GYMWATCH GmbH is the developer and offerer of an innovative fitness tracking system which has been awarded different prizes. With the aid of this system the athlete (user) can precisely record, check and correct his fitness exercises not only in respect of his movement sequences but also in respect of his scope and intensity of training.
A requirement for the use of the GYMWATCH® tracking system is the opening of a user account at GYMWATCH GmbH, which account can be accessed by the user via the GYMWATCH® web portal or via the mobile GYMWATCH® app.
The GYMWATCH® tracking system has been optimized for use together with the GYMWATCH® sensor, which can be purchased.
In accordance with the way we see ourselves, our general terms of business, which are reproduced below, have also been formulated with the objective of regulating our business relationship with you in a binding and fair manner:
- Object of the contract; scope of validity
- GYMWATCH GmbH (for corporate data on the offerer see: https://www.gymwatch.com/impressum.php) is the offerer (hereinafter Offerer) of the GYMWATCH® Fitness Tracking System (hereinafter Fitness Tracking System) and offers end-users and entrepreneurs (hereinafter users) access and use of the Fitness Tracking System via the web and via mobile applications (apps).
- Counter acknowledgements of a user drawing attention to his own terms of business and/or purchase are herewith repudiated. Individual agreements remain unaffected by this clause.
- The users are entitled to use the Fitness Tracking System in accordance with the following conditions and rules.
- Services; costs; collection of remuneration
- The scope of the services contained and available for use in the Fitness Tracking System depends on whether the user uses the system in a free-of-charge or against-payment manner or, as the case may be, whether the user uses the system as an end-user or as an entrepreneur. With free-of-charge use the user has access merely to particular basic functions and services. An extended scope of functions becomes available to the user if he has the particular services enabled in a separate manner against a one-off payment or within the framework of a long-term purchase arrangement.
- The costs and charging modalities for the individual services are listed in the current price list on the web portal / app. Decisive for the prices for the individual services is the particular price list current and valid at the time of the concluding of the contract with Offerer (ordering). In the case of the contract being extended, the particular price list current at the time of the extension of the contract is decisive in so far as the user has explicitly agreed to the changed conditions by actuating the relevant button or the attention of the commercial user (entrepreneur) has been drawn by Offerer to the changed prices at least 14 days before the extension of the contract and the entrepreneur continues to use the services without repudiating the changed prices. In the case of the prices being changed the attention of the user will be drawn separately to his right of objection and to the legal consequences of keeping silent.
- Offerer reserves the right to agree supplementary terms and prices for individual services, in particular for ones which are performed vis à vis enterprises (e.g. fitness studios and personal trainers ) and entrepreneurs.
- It is to be understood that value-added tax at the particular statutory rate is included in all the prices listed in the price lists.
- When purchasing additional services through the payment of a one-off amount the particular remuneration will be collected on the concluding of the contract.
- When purchasing a long-term purchase arrangement the remuneration will be collected in advance for the particular minimum period at the time of the concluding of the contract. If the long-term purchase arrangement is extended automatically, then the remuneration will be collected in advance on the start of the particular extension period. An exception holds good in so far as the remuneration is collected via iTunes; in these cases the remuneration will be collected 24 hours prior to the start of the particular settlement period.
- Preconditions for admission and use; registration;
mobile applications and app stores
- Precondition for the utilization of the Fitness Tracking System is the application for and opening of a GYMWATCH® user account. This can be carried out either direct in the GYMWATCH® web portal or via a mobile GYMWATCH® application (app). Within the framework of his application the user is requested by Offerer to accept the validity of these GTU together with the appendixes such as price list and data protection information. After this the user is led on to the GYMWATCH® web portal. Here Offerer can confirm the application. On the conclusion of the application Offerer sends the user an e-mail for security reasons. In this the user must authenticate his application by clicking on the "Confirm account" field within 24 hours. Only then has the application process been completed.
