General conditions and consumer information for the program offered by CYBEROBICS
(Last updated: 15.05.2020)
1. GENERAL PROVISIONS
1.1. SCOPE OF THE GENERAL TERMS AND SUBJECT MATTER OF THE CONTRACT
These General Conditions (hereinafter: “GC”) apply to all contracts between CYBEROBICS GmbH (hereinafter: “CYBEROBICS”) and its customers for the use of the CYBEROBICS service (hereinafter also: “Service”) via the website www.cyberobics.com and/or the associated CYBEROBICS APP (for iOS and Android operating systems).
The subject matter of the contract is the provision of fitness and sports video courses via the Service by CYBEROBICS for use of the Service by you based on the terms and conditions set out in the following GC.
1.2. PROVIDER / CONTRACTUAL PARTNER
To the extent not provided otherwise, the provider of the Service and your contractual partner is
Saarbrücker Straße 38
10405 Berlin, Federal Republic of Germany
1.3. AGE RESTRICTION
Persons under the age of 15 cannot conclude a contract for the use of the Service with CYBEROBICS. Minors younger than 15 can participate in a class, if the class is designed for the respective younger group and with consent of their legal guardian. In the case of minors younger than the age of 18, a contract with CYBEROBICS may only be concluded for the use of the service with the consent of their legal guardian.
1.4. CONTRACT LANGUAGE
The contract language is English.
2. CONTRACT FORMATION; CLEENG; CUSTOMER ACCOUNT
You can choose between a free contract for the limited use of the Service (hereinafter also: “CYBEROBICS FREE”) and a chargeable contract for unrestricted use of the Service (hereinafter also: CYBEROBICS PREMIUM). How the respective contract is concluded depends on which way you register for the first time for the use of the Service and whether you use the chargeable Services.
2.1. CONCLUSION OF A CONTRACT VIA THE WEBSITE
2.1.1. In order to conclude a free contract for the use of the Service “CYBEROBICS FREE” the websites www.cyberobics.com or app.cyberobics.com, you need to click on the “Login” or “Register now” button on the website. The contract is concluded via the mask of the service provider Cleeng. First you enter your personal data (email and password), select the field “I am new” and click on the button “Create an account”. In addition, you need to declare your consent to these GC as well as to the terms and conditions of our service provider Cleeng (see section 2.4.).
2.1.2. To conclude a chargeable contract for the use of the Service “CYBEROBICS PREMIUM” you shall at first have concluded a free contract according to section 2.1.1. or 2.2.1. Subsequently, you can conclude your chargeable contract by clicking on “More” – “PREMIUM-UPGRADE” or on a premium course marked with a crown you click on “Get Premium Access” and then enter your data for the payment of the agreed user fees. Before submitting your contract you have the opportunity to review all information again, to change or cancel the process. By clicking on the button “Confirm purchase” you confirm the accuracy of your information and close the chargeable contract. CYBEROBICS confirms the receipt of your order and the conclusion of the contract by an e-mail of our service provider Cleeng.
2.2. CONCLUSION OF A CONTRACT VIA THE MOBILE APP
2.2.1. In order to conclude a free contract for the use of the Service “CYBEROBICS FREE” via the app, you need at first to download the CYBEROBICS app (hereinafter: Mobile App) from an app store provider (currently Google Play Store or Apple iTunes Store) and click on the button “Login”. The contract is concluded by entering your personal data (e-mail and password) and by clicking on the “Login” button again. In addition, you need to declare your consent to these GC.
2.2.2. To conclude a chargeable contract via the Mobile App for the use of the Service “CYBEROBICS PREMIUM” you shall at first have concluded a free contract according to section 2.1.1. or 2.2.1. Furthermore the conclusion of the chargeable contract for “CYBEROBICS PREMIUM” depends of the terms and conditions of the respective provider of the app store. Regularly, the contract is concluded after you clicked on the button “PREMIUM-UPGRADE” within the Mobile App or on a premium course marked with a crown you click on “Register”. If necessary entered your password and confirmed the conclusion of the contract.
2.3. STORING THE TEXT OF THE CONTRACT
CYBEROBICS does not save the text of your contract.
2.4. STORING THE TEXT OF THE CONTRACT
2.4.1. As part of the process of concluding a contract (section 2.1.), by clicking the “CREATE USER ACCOUNT NOW” and “Confirm” buttons, you simultaneously agree to the so-called “CLEENG USER AGREEMENT” (see http://cleeng.com/cleeng-user-agreement) with service-provider Cleeng B.V., Reimersbeek 14, 1082 AG, Amsterdam, Netherlands (hereinafter: “Cleeng”). You shall pay the agreed user fee via service-provider Cleeng.
