GENERAL TERMS AND CONDITIONS OF MYCLUBS GMBH
MyClubs GmbH, based in Vienna, Austria ("myClubs") offers a web-based platform at www.myclubs.com and via the myClubs app ("Platform"). The platform allows customers to book courses (e.g. fitness and yoga classes) and sports facilities (e.g. fitness equipment, tennis courts, climbing halls) offered by Sports Providers that have entered into cooperation with myClubs, such as operators of fitness studios, sports clubs and other sports facilities ("Sports Providers"), as well as sports units organised by myClubs itself. Anyone registered on the platform (“Registered User”) can view the sports programmes of all of the Sports Providers and search for 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 of the Sports Providers to the extent permitted by a particular membership rate selected by the Member him- or herself.
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 Members and myClubs.
The following General Terms and Conditions (GTCs) apply to registration and membership contracts with myClubs.
Section 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 accurate. It is not permitted to register using a pseudonym, or an incorrect postal 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.
Section 2: Membership Agreement
- By concluding a membership agreement, the Member is entitled to use the services of myClubs (see Sections 3 & 4) against payment of a fee (Section 5).
- A Registered User (see Section 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 obliged to accept the application.
- The data requested by myClubs during the membership application must be provided completely and accurately and must be updated in the event of any changes. The Member may choose to upload a recent image of himself or herself on the platform. If the Member does not upload a current photo of his/her person via the platform, the Member must be able to prove his/her identity to the respective Sports Provider by presenting an official photo ID upon request. If his or her identity cannot be proven upon request culpably, the Member cannot participate in the sports unit he or she has booked. In this case, the respective sports unit or units will still be charged to the Member if he or she has the Flex 4 or PREPAID tariff (no successful check-in). If he or she has the UNLIMITED tariff, a no-show fee will be charged (see Section 5, Item 3, lit. c).
- The use of the myClubs sports programmes requires a web-enabled smartphone with a functional camera.
- MyClubs is entitled to limit the maximum number of check-ins (visits) per Sports Provider and membership month. The "membership month" begins on the day of the conclusion of the membership agreement or, in the months which follow, on the day which, according to the date, corresponds with the day of the conclusion of the agreement. It shall end at midnight on the preceding day in the following calendar month. The relevant booking conditions, especially reservation deadlines, cancellation deadlines and attendance limits, can be found on the platform.
- 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 (see Section 3). In this case, the first check-in by the third party shall be deemed to be acceptance of myClubs’ GTCs.
Section 3: Mediation Service and Sports Offering/Check-in with Sports Providers
- By presenting the sports offerings of Sports Providers on the platform, myClubs mediates individual contracts for sports services or the use of sports facilities between a Member and the Sports Provider (“mediated sports contract”). The type and scope of the sports offer of 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 strives to provide as many sports offers as possible from Sports Providers via the platform and to continuously expand the number and variety of such sports offers by attracting additional Sports Providers. The Sports Provider decides independently which sports offers the platform offers and manages its sports offers itself. MyClubs can only arrange sports services and sports facilities from Sports Providers which the Sports Provider offers via the platform. MyClubs is bound by the participant capacity that is declared available by the Sports Provider when arranging sports contracts.
- 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“). Check-in occurs when the Member creates a ticket for 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 studio), check-in takes place for a period defined on the platform. A ticket must also be generated for the use of sports facilities. This is regarded as the acceptance of the specific sports programme of the Sports Provider. 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 creates a ticket for the booked sports unit.
- 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.
Section 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 not be available temporarily due to the implementation of maintenance work or technical failures. A reimbursement of the membership fee where the platform is not available for less than 48 hours per month is excluded, provided that the outage was not caused culpably by myClubs or persons for whom myClubs is responsible.
- 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 “myClubs” term and logo are protected by various registered trademarks.
- The Member grants myClubs the royalty-free, non-exclusive, irrevocable and perpetual 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 designate the author and, if applicable, declares that he has obtained such a waiver from the author.
- 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 reproduction of personal data by Members is only permitted with the express permission of the person concerned.
- MyClubs is entitled to delete entries that violate any applicable law or these General Terms and Conditions.