- The way in which the particular contract comes into being
depends on the way in which the user applies for the Fitness
Tracking System in the first place and whether he requests
additional against-payment services:
- In the case of application via the GYMWATCH® web portal the utilization contract comes into effect on the complete concluding of the application process;
- In the case of application via mobile apps the coming into effect of the utilization contract depends on the rules of the app store offerer. As a rule the contract comes into effect when the user has clicked on the installation field in the particular app store and - in so far as this is necessary - has entered his password for the particular app store. Nevertheless, the making use of the Fitness Tracking System requires as a precondition the opening of a GYMWATCH® user account which is independent of the particular app store;
- With application via social networks such as Facebook®-Connect the user authenticates himself so that further registration is as a rule not necessary; the utilization contract comes into effect with the concluding of the Facebook-Connect application process;
- The user has the opportunity to acquire either individual additional services by payment of a one-off amount or in a long-term manner within a long-term purchase arrangement. The contract on these additional services comes into effect via the GYMWATCH® web portal when the user clicks on the button "Now order in a payment-obligatory manner" or on a comparable field and has successfully transmitted his payment data. Where the user acquires the additional services via a mobile app, the contract comes into effect when the user - within the framework of an In-App purchase - clicks on the field "Purchase now" or a comparable field and - in so far as this is necessary - enters his password for the particular app store.
- Entitled to be registered as users are end-users or entrepreneurs of full age (=/> 18 years of age) or enterprises. At registration or on ordering without registration the user has to state whether he is an entrepreneur or end-user; all statements have to be true. According to the legal definition, an end-user is each and every natural person who concludes a legal transaction for a purpose or purposes which can be considered in the main as forming part neither of the person's commercial activity nor of his activity as a self-employed person. Entrepreneurs and enterprises are exclusively natural persons or corporate bodies or partnerships with legal capacity who/which - in making use of the Fitness Tracking System - exercise their commercial activity or a self-employed professional activity (e.g. fitness studio, personal trainer).
- Within the framework of the registration process Offerer decides on the acceptance (approval) of the offer transmitted by user on the concluding of a utilization contract in accordance with section 3.1 whereby Offerer reserves the right to check the data stated by the user for plausibility. The approval makes it possible for users acting in a responsible manner to access the application area of the Fitness Tracking System.
- There is no right to claim approval for use of the Fitness Tracking System. An approval is cancelled on cessation of the preconditions envisaged for the approval.
- A precondition for the making use of the Fitness Tracking System via a mobile application (app) is the free-of-charge or fee-based downloading of our mobile GYMWATCH® app (Apple app store or Google Play) from an app store. To be observed for the downloading of our apps are the terms of the particular app store.
- Health information; exclusion of liability
- Utilization of the GYMWATCH® tracking system is carried out at the user's own risk. In particular the user is himself responsible for the fact that he carries out his fitness exercises in a manner appropriate for his general state of health. Offerer urgently recommends each user to obtain the advice of a (sport) physician prior to using the GYMWATCH® tracking system. This holds good in particular if one or more of the following illnesses/afflictions/interventions are known to the user: (a) heart / circulation diseases, (b) pulmonary or respiratory illnesses (including asthma), (c) problems with the spine or joints, (d) rheumatic illnesses, (e) neuromuscular illnesses, (f) surgical procedures, (g) other limitations to health including in particular acute infections. Users who are pregnant or breast-feeding should carry out their fitness exercises either not at all or merely in accordance with their current restricted capabilities.
- Offerer urgently recommends that the GYMWATCH® tracking system not be used in so far as the user is aware of pain, a general feeling of malaise, shortness of breath, nausea or dizziness prior to or during use of the GYMWATCH® tracking system.
- The GYMWATCH® tracking system and the Internet services offered on it are merely designed to support the customer in his personal efforts to maintain his fitness and health. Offerer is not a medical organization and Offerer's employees are not in a position to give (sport) medical advice or diagnoses. Accordingly, the GYMWATCH® tracking system contains neither (sport) medical advice nor diagnoses. The customer is aware that the content of the GYMWATCH® tracking system including any "experience reports" in the forums do not represent a substitute for the obtaining of (sport) medical advice, check-ups or treatment; accordingly, Offerer is not liable for harm or damage suffered by the user, which arise from the following or not-following of the recommendations or tips set on the GYMWATCH® tracking system. The goods offered via the GYMWATCH® tracking system are not pharmaceuticals in the sense of the German Pharmaceutical Products Act.