The “CLEENG USER AGREEMENT” applies independent of the customer’s contract with CYBEROBICS and shall be maintained throughout the entire term of your contract with CYBEROBICS. Thereafter, it shall be separately terminated by the customer.
2.4.2. At the same time, you also create a customer account at Cleeng based on the terms of the “CLEENG USER AGREEMENT” (hereinafter: “Customer Account”) by means of which you can manage your contract with CYBEROBICS and your contract information.
3. SERVICES PROVIDED BY CYBEROBICS
3.1. CYBEROBICS’ PROGRAM OFFER
The scope of CYBEROBICS’ program offer depends on whether you use CYBEROBICS for free with “CYBEROBICS FREE” contract or with a chargeable contract “CYBEROBICS PREMIUM” for a fee.
The CYBEROBICS’ program offer (hereinafter: “Program”) includes:
· in a free “CYBEROBICS FREE” contract (which is created by creating a Customer Account) an offer up to 15 video courses,
· in a chargeable contract “CYBEROBICS PREMIUM” an offer of up to seventy (70) video courses,
which may be accessed within the countries of the European Union.
The fee-based “CYBEROBICS Premium” contracts can be concluded for different terms. Terms are 1 month, 6 months or 12 months. We also offer free trial period for some contracts, so that the fee-based “CYBEROBICS Premium” contract only begins after this trail period has expired. If your chosen contract model is applicable for a trial period, you can find out from the respective “CYBEROBICS Premium” offer.
CYBEROBICS is free to manage Program content and may change and/or modify such contents by exchanging, replacing or removing video courses. You have no right for the Program to include one or more specific video courses. However, CYBEROBICS guarantees for a chargeable contract “CYBEROBICS PREMIUM” that, as a result of changes and/or modifications, you will be no worse off, in particular that that Program will not fall below a minimum number of fifty (50) video courses and that the contents of the Program remain at a comparable level.
3.2.1. For the term of the contract, CYBEROBICS grants to you a non-exclusive right (simple license) to receive, access and play the video courses included within the Program in any desired sequence and any number of times within the countries of the European Union. Receiving, accessing or playing is limited to three devices at the same time.
3.2.2. Other than the aforementioned right, no further rights are granted to you. In particular, without limitations, you are not entitled to
a) Copy, reproduce, store, archive or edit the video courses or any parts thereof;
b) Make the video courses, or parts thereof, publicly perceptible or publicly available third parties or to broadcast, disseminate in any other manner or to use the video courses, or parts thereof, commercially;
c) Transfer rights to use the video courses or parts thereof to third parties or to grant third parties any additional rights of use in such video courses (sub-license); this also means that the customer cannot provide his/her access details to a third party.
3.3. OTHER FUNCTIONS OF THE SERVICE
Furthermore, there is no right to the maintenance of specific functions of the Service. On the contrary, CYBEROBICS is entitled to change or remove existing functions or to make new functions available for the Service at any time. In doing so, CYBEROBICS will consider the legitimate interests of the customers and provide appropriate advance notice of significant changes.
4. OBLIGATIONS AND DUTIES OF THE CUSTOMER
4.1. COMPLIANCE WITH SYSTEM REQUIREMENTS
In order to use the Service, you need to have an appropriate device and need to ensure that a sufficiently fast and constant Internet connection and power source is available. You bear all associated costs. With regard to the Internet connection, a data transmission rate of at least 1.5 Mbit/s is recommended along with a flat-rate tariff (without time or volume limitations). For SD quality, a minimum transmission rate of at least 3.0 Mbit/s is required and 5.0 Mbit/s for HD quality. For Ultra HD, your device requires a data transmission rate of at least 25 Mbit/s. The player calculates the bandwidth and automatically adjusts the frame rate as needed. Additional information regarding the technical requirements, in particular devices and software, may be located in the FAQs.
4.2. HEALTH NOTICES
CYBEROBICS informs you that the training instructions included in the video courses cannot replace individualized advice by a fitness trainer and or in particular medical advice from a doctor.
You are responsible for checking your physical and health fitness for the selected video courses and the physical exercises contained therein in each case and to take care to realistically define and assess his/her abilities and condition. If you feel discomfort or pain when performing an exercise, you should pause or discontinue the video course. Care should be taken to drink enough fluids.
