MConcepts GmbH, Ostriach 135, 9570 Ossiach (Austria)
Version: December 2018
(A) MConcepts GmbH is a limited liability company, registered in the commercial register of the Klagenfurt Regional Court under registration number FN 300371 y, with its registered office in Ossiach and the business address Ostriach 135, 9570 Ossiach ("Operator" or "We") and operator of the website www.skilliam.com ("skilliam.com").
(B) With skilliam.com, the Operator has set itself the goal of offering its users an information portal about fitness, personal coaching and a comprehensive and professionally prepared course and training offer in the form of videos, blogs, individual (live) news, fitness plans, tasks, etc. by personal coaches and to display these offers on skilliam.com ("Services").
§ 1. Scope of Application
(1) These General Terms and Conditions for Coaches (Coach Terms) apply to the use of the Services offered on skilliam.com, both paid and free of charge. The Operator displays, as described on skilliam.com, content created by third parties ("Coach(es)") on skilliam.com, so that they can be subscribed to by other users. This content consists of, among other things, training units as videos, blog messages, individual (live) messages, texts, fitness plans, tasks, etc. (together and individually, "Packages"). On skilliam.com it is possible to individually design Packages consisting of the aforementioned content and to combine different Packages according to § 2 paragraph (5). The Packages offered by the Coaches must meet the minimum requirements described in Appendix 1 of these Coach Terms.
(2) These Coach Terms define the conditions under which the Operator is willing to display Packages of Coaches on skilliam.com. All Coaches of skilliam.com are bound to these Coach Terms and all contracts about the display of Packages between the Coach and us are based on these.
(3) The use of the Services offered on skilliam.com is only permitted to persons who have accepted the Coach Terms and are 18 years old and fully legally competent.
§ 2. From User to Coach
(1) Users of skilliam.com first have the possibility to register as users ("User(s)") in order to gain access to the Services of skilliam.com for Users. Services for Users consist of subscribing to Packages created by Coaches. In order to gain access to the Services of the Operator as a Coach, the User must change his role from User to Coach by clicking the button "Apply as a Coach" in the settings of his account by sending a copy of his trade license, by indicating his account number and value added tax identification number, by accepting these General Terms and Conditions for Coaches and by receiving a confirmation e-mail according to paragraph (2). Services of the Operator for Coaches consist of giving Coaches the possibility to create Packages themselves and to make them available to Users via skilliam.com according to § 2 paragraph (3). By clicking on the button "Agreed" / "OK" the Coach accepts the Coach Terms and declares that he is also an entrepreneur in the sense of the Austrian Commercial Code (Unternehmensgesetzbuch – UGB), the German Commercial Code (Handelsgesetzbuch – HGB) or the Swiss Code of Obligations (Obligationenrecht – OR) and that the transaction concluded here is a business-related one.
(2) The Operator sends a confirmation e-mail to the Coach after a review. After receipt of the confirmation e-mail, the change of role from User to Coach is completed and an agreement between the Operator and the Coach is concluded. With the confirmation e-mail, the Coach also receives a current version of these Coach Terms. Immediately after the User's role has been changed to Coach, an individual coach account ("Account") is available to the Coach.
(3) After receiving the confirmation e-mail, the Coach receives access to the Services of the Operator for Coaches. The Coach now also has the possibility to publish various content in his account:
(a) In the "About me" section the Coach can provide selected information about himself to other Users.
(b) In the "SHARES" section the Coach can publish (live) texts as posts for Users.
(c) In the "COLLECTION" section the Coach can upload his content and make them available to other Users.
(d) In the "Subscriptions" section the Coach can upload his individually compiled Packages according to § 4 of these Coach Terms with indication of the Package name, a short description, and the price for a subscription of this Package for a duration of 30 days. The Coach can also categorize these Packages. The Coach can also set a maximum number of subscriptions. If this maximum is reached, no more subscriptions can be taken out for this Package.
(4) In the Coach's account, the Coach sees all Packages that the User has subscribed to. For each Package the Coach can create his own message groups to communicate with the Users who have subscribed to this Package.
(5) The design of the Packages is left to the Coach, except for the minimum requirements according to Appendix 1, which the Packages must meet. The Coach has the possibility to design Packages individually, to combine them with each other, and to change the content of a Package during the term of a subscription according to § 3 paragraph (6). For example, a combination of Packages is as follows:
(a) a combination of training and task content.
(b) a combination of blog, message, and task content.
(6) Apart from the Coach's right to combine his content with each other and to extend them during the term of a subscription of 30 days, there is also the possibility to offer constant single, not combined contents, such as for example only a training video, during the entire term of a subscription.
