§ 1 Scope, contracting parties

(1) These terms govern all contracts for the use of the TrainerFoundry software between Tech42 Software Solutions GmbH, Hohe Bleichen 22, 20354 Hamburg, Germany, registered with the Handelsregister Hamburg under HRB 186289 (the “Provider”), and the Customer.

(2) These terms apply both to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) and legal entities under public law, and to consumers within the meaning of § 13 BGB. Individual provisions apply to only one of the two groups; these are expressly marked as such.

(3) On registration the Customer states whether it is acting as an entrepreneur or as a consumer. That statement governs the tax treatment and whether the consumer-specific provisions of these terms apply.

(4) Deviating or supplementary terms of the Customer do not become part of the contract, even if the Provider does not expressly object to them.

(5) The Provider renders its services exclusively to customers established in Germany, Austria, Switzerland and Australia. Registration from other countries is not possible.

§ 2 Definitions

(1) “Customer” means the Provider’s contracting party, typically a personal trainer or a training business.

(2) “Client” means a natural person in a contractual or training relationship with the Customer, whose data the Customer processes in the software. Clients are not contracting parties of the Provider.

(3) “Software” means the TrainerFoundry application made available by the Provider over the internet, including the trainer area, the client app and the associated interfaces.

(4) “Customer Data” means all content entered into the software by the Customer or its Clients.

§ 3 Conclusion of contract, registration, trial period

(1) The presentation of plans on the website is not a binding offer but an invitation to submit an offer.

(2) The Customer submits its offer by completing registration and selecting a plan. The contract is concluded when access is activated or upon confirmation by the Provider in text form.

(3) The Provider offers a free trial period of 14 days. Unless the contract is terminated before the trial period expires, it converts into the selected paid plan. This consequence is pointed out separately at registration and before the trial period expires.

(4) The Customer must provide the data requested at registration — in particular country, company name and billing address — completely and accurately, and update it without undue delay if it changes.

§ 4 Scope of services and plans

(1) The Provider makes the software available to the Customer over the internet for the term of the contract and maintains it in a condition suitable for contractual use. The scope of services follows from the plan description in the version in force at the time the contract is concluded.

(2) The plans do not differ in functional scope but in the number of simultaneously active clients. The Starter plan is limited to twenty-five active clients; the Professional plan is unlimited.

(3) Once the limit under paragraph 2 is reached, the Customer cannot create further clients. Existing clients and their data remain unaffected and fully accessible. The Customer may upgrade to the higher plan at any time.

(4) The Provider may further develop the software and change individual features, provided the contractually owed purpose is preserved and the change is reasonable for the Customer. A more than insignificant reduction in the scope of services entitles the Customer to terminate.

(5) Not owed are integrations with third-party systems unless expressly part of the plan description, and advice to the Customer on tax, legal or training-related matters.

§ 5 Availability, maintenance, support

(1) The Provider owes availability of the software of 99 % on a monthly average, measured at the handover point to the internet. Announced maintenance windows and disruptions for which the Provider is not responsible are excluded.

(2) The Provider announces maintenance work 48 hours in advance where possible and carries it out primarily during periods of low usage. Urgent security measures may be carried out without prior notice.

(3) The Provider offers support in German and English through the channels provided in the software during usual business hours. No response time is assured unless otherwise agreed.

§ 6 Prices, currency, taxes, payment

(1) The prices stated on the website at the time the contract is concluded apply. Fees are due in advance for the respective billing period.

(2) The billing currency follows the Customer’s country of establishment as given at registration: euro for Germany and Austria, Swiss francs for Switzerland, Australian dollars for Australia. The prices in each currency are set independently and do not represent a day-to-day conversion. The currency is fixed with the first invoice and cannot be changed thereafter.

(3) All prices shown are total prices and include the value added tax or comparable transaction tax legally owed in each case, where such tax applies. The billing address provided by the Customer and, where applicable, its VAT identification number are decisive for the tax treatment.

(4) Payment is made through the payment service provider engaged by the Provider using the payment method stored there. The Customer must maintain a valid payment method with sufficient funds.