In particular, in the case of physical pain, health limitations, illness or pregnancy, CYBEROBICS recommends consulting a doctor before participating in the video courses to carefully discuss whether yur specific physical or health condition would contradict participation in the respective video courses. In particular, if the following limitations apply, it is advisable to consult a doctor and, if appropriate, forego the use CYBEROBICS:
· Recent heart attack or stroke
· If you have a pacemaker
· Current surgical wounds
· Congenital or acquired heart defects and/or damage, such as cardiac arrhythmia that appear or worsen under stress
· Infections of any type
· Recent broken bones
· Acute herniated disk
· Acute joint pain
· Acute thrombosis
· Acute orthopedic pain
· Osteoporosis (e.g. extreme spinal condition)
· Uterus prolapse or diagnosed incontinence
· Acute infections or colds
· Discomfort or full stomach
· Current injury
If you are a legal guardian and enable your child to participate in a class, you need to take the above information into account.
4.3. HANDLING ACCESS DATA / PROVIDING ACCESS TO MINORS
4.3.1. You are required to secure your access data, in particular passwords, from access by third parties and may not provide such access data to any third parties.
4.3.2. You are authorized to make the program perceptible in a private setting, in particular for family members. However, you are aware that the video courses are not suitable for children under the age of 15, with the exception of classes specifically designed for a younger audience and titled “KIDS”.
4.4. SAFEGUARDING COPYRIGHT, TRADEMARK AND OTHER INTELLECTUAL PROPERTY RIGHTS
You are aware and acknowledge that the program provided by CYBEROBICS, as well as all other contents within the scope of the Service (e.g. images, graphics, texts) are, without limitation, protected by copyright, trademark and other intellectual property rights of CYBEROBICS or are otherwise legally protected. With regard to the program in particular, you are only authorized to use the program to the extent described in section 3.2. CYBEROBICS reserves the right to prosecute the actual or impending unlawful use of the Program or the other contents by you or any third parties, in particular by means of making copies of the video courses in whole or in part (e.g. by filming or photography using smartphones or other mobile devices) or by making the Program publicly available to unauthorized parties or by broadcasting the Program by other means, both civilly and criminally.
4.5. CONDUCT STANDARDS FOR USE OF THE SERVICE
You are required to refrain from any acts that are capable of impairing and/or excessively straining the operation of the Service or the underlying technical infrastructure or to unlawfully use the contents of the platform that would infringe on copyrights, trademarks or any other protected intellectual property. They include the following in particular:
· The use of software, scripts or databases in connection with the use of the Service and/or
· Blocking, overwriting, modifying, copying data and/or other contents to the extent not required for the proper use of the Service.
4.6. NOTIFICATION OF CHANGES IN CUSTOMER DATA
You are required to provide notice of changes in contract-related data, in particular your name and address, without delay via your Customer Account using the menu item “My Account” or by e-mail to CYBEROBICS (e.g. to the e-mail address firstname.lastname@example.org).
5. USER FEES / DUE DATE / PAYMENT DEFAULT
5.1. USER FEES / DUE DATE / CLEENG
5.1.1. User fees that were valid and communicated to you at the time the contract was concluded are applicable. To the extent not indicated otherwise, all user fees are to be understood as monthly user fees in euros and include statutory VAT. Choosing “PayPal” as a payment method may result in additional monthly fees as displayed on the website prior to concluding the contract.
5.1.2. To the extent not expressly agreed otherwise, payment of the agreed user fee shall be due
· one (1) month in advance at the beginning of each billing month (Billing Period) in the case of a contract with a chargeable initial term or extended term of one (1) month (see section 7.1.2.) and
· twelve (12) months in advance at the beginning of each billing year (Billing Period) in the case of a contract with a chargeable initial term or extended term of twelve (12) months (see section 7.1.3.).
5.1.3. If a chargeable contract “CYBEROBICS PREMIUM” is agreed via the website, the agreed user fees shall be paid via the service provider Cleeng (see section 2.4.). The payment methods accepted by Cleeng are listed on the website.
If you agree on a chargeable contract “CYBEROBICS PREMIUM” within the Mobile App, billing shall be done via the provider of the respective app store. Please ask the provider of the respective App Store, which methods of payment are accepted.
The agreed user fee will be paid via the service-provider Cleeng (see section 2.3.) provided the contract is concluded via the website.
5.2. RIGHT TO MAKE PRICE ADJUSTMENTS
5.2.1. CYBEROBICS is entitled to increase the agreed user fees if the statutory VAT rate is increased, whereby the increase in the monthly user fee is limited to the amount of the increase in the VAT rate. CYBEROBICS will exercise its right to adjust prices by means of a written declaration (section 126b German Civil Code (“BGB”). The fee increase shall be effective the first day of the month following Billing Period in which such declaration was received.
