GENERAL TERMS AND CONDITIONS FOR MYCLUBS STREAMING PRODUCTS
myClubs GmbH, headquartered in Vienna, Austria (“myClubs“), offers a web-based platform (“platform”), which displays the online classes on offer (e.g. fitness or yoga classes in the livestream) from sports providers cooperating with myClubs, (“sports providers”), and workouts organised by myClubs (“sports programme, sports credit or workout”). Anyone registered on the platform (“registered user”) can view the sports programme of all sports providers and search them using different filter functions. The purchase of myClubs streaming (“∞STREAM”) products entitles access to only the marked myClubs livestream workouts. The streaming products from myClubs do not entitle access to the usual workouts on site at the sports provider. Anyone who has concluded a membership agreement with myClubs (“member”) can make use of the online sports programmes from the cooperating sports providers to the extent of a selected membership rate.
myClubs acts as an intermediary for individual contracts concluded between members and sports providers for sports services. myClubs can also act as a sports provider itself. In that case, the contract is concluded directly between the members and myClubs.
The following terms and conditions apply for registration and membership with myClubs, (“T&C“).
§ 1 Free registration
- The user of the platform can set up a personal account for the platform (“myClubs account”) by entering his or her email address and choosing a personal password or by linking his or her Facebook account.
- Registration is free of charge and does not yet constitute membership.
- The user may only register in his or her own name. The user must be of legal age and a natural person. The data provided to myClubs during registration must be complete and truthful. It is not permitted to register using a pseudonym, incorrect address or email address. The personal access data must be treated confidentially by the member and must not be disclosed to third parties.
- myClubs reserves the right to refuse the registration of users without providing reasons. In this case, the data transmitted by the user will be deleted immediately.
§ 2 Membership agreement
- By concluding the membership agreement, the member is entitled to use the services of myClubs (§ 3-4) against payment of a fee (§ 5).
- A registered user (§ 1) can apply for a myClubs membership by choosing a payable membership rate. The membership agreement is concluded when myClubs accepts the membership application. myClubs is not entitled to accept the application.
- The additional data requested by myClubs during the membership application must be provided completely and truthfully and must be updated in the event of any changes.
- The use of myClubs sports programmes requires an internet-enabled device with the latest technology (smartphone, tablet, laptop).
§ 3 Intermediation service and myClubs sports programme
- myClubs arranges individual contracts for online sports services between a member and a sports provider (“mediated sports contract“) by listing the sports programmes of the sports providers on the platform. The type, scope and content of the livestream sports programmes from the sports providers can be found in the respective detailed description of the offer on the platform. The online sports programme offered by a sports provider, which is displayed to the members of the platform, may differ from the one the sports provider offers to its own customers (who are not myClubs members).
- myClubs aims to offer as diverse a range of sports programmes as possible on the platform and to constantly expand the range or sports programmes by adding additional sports providers. However, members are not entitled to a minimum number, a minimum range or a certain type, form or quality of sports programmes. myClubs is entitled to adapt, change and add to the sports programmes offered on the platform at any time and without providing reasons, which will be announced on the platform. Any modifications or supplements to the sports programmes made by myClubs will not result in any changes to the terms and conditions.
- A sports contract mediated by myClubs between a member and a sports provider is concluded through the process of booking a member’s livestream workout with the sports provider, (“booking”). A separate booking is carried out for each session. A booking is the acceptance of the specific sports programme from the sports provider.
- All contractual claims, rights and obligations arising from a sports contract arranged by myClubs exist solely between the member and the sports provider. In particular, myClubs accepts no liability for the availability of the sports programme of the sports provider, for example in the event of a fully booked course or course cancellation.
- Should there be short-term changes to the sports programme, such as postponements, cancellations or similar, myClubs will pass on such information, if available, to members with an active booking.
§ 4 Use of the platform
- myClubs endeavours to make the platform available for use 24 hours a day, 7 days a week. The platform may temporarily be unavailable due to maintenance work or technical malfunctions. myClubs accepts no liability in the event of outages.
- The platform is protected by copyright and may not be used or altered beyond the granted rights of use without prior written consent from myClubs. Likewise, the design of the platform and in particular the content (e.g. databases, photos, images, videos or texts) posted on the platform are protected by copyright or are subject to other laws for the protection of intellectual property and, unless otherwise indicated, are the property of myClubs. The brands used on the platform are protected by trademark law; the term and the logo “myClubs” are protected by various registered trademarks.
§ 5 Fees and payment modalities
- The member is required to pay a fee according to the prices shown on the platform (“membership fee“) for the use of the services of myClubs. The member may choose between the membership rates shown on the platform to offset the fee.
- The member pays an amount (“fixed amount”) for one membership month and can thus participate in livestream workouts from ∞STREAM sports providers in addition to using the platform.
