal regulations for intent and gross negligence of ems-training.de services GmbH, its legal representatives, executives or other vicarious agents. The same shall apply to the assumption of guarantees or other liability without fault as well as to claims under the Product Liability Act or in the event of culpable injury to life, body or health. In addition, the provider is also liable on the merits for breach of essential contractual obligations, i. e. breaches of essential contractual obligations by ems-training.de services GmbH, its representatives, executives and simple vicarious agents, i. e. breaches of essential contractual obligations, on the fulfilment of which the parties may regularly rely on and trust for the proper execution of the contract; in this case, however, the liability is limited to the amount of the damage typically foreseeable at the time of conclusion of the contract. Any further liability of the provider is excluded.
b) Insofar as the liability of the provider is limited or excluded, this also applies to the personal liability of the legal representatives, executives or other vicarious agents of the provider.
c) Users and customers indemnify the provider from all claims asserted by other users, customers or third parties against the provider due to violation of their rights by information and other contents published by customers via the platform or due to their other use of the platform services. The customer shall bear the costs of the necessary legal defence for the provider including all court and lawyer's fees in the statutory amount. This does not apply if the user or customer is not responsible for the infringement.
d) The customer is obliged to provide the provider with all information necessary for the examination of the claims and a defence immediately, truthfully and completely in the event of a claim by third parties.
e) Training contracts are only concluded directly between the customer with a profile on the website and the interested party or training client, even if mediated by the provider. The customer alone shall be liable for the training services to be provided to the training client. The customer shall also indemnify the provider from all claims of third parties asserting these against the provider.
f) The provider is not responsible for the non-fulfilment of contractual obligations, as far as this is based on a reason beyond her sphere of influence (natural disasters, war, obstacles in the customer's area of responsibility or the online/video portals chosen by him etc.). Agreed performance periods shall be deemed to have been extended accordingly. If the impediment lasts for more than two months, the parties may terminate the contract extraordinarily without notice.
g) The provider is not liable for the accuracy, quality, completeness, reliability, nature and quality or credibility of the content posted by the members. These do not constitute an expression of the provider's opinion.
h) The provider shall take all reasonable technical and personnel precautions to avoid overloading or failure of the servers or the system as far as possible. However, a 100 % availability cannot be guaranteed. In the event of a temporary inaccessibility of the website and/or the profile, the provider will endeavour to remedy any problems immediately. Warranty claims and/or claims for damages due to such failures are excluded.
i) The provider is entitled to change the design of the website and the scope of the functions available to it if this is necessary for good reasons, provided that its purpose, function or the equivalence existing at the time of conclusion of the contract are not impaired and if this is necessary to protect the interests of the parties and is reasonable for the customer. Important reasons include new technical or legal developments.
10 Contract term, termination and change of profile models
a) The term of the contract is unlimited and can be terminated at any time by either party with a period of notice of one month to the end of a calendar month without giving reasons. This does not affect the right to extraordinary termination. If one of the parties terminates the concluded contract in an ordinary or extraordinary manner, this shall not affect the obligation to pay the agreed remuneration for the remaining contractual period or the expiry of the calendar month in which an extraordinary termination occurs. There will be no refund.
b) If the customer does not make use of his or her right to publish his or her profile despite having been provided with an ad space, he or she is nevertheless obliged to pay the agreed remuneration; no refund will be made.
c) After initial registration, the customer can only switch once between the fixed-price model or commission model.
d) The provider reserves the right to block the customer's access to the platform or to the platform services in whole or in part until the facts of the case have been clarified, provided that there is concrete evidence that the customer:
In making its decision, the provider will take into account the degree of fault and the legitimate interests of the customer.
11 Prices and payment
a) The current prices published at www.ems-training.us/for-providers apply. The provider reserves the right to make reasonable price adjustments due to any increase in production/sales/marketing costs or service enhancements. The customer will be informed of price adjustments in good time in advance. If the customer does not expressly object to the notified price adjustment within the notified reasonable period of time, the price adjustment shall be deemed to have been accepted. The new prices shall apply from the first of a calendar month following the expiry of the objection period.
b) The invoice amount is due at the beginning of each contract month. A right of retention and a right of set-off by the customer are excluded. In the event of the customer's delay in payment, the provider is entitled to an extraordinary right of termination after two unsuccessful requests for payment.
c) Payment is due immediately after conclusion of the contract. The customer is liable for damages caused by delay in payment.
12 Amendment of the GTC
a) The provider reserves the right to amend the GTC at any time. The changed terms and conditions shall be sent to the customer in text form (e. g. by e-mail to the customer's registered e-mail address) at least 30 days prior to their coming into force, highlighting the changed passages. If the customer does not object to the validity of the new General Terms and Conditions within four weeks after receipt in text form, the amended General Terms and Conditions shall be deemed to have been accepted. The customer shall be notified separately of the significance of the deadline and the legal consequences in the text containing the amended terms and conditions.
b) If the customer does not agree with the validity of the new General Terms and Conditions, he is entitled to terminate the contract without notice until the proposed date of the changes taking effect. The provider also reserves the right to extraordinary termination of the contractual relationship if the customer contradicts the amendments of the GTC.
13 Data protection
a) The provider takes the protection of personal and confidential data very seriously and undertakes to respect the privacy of its customers. Personal customer data is handled in accordance with the relevant legal data protection regulations.
b) Detailed information on the collection, processing and use of the user's personal data in connection with registration, execution of the contract and use of the provider's online portal can be found in the data protection declaration of ems-training.de services GmbH.