5.2.2. In the event the statutory VAT rate is lowered, the agreed user fees shall be reduced accordingly. The reduction shall be effective upon the reduction in the VAT rate.
5.3. PAYMENT DEFAULT
5.3.1. If you are in default of payment, CYBEROBICS reserves the right to charge you default charges if you caused such costs. In addition to default interest in the amount set by statute, such costs also include appropriate legal measures, including without limitation dunning and collection fees, court costs and attorney’s fees.
5.3.2. If you are in default of payment with an amount that corresponds to two months’ user fees, CYBEROBICS is entitled to terminate the chargeable contract pursuant to its right of extraordinary termination for good cause. In such cases, CYBEROBICS is entitled to demand from you additional compensation for compensation for damages are permitted by applicable law.
5.4. RIGHTS OF SET-OFF
You are only entitled to set off amounts due CYBEROBICS based against your own claims that are undisputed or have been finally determined by a court. The possibility to set-off any amounts CYBEROBICS against your claims for repayment of made payments after your exercise of a right of withdrawal (see section 6) remains unaffected.
6. RIGHT OF WITHDRAWAL
As a consumer, the customer is entitled to a statutory right of withdrawal:
Instructions on withdrawal
RIGHT OF WITHDRAWAL
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 (Cyberobics GmbH, Saarbrücker Straße 38, 10405 Berlin, Federal Republic of Germany, Tel.: +49 30 54 00 00 066, Fax.: +49 30 54 00 00 001, 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. You can also electronically fill in and submit the model withdrawal form or any other unequivocal statement on our website www.cyberobics.com. If you use this option, we will communicate to you an acknowledgement of receipt of such a withdrawal on a durable medium (e.g. by e-mail) without delay.
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.
LAPSE OF THE RIGHT OF WITHDRAWAL
This right of withdrawal lapses with regard to a contract for the supply of digital content which is not supplied on a tangible medium if we have begun the performance of the contract before the expiry of the withdrawal period with your prior express consent and your acknowledgment that you thereby lose your right of withdrawal.
MODEL WITHDRAWAL FORM
(complete and return this form only if you wish to withdraw from the contract)
· To Cyberobics GmbH, Saarbrücker Straße 38, 10405 Berlin, Federal Republic of Germany, Fax.: +49 30 54 00 00 001, E-Mail: firstname.lastname@example.org:
· I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
· Ordered on (*) / received on (*)
· Name of the consumer(s)
· Address of the consumer(s)
· Signature of the consumer(s) (only if this form is notified on paper)
(*) Delete as applicable.
When concluding a contract via the Mobile App, you can alternatively exercise an existing right of withdrawal via your customer account with the respective app store provider. The conditions of the respective app store provider shall apply.
7. CONTRACT TERM / TERMINATION
7.1. CONTRACT TERM AND TERMINATION OF A FREE CONTRACT
The free contract your free access to “CYBEROBICS FREE” is concluded for an unlimited period of time and can be terminated at any time by either party without observing a notice period.
7.2. CONTRACT TERM AND ORDINARY TERMINATION OF A CHARGEABLE CONTRACT
For a chargeable contract “CYBEROBICS PREMIUM” the following shall apply:
7.2.1. At the time of conclusion of the contract, you may choose between a contract with an initial chargeable term of one (1) month (see section 7.2.2.) and a contract with an initial chargeable term of twelve (12) months (see section 7.2.3.).
7.2.2. For a contract with an initial chargeable term of one (1) month the following shall apply: The contract for the use of the Service “CYBEROBICS PREMIUM” shall commence on the date on which the contract is concluded and shall be concluded for an initial term of one (1) month. If the contract is not terminated by you or CYBEROBICS by the end of the respective contract term (initial term or extended term), the contract term is automatically extended each time for one (1) additional chargeable month (extended term). Notice of termination shall be provided on the last day of the relevant month at the latest. For technical reasons, a contract concluded via an app store can only be terminated with a notice period of 24 hours at the respective end of the contract.
7.2.3. For a contract with an initial chargeable term of twelve (12) months the following shall apply: The contract for the use of the Service “CYBEROBICS PREMIUM” shall commence on the date on which the contract is concluded and shall be concluded for an initial term of twelve (12) months. If the contract is not terminated by you or CYBEROBICS by the end of the respective contract term (initial term or extended term), the contract term is automatically extended each time for twelve (12) additional chargeable months (extended term). Notice of termination shall be provided on the last day of the relevant month at the latest. For technical reasons, a contract concluded via an app store can only be terminated with a notice period of 24 hours at the respective end of the contract.
