General Terms and Conditions for Business Associates (“GTCs-B2B”) v2
- 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 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 GTCs shall have the meaning assigned to them below: (a) 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). (b) The term “Admin Area” describes the Internet-based software solution provided by Eversports to the
Operator for managing its Sports and Leisure Offerings. (c) The term “Eversports System” includes the Eversports Platform and other Eversports administration
and booking services (both online and offline). (d) 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”).
- SCOPE OF APPLICATION, EXCLUSION OF OTHER GENERAL TERMS AND CONDITIONS, PRIORITY, AMENDMENT OF THESE GTCS,
WRITTEN FORM REQUIREMENT 2.1 Scope of application. The agreed Marketplace Contract shall apply primarily to the Marketplace Offering; in such case, these General Terms and Conditions shall only apply subsidiarily provided that they do not conflict with the Marketplace Contract. All other legal relations between Eversports and the Operator shall be exclusively governed by these GTCs; they may be accessed at https://manager.eversports.com/agb. Subject to Eversports’ express written consent, the Parties hereby rule out any application of the Operator’s general terms and conditions. Acts taken on the part of Eversports in performance of the contract, or its silence, shall not give rise to any acceptance of the Operator’s general terms and conditions. These GTCs shall also apply to all future transactions with the Operator, 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 unilaterally make amendments to these GTCs at any time by giving notice in digital form (no signature required); they shall take legal effect 6 weeks from the date of notification for all facts and circumstances within the scope of the contracts between Eversports and the Operator taking place after the amendment has come into effect, unless the Operator objects in writing within such period by letter or e-mail to [email protected]. In the event of any objection or failure to provide notification, the previous version of the General Terms and conditions shall remain applicable to current contracts. However, Eversports shall remain at liberty to extraordinarily terminate current contracts upon 8 weeks’ notice in the event of an objection by the Operator. 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 Operator are governed by the following legal bases: 1. Mandatory law, 2. Marketplace contract for the Marketplace Offering, 3. Contract for other services not qualifying as a Marketplace Offering (Partnering Contract), these General Terms and Conditions, 4. 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 purposes of complying with mere ‘text form’, an e-mail without signature is sufficient if the relative despatch address manifestly contains the sender’s domain.
- INCLUSION, ACTIVATION, USE, PRICE CHANGES, DISCOUNTS 3.1 Inclusion, duty to update. The Operator shall be entered into the Eversports System with such prices, opening hours, images and geodata/GPS coordinates and other relevant information as it has uploaded to the Admin Area. The Operator undertakes that it shall regularly verify and update the information entered (in particular: prices and offers). In descriptive texts, the Operator is not permitted to insert references to telephone numbers or websites of third parties. 3.2 Activation. The Operator profile in the Eversports System is activated by Eversports after the Operator has provided all necessary information. Only after the Operator’s profile has been activated can Eversports activate the Operator’s Sports and Leisure Offerings for User bookings. All Sports and Leisure Offerings posted by the Operator within the Admin Area are automatically offered online for booking via the Eversports Platform. 3.3 Data maintenance, responsibility The Operator is itself responsible for entering, maintaining and updating all data and information it enters into and posts for publication on the Eversports System. Eversports shall have no duty to verify the data transferred or entered by the Operator. The risk of faulty data transfer lies with the Operator. 3.4 Incorrect information. The Operator acknowledges that any misleading and/or incorrect information provided by it, such as the facilities, location or name of the Sports and Leisure Offerings may give rise to claim for damages. The Operator shall indemnify and hold Eversports harmless upon its first request against all claims by third parties arising out of information provided to Eversports or entered into the Eversports System. If, despite a request by Eversports, the Operator fails to immediately correct information which is incorrect or misleading, Eversports shall be entitled to remove all such information which is incorrect or misleading or, as the case may be, it may take the entire Operator profile offline until the Operator has made the correction. 3.5 No identity checks. The Operator further acknowledges that Eversports does not verify the identity or age of Users. 3.6 Operational disruptions. The Operator must notify Eversports without delay of any planned construction or refurbishment works during ongoing operations of the Operator as well as any change of ownership, commercial tenancy, other tenancy or ownership or of any application to open bankruptcy or insolvency proceedings or composition with creditors proceedings. In the event of any such refurbishment work or other foreseeable operational disruptions, the Operator must include a corresponding notice to Users at a suitable point within the Admin Area. 3.7 Price changes. The Operator must itself make any price changes it desires on the Eversports System. If the Operator is unable to change the prices itself, it must give notice of such changes at least 10 working days prior to the date of the intended change. Price changes shall have no influence on Sports and Leisure Offerings booked prior to publication of the price change, or on contracts concluded prior to such time. The Operator must perform the contract concluded with it at the previous price. 3.8 Discounts. Eversports is entitled, even without any need to consult with the Operator, to grant discounts (at its own expense) on the prices set by the Operator, for example in connection with vouchers and other advertising campaigns. 3.9 Employee training. The Operator has a duty to inform its employees with responsibility for bookings regarding the existence of the cooperation with Eversports, and must familiarise them with the use of the Eversports System. To this end, Eversports offers additional training sessions for a fee where required. The Operator undertakes that it shall instruct its employees to handle bookings made via the Eversports System in accordance with the contract (and, in particular, on a binding basis).