(7) The Coach is prohibited from passing on any access data, passwords or account relevant data to third parties. The Coach is solely responsible for the careful and secure storage of access data, passwords and other account relevant data.
(8) In case of loss of the password as well as any suspicion of unauthorized and abusive use of the account, the Coach must immediately notify the Operator using the e-mail address listed under "Contact". Until then, all activities on skilliam.com are attributed to the Coach and are his responsibility. The Coach is especially liable for such damages, which are caused by the fact that third parties obtain knowledge of his password or access data through the negligent or intentional behaviour of the Coach.
(9) Coaches have the opportunity to correct their data available on skilliam.com and are required to change incorrect data or content themselves.
§ 3. Subject Matter of the Contract
(1) The object of this agreement is the permanent display of the Packages offered by the Coach on skilliam.com as well as the possibility of communication with the User via individual or group messages during the contract period.
(2) So that Users can subscribe to the Coach's Packages, the Coach must upload them to his Account. It is at the sole discretion of the Operator to prohibit the upload or to remove the uploaded Packages. Packages are checked randomly. Packages have to meet the minimum requirements according to Appendix 1.
(3) The contract for the display of the Packages offered by the Coach on skilliam.com is concluded when the Packages are uploaded by the Coach ("Advertising Contract").
(4) After conclusion of the Advertising Contract, the Operator will permanently display the Packages uploaded by the Coach in his account with information about the price ("Activation"), so that the Packages are displayed in the Coach's account for Users and can be subscribed to by Users for a period of 30 days against payment to the Operator ("Subscription"). The Packages are made available to the User exclusively in digital form via skilliam.com.
(5) Content that can be reproduced is always transmitted continuously to the User's terminal device (so-called 'streaming').
(6) The Coach is not entitled to reduce the scope of the uploaded Packages after the conclusion of the Advertising Contract. Extensions of the offered content are allowed.
(7) Furthermore, the Coach has the possibility to advertise for himself and his Packages according to the provisions of § 8 paragraph (6) in the Info section of his account after the conclusion of the Advertising Contract. It is expressly forbidden for the Coach to place advertisements in payable Packages or to transmit advertisements to Users in any form.
(8) The Coach is entitled to specify a personal Internet address ("URL") on his account. To do this, the Coach must click on the "personal URL" button. By pressing the button, the Coach submits a request for the activation of this URL. It is at the sole discretion of the Operator to prohibit the request for activation of this URL.
(9) The Coach has the possibility to recruit new Coaches via a referral link after conclusion of the Advertising Contract. For each Coach recruited, the recruiting Coach receives 5% of the total net sales of a calendar month of the Coach recruited. The total net sales of a calendar month is calculated according to § 4 paragraph (1). The recruiting Coach has the possibility to see the subscribed Packages of the recruited Coach in his account and will create or sign a credit note according to § 4 paragraph (3) at the end of a calendar month and send it to the Operator. The provisions of § 4 shall apply mutatis mutandis. The recruited Coach explicitly agrees that the recruiting Coach will have access to the scope of its subscribed Packages, so that the recruiting Coach can check his remuneration according to this paragraph.
§ 4. Remuneration
(1) The Coach receives from the Operator per calendar month remuneration amounting to 80 % of the total net sales achieved as fixed remuneration, provided that this 80 % exceeds the monthly minimum amount of EUR 50. If this minimum amount of EUR 50 is not reached in a calendar month, the respective amount will be credited to the next calendar month or months until the minimum amount of EUR 50 is reached or exceeded. The total net sales is calculated from the subscribed Packages of the respective Coach. For the display of the Packages on skilliam.com, the Operator retains the remaining 20% of the net total sales. The retained 20 % also serve to pay costs for services of third parties (server, etc.). Furthermore, the Coach receives 80% of the payment for membership Packages as variable remuneration, which Users can claim. Fixed remuneration and variable remuneration are jointly referred to as "Remuneration".
(2) Both contractual parties confirm that the Remuneration is balanced and that the respective contractual obligations are balanced and equally remunerated.
(3) The Operator undertakes to prepare a credit note for the Coach with the calculated Remuneration according to § 4 paragraph (1) at the beginning of the following calendar month for the services of the Coach of the previous calendar month and to forward it to the Coach. After signing accordingly, the Coach will send this credit note to the Operator at the contact address stated in § 11 paragraph (2) within 5 days after receipt of the prepared credit note. After receipt of the credit note by the Operator, the Operator will arrange payment of the Remuneration within 14 days.