7.3. RIGHT TO EXTRAORDINARY TERMINATION
Both parties’ right to extraordinary termination for good cause is not affected by the preceding provisions. Without limitation, good cause includes circumstances where you responsibly violate your obligations described in sections 3.2.2., 4.3., 4.4 or 4.5.
7.4. NOTICE OF TERMINATION BY THE CUSTOMER
You may provide notice of termination electronically via your Customer Account or by e-mail including your customer number sent to our official e-mail address (email@example.com). When concluding a contract via the Mobile App, you shall terminate your chargeable “CYBEROBICS PREMIUM” contract in the settings of the respective app store.
Upon termination of the chargeable “CYBEROBICS PREMIUM” contract, your Customer Account and your free access to “CYBEROBICS FREE” remain in force, subject to further termination.
8. PRIVACY STATEMENT
When using the Service, CYBEROBICS processes personal data of you. The scope of the data processing is communicated in the privacy statement that may be accessed at any time within the Service.
9. DISRUPTIONS AND INTERRUPTIONS IN THE PROGRAM / LIABILITY OF CYBEROBICS
9.1. DISRUPTIONS AND INTERRUPTIONS IN THE PROGRAM
9.1.1. In the case of disruptions in the program and/or complete or partial interruptions in the program, you are entitled to a pro rata reduction in the monthly user fee for the relevant billing period of the interruption in accordance with the severity of the disruptions and/or interruptions as applicable. This shall not apply to the extent you or third parties engaged by you (e.g. electricity or telecommunications service providers) are responsible for the disruption and/or interruptions, in particular to the extent that the cause of the disruption and/or interruptions lies in the circumstance that you did not fulfill your obligations under section 4.1.
9.1.2. A reduction is not permitted if the relevant disruption and/or interruption is only minor compared to the overall scope of service. Without limitation, a minor disruption and/or interruption refers to circumstances where, as a result of the disruption or partial interruption, the number of video courses that may be viewed without disruption and/or interruption falls below the minimum number of provided in section 3.1 in total for a period of less than 72 hours during the relevant billing period. However, in the case of a complete interruption, an uninterrupted interruption lasting more than 24 hours is deemed not to be a minor disruption and/or interruption from the 25th hour.
9.1.3. CYBEROBICS is not responsible for any potential disruptions and/or interruptions that are outside of the control of CYBEROBICS, in particular based on force majeure events (e.g. fire, storm, flooding or other natural disaster) or due to acts or omissions of third parties (e.g. telecommunications services providers, electric utilities or other third parties).
9.2. LIABILITY OF CYBEROBICS
For all other purposes, CYBEROBICS is liable in cases of negligence only with regard to a breach of material contractual obligations (“cardinal duties”), however in such cases liability is limited to damages that are foreseeable at the time the contract was concluded that are typical to the contract, in the case of bodily injury and as provided in the German Product Liability Act [“Produkthaftungsgesetz”]. Cardinal duties are those duties that are essential to the proper performance of the contract and the satisfaction of which you are regularly entitled to rely upon. For all other purposes, CYBEROBICS’ pre-contractual and non-contractual liability is limited to cases of intent and gross negligence, whereby these limits on liability apply likewise to fault on the part of CYBEROBICS vicarious agents, assistants and executive body members.
10.1. APPLICABLE LAW
The laws of the Federal Republic of Germany apply with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). If you are a consumer, this choice of law does not have the result of depriving you from the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would be applicable in the country where you have your habitual residence (principle of most favorable conditions according to Article 6 (2) Regulation (EC) No. 593/2008 “Rome I”).
10.2. NO PARTICIPATION IN CONSUMER DISPUTE RESOLUTION PROCESS
The European Commission has provided an Internet platform for online dispute resolution (so-called “ODR platform”). The ORD platform serves as a point of contact for non-judicial dispute resolution with regard to contractual obligations resulting from online contracts. The ODR platform can be found at the following link: http://ec.europa.eu/consumers/odr.
CYBEROBICS is not obligated and is not willing to participate in a dispute resolution process before an arbitration organization for consumers or similar process.
10.3. AMENDMENTS TO THESE GENERAL CONDITIONS
With the exception of the primary duties of performance, CYBEROBICS is entitled to amend these General Conditions with prospective effect. The primary duties of performance are those duties that are essential to the proper performance of the contract and the satisfaction of which the parties are regularly entitled to rely upon. CYBEROBICS will notify you of changes, provide you the opportunity of object to such changes within a reasonable period following notice thereof and will specifically state such changes become effective absent objection.
In the event that one or more provisions of this contract should be or become invalid, this is without prejudice to the validity of the contract as a whole or its remaining provisions.