Terms and Conditions for Use of Eversports Platform

("Terms and Conditions of Use" or "GTCs-B2C") v2

1. PREAMBLE

1.1 Eversport GmbH, Heiligenstädter Strasse 31, Floor 2, 1190 Vienna, registered on the Commercial Register of the Vienna Commercial Court at FN 404544v, together with all of its subsidiaries ("Eversports"), operates client software and an online platform via a mobile app as well as on its websites ("Eversports Platform").

1.2 The Eversports Platform may be used to search, book (“Booking”) and pay online for various services in the field of sports and leisure activities as well as sports venues (referred to collectively as the “Sports and Leisure Offerings"). The Sports and Leisure Offerings are provided by the business associate company (the “Operator”; the Operator, together with Eversports, referred to as the “Contracting Parties") on its own responsibility, in its name and for its own account. Eversports supports the Operator with the Eversports System in dealings with Users essentially only by providing a clear presentation of the Sports and Leisure Offerings and by handling bookings, but not by performing the User/Service Agreements between the Operator and Users.

1.3 The following terms in these Terms and Conditions of Use/GTCs shall have the meaning assigned to them below:

  1. The term “User” describes those persons (particularly consumers) who have downloaded the Eversports mobile app, who have registered with Eversports via the Eversports Platform as well as simply visitors to Eversports websites (in particular: www.eversports.com, www.eversports.at, www.eversports.de)
  2. The term "Eversports System" includes the Eversports Platform and other Eversports administration and booking services (both online and offline).
  3. The term "Operator" refers to a natural person or legal entity who has entered into a contract with Eversports to use the Eversports System as a provider of Sports and Leisure Offerings (“Partnering Contract"). Some providers of Sports and Leisure Offerings use the Eversports System for certain Sports and Leisure Offerings (essentially for day tickets in the realm of gym studios) only as a market place, without any other software solution (“Marketplace Offering”). The special terms and conditions set out below apply to the Marketplace Offering. The question of whether an offering constitutes a Marketplace Offering will be made clear to the User prior to the Booking. However, already at this point we wish to advise you that, if the User is Booking with an Operator/gym with its registered office (by this is meant: the location of the gym for which the ticket was purchased) is in Germany, the Contract is deemed to be made with Eversports Deutschland UG, Keupstraße, 11, 51063, Hansaring 52, 50670 Cologne, registered on the Cologne District Court Commercial Register at HRB85098.

1.4 The subject-matter of these GTCs is the use of the Eversports Platform, in particular the User’s Booking of Sports and Leisure Offerings.

1.5 Personal data (of the Operator, its customers and employees) within the meaning of the Data Protection Act (in particular: telephone number, address, e-mail address, other content data etc.) shall be processed in accordance with the Privacy Statement. This may be downloaded from www.eversports.com, both in the imprint page and on the home page of the website.

2. cope of application, exclusion of other general terms and conditions, priority, amendment of these GTCs, written form requirement

2.1 Scope of application. All legal relations between Eversports and the Operator shall be exclusively governed by these GTCs. The GTCs may be accessed on the homepage of Eversports’ website (shown in the footer) and/or in its imprint page or from the app (under the profile sub-menu, where they may be downloaded and stored by Users). These GTCs apply both to Users whose ordinary residence is located within Austria (Art. 6 (1) Council Regulation EC No. 593/2008) and to Users whose ordinary residence is located outside Austria. These GTCs shall also apply to all future transactions between Eversports and the User, even where no express reference is made to them in individual cases, and shall, in particular, include future supplementary or other transactions. The most current version of these GTCs, at the time the contract in question is concluded or at the time of any subsequent transaction, shall always apply.

2.2 Amendments, special right of termination. Eversports may make amendments to these GTCs unilaterally at any time by notification in digital form (without any signature). They shall only take effect at such time as the User gives consent. If the User does not consent to the amendment, Eversports reserves the right to block the User’s access in whole or in part and to terminate the Contract with the User without notice. Any other changes or agreements between the User and Eversports deviating herefrom must be made in writing to be effective.

2.3 Priority, interpretation. The legal relations between Eversports and the User are governed by the following legal bases: 1. Mandatory law, 2. These Terms and Conditions of Use/GTCs 3. Miscellaneous. In the event of any conflict between these legal bases, the legal basis which is earlier in priority shall take precedence over those legal bases which follow it.