- The training and/or nutritional sciences are subjected continuously to new findings and trends as well as also new fashions. Accordingly, Offerer does not guarantee that the fitness exercises optimized via the GYMWATCH® tracking system are in line in each case with the latest research results or findings.
- Rights and obligations of the user
- The user is entitled to use in a proper manner the services of the Fitness Tracking System within the framework of the access opportunities granted to him by Offerer. He is obliged to refrain from illegal actions in connection with and misuse of the access opportunities to the Fitness Tracking System.
- The user is obliged to continuously check his user data for factual correctness or, as the case may be, to update this data. Innovations and information that are posted as well as also campaigns may not show content which contravene legal or official regulations and/or which infringe upon the rights of third parties and/or which contravene common decency.
- The user is solely responsible for the content which he posts in the areas provided for this purpose (e.g. as feeds). Offerer does not adopt such content as his own and does not himself check these contents.
- Users are entitled vis à vis Offerer to demand - and are required to do this prior to initiating legal proceedings - that Offerer blocks or removes information, content, innovations, news and files that have been posted, the factual correctness of which is dubious, which contravene legal or official regulations or offend common decency as well as which harm the user in his own rights (notice-and-take-down procedure).
- If claims are advanced against Offerer by third parties or a user on the grounds of one of the infringements named in subparagraphs 5.1 to 5.4, then the user responsible for the infringement undertakes to release Offerer from all claims. The release obligation relates to all expenditure which necessarily arises for Offerer from the claim advanced by a third party. Offerer explicitly reserves the right to advance more extensive claims for damages.
- Each commercial user shall oblige his employees acting on the platform to also conform to the obligations arising from these GTU.
- Rights and obligations of Offerer
- Offerer undertakes to check his own editorial contributions and other services in the best possible manner for up-to-dateness, factual correctness, completeness and security.
- Offerer investigates complaints of users in respect of infringements of rules and communications on content that might be against the law and decides on what measures are to be taken in the case of rule infringements.
- Offerer reserves the right to block or remove information, content, novelties and news as well as files, the factual content of which is dubious, which are in violation of legal or official regulations, which infringe upon the rights of third parties, which offend common decency or which are infested with viruses, and to do this on the matter coming to Offerer's knowledge and in accordance with the severity of the infringement in question even without previous consultation and announcement (notice-and-take-down procedure). Claims, which are derived from the removal of such information or files, may not be advanced against Offerer.
- If the user infringes upon an obligation in accordance with sections 5, 6, then Offerer is entitled to delete the data in question or, as the case may be, withdraw the opportunity of access to the Fitness Tracking System. The same holds good not only in the case of other severe contractual infringements by the user but also in the case of justified complaints of users in accordance with the notice-and-take-down procedure.
- The arrangement in respect of content and the technical arrangement as well as in particular the form and content of the platform are solely at Offerer's discretion. To this extent Offerer reserves the right at any time to cease, restrict, extend, supplement or improve all services which are offered free-of-charge.
- System failure: availability of services and
refunding of the consideration
The Fitness Tracking System is made available without any promise in respect of availability. In the case of the non-availability of an against-payment service to a considerable extent (> 2 % non-availability), the proportionate amount of the consideration will be refunded. The availability is calculated on the basis of the time arising in the contractual period of the particular calendar month less the scheduled maintenance times and down-times which are caused by factors which do not lie in the area of Offerer (force majeure, fault of third parties etc.). During the maintenance work it can come about that the afore-mentioned services are not available for a short time. The scheduled maintenance work is carried out outside the core working hours (Monday to Friday 08:00 to 18:00 hours CET).
- Contract period; Termination
- The utilization contract based on these GTU is concluded for an indefinite period of time and commences with the admission of the user by Offerer in accordance with section 3.