Section 5: Duration of Contract, Fees and Methods of Payment
- The membership contract is for an indefinite period of time. 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 (Section 5.2, 5.3) for the settlement of the fee. It is possible to limit the maximum number of check-ins (visits) per Sports Provider and membership month.
- In the FLEX 4 and PREPAID 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 (see Section 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 may, as a result, use four sports units per membership month (see Section 2.5) in addition to using the platform. Sports units not used within a Membership month expire at the end of the Membership month.
- “PREPAID" Rates: The Member pays a one-off fee and may, as a result, make use of the number sports units shown on the platform. If the quota of sports units is used up, the Member can buy further sports units.
- 3. The following applies as part of the "UNLIMITED" rate category:
- The Member pays a specific amount ("fixed amount") for a one month Membership and may, as a result, make use of one sports offer each day (“fair-use rule”) in the form of a check-in, in addition to using the platform. The scope of services that can be booked in a single membership month and specific booking restrictions are 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.
- myClubs expressly reserves the right to extraordinary termination in the event of violations of the fair-use rule.
- UNLIMITED Members are obliged to pay EUR 9.75 if a booked service is not used or the check-in is not carried out properly on site and the Member was at fault in this regard ("no-show fee"). The Member may object to the charging of the no-show fee within seven days of the no-show in writing by e-mail to email@example.com. If the Member does not object within seven days or if he is unable to prove that he did not culpably cause the no show within a period set at seven days and communicated in writing (by email to the email address provided by the Member) in the event of a dispute, the no-show fee will be charged. MyClubs is obliged to inform the Member of the no-show and the no-show fee to be paid in the event of a no-show via the email address he has made available within 24 hours. At the same time, myClubs wishes to inform the Member that the no-show fee will not be charged if it can be proven that the Member did not culpably cause the no-show and asks the Member to object to the charging of a no-show fee within seven days of the no-show in writing by email to firstname.lastname@example.org, to state the reasons for the no-show and to transmit any relevant evidence, otherwise the no-show fee will be charged.
- 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 carried out by myClubs.
- For certain sports programmes offered by 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 who have the FLEX 4 and PREPAID rates. In the UNLIMITED tariff category, a no-show fee will be charged (in this regard as well as with regard to the right to object to this charging, see Section 5 Item 3 lit c). In the event of repeated and culpable 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 membership 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.
- No-show fees according to Section 5 Item 3 lit c shall become due seven days after the no-show culpably caused by the Member, provided that the Member has not declared an objection in writing in accordance with § 5 Item 3 lit c. If the Member declares his opposition in accordance with Section 5 Item 3 lit c but cannot prove that he was not to blame for the no-show within the seven-day period set by myClubs for this purpose, the no-show fee shall be due on the day after expiry of the set period. The Member authorises myClubs to collect the fee to be paid as well as any no-show fees which are due via the means of payment specified during the application for membership via the platform.
- If the collection of claims for the fee or a no-show fee fails, the Member must reimburse myClubs for the “charge-back fee” incurred by myClubs (bank charges due to a failed SEPA direct debit), insofar as the Member has caused the failure at least slightly negligently and has not demonstrably prevented the collection of claims in a lawful manner. In the event of a charge-back (e.g. due to insufficient funds in the current account or on the 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.
- If the Member is in default of payment, the member shall be liable for the statutory default interest in the amount applicable to the Member. Furthermore, in the event of default of payment, the Member agrees to reimburse myClubs for any reminder or collection expenses incurred where this resulted from his being at least slightly negligent, insofar as they are required for the adequate assertion of legal rights.
- Vouchers and discount codes cannot be redeemed for cash. There is no entitlement to a voucher or discount code.
Section 6: Non-Transferability of Membership Rights
- All rights of the Member under the membership contract 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 must not be sold, provided free of charge or against payment to third parties or be used in any other way with the intention of making a profit. The Member shall be liable to myClubs for any and all damage caused by the unauthorised transfer of the access to the Platform.
Section 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 owing to 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 (see Section 5.3) of the UNLIMITED rate,
- if the Member repeatedly does not make use of reserved services in the UNLIMITED rate category,
- if the member fails to pay the fixed amount for membership in a timely manner on three occasions, or
- in the case of gross misconduct on the part of 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 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.