- COMPENSATION, BOOKING, CANCELLATION 4.1 Compensation for non-performance. The Operator also hereby undertakes to Eversports that it shall provide the User with the Sports and Leisure Offerings on the terms and at the times agreed in the booking made via the Eversports Platform. Eversports reserves the right to pay the User compensation for booked Sports and Leisure Offerings that are not provided by the Operator (in particular: in order to ensure User satisfaction and to avoid reviews casting a bad light on Eversports instead of on the responsible Operator) and shall do so at its own discretion (but primarily based on the amount of the booking, any fault, and the reaction of the User) in amounts of up to € 50.00, and in serious cases in amounts of up to € 100.00 (possibly in the form of a voucher). The Operator shall have a duty to compensate Eversports for any such compensation, irrespective of fault, if Eversports is able to furnish substantiation that it has provided such compensation (e.g. by sending the e-mail correspondence exchanged). Any further claims beyond the foregoing shall remain unaffected by this penalty.
4.2 Bookings. Bookings on the Eversports Platform are made either as direct bookings without any further request to the Operator, or are forwarded on to the Operator as a simple booking request in accordance with the arrangements set out in the Partnering Contract. All direct bookings or booking requests and cancellations made via the Eversports System are transferred to the Operator directly via the Admin Area and/or automatically by e-mail. Direct bookings shall take effect immediately upon completion of the booking by the User without any further action on the part of Eversports, whereas booking requests shall only take effect after confirmation by the Operator; the Operator undertakes that it shall respond to the latter as quickly as possible during normal business hours, but in any event no later than within 3 hours. 4.3 No-shows. In order to avoid unwanted conflicts in the event of unannounced late appearance of the User, the Operator must always keep the booked Sports and Leisure Offerings available until the end of the booked date unless the Operator has been informed in advance that the User is unable to attend on that date. 4.4 Cancellation. Where the Operator grants the User cancellation rights free of charge or possibly for a charge, it must enter this accordingly in the Admin Area. The Operator also has a duty to Eversports to comply with the cancellation rights it has entered there.