- The user has the right at any time and without
having to state his reasons to delete his user account and
thereby to also terminate his utilization contract. To do this
he must carry out the necessary settings in his profile. It is
to be noted that - following the deletion of the utilization
contract - all content and data that has been posted will be or
could be deleted by Offerer and that the user can no longer
access content that has already been acquired. No refunding of
the consideration - even on a pro-rata basis - takes place
should at the time of the deletion of his account, the user have
acquired an against-payment additional service the period of
which has not expired.
Offerer is entitled to terminate the utilization contract together with the user account in an orderly manner without having to state a reason by giving four (4) weeks notice thereof in writing. When exercising his right to terminate the utilization contract in an orderly manner Offerer may decide whether he refunds (on a pro-rata basis) the considerations paid by the user for long-term purchase arrangements and/or additional services which have not yet ended to the user or whether he permits the termination to come into effect at the earliest on the expiration of the period for the service with the longest running, against-payment service.
- The contractual periods of against-payment services and long-term purchase arrangements are regulated in Offerer's price list. Without having to state a reason the user can give notice at any time of terminating long-term purchase arrangements with effect from the end of the minimum contractual period or, as the case may be, to the end of the particular extended period by carrying out the appropriate setting in his user profile. Alternatively, the user can give notice of terminating his long-term purchase arrangement by sending an e-mail to email@example.com or by mail. Representing an exception to the afore-stated, if the long-term purchase arrangement charge is collected via iTunes then for technical reasons the period of notice is 24 hours to the end of the minimum period or, as the case may be, to the end of the particular extended period. Offerer is entitled to terminate a long-term purchase arrangement by giving two (2) weeks notice to the end of the particular extended period in text form per e-mail addressed to the e-mail address stored by the user.
- Fundamentally, the user account remains in existence in the case of the long-term purchase arrangement being terminated in the regular manner.
- Each party has the right to terminate this contract for
an important reason without having to maintain a period of
notice. For Offerer important reasons are in particular:
- The serious violation from the user towards the terms of this general terms of Services;
- The negligent act by the user or the attempt for a negligent act;
- Payment default by more than 3 weeks despite reminder;
- The initiation of a insolvency procedures about the property from the user or the rejection of the appropriate initiation application for lack of assets;
- The right of Offerer to withdraw the ability of the user to access the Fitness Tracking System in whole or in part in accordance with section 6.4 remains unaffected.
- Liability; limitation of liability
- Offerer is liable in unlimited manner for intent or gross negligence. In the case of infringements of important contractual obligations caused in a slightly careless manner by Offerer or his legal representatives or his agents within the framework of this utilization contract, the liability of Offerer vis à vis users is limited to the foreseeable, direct average damage typical for a contract of this type. An important contractual obligation is each and every obligation, which is necessary for the fulfilment of contractual purposes and the fulfilment of which objectives the user has relied or could have relied on. In total the liability is limited to a maximum of 1 million euros per case of liability. Liability is excluded apart from the above.
- Where the Fitness Tracking System makes possible the accessing of other websites with links, then Offerer is not responsible for the third party content contained in these websites. Offerer does not adopt such content as his own. Liability for third party content is excluded. Should it come to the knowledge of Offerer that an external website contains illegal content, then Offerer will remove the link to this website without delay.
- Offerer is not liable for the factual correctness of data or for the conformity with the law of content that is posted in the Fitness Tracking System by users. Attention is drawn here to the opportunity for initiating a notice-and-take-down procedure (see sections 5.4, 6.3 and 6.4).
- The afore-mentioned limitations of liability and exclusions do not affect claims of the users on the grounds of product liability. In addition, the limitations of liability do not hold good for damage to the body or health of users attributable to Offerer.
- Data protection
- Offerer has taken comprehensive technical and also organizational precautions to ensure that data is handled in a confidential manner and solely for the intended purpose. However, the misuse of data through illegal actions by third parties cannot be completely excluded.
- In respect of the data stored at registration and in the course of use Offerer undertakes to use this data solely for his own purposes and not to pass it on to external third parties in so far as there is not an obligation imposed by an authority for this to be done or in so far as the user has not explicitly expressed his agreement to his data being passed on, for example by explicitly actuating a publication button for social networks. This mode of regulation in respect of the handling of data is made more concrete and is augmented in the data protection information. The data protection information provides the relevant regulations on this and explains the extent to which personal data is made visible for other users and the opportunities the user has to control the passing on of his data to other users.