2.4 "Written form" means that the declaration must be signed (e.g. a copy/scan of a letter personally signed and sent by e-mail or post). Where written form is required, the cancellation or amendment of the written form clause shall likewise only be valid if given in written form. For complying with mere text form, an e-mail without signature will be sufficient if that e-mail obviously originated from the registered e-mail address.

3. User’s Account, contract formation, Registration process, Contract term

3.1 User’s Account. In order to be able to avail oneself of the Sports and Leisure Offerings provided via the Eversports Platform, Users must register on the Eversports Platform (“Registration”) and Eversports must activate the User’s access to the Eversports Platform (the “User Account”). A User may only register on the Eversports Platform in his own name and must be at least 16 years of age. The User Account is transferable only with Eversports’ consent. Eversports reserves the right to reject a Registration by Users without the need to state grounds of rejection. This applies particularly in cases where a User does not meet the above-referenced minimum age requirement. The User’s data which has been transmitted will in such case be promptly deleted. Eversports is furthermore also entitled to block a User Account at any time. Users have no legal entitlement to a User Account.

3.2 Contract formation, Registration process. Registration is carried out via an online form in which the User fills in the data requested (specifically: given name and surname, e-mail address, telephone number). The completion of the Registration form and forwarding of the form to Eversports constitutes a mere offer by the User to Eversports to conclude a contract for the use of the Eversports Platform. The Contract then only arises at such time as Eversports activates the User Account in line with these GTCs (hereinafter the “Acceptance”). Where the Registration is not fully completed (e.g. because a mandatory field is not completed or the GTCs are not accepted or the Privacy Statement is not acknowledged), no Contract will arise between the User and Eversports. Following completion of the Registration, the User may use the Eversports Platform on an unlimited basis subject to these GTCs. Absent a Registration, the Eversports Platform may only be used to a very limited extent.

3.3 Contract term, termination. Contracts are made for an indefinite term. Both Parties have the right at any time to terminate the Contract (directly via the Eversports Platform). Deletion of an entire User Account in addition to termination is covered by the Privacy Statement. In any event, it is deemed to simultaneously terminate the Contract. If the User gives notice of termination, then all Bookings which may have been previously made will lapse. If Eversports terminates the Contract, Eversports shall endeavour to ensure that the User is nevertheless still able to avail himself of the Booking.

4. Obligations of User

4.1 Use of User Account. Users have a duty to keep the data they have entered on the Eversports Platform updated at all times. Users have the duty to keep their access data secret. Access to the Eversports Platform may not be given to third parties either for consideration or gratuitously. If the User should learn that a third party has access to his User Account, he must promptly inform Eversports thereof by e-mail to [email protected]. The User shall be liable to Eversports for any losses incurred through impermissible disclosure of access data. In addition, in the event that a third party uses a User’s access data, the acts of such third party taken on the Eversports Platform shall be imputed to the User as if they were the User’s own actions (in particular: Bookings).

4.2 Unlawful data processing. No defamatory, insulting or other unlawful or questionable communications or data (in particular: in connection with any type of pornography, threats of violence of glorification of violence and any political or religious extremism, viruses, spyware, Trojan horses etc.) may be uploaded to the Eversports Platform. Users are likewise prohibited from placing any sensitive data (data of natural persons regarding their racial or ethnic origins, political opinions, trade union affiliation, religious or philosophical beliefs) and health-related data on the platform. Users undertake that they shall only process personal data on the Eversports Platform with the express consent of the data subject.

4.3 Ratings, recommendations, advertising. Ratings of Operators are based on Eversports’ own rating system, and specifically on the pooled experiences of Users. All further information regarding an Operator originates with that Operator itself. Evaluation reports and recommendations by Users on the Eversports Platform must comport with the facts and be worded in as neutral a manner as possible. However, every type of advertising on the Eversports Platform, whether direct or indirect, concealed or disclosed, is prohibited. This also includes publication/disclosure of e-mail addresses, telephone numbers, links to third-party websites, logos, company names, product names, content with a commercial background.

5. Remuneration, prices, Bookings, payment, cancellation, misuse

5.1 Remuneration of Eversports. The use of the Eversports Platform is free of charge to the User (however, see special rule regarding Marketplace Offerings).