Section 8: Termination
- 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 AG, Schottenfeldgasse 69/3.1 3.1, 1070 Vienna 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 may terminate the Membership agreement for the FLEX 4 or UNLIMITED rates at the end of the Membership month with a notice period of one month.
- The right of myClubs to extraordinary termination remains unaffected by this. Extraordinary reasons for termination are primarily those violations of the Member’s obligations as listed in Section 7.
- With the coming into effect of the termination, all rights and obligations arising from the Membership contract, with the exception of any claims for damages, recovery claims and open payment claims, shall cease. If the membership agreement is terminated by myClubs for good cause, unused sports units will not be reimbursed.
- Every Member using either the FLEX 4 or UNLIMITED rates is entitled to suspend their Membership for up to two full Membership months per year (“pause”) without stating reasons. The Member does not owe a monthly fee for this period. myClubs must be notified of the pause in writing within seven days until the end of the current Membership month.
Section 9: Right of Withdrawal for Consumers
- In the event that the Member enters into a membership contract as a consumer within the meaning of the Consumer Protection Act (BGBl 1979/140 in its currently applicable version), he is entitled to the following right of withdrawal.
- The Member has the right to withdraw from the membership agreement within 14 days without giving reasons.
- The withdrawal period is 14 days from the date of conclusion of the contract (see Section 2).
- In order to exercise the right of withdrawal, the Member must send the revocation of the contract by means of a clear declaration (e.g. by means of a letter sent by post or email) to myClubs to firstname.lastname@example.org or to myClubs GmbH, Schottenfeldgasse 69/3.1, 1070 Vienna. If the Member makes use of this opportunity, myClubs will immediately send confirmation of receipt of such a declaration of withdrawal (e.g. by mail).
- For the period of withdrawal to have been observed, it is sufficient for the Member to send the notification of the exercise of the right of withdrawal before the expiry of the period of withdrawal.
- Consequences of withdrawal: If the Member withdraws from the contract, myClubs shall repay to him all payments received by myClubs from him without delay and at the latest within 14 days of the date on which myClubs received notice of withdrawal from the contract. MyClubs will use the same means of payment used by the Member in the original transaction for this repayment, or can ask the Member for personal bank details for reimbursement to an Austrian account; under no circumstances will the Member be charged for such repayment. If the Member withdraws from a contract for a service after declaring a request for early provision of the service during the withdrawal period and myClubs has started to fulfil the contract during the withdrawal period, the member shall pay myClubs an amount proportionate to the services provided by myClubs up to the point of withdrawal as compared with the total contractually agreed price.
Section 10: Liability Provisions
- MyClubs is liable for damages to the Member only if the damage was caused by myClubs or a person assignable to myClubs due to gross negligence or wilful intents However, this restriction does not apply to personal injury or to damages that arise from the violation of the main obligations of myClubs arising from the membership contract (provision of the platform and mediation of sports contracts).
- myClubs explicitly 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 liable for damages due to any misuse of the Member's access data only in case of intent or gross negligence. This limitation does not apply to personal injury. MyClubs is not liable for any damages caused by failure to observe the user's duty of care.
- In addition, myClubs assumes no liability if the Member should violate any legal provisions, such as the Federal Act against Unfair Competition, the Telecommunications Act, the Trademark Protection Act 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.
Section 11: Data Protection
The data protection policy of myClubs applies to all Registered Users and is part of the membership agreement. It can be viewed under www.myclubs.com/at/de/datenschutz. The processing of data is exclusively carried out in accordance with the requirements of Austrian data protection law.
Section 12: Applicable Law
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.
Section 13: Changes to the General Terms and Conditions and the Possibility of Objection
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 at the email address provided by him. 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 may object to the amended terms and conditions within the deadline and declare the termination of membership with immediate effect. MyClubs also informs the Member by transmitting the link to the changed General Terms and Conditions with each change of the General Terms and Conditions that the amendments shall be deemed to have been accepted where no objections to the new GTCs have been raised within 30 days of their having been received.