14 Final provisions
a) Amendments, additions and cancellation of the contract require text form, which also applies to the cancellation of this requirement for text form.
b) Insofar as individual provisions of these GTC are invalid in whole or in part, this shall not affect the validity of the contract or the remaining provisions. Instead of the invalid provision, a provision is to be agreed upon which comes closest to the sense and purpose of the invalid provision.
c) Even after termination of the contractual relationship, the parties undertake to treat their knowledge of the provisions of the contract, its execution and the facts associated with the contract confidentially.
d) Services which the provider renders on a case-by-case basis for the sake of goodwill shall not constitute a legal claim to further such services.
e) German law applies. The validity of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
f) The place of jurisdiction for disputes concerning this agreement is ‒ as far as permissible ‒ Nuremberg, Germany.
ems-training.de services GmbH
Nuremberg, August 2019
Conditions of participation for a competition
General conditions of participation for competitions organised by:
ems-training.de services GmbH
Rollnerstrasse 14
90408 Nuremberg
Germany
1 General information
a) These General Terms and Conditions of Participation apply to all competitions which are conducted by ems-training.de services GmbH or its legally affiliated companies on the website operated by them and in which reference is made to these Terms and Conditions. Any additional terms and conditions to the individual sweepstakes shall take precedence over these terms and conditions.
b) Participation is only possible within the participation period. Entries received after the closing date will not be considered for the draw.
c) Only one entry per participant will be accepted. It is prohibited to use multiple e-mail addresses or Facebook profiles to increase your chances of winning.
d) Participation in the competition is free of charge.
2 Eligibility to participate
a) Any natural person who is permanently resident in the UK or Northern Ireland and who has reached the age of 18 years is entitled to participate in a competition. Legal representatives and employees of ems-training.de services GmbH and its legally affiliated companies as well as their relatives and first and second degree relatives are not entitled to participate. Participants can only participate in their own name.
b) If a participant is restricted in his legal capacity, the consent of his legal representative is required.
c) Participation is not limited to customers of ems-training.de services GmbH and is not dependent on the purchase of a product or service.
d) Persons who are not eligible to participate shall not be entitled to a prize even if a prize is awarded. In such a case, a substitute winner will be determined.
e) Profits are not transferable to third parties.
f) Insofar as the participant violates any special rules of the game or these terms and conditions, ems-training.de services GmbH is entitled at any time to exclude him/her from participation without prior notice.
3 Compulsory information
When participating in the competition, some required data and some optional data, e. g. name, first name, address, age and/or e-mail address and/or telephone number, will be asked for. All of these personal data will be handled by ems-training.de services GmbH in accordance with the data protection declaration and, if applicable, additional declaration of consent. In order to participate in the competition, all information ‒ as far as details are given ‒ must correspond to the truth. Otherwise, the exclusion can take place.
4 Liability
a) No liability is assumed for any problems or deficiencies in connection with computers, connections, networks etc. which are used by the participant for sending an entry to ems-training.de services GmbH.
b) In addition, the liability of ems-training.de services GmbH is limited to damages caused by gross negligence, intent or the violation of cardinal obligations. Liability for damages caused by injury to life, body and health remains unaffected.
5 Right to change
ems-training.de services GmbH reserves the right to exchange the respective announced winnings in case of a change of the legal situation or jurisdiction or due to a court order to replace them by other prizes, to change the respective course of the game or to cancel the competition altogether. In these cases, the possibly already determined winner is not entitled to any claims against ems-training.de services GmbH or against legally affiliated companies.
6 Determination of profit
a) The winners will be determined after the closing date by a random draw among all participants. If the raffle is linked to a task, only those participants who have solved the task correctly will be entered into the draw.
b) The raffle will be conducted by ems-training.de services GmbH, its employees, vicarious agents or commissioned third parties. In this context, ems-training.de services GmbH is not liable for slight negligence on the part of these persons in determining the winner.
7 Winning notification
In case of a win, the participant will be notified by e-mail. The winner is obliged to inform ems-training.de services GmbH within ten working days after receipt of the notification in the form described therein (timely dispatch suffices) whether he accepts the prize.
In the event of non-compliance with these deadlines, ems-training.de services GmbH is entitled to draw a new winner and award the prize elsewhere. Claims for compensation of the first drawn winner against ems-training.de services GmbH are excluded.
8 Material and cash prizes
a) Insofar as the prizes awarded are non-cash prizes, ems-training.de services GmbH does not pay out the equivalent value in cash. In the event of a win, the participant declares that he will be responsible for any costs, expenses and other services that are not included as a prize or included in the prize. The same shall apply to any other additional costs associated with claiming the profit.
b) Furthermore, ems-training.de services GmbH does not assume any liability for damages caused by the participant and is exempted from all claims of third parties.
9 Final provisions
a) Legal recourse is excluded.
b) If individual provisions of these General Terms and Conditions are invalid, the remaining provisions shall remain valid. German law applies.
c) In accordance with Directive 2013/11/EU, the EU Commission is setting up an Internet platform for the online settlement of disputes ("OS Platform") between entrepreneurs and consumers. This can be reached under the following link: http://ec.europa.eu/consumers/odr. However, we would point out that we are not prepared to participate in conciliation proceedings.
Nuremberg, May 2018