5.2 Prices of Operators. The prices indicated on the Eversports Platform for Sports and Leisure Offerings are end prices and specifically do include the statutory value added tax. The prices originate exclusively with the Operator. Eversports disclaims all liability for these details.

5.3 Booking. Every Booking or Booking query by the User on the Eversports Platform is forwarded by Eversports to the Operator in its capacity as a legal messenger, either by e-mail or directly via the Eversports Platform. Bookings only are valid and effective at such time as a corresponding confirmation of the Booking is received. The confirmation of the Booking is shown either directly by Eversports on its platform or forwarded by e-mail; however, Eversports does not assume any liability for the User’s receipt of e-mail.

5.4 Payment. Users must pay the price for Sports and Leisure Offerings booked by them at the prices indicated by the Operator on the Eversports Platform directly at the sports provider’s venue or via the Eversports Platform. There are various methods of payment at various rates available for this purpose. If the Operator becomes insolvent before the User has availed himself of the Sports and Leisure Offering which he has already paid for via Eversports, then the User will only receive a refund of the charge from Eversports if Eversports has not yet forwarded the payment to the Operator. Thus, the User bears the risk of the Operator’s creditworthiness.

5.5 Cancellations. As a basic rule, the User must assume that a Booking cannot be cancelled. However, several Operators do grant cancellation rights to Users in certain circumstances. The terms of cancellation for booked Sports and Leisure Offerings vary depending on the Operator; however, such terms are visible to Users prior to each Booking. Cancellation following expiry of the cancellation period is possible only with the consent of the Operator in question.

5.6 Cancellation in the event of misuse of gratuitous services. In order to prevent Users from misusing services of Operators which are exceptionally provided free-of-charge and not to charge incorrect Bookings to Operators, Eversports reserves the right to cancel a reservation in the individual case if Eversports or the Operator is unable to reach the User under the telephone number indicated with any follow-up queries. In such cases, the User shall have no claim to avail himself of the Sports and Leisure Offering. The same applies if Bookings have repeatedly been made in the past under the e-mail address given by the User and the User has failed to avail himself of the free Sports and Leisure Offering.

6. Liability

6.1 Counterparty for Sports and Leisure Offering. Contracts for the use of the specific Sports and Leisure Offering are formed exclusively between the User making the Booking and the Operator offering it. All claims and obligations under such agreements shall be directly and exclusively between the User and the Operator. To such extent, Eversports also disclaims all liability in the event an Operator has not accepted/entered any Bookings in its Booking system.

6.2 Based on the qualities/characteristics of software and of online applications, Eversports is unable to furnish any guarantee that the Eversports Platform will be available and capable of being accessed on an ongoing and continuous basis. Eversports may at any time restrict the availability of the Eversports Platform or particular areas or features if this is necessary in respect of capacity limits, security or the integrity of its servers or in order to perform maintenance work safeguarding the proper or improved functionality of the Eversports Platform. Eversports may, from time to time, make changes, further development or restrictions to its Eversports Platform.

6.3 Liability. In all further and other respects, Eversports shall only be liable for breaches of contract if the intentional acts or grossly negligent conduct of Eversports’ vicarious agents or legal representatives is imputed to Eversports pursuant to the applicable legal rules (sec. 1313a of the Austrian Civil Code). Eversports is liable for slight negligence only in cases of losses arising from injury to life, limb or health. Liability for consequential damages, including loss of salary and lost profits is hereby disclaimed in any event. In all further and other respects, Eversports shall only be liable, if at all, for losses which are foreseeable and which must be typically anticipated.

7. Marketplace Offerings

The following special rules apply to Marketplace Offerings:

7.1 The User has the option of purchasing electronic "Tickets" (authorised access codes) for use of the selected gyms via the Eversports Platform.

7.2 In legal respects, the way this is handled is that Eversports concludes a user agreement with the respective Operator of the gym for the main service (specifically: access to the gym) in the form of an actual third-party beneficiary contract in favour of the User requesting active access to the gym with his electronic Ticket. In literal respects, the relevant third-party beneficiary contract in favour of the User reads as follows: “The gym undertakes to Eversports that it shall provide the services presented on the Eversports Platform in accordance with the gym’s terms and conditions set forth therein to the User as the beneficiary (and party with direct entitlement) who shall present the corresponding Ticket (specifically: in the form of a Booking code) transmitted to the User by Eversports, which covers the scope/period of the Booking or the agreed day, without payment of any further compensation."