(5) If a payment fails, the Provider issues a reminder in text form. If payment is still not made after a reasonable grace period, the Provider may suspend access and terminate the contract for cause. The claim to remuneration remains unaffected.

(6) The Provider makes invoices available electronically. The Customer consents to electronic invoicing.

§ 7 Term, termination, return of data

(1) The contract runs for an indefinite period and renews for the selected billing period unless terminated.

(2) Either party may terminate the contract for convenience with effect from the end of the current billing period. Termination must be declared in text form or through the function provided in the software.

(3) The right to terminate for cause remains unaffected. Cause exists for the Provider in particular in the event of a material breach of § 8 or default in payment under § 6 paragraph 5.

(4) The Customer may export its Customer Data in a common, machine-readable format at any time during the term. After the contract ends, the Provider keeps the export available for a further 30 days.

(5) After the period under paragraph 4 expires, the Provider deletes the Customer Data unless a statutory retention obligation applies. Data subject to retention is blocked and deleted once the retention periods expire.

§ 8 Customer obligations, permitted use

(1) The Customer keeps its access credentials confidential and secures the accounts of its staff. It notifies the Provider without undue delay of any suspected misuse.

(2) The Customer ensures that the content it enters is free of third-party rights and does not violate applicable law.

(3) The Customer must not use the software to send unsolicited advertising, distribute malware, or place excessive load on the Provider’s infrastructure.

(4) The Customer is responsible for the lawfulness of the collection and processing of its Clients’ data, in particular for obtaining the necessary consents and fulfilling information obligations.

§ 9 Relationship with the Customer’s Clients

(1) Contracts for training services are concluded exclusively between the Customer and its Clients. The Provider does not become a contracting party and owes Clients no training, advisory or support services.

(2) The Customer independently determines the terms applicable to its Clients, in particular prices, cancellation terms and service content. The software merely reflects those terms technically.

(3) Messages, invoices and notifications sent by the software to the Customer’s Clients in the Customer’s name are declarations of the Customer. The Provider supplies only the technical means.

(4) The Customer ensures that its Clients are informed about the use of the software where legally required.

§ 10 Payment processing

(1) For payments between the Customer and its Clients the Provider engages an external payment service provider. The Customer enters into its own contractual relationship with that provider and accepts its terms.

(2) The Provider is not a payment service provider and does not take possession of its Customers’ funds. Payouts, chargebacks and payment defaults are governed by the relationship between the Customer and the payment service provider.

(3) If the payment service provider fails to meet its obligations towards the Customer or suspends its account, this does not affect the continued existence of this contract. The Provider supports the Customer in resolving the matter to the extent reasonable.

(4) The Software is not bookkeeping, accounting or point-of-sale software. It merely presents payments processed through the payment service provider, and cash payments recorded by the Customer, in an overview, transmits the details for invoices under paragraph (6) to the payment service provider, and provides reports and exports as tools. It is not intended to replace proper bookkeeping, cash records or the retention of receipts.

(5) The Customer alone is responsible for properly keeping books and records of its business transactions, for issuing and retaining receipts — in particular for cash payments —, for fulfilling its tax obligations and for the accuracy of the information it enters. Figures and exports shown in the Software do not replace a review by the Customer or its tax advisor.

(6) The Customer issues invoices and credit notes to its Clients through its own account with the payment service provider and in its own name — for cash payments only where the Customer has enabled this in the Software. For this purpose the Provider transmits the details of the respective payment available in the Software to the payment service provider and displays the invoices issued in the Software; it does not thereby become the issuer of the invoices. The Customer alone is responsible for the content and completeness of the invoices, in particular their tax details and notes, and for retaining them. The payment service provider charges its fees, including those for invoices and tax calculation, directly to the Customer; the Provider takes no commission on payments between the Customer and its Clients. The Software’s finance overview shows payments gross only and without tax amounts; neither it nor the Software’s exports are a basis for the Customer’s tax returns or tax filings. For these, the Customer keeps its books in accordance with paragraph (5).

§ 11 Rights of use and intellectual property

(1) The Provider grants the Customer a non-exclusive, non-transferable and non-sublicensable right to use the software within the agreed scope for the term of the contract.