- Members of the ∞STREAM UNLIMITED product group can place a maximum of 45 bookings per month (“fair-use rule”). myClubs reserves the right to extraordinary termination in the event of violations of the fair-use rule.
- Members of the ∞STREAM MOVE 5 product group can book 5 livestream workouts per month.
- Members of the ∞STREAM MOVE 10 product group can book 10 livestream workouts per month.
- A membership month begins on the day on which the membership fee is paid and ends at midnight on the preceding day of the following month. The monthly membership is automatically extended by an additional month if the member does not terminate the membership agreement in due time according to § 8. It is possible to limit the maximum number of visits per sports provider and booking month. The relevant booking conditions, in particular regarding reservation deadlines, cancellation deadlines and attendance limits, can be found on the platform.
- For all livestream workouts from the sports providers, binding reservations are necessary. Reservations can be cancelled free of charge within the cancellation period indicated on the platform. If the stated cancellation period is exceeded or if the member does not make use of the services of the sports provider despite a binding reservation, myClubs charges the corresponding sports credit or sports credits to the member. In the event of repeated non-use of reserved services during the term of the contract, myClubs reserves the right to extraordinary termination.
- The monthly fee for the membership rate is due on the first day of the contract month. The member authorises myClubs to collect the fee to be paid by the member via the means of payment specified in the membership application online via the platform.
- If the collection of receivables fails, the member must reimburse myClubs for the additional costs incurred if the member is responsible for the failure. In the event of a chargeback (e.g. due to insufficient funds in the current account or credit card, due to expiry of the current account or unauthorised rejection by the account holder), the member authorises myClubs to submit the due payment obligation up to three more times. In such a case, the member is obliged to pay a processing fee of EUR 5,00,- per failed transaction. myClubs reserves the right to assert further claims.
- If the member is in default of payment, the statutory default interest in the amount applicable to the member shall apply. Furthermore, in the event of default of payment, the member agrees to reimburse myClubs for any reminder and collection expenses incurred, insofar as they are necessary for the appropriate legal prosecution. The assertion of any further rights and claims remains unaffected.
§ 6 Membership rights non-transferable
- All membership rights arising from the membership agreement are personal and non-transferable. The member is prohibited from using the services of myClubs outside the purpose of the contract without the express consent of myClubs.
- Services provided by myClubs and, in particular, access to the personal myClubs account may not be sold, provided free of charge or against payment to third parties or used in any other way with the intention of making profit. The member is liable to myClubs for any damage caused by the unauthorised transfer of access to the platform.
- The access to livestream workouts may not be passed on to third parties. If access is passed on without authorisation, myClubs reserves the right to assert further claims and the right to extraordinary termination.
§ 7 Suspension due to misconduct
- If a member violates contractual obligations or these terms and conditions, myClubs is entitled to issue a warning to the member and, in the event of continued violation, to exclude the member from further use of the platform and from the use of services provided by myClubs until the violation of obligations is discontinued or resolved.
- In the event of a serious violation or, despite prior warning, repeated violations of contractual obligations by the member, myClubs is entitled to extraordinarily terminate the membership agreement for good cause. A good cause is justified in particular,
- if the member intentionally provides false contact information,
- if the member makes his or her personal myClubs access available to third parties, in which case myClubs also reserves the right to claim damages,
- if the member shares eligibility for a livestream workout with a third party,
- if the member is in default with the payment of the fee or a significant part of the fee for two consecutive deadlines,
- if the member violates the fair use rule (§ 5.3),
- if the member in the rate does not make use of repeatedly booked services,
- in the case of gross misconduct by the member towards sports providers, myClubs or other members.
- The member agrees to indemnify and hold myClubs harmless from any kind of claims made by other members, sports providers or other third parties against myClubs due to illegal use of the platform by the member or due to the violation of obligations arising from a mediated sports contract and to also refund myClubs the costs of necessary legal defence.
- In the event of a provisional exclusion or an extraordinary termination, further claims by myClubs remain unaffected.
§ 8 Duration of contract and termination
- The membership agreement is valid for an indefinite period.
- The member may terminate the membership agreement at any time with seven days notice to the end of the membership month. A written notification to myClubs GmbH, c/o Schottenfeldgasse 69/3.1, 1070 Wien or by e-mail to email@example.com is sufficient for the declaration of termination. The timeliness of the termination is not determined by the dispatch date of the notice, but by the date it is received by myClubs.
- myClubs can terminate the membership agreement at the end of the membership month with a notice period of seven days before the end of the membership month.
- The right of myClubs to extraordinary termination remains unaffected by this. Extraordinary reasons for termination are primarily if the member violates his or her obligations, as listed in § 7.
- All rights and obligations arising from the membership agreement become null and void with the effectiveness of the cancellation. If the membership agreement is terminated by myClubs for good cause, the payment will not be reimbursed.