- REMUNERATION, BILLING 5.1 User fee. The Operator is obliged to pay a “Fee” in return for its use of the Eversports System (in particular: for the ability to offer and administer its Sports and Leisure Offerings). The amount of the Fee payable shall be determined by the Parties in the Partnering Contract. 5.2 Set-Up Fee. Unless otherwise agreed in writing, the installation of the Eversports System and training at the premises of the Operator (in particular: migration of customer/price/product data) shall be subject to a fee (invoiced at local hourly rates or on the basis of a flat fee, “Set-Up Fee”, if so agreed). If a discount on the Set-Up Fee was granted in the Partnering Contract and the Partnering Contract was in force for less than 4 months as a result of termination by the Operator, this Fee shall be retroactively cancelled. 5.3 If the Operator terminates the Contract within 30 days after setting up of the Eversports System and activation of the Operator profile, and if when doing so it invokes the “30-day money back” guarantee agreed in the Partnering Contract, if any, Eversports shall reimburse any Fees previously invoiced (see above, noting that this does not include the transaction fee for online payments, profit sharing for referrals of new customers or the Set-Up Fee). 5.4 Due date, direct debit. The Fee shall be due for payment no later than at the time of invoicing, and shall be collected by direct debit (SEPA direct debit, credit card payment). The Operator shall sign a corresponding SEPA mandate to its bank/credit card company. In the case of unjustified return of direct debits (e.g. due to a lack of funds in the account), a € 5.00 processing fee per returned direct debit shall be charged. Operators who do not consent to or revoke a direct debit will be charged a monthly processing fee of € 10.00. 5.5 Settlement. Eversports shall be entitled at any time to set off online payments made by Users and attributable to the Operator in question against its own claims against that Operator. 5.6 Disputes. Eversports shall also be entitled to charge reverse debits for bookings paid online due to User complaints (“Disputes“) to the Operator or to require the Operator to indemnify and hold it harmless in this respect. In such case, the Operator must contact the User directly. 5.7 Collection. The User shall pay for Sports and Leisure Offerings booked directly with the Operator on site or online using the payment methods specified on the Eversports Platform (e.g. credit card). In the case of online payments, the Operator grants Eversports power of attorney and authority to collect the gross invoice amount payable by the User (power of attorney for purposes of collections), and authorises it to immediately deduct the agreed Fees from this. Payment transactions for bookings paid for online are currently processed via Stripe (https://stripe.com) and/or Paypal (https://www.paypal.com). Current information on these providers is available on the Eversports Platform. The credit risk for amounts paid by the User and to be forwarded to the Operator shall be borne by the Operator. The Operator shall also bear the costs of any transaction fees as well as the risk of currency fluctuations. 5.8 Billing. Towards the end of each month, Eversports shall settle bookings made via the Eversports Platform as quickly as possible for the preceding accounting period (one month maximum). The Fee due to the Operator (gross Fee received by the User minus agreed deductions, e.g. monthly Fees, other Fees) is then forwarded on to the Operator (with a 3-day grace period) within 20 days from the end of the billing period (due date), at the latest. The statement is sent electronically. Objections to invoices must be notified to Eversports by e-mail at the earliest possible time, but in any event no later than 14 days after receipt of the invoice. Following expiry of such period, the statement is deemed irrevocably approved. 5.9 Power of attorney for invoicing. The Operator hereby authorises Eversports, if agreed, to issue invoices on behalf of the Operator to the User making the booking, indicating the tax rate entered in the Eversports
System, for bookings made by that User. The Operator shall be responsible for the contents of the invoice, including the VAT indicated therein. 5.10 Default. In the event of default of payment by the Operator, statutory default interest shall be applied. Furthermore, in the event of default of payment, the Operator undertakes that is shall reimburse Eversports for the dunning and collection costs incurred to the extent they are necessary in order to properly pursue legal rights. The assertion of further rights and claims shall remain unaffected hereby. In the event of a default of payment, the Parties agree that a fee of € 10.00 is chargeable for each reminder.
- LEGAL MESSENGER, AVAILABILITY, LIABILITY 6.1 Service Agreement between Operator and User, legal messenger [Erklärungsbote]. Contracts for the Sports and Leisure Offerings in question are concluded exclusively between the User booking the Sports and Leisure Offering and the Operator. The Operator shall bear sole responsibility for compliance with the relevant laws. Eversports is entitled to transfer the requisite data to the parties to the Contract (see Privacy Statement). In so doing, Eversports is deemed to act as a mere legal messenger to the extent that Eversports transfers contractual declarations made by the Parties. Thus, Eversports passes on each booking made via the Eversports Platform to the Operator, and does so as a mere legal messenger on behalf of the User. The foregoing shall also apply to the Operator’s declarations to Users made via the Eversports Platform (booking confirmations, etc.). Eversports shall not be liable in any way whatsoever for the User’s conduct when availing himself of the Sports and Leisure Offerings. It shall be the sole responsibility of the Operator to assert any and all claims arising from its contract with the User directly against such User. The Operator shall bear sole responsibility for performing the obligations arising therefrom. Where the User nevertheless asserts claims against Eversports instead of proceeding directly against the Operator, the Operator shall indemnify Eversports against all claims of the User arising from any breach of duty by the Operator, and shall assume the necessary and reasonable costs of legal defence and provide reasonable payments on account. 