(4) The Coach is aware that he is responsible for the payment of tax, social security and other levies in his country of residence.
§ 5. Contract Duration and Termination
(1) This contractual relationship regarding the display of the Packages comes into effect on the day on which the Coach has received the confirmation e-mail in accordance with § 3 paragraph (3) and is concluded for an indefinite period.
(2) The Coach can terminate the contract for the use of skilliam.com at any time by appropriate explanation to the Operator via the e-mail address specified under "Contact" as well as by clicking the button "TERMINATE", if no subscriptions are valid, in the respective account of the Coach. Alternatively, it is possible to cancel the contract for the use of skilliam.com at any time by clicking the "TERMINATE" button in the Coach' s account. The cancellation of the contract for the use of skilliam.com only becomes effective with the expiration of the longest running subscription of a User; the Operator informs the Coach via e-mail how long subscriptions are valid. The account as well as all content of the Coach will be deleted and removed from skilliam.com with the effectiveness of the termination. After a Coach has given notice of termination to the Operator, the Operator shall ensure that new Users cannot subscribe to any Packages of the terminating Coach.
(3) The Operator can cancel the contract for the use of skilliam.com at any time without observing a deadline for good cause. In any case, a significant breach of contract, the lack of ability to adequately inform Users about questions regarding the Packages offered by the Coach, the loss of the basis of business, and the violation of legal regulations, official requirements or contractual provisions are important reasons for termination.
(4) Furthermore, the Operator is entitled to extraordinarily terminate the agreement,
(a) if a Coach has multiple accounts. In this case all created accounts of this Coach will be deleted and any further use of skilliam.com for the future, as well as any further registration of the same Coach will be prevented.
(b) if contents of skilliam.com are searched, copied, made publicly accessible or used in any other way in whole or in part with the help of technical devices and in particular so-called screen-scraping technologies such as crawlers or bots without the Operator's express consent.
(c) if Coaches repeatedly violate the Coach Terms. In this case, access to skilliam.com will be blocked without prior notice and the account may be deleted immediately.
§ 6. Contractual Penalty
In case the Coach violates the provisions of these Coach Terms, he is obliged to pay a contractual penalty of EUR 500 for each individual case of violation. The contractual penalty is independent of fault and the occurrence of damage. The Operator is entitled to deduct the contractual penalty to be paid by the Coach from the remuneration according to § 4.
§ 7. Advertising Concept
The Operator has the right to use the full name of the Coach, his e-mail address and any other information necessary for the identification of the Coach by the User on skilliam.com when displaying the Packages.
§ 8. Use of the Website
(1) Coaches are obligated and responsible using skilliam.com exclusively in accordance with the applicable laws.
(2) Coaches are obliged to only post such data and content on skilliam.com in connection with the offered Services (topic-related). Furthermore, Coaches may only make truthful statements and are responsible for the storage of such content themselves. The Operator will carry out regular backups, but is not obliged to do so.
(3) Coaches are prohibited from using skilliam.com for the distribution of immoral and / or illegal information or to infringe rights, in particular trademark, copyright, patent or personality rights and the private sphere, as well as interests of third parties worthy of protection. Coaches are obliged to comply with copyright, trademark, criminal and youth protection laws when using skilliam.com.
(4) Coaches are prohibited from publishing, disseminating or sending content that could fall under the criminal offences of "slander", "libel", "defamation", "damage to credit" or "incitement". Furthermore, Coaches undertake to comply with the rules of conduct for Internet users and other networks ('Netiquette').
(5) The Operator reserves all rights (copyright, trademark and other intellectual property rights etc.) to all retrievable content, in particular videos, texts, graphics, photos, logos / brands, designs including layout, software and their content.
(6) Coaches are obliged to comply with § 3 paragraph (7) upon the undertaking of any kind of advertising. Advertising means any kind of own or external advertising including the publication of contact data of third parties, links to websites of third parties, logos, company names, or product names. Furthermore, any direct or indirect commercial or business use and evaluation of the data offered by or via skilliam.com without the written consent of the Operator is prohibited. Every kind of advertising allowed by the Operator has to be marked by the Coach according to the law.
(7) It is not permitted to upload or distribute data and content (e.g. viruses, spyware, trojans) or to perform actions that could impair the operation of skilliam.com or damage the Operator in any other way. Any use that could lead to a change in the structure of skilliam.com and the software or program data is prohibited.