- In the event of termination pursuant to Section §8, 2 or 3, there is no entitlement to compensation or reimbursement of the payment.
§ 9 Revocation right for consumers
- In the event that the member concludes the membership contract as a consumer within the meaning of the Consumer Protection Act BGBI 1979/140 as amended), he is entitled to the following right of revocation.
- The member has the right to revoke the membership contract within 14 days without specifying any reasons.
- The revocation period applies 14 days from the conclusion of the contract. (§ 2).
- In order to exercise the right of revocation, the member must give notice about his decision to revoke the contract by means of an explicit statement (for example, by letter or email) to myClubs GmbH, Schottenfeldgasse 69/3.1, 1070 Wien or to firstname.lastname@example.org.
- With regard to compliance with the revocation period, it is sufficient that the member sends notice indicating he is exercising his right of revocation before the revocation period elapses.
- Consequences of revocation: if the member revokes the contract, myClubs must repay all payments received from them immediately and at the latest within 14 days from the day the notice about the revocation of the contract was received by myClubs. For the repayment, myClubs uses the same means of payment which the member used for the original transaction or can request the personal bank details from the member to reimburse an Austrian bank account; in no event is the member charged fees for this repayment. If a member withdraws from a contract for a service after declaring his request for early service provision during the withdrawal period, and myClubs has started on the performance of the contract during the withdrawal period, he shall pay myClubs an amount, which is equal to the proportion of services provided by myClubs up to the withdrawal in relation to the contractual agreed total price.
§ 10 Limitation of liability
- As far as legally permissible, myClubs shall only be liable, regardless of the legal grounds (pre-contractual, contractual, non-contractual), if damage was caused by myClubs through gross negligence or with intent. Any liability on the part of myClubs for indirect damages, consequential damages and lost profits of the member is excluded.
- myClubs expressly assumes no liability for the fulfilment of contractual and other obligations of the sports provider towards the member. In particular, myClubs shall not be liable for the availability of services offered by the sports provider or for any damages, including injury suffered by a member in connection with the use of the sports provider’s services.
- myClubs is not liable for the content made available on the platform by sports providers or other third parties, or for the content on platforms to which myClubs has created a link. The provider of the site to which myClubs has linked is solely liable for illegal, incorrect or incomplete content and especially for damages arising from the use or non-use of such information. The user of the platform is responsible for critically reviewing and evaluating the content of sports providers at his or her own risk.
- myClubs is not liable for any misuse of the member’s access data or for any damage incurred due to the user’s failure to exercise due diligence.
- In addition, myClubs assumes no liability if the member should not violate any legal provisions, such as the Federal Act against Unfair Competition (UCA), the Law on Telecommunications (LTC), the Trademark Protection Act (TA) or other regulations, when using the platform.
- The member indemnifies myClubs against any claims by sports providers claiming that the content/behaviour/actions of the member violate their rights and undertakes to hold myClubs harmless in this respect.
§ 11 Data protection
- The data protection policy of myClubs applies to all registered users and is part of the membership agreement. It can be accessed at www.myclubs.com. The processing of data is exclusively carried out in accordance with the requirements of Austrian data protection law.
§ 12 Contract transfer to third parties
- myClubs is entitled to transfer its rights and obligations arising from this contractual relationship to a third party either in whole or in part. The member shall be notified of the transfer in writing 4 weeks before the transfer becomes effective. In case of a transfer, the member is entitled to terminate the membership contract.
§ 13 Applicable law and jurisdiction
- All agreements made between myClubs and the member as well as these terms and conditions shall be governed exclusively by Austrian law, without regard for the conflicts of law doctrine of the IPRG and the UN Sales Convention.
- Unless mandatory legal provisions take precedence, the court at the headquarters of myClubs shall be responsible for all disputes between myClubs and the member arising out of or in connection with these terms and conditions. myClubs is entitled to bring action at the domicile of the defendant.
§ 14 Final provisions
- The provisions of these terms and conditions can be changed by myClubs at any time without providing reasons, whereby such changes are announced on the platform and by sending a notice containing a link to the new terms and conditions to the member by email. If the member does not send a written objection to the changes to email@example.com by email within 30 days of receiving the aforementioned announcement, the changes will be deemed to have been accepted. The member can object to the amended terms and conditions within the given period and declare termination of membership with immediate effect.
- Additional agreements to these terms and conditions must be made in writing in order to be effective. This also applies to the agreement to waive this formal requirement. In the event of contradictions between these terms and conditions and deviating written agreements between the contracting parties, the provisions of the deviating agreements shall take precedence.
- Should individual provisions of these terms and conditions be or become invalid, this shall not affect the remaining content of the terms and conditions. The invalid provision shall be replaced by a valid provision which is legally valid and most closely corresponds to the economic intent of the contractual parties.