6.2 Liability for information. Eversports furthermore disclaims all liability whatsoever for the accuracy and completeness of the information provided by the Operator itself on the Eversports Platform which the Operator provides on its own responsibility (in particular: prices and availability times/course times for the Sports and Leisure Offerings) as well as for incorrect or incomplete transfer of data (data migration from customer data, course data, product data). The Operator shall have a duty to monitor such transfers. 6.3 Malfunctions. Any alterations, changes and additions to the Eversports System as well as measures serving to detect and remedy malfunctions shall only lead to temporary interruption or disruption to the Eversports System where this is necessary for technical reasons or where any other result would only be possible at disproportionate expense. 6.4 Maintenance. The basic functions of the Eversports System are usually checked on a daily basis. Maintenance of Eversports client software is guaranteed during its normal business hours (weekdays, Monday to Friday). In the event of serious malfunctions (use of cloud software no longer possible or considerably restricted), Eversports shall initiate maintenance within 3 hours of learning of the malfunction or of the Operator’s notification to it, but in any event no earlier than 3 hours from the start of normal business hours (weekdays – Monday to Friday). Eversports shall notify the Operator immediately of the start of such maintenance work and shall carry it out promptly in line with the technical circumstances. Should it not be possible to perform troubleshooting the same day or the next working day, at the latest (as calculated from the time referred to above), Eversports shall inform the Operator by e-mail by the end of the following working day, stating the reasons for this and the time period that is likely to be required for troubleshooting. 6.5 Accessibility. In the event that Eversports fails to achieve 90% availability per calendar month for any reason whatsoever, it shall, at the Operator’s request, refund that part of the Fee which is attributable to the affected portion of the calendar month. The Operator shall remain solely responsible for the operability and accessibility of its own systems. 6.6 Damages. Eversports shall in all other cases only be liable for the conduct of its legal representatives or vicarious agents in cases of intentional acts and gross negligence. Eversports shall only be liable for slight negligence in the case of losses resulting from injury to life, limb or health. Liability for consequential damages (including loss of earnings and lost profits) is hereby disclaimed. Eversports shall otherwise only be liable for foreseeable damages, the occurrence of which would typically be expected. Eversports shall have no liability at all for data loss where the loss is due to the Operator’s failure to perform data backups and thus to ensure that lost data can be restored with reasonable efforts. 6.7 Force majeure. In the event that disruptions to the Eversports System or any other claim is/are based on force majeure (e.g. power failure for which Eversports bears no responsibility, hacker attacks), Eversports shall have no liability whatsoever for any consequences resulting therefrom.
- RIGHTS OF USE TO SOFTWARE, STORAGE SPACE 7.1 Right of use. Eversports hereby grants the Operator the non-exclusive and non-transferable right to use the software provided in accordance with its intended purpose, throughout the term of the Contract. 7.2 Editing, duplication. The Operator may only edit and copy the software where this is necessary and where this is covered by the intended use of the software in line with the current specifications. ‘Necessary duplication’ includes loading the software into main memory, but not temporary installation or storage of the software on data carriers (such as hard disks or the like) on the hardware used by the Operator. 7.3 Grants of use to third parties. The Operator is not entitled to make the software available to third parties for their use in exchange for payments or on a gratuitous basis. In particular: the Operator is prohibited from sub-leasing the software. The Operator hereby undertakes that it shall arrange any contractual relationships it has with third parties in such a way that it can rule out gratuitous use of the software by such third parties. 7.4 Protection. The Operator shall take appropriate precautions to prevent unauthorised access by third parties to the protected areas of the software. To this end, the Operator shall inform its employees that copyright must be complied with. In particular the Operator shall inform its employees that duplication of the software is strictly prohibited. 7.5 Storage space provided. The Operator shall not be entitled to provide the storage space furnished to it by Eversports to third parties for their use whether in whole or in part and whether for payment or free-of- charge. The Operator undertakes that it shall not store any content within the storage space the provisions, publication and use of which violate applicable law, regulatory requirements or any agreements with third parties. The Operator shall check its data and information for viruses and other harmful components before entering them and shall use state-of-the-art virus protection programs for this purpose.
