GENERAL TERMS AND CONDITIONS OF MYCLUBS GMBH
myClubs GmbH, headquartered in Vienna, Austria (“myClubs“), offers a web-based platform at www.myclubs.com and via the myClubs app, which displays the courses on offer (e.g. fitness or yoga courses) and the sports facilities (e.g. Fitness equipment, tennis courts, climbing halls) of sports providers cooperating with myClubs, such as operators of fitness studios, sports clubs and other sports facilities (“sports providers”), and sports units organised by myClubs (“sports programmes”). Anyone registered on the platform (“registered user”) can view the sports programmes of all sports providers and search them using various filter functions. Anyone who has concluded a membership agreement with myClubs (“member”) can also make use of the sports programmes of all 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 or the use of sports facilities. 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. (“Terms and Conditions“).
§ 1 Free registration
- The user of the platform can set up a personal account for the platform (“myClubs account”) by entering his or her e-mail 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 e-mail 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 member is obliged to upload a recent image of himself or herself via the platform.
- The use of the myClubs sports programmes requires a web-enabled smartphone with a functional camera.
- A registered user can purchase a myClubs membership as a gift for a third party. In this case, the membership agreement comes into effect when the recipient first checks in at a sports provider (§ 3). The first time the recipient checks in is considered as acceptance of the offer of membership based on the terms and conditions published on the myClubs platform.
§ 3 Intermediation service / check-in with sports providers
- myClubs arranges individual contracts for sports services or the use of sports facilities between a member and a sports provider („mediated sports contract“) by listing the sports programmes of the sports providers on the platform. The type and scope of the sports programmes offered by the sports providers can be found in the respective detailed description of the offer on the platform. The 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 when the member checks in at the sports provider (“check-in“). Each member is obliged to perform the myClubs check-in with their smartphone at the sports provider’s premises prior to participating in the booked session. Check-in is carried out when the member creates a ticket at the sports provider via the check-in system provided by myClubs. A separate check-in is carried out for each session. When using sports facilities (e.g. squash, badminton, fitness studios), check-in takes place for a period defined on the platform. A ticket must also be generated for the use of sports facilities. The completed check-in is regarded as the acceptance of the specific sports programme of 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 overbooking, myClubs will pass on such information, if available, to members with an active reservation.
§ 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.
- The member grants myClubs the right to use, modify, copy, duplicate and, in particular, make permanently available on the platform for retrieval and public access all content he or she uploads to the platform. myClubs has the right to move entries within the platform and to link them to other content. The member waives the right to be identified as the author and declares, if applicable, that he or she has obtained such a waiver from the original source. This does not affect the right to delete personal data in accordance with the GDPR.
- If the member evaluates sports programmes and sports providers, he or she must in particular refrain from contributions if the publication of their contents constitutes a criminal offence or an administrative offence, if their content violates patent, copyright, trademark or competition law, is incorrect, misleading, offensive, threatening, racist, discriminatory, abusive, defamatory, pornographic, obscene or vulgar, contains spam or advertising content, or is likely to impair or delay the technical operation and availability of the platform. myClubs reserves the right to take appropriate legal action against such content. The assertion of claims for damages is expressly reserved in this context.
- The reproduction of personal data by members is only permitted with the express permission of the person concerned.
- myClubs is entitled to delete contributions that violate applicable law, these terms and conditions or the internal guidelines of myClubs without providing reasons.
§ 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 one of the following rates (§ 5.2, 5.3) for the settlement of the fee.
- In the FLEX 4, FIVE and TEN rate categories, members have a certain number of units at their disposal which can be used for sports programmes (“sports units”). For each check-in (§ 3), one or more sports units will be deducted. The scope of services that can be booked with sports units is individually defined for each sports programme and can be seen on the offer or course description page on the platform. For certain sports programmes or additional services, the payment of a surcharge may be necessary if indicated on the platform.
- “FLEX 4“: The member pays a specific amount („fixed amount“) for a one month membership and can thereby, in addition to using the platform, use 4 sports units per membership 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 amount of check-ins („visits“) per sports provider or myClubs offer and booking month. The relevant booking conditions, especially reservation deadlines, cancellation deadlines, charged sports units and attendance limits can be found on the platform. Sports units not used within a membership month expire at the end of the membership month.
- “FIVE“ or “TEN“: The member pays a one-off fee and can thereby use 5 or 10 sports units. Unless otherwise agreed in writing with myClubs, the 5 or 10 sports units must be used within 24 months of purchase, or else they will expire. After usage or expiration of the 5 or 10 sports units, the member can choose the membership rate again. It is possible to limit the maximum amount of check-ins („visits“) per sports provider or myClubs offer and booking month. The relevant booking conditions, especially reservation deadlines, cancellation deadlines, charged sports units and attendance limits can be found on the platform.
- The “UNLIMITED“ rate does not limit the member to a number of sports units, however, the following applies:
- The member pays a specific amount („fixed amount“) for a one month membership and can thereby, in addition to using the platform, check in up to 35 times per month (“fair use rule”).
- myClubs expressly reserves the right to extraordinary termination in the event of violations of the fair use rule. 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, especially reservation deadlines, cancellation deadlines and attendance limits, can be found on the platform.
- UNLIMITED members are obliged to pay UR 9,75 if a booked service is not used or the check-in is not carried out properly on site ("no-show fee").
- The payment of fees for services provided by a sports provider under a sports contract concluded between a member and a sports provider and arranged by myClubs is done by myClubs.
- For certain sports programmes offered by the sports providers, binding reservations may be necessary if indicated on the platform. 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 (no successful check-in), the corresponding sports unit or sports units will be charged to members with FLEX 4, FIVE and TEN rates. For the UNLIMITED rate, a no-show fee is charged (see § 5, No. 3, lit. c). In the event of repeated non-use of reserved services during the term of the contract, myClubs reserves the right to extraordinary termination.
- For the FLEX 4 and UNLIMITED rates, the monthly fixed amount is due on the first day of the contract month. The member authorizes 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.
- No-show fees according to § 5 No. 3 lit. c are due five days after the no-show caused by the member. The member authorizes myClubs to collect the fee to be paid via the means of payment specified in the membership application via the platform.
- If the collection of receivables or no-show fees 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 unauthorized rejection by the account holder), the member authorizes 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 unauthorized transfer of access to the platform.
§ 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 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) of the UNLIMITED rate,
- if the member repeatedly does not make use of reserved services in the UNLIMITED rate, or
- 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 either for an indefinite period (FLEX 4 or UNLIMITED rates) or for a specific period (FIVE or TEN rate).
- The member may terminate the membership agreement for the FLEX 4 or UNLIMITED rates 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 firstname.lastname@example.org 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 for the FLEX 4 or UNLIMITED rates at the end of the membership month with a notice period of two months.
- 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, unused sports units will not be reimbursed.
- Each member using either the FLEX 4 or UNLIMITED rates is entitled to suspend their membership for up to 2 full membership months per year (“pause”) without stating reasons. The member does not owe a monthly fee for this period. The pause must be notified in writing to myClubs within seven days’ notice until the end of the current membership month.
§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 email@example.com.
- 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 e-mail. If the member does not send a written objection to the changes to firstname.lastname@example.org by e-mail 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.