(8) The Operator does not monitor the content and / or data published, disseminated or posted by Users / Coaches, as well as the usage actions performed by Users / Coaches. The Operator nevertheless reserves the right to monitor published, disseminated sent or posted content and / or data, as well as usage actions—especially in the case of appropriate notices or messages—and to remove them in the event of violation of the Coach Terms. There is no right to publication or deletion of experience reports, evaluations or similar.
(9) As far as the Operator is legally obliged, it is entitled to access all contents and data of Coaches, to transmit these if necessary to courts, authorities or other third parties and / or to delete them, in particular in correspondence with legal regulations, as well as judicial or official orders, in addition, for the purpose of safeguarding the Coach Terms, the assertion of a law breaking, as well as the protection of the rights of other Users and the public.
(10) Coaches undertake to indemnify and hold the Operator completely harmless if a third party makes a claim against the Operator due to a violation of the Coach Terms.
(11) The Operator is entitled to immediately remove any data or content that violates the Coach Terms and / or the applicable legal system, as well as unlawful or undesirable content or data, without notifying the Coach and, if necessary, to take further measures.
(12) Coaches are required to report incorrect data or content via the e-mail address listed under "Contact". Furthermore, Coaches are required to report all data and content that constitute a violation of the Coach Terms immediately and truthfully. Reports about a violation of the Coach Terms or legal provisions will be reviewed by the Operator, as far as possible.
§ 9 Disclaimer of Warranty and Liability
(1) The Coach guarantees that he meets all the requirements for offering his Packages, in particular that he
(a) can advise Users on the selection and creation of training programmes, nutrition plans, etc., taking into account physical conditions and fitness;
(b) can explain training equipment and its correct use;
(c) plan and conduct courses in fitness, aerobics, gymnastics.
(2) The Operator is not liable in the case of a faulty execution of fitness exercises, nutrition plans and the provision of general information as well as all other services provided by the Coach. The Coach undertakes to indemnify and hold the Operator harmless in the event of any claims by third parties, regardless of the legal grounds.
(3) The Operator shall only be liable within the framework of the existing statutory provisions, irrespective of the legal basis (pre-contractual, contractual, non-contractual), if damage was caused by the Operator through gross negligence or intent. The Operator is not liable for slight negligence. A liability of the Operator for consequential damages, mere financial losses, lost profit, damages from claims of third parties is excluded.
(4) The Operator does not guarantee that skilliam.com is available to Coaches and Users uninterruptedly, that all data and content, as well as comments by Coaches are correct, complete, accurate and current or that the Services offered meet the requirements or expectations of Users and Coaches.
(5) For content published by Coaches, in particular advertisements, links, etc., the Operator is liable according to the liability principles according to paragraph (3). The Operator is not obliged to check Packages, contents or comments of Coaches with regard to compliance with legal regulations.
(6) If the Operator does not object to a violation of the Coach Terms or the statutory provisions, the assertion of the claims arising from the violation is not waived.
§ 10. Rights of Use of the Operator
(1) The Coach grants the Operator all transferable rights, in particular the copyright rights of use, trademark rights and name rights for the use of the contents of the Coach including all legal positions on ideas, drafts and designs free of rights of third parties. The transfer of these rights takes place at the time of the first display of the content on skilliam.com and is temporally, geographically, technologically unlimited and comprehensive.
(2) This includes, but is not limited to, the right to reproduce, disseminate, exhibit, present, perform and demonstrate, the right to broadcast, the right to reproduce by image and sound carriers analog or digital, the right to reproduce radio broadcasts analog or digital and any online use. The transfer includes the right to retransmit to third parties.
§ 11. Amendments
(1) The Operator reserves the right to change or remove Services, content and Packages on skilliam.com at any time.
(2) The Operator reserves the right to temporarily or permanently discontinue the operation of skilliam.com without prior notification.
§ 12. Miscellaneous
(1) Apart from the provisions of this agreement there are no other agreements between the parties.
(2) Declarations and / or additions to this agreement are to be addressed to MConcepts GmbH, Ostriach 135, 9570 Ossiach, Austria, or by e-mail to email@example.com. The right of withdrawal must be declared to the respective Coach.
(3) Should a provision of this agreement be invalid, contestable or unenforceable, the validity of the agreement shall remain unaffected, provided that this corresponds to the intention of the parties to the agreement as it emerges from the provisions of this agreement in their context. Such a provision shall then be replaced by an effective and enforceable provision which has the same legal and above all economic content as the invalid provision or comes as close as possible to it.
(4) Austrian law shall apply to this agreement, to the exclusion of the reference norms of Austrian international private law. Jurisdiction and place of performance are Klagenfurt.
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