- OTHER RIGHTS/OBLIGATIONS, DATA PROTECTION, RATINGS 8.1 Eversports’ rights. Eversports is authorised, free-of-charge, to use photographs, graphics, trademarks and logos and any other copyrighted works of the Operator (which the Operator has used or provided on its website) within the Eversports System (in particular: for public presentation of the Operator) and for its own related sales and marketing purposes, such as advertising or other online measures (metatags or keyword advertising). Any revocation of such consent shall not apply to any advertising spots produced or other information and advertising materials. Eversports shall have no duty to coordinate any advertising measures with the Operator in advance. Eversports is hereby authorised, but not obliged, to state the name of the Operator. The Operator hereby warrants that such material shall be free from third-party rights precluding or restricting Eversports from unlimited use thereof for the purposes set forth in the Contract. Eversports shall have the right to translate the information provided by the Operator into other languages, to abbreviate it (in particular: the Operator’s name) or to adapt it to the standard maintained by Eversports (in particular: to edit or potentially reject photos). 8.2 Rights of Operator. The Operator is authorised to indicate in its brochures and other publications as well as on its website that it is linked to the Eversports System. To this end, the Operator shall also be entitled to use its logos provided for this purpose on the Eversports Platform free of charge. 8.3 Data protection. 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 available at www.eversports.com, both in the imprint page and on the home page of the website. 8.4 Ratings. The Operator irrevocably agrees that Eversports shall display ratings of the Operator’s Sports and Leisure Offerings by Users on the Eversports Platform. Such ratings shall be made on a 5-point scale and depicted by “asterisks” in line with the votes awarded by Users. In particular, Eversports shall be entitled to refrain from publishing ratings if it suspects manipulations and to disregard them when calculating average scores. Operators are not permitted to recommend themselves and are also prohibited from inducing third parties to furnish ratings for payment.
- NOTICE OF TERMINATION 9.1 Ordinary termination. For Contracts with a term of 12 months or more, it is deemed agreed by the Parties that the Contract will be extended again and again by the same term as the original Contract term if not terminated in writing no later than 5 weeks prior to expiry of the term or potentially extended term. Contracts with no fixed term may be terminated in writing at any time, by notice to the last day of the following month. 9.2 Open bookings. Despite notice of termination, any bookings made prior to deactivation of the Eversports System must be honoured. In the event of non-performance, the Parties agree that a contract penalty
of € 100.00 per dishonoured booking will be applied if the notice of termination comes from the Operator. Any further claims beyond the foregoing shall remain unaffected hereby. 9.3 Termination for good cause. Eversports shall be entitled to terminate the Parties’ Contract relations without notice for good cause, and in connection with this to immediately block the Admin Area and/or discontinue the option of accepting bookings, in particular in the following cases: (a) Refusal to provide verifiably and duly booked services to the User where this occurs more than once
during the most recent quarter; (b) invoicing of booked Sports and Leisure Offerings to a User despite timely cancellation where this occurs
more than once during the most recent quarter; (c) delay in payment of due Fees, including unwarranted deductions from invoices despite the setting of a
reasonable grace period. 9.4 Further claims by Eversports beyond the foregoing, in particular claims for damages and any contract penalties, shall remain unaffected thereby. Eversports shall otherwise only be obliged to remove a block where the Operator has settled all outstanding claims and submitted a bank transfer receipt on its own initiative. Where there is no particular urgency or seriousness and where the Operator is not a “repeat offender”, Eversports shall endeavour to request the Operator’s comment prior to initiating the above measures (but will give the Operator only a short period of 3 days maximum to do so).
- FINAL PROVISIONS 10.1 No assignment. The Operator is prohibited from assigning receivables and other claims against Eversports. 10.2 No set-off. The Operator shall only be entitled to unilaterally set off its claim if such claim has been acknowledged or adjudicated by a court. 10.3 Access to declarations. Declarations shall be deemed to have been received if sent to the last known address or e-mail address. 10.4 Governing law, jurisdiction and venue. 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). Exclusive venue and jurisdiction for all disputes arising from the Parties’ contractual relationship or future contracts or other claims between Eversports and the Operator shall lie with the court with local and subject-matter jurisdiction for 1010 Vienna. 10.5 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. 10.6 Consumer transactions. These GTCs shall not apply to transactions with consumers as defined by the Austrian Consumer Protection Act [German acronym: KSchG].
1 October 2018