- Offerer undertakes to oblige all of his employees, who are entrusted with the administration and/or operating of the platform, to strictly observe the data-protection regulations.
- When registering an enterprise as a user, Offerer is entitled to call down if necessary credit-worthiness information based on mathematical-statistical procedures from so-called credit agencies and to obtain up-to-date information.
- In order to ensure the proper operating of the Fitness Tracking System and to combat misuse, Offerer is entitled to observe and record the use-behaviour of users. Section 10.2 holds good as appropriate for such data.
- Where a user posts data relating to the person of an athlete he is training, then the user promises that he is entitled to do this. The user is obliged to inform the athlete he is training of the transmission of the athlete's personal data.
- Copyright and intellectual property rights
- Offerer is the owner of all ownership, intellectual property and copyright rights in respect of his own contributions and other content that is his own.
- In respect of contributions and contents such as best-practices and templates, which are uploaded by users within the Fitness Tracking System for purposes of these being called down by other users, the ownership, intellectual property and copyright rights remain with the user making the upload. In so far as necessary, the uploading user grants Offerer a simple usufruct for purposes of calling down by other users on the platform, without thereby Offerer adopting as his own the third party contents.
- The user undertakes neither to remove copy-right notices or other references of Offerer or other users to such rights nor to render such notices or references unrecognizable.
- This Agreement as well as the general relationship between the Parties shall be governed by, and interpreted in accordance with German law, without the provisions on the conflict of laws. The UN Convention on the International Sale of Goods (CSIG) shall not apply. The courts of Frankfurt am Main, Germany, shall be the exclusive place of jurisdiction.Sole venue is Frankfurt am Main in the Federal Republic of Germany in so far as the user is a merchant or a public corporation. In addition, Offerer is entitled and with end-users obliged to litigate at the general venue of the user.
- In cases of doubt the German contractual text of these GTU and their components holds priority over translations of them into other languages
- The inoperativeness of one or several provisions of said General Conditions does not affect the validity of the remaining provisions.
- The ineffectiveness of one or more terms of this contract does not affect the validity of the rest of this contract.
- The supplementary components of these GTU can all be called down in the public area of the Fitness Tracking System.
- These GTU take the place of and replace all earlier GTU. Further changes to these GTU will be communicated to the user in text form via e-mail by Offerer. In so far as the user does not object to such changes within 14 days of the receipt of the communication, then the changes hold good as having been agreed in so far as the user explicitly agrees to the changed terms by actuating the relevant button or in that the user continues to use the services provided by Offerer. In the case of a change to these GTU the attention of the user will be drawn separately to his rights of objection and the legal consequences of keeping silent.
B. End-user information / information in electronic business transactions with distance contracts on the use of the Fitness Tracking System via the GYMWATCH® web portal or GYMWATCH® app
If you use our Fitness Tracking System with the aid of other distance communication we would like to draw your attention to the following points:
- Offerer identity:
GYMWATCH GmbH An der Tumpe 10 58791 Werdohl Fax +49 (0) 2392 1680 989 E-Mail: firstname.lastname@example.org Managing directors: Thorsten Kruse Registration court: Local court, Iserlohn Commercial register number: HRB 9176 VAT ID No.: DE291069759
- The languages available for the concluding of a contract are solely German or English
- For the important characteristics of the services we offer as well as for the period of validity of fixed term offers please see the descriptions of the individual services and the price list within the framework of our Fitness Tracking System (web portal or mobile app).
- The presentation of our Fitness Tracking System in the web portal does not represent a binding offer from our side. You have the opportunity to have yourself registered for our services and then to select and place in your shopping basket per mouse click or button actuation individual services, service packages or long-term purchase arrangements. As long as the service packages are in your shopping basket, you can at any time extend, change or delete the selection you have made. Not until you click on the "order with obligation to pay" button on the last page of the registration and ordering process do you order in a binding manner the individual services, service packages or long-term purchase arrangements in the shopping basket in accordance with Article 145 of the German Civil Code BGB. A contract then comes into existence with our confirmation of the order and registration process via e-mail. This e-mail contains not only a link for the confirmation of your registration but also the GTU, this end-user information including withdrawal rights (see section 16) and a model order withdrawal form in the form of a file.