7.3 This means:

  1. Prior to purchasing the Ticket, the User must inform himself regarding the concrete substance of the other gym terms and conditions; these may be downloaded prior to making the Booking.
  2. The Contract relationship with Eversports is limited to its furnishing of the platform and the Ticket if a Marketplace Offering is booked. The User pays the fee shown prior to the Booking exclusively for this purpose. In so doing, Eversports is deemed to have fully rendered its services.
  3. The User will not incur any further charges for the use of the gym in accordance with the above User Agreement for the agreed period/scope of use of the specific day. The charges are handled and directly settled as between Eversports and the gym.
  4. The Operator will be exclusively responsible for claims arising out of this User Agreement (complaints etc.), i.e. the User’s rights arising out of that User Agreement as well as any claims for compensation and warranty rights are rights to be asserted directly against the Operator. Eversports assumes no responsibility or liability for any such claims or rights, and in particular, disclaims any liability for the creditworthiness of the Operator.

7.4 Tickets are not transferable.

7.5 Eversports is authorised to pass on the User’s contact data to the gym, as the responsible data controller for its own operational purposes (e.g. the legitimate interest in knowing who is entering the gym, self-promotion purposes). As regards the data passed on to the gym, the sole contact and respondent in any data protection matters is thus the gym itself (see Privacy Statement).

7.6 Eversports grants the User a free cancellation right for day Tickets (Tickets valid only on a certain day). The terms of cancellation are displayed directly in the course of the Booking process prior to making the Booking. Cancellations may be made via the mobile app or web solution. The Ticket will otherwise lapse. The foregoing applies mutatis mutandis to weekly and monthly tickets taking effect from a certain day. These may be cancelled before the start of that day.

8. Final provisions

8.1 No assignment. The Operator is prohibited from assigning receivables and other claims against Eversports.

8.2 Law. Austrian law shall govern exclusively, to the exclusion of any conflicts-of-law provisions and to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG). However, this choice of law has no impact on the rights of the User as a consumer pursuant to the consumer protection rules of the country in which the User’s habitual residence is located within the meaning of Art. 6 (1) Council Regulation (EC) No. 593/2008.

8.3 Jurisdiction and venue. If the User is acting as a consumer, he is deemed to consent for purposes of all disputes arising out of the legal relations or future legal relations or other claims between Eversports and the User to the non-exclusive jurisdiction of the Austrian courts. This means that the User may assert a claim against Eversports before any court in Austria or before a court with jurisdiction over the place of his habitual residence. If Eversports wishes to assert its rights against the User as a consumer, Eversports may only do this before the courts with jurisdiction over the User’s place of habitual residence. If the User acts as an entrepreneur, he is deemed to consent to exclusive jurisdiction of the court with geographical and subject-matter jurisdiction for 1010 Vienna.

8.4 Conciliation. Eversports is required to refer Users to the online platform of the European Commission for online conciliation. That platform may be accessed at http://ec.europa.eu/consumers/odr. However, Eversports is neither willing nor obliged to participate in any dispute resolution proceedings before a consumer ombudsman to settle disputes with consumers.

8.5 Severability clause. In the event that individual terms of this Contract should be or become invalid or unenforceable in whole or in part, or in the event that this Contract is deemed to contain a contractual gap, the validity of the remaining terms hereof shall not be affected thereby. In place of the invalid, unenforceable or missing term, the Parties are deemed to have agreed such valid and enforceable term with retroactive effect between the Parties to the Contract as they would have agreed to, taking into account the commercial purpose of this Contract, had they been aware of the invalidity, unenforceability or absence of the relevant term when concluding this Contract. The Parties are obliged to confirm any such term in the form required.

9. The User hereby confirms that he had the opportunity to fully acquaint himself with the contents of these Terms and Conditions of Use/GTCs prior to contracting and also had the option to store them in a permanent fashion and is in agreement with the content of these Terms and Conditions of Use.

Verion: 12.12.2018