(2) All rights in the software, its design, the trademarks and the documentation remain with the Provider. There is no claim to release of the source code.

(3) Rights in the Customer Data remain with the Customer. The Provider may process it solely to perform the contract.

(4) The Provider may create and use statistical analyses in anonymised form, provided that no conclusions about the Customer or individual Clients are possible.

§ 12 Data protection and processing on behalf

(1) Where the Provider processes personal data of Clients on behalf of the Customer, the Customer is the controller and the Provider is the processor within the meaning of Art. 4 no. 8 GDPR.

(2) The details are governed by a separate data processing agreement pursuant to Art. 28 GDPR, concluded together with this contract.

(3) The Provider engages sub-processors. The Provider informs the Customer of intended changes; the Customer may object.

(4) The privacy policy applies in addition.

§ 13 Confidentiality

(1) The parties treat all confidential information of the other party obtained under the contract as confidential and use it solely to perform the contract.

(2) The obligation does not apply to information that is publicly known, lawfully obtained from third parties, or must be disclosed by law.

(3) The obligation survives for three years after the contract ends.

§ 14 Warranty

(1) The Provider grants use of the software for a limited time against payment. German lease law applies unless otherwise provided below.

(2) Strict liability for defects existing at the time of conclusion of the contract under § 536a paragraph 1 alternative 1 BGB is excluded.

(3) The Customer reports defects without undue delay in text form and describes them so that they can be reproduced.

(4) Insignificant impairments of usability do not give rise to warranty claims.

§ 15 Liability

(1) The Provider is liable without limitation for intent and gross negligence, for injury to life, body or health, under the German Product Liability Act, and to the extent of any guarantee assumed.

(2) In cases of simple negligence the Provider is liable only for breach of a material contractual obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the Customer may rely. In that case liability is limited to the foreseeable damage typical for this type of contract.

(3) Liability is otherwise excluded.

(4) The Customer is itself responsible for regularly backing up the data it exports. In the event of data loss the Provider is liable only for the effort that would have arisen had the Customer backed up its data properly.

§ 16 Indemnification

(1) The Customer indemnifies the Provider against all third-party claims arising from unlawful use of the software by the Customer or from the content it has entered, including claims by its Clients.

(2) The Provider notifies the Customer of any such claim without undue delay and leaves the legal defence to the Customer where possible.

§ 17 Changes to terms and prices

(1) The Provider may amend these terms where necessary to adapt to a change in the law, to supreme court case law or to a change in the services offered, and where the Customer is not unreasonably disadvantaged as a result.

(2) The Provider notifies the Customer of amendments in text form at least six weeks before they take effect. If the Customer does not object before they take effect, the amendments are deemed accepted towards entrepreneurs. This consequence is pointed out separately in the notification. If the Customer objects, either party may terminate with effect from the date the amendments take effect.

(2a) Towards consumers, amendments take effect only if the consumer expressly agrees to them. If the consumer does not agree, the existing terms continue to apply; in that case the Provider may terminate the contract with effect from the end of the current billing period.

(3) Price adjustments are possible with three months’ notice to the end of a billing period. In that case the Customer may terminate with effect from the date the adjustment takes effect.

§ 18 Force majeure

(1) If a party is prevented from performing by an event outside its control, its obligations are suspended for the duration of the impediment. This includes in particular natural events, industrial action, acts of authority and large-scale disruptions of power or telecommunications networks.

(2) If the impediment lasts longer than two months, either party may terminate the contract.

§ 19 Final provisions

(1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods. Where the Customer acts as a consumer, the mandatory consumer-protection provisions of the state in which the consumer has their habitual residence remain unaffected.

(2) The exclusive place of jurisdiction for all disputes arising from this contract is Hamburg, Germany, provided the Customer is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany. Towards consumers, the statutory places of jurisdiction apply.

(3) The Customer may assign rights under this contract only with the Provider’s prior consent. The Provider may transfer the contract in the context of a universal succession.

(4) Amendments and supplements must be made in text form. This also applies to the waiver of this form requirement.

(5) If any provision is invalid, the validity of the remaining provisions remains unaffected.