- You have the opportunity to detect possible inputting errors in your order in our web portal in the confirmation stage prior to the "order with obligation to pay" stage and to correct these errors with the aid of the delete and change function at any time prior to sending your order.
- When registering via a mobile app the coming into existence of the utilization contract depends on the rules of the app store offerer. As a rule the contract comes into existence when - in the particular app store - you click on the Install field and - in so far as this is necessary - enter your password for the particular app store. At the same time a precondition for the use of the Fitness Tracking System is the opening of a GYMWATCH® user account that is independent from the particular app store.
- You can authenticate yourself when signing-in via social networks such as Facebook®-Connect so that further registration is as a rule not necessary - the utilization contract comes into being with the conclusion of the Facebook®-Connect signing-in process.
- When you purchase individual services, service packages or long-term purchase arrangements via a mobile app, the contract comes into being when - within the framework of an in-app purchase process - you click on the "Purchase now" field or a comparable field and - in so far as this is necessary - enter your password for the particular app store.
- When purchasing additional services through the payment of a one-off amount, we collect the remuneration with the conclusion of the contract. When purchasing a long-term purchase arrangement the remuneration is collected at the time of the conclusion of the contract in advance for the particular minimum period. Where the long-term purchase arrangement is extended automatically, we collect the remuneration in advance at the start of the particular extension period. An exception holds good in so far as the remuneration is collected via iTunes; in these cases the remuneration will be collected 24 hours prior to the start of the particular settlement period.
- At the present time you can pay for services via our web portal only via PayPal. When you purchase against-payment individual services, service packages or long-term purchase arrangements via a mobile app, then the payment of our remuneration is regulated in accordance with the payment modalities and information you have stored in the particular app.
- The enabling of your user account and/or of individual services, service packages or long-term purchase arrangements takes place without delay following the successful collection of our remuneration.
- The prices stated by ourselves are to be understood as end prices including taxes within the Federal Republic of Germany.
- We reserve the right not to perform a service if the service you have ordered is not available.
- You can send a complaint to us at any time by letter, fax or e-mail or by telephone during our office hours. We will then contact you within a reasonable period of time.
- The liability for defects is aligned on section 8 of our GTU as well as in accordance with the legal prescriptions.
- Information concering the exercise of
the right of withdrawl Consumers are entitled to a right of
withdrawal shall be the following, where consumers are any natural
person who enters into a transaction for purposes which can be
attributed mainly neither commercial nor their independent
Right of withdrawl
You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us - GYMWATCH GmbH, An der Tumpe 10, 58791 Werdohl, Germany, Fon: +49 (2392) 1680 980, Fax: +49 (2392) 1680 989, E-Mail: email@example.com - of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.’
Therefore you can use the attached sample cancellation form, which is not mandatory though.
For ensuring the period of cancellation it is enough to send out a notice about the usage of the right of cancellation before period for cancellation ends.
Expiration of the right of withdrawal
- With a contract for the performance of services, the right of withdrawal also expires when we have performed the service in full and when we have only commenced with the performance of the service after you have given your explicit agreement thereto and at the same time have confirmed your knowledge of the fact that you lose your right of withdrawal when we have fulfilled the contract in full.
- With a contract for the delivery of digital contents, which are not on a physical data carrier, the right of withdrawal also expires when we have commenced with the execution of the contract after you have given your explicit agreement thereto and at the same time have confirmed your knowledge of the fact that you lose your right of withdrawal with the commencement of the execution of the contract.
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
- The data needed for the progressing of the contract between yourself and ourselves will be stored by us. The contractual and training data remain available for you to call down. To this extent we refer in supplementary fashion to the rules of our data protection information.
- Please observe in addition the references and information on data protection.
- We are not subject to special modes of conduct/behaviour or to ones that have not been mentioned in this documentation.