Bornfab General Terms and Conditions (“BTC”)
1.1 The online portal Bornfab for modern online fitness training is an offer of Bornfab GmbH (hereinafter: “Bornfab”).
1.2 These General Terms and Conditions (“GTC”) apply to the contractual relationship between Bornfab and the user (hereinafter: “User” or “You”) for the use of this offer. Even if Bornfab does not expressly object to deviating GTC of the User, such shall not become a part of the contract.
2. Close of Contract and Contractual Relationships; Registration Prerequisites; Change of the BTC
2.1 The prerequisite for the use of Bornfabs offer (service packages subject to cost and/or free trial offers or other services) is that the User registers with Bornfab. Bornfab can offer free try-outs of Bornfab’s contents or services during a trial period either in the form of independent offers or upon free registration, or in combination with closing a contract for a service package subject to cost. Irrespective of any agreements providing otherwise, there is no entitlement to a free trial.
2.2 The contract will become effective by Bornfab confirmation of the User’s registration (“Registration”) or Bornfab’s acceptance of the User’s order. Bornfab can also confirm the registration or accept the User’s order by activating the respective offer. Bornfab will confirm the order of a service package subject to cost in accordance with the legal regulations; this order confirmation does not constitute an acceptance of the order yet.
2.3 The terms of the contract will not be stored by Bornfab for the User, without prejudice to the statutory information requirements.
2.4 The User must have unrestricted contractual capacity or must act with the agreement of his/her legal representative. The User must have completed at least his/her 14th year in all cases.
2.5 Bornfab has the right to change these GTC if the User agrees to the change. The User’s agreement will be deemed given if Bornfab has informed the User in text form of the proposed change to the GTC, at the latest six weeks before the proposed date for their taking effect, and if the User has not objected to them in text form within 6 weeks thereafter. Bornfab undertakes to inform the User in the notice of the change of the respective changes and by means of a separate, emphasized reference to the effective approval in consequence of omitted timely objection.
3. Scope of Service
3.1 Insofar as a contract has been concluded for a service package subject to cost, Bornfab shall provide the agreed services. Where Bornfab provides contents and/or services beyond this on a voluntary basis, this will be done without assumption of any legal obligation to do so and Bornfab shall be entitled to modify, expand or limit these services at any time.
3.2 The User is permitted to access agreed contents of Bornfab generally with limitation to the region of the Federal Republic of Germany. Upon the taking force of Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market, the use also during a temporary stay of the User in a Member State of the European Union other than his/her own residential Member State is permitted, provided that the conditions for this cited in Regulation (EU) 2017/1128 are fulfilled and the customer tolerates and enables beforehand the validation of the Member State in which he/she maintains his/her residence (also repeatedly) in accordance with Regulation (EU) 2017/1128 and the applicable data protection regulations. It is pointed out that the technical quality during the retrieval of the contents in other European countries can differ negatively compared to the domestic quality.
3.3 Bornfab assures a 99% availability of its online offer calculated on the calendar year. Bornfab’s calculation leaves any outages outside of consideration, which occur because of necessary maintenance work or due to acts of god, technical failures of the internet or for any other reasons outside of Bornfab’s responsibility.
3.4 Bornfab does not undertake to make data backups for the User and does not extend any assurances, guarantees or warranties beyond the legal regulations, unless agreed otherwise in the individual case.
4. User’s Duties and Obligations, Prohibited Behavior
4.1 The User may use Bornfab’s offer exclusively for his/her private purposes. Commercial or business use is prohibited. 4.2 The User undertakes to provide information truthfully and completely and to keep this information up to date during the term of the contract by adjusting the information or notifying Bornfab.
4.3 Only one registration may be maintained per person.
4.4 The User is obligated to keep his/her login data secret and not to pass it on to third parties. It is prohibited to provide third parties a possibility to use the registration and/or a service package subject to cost.
4.5 The User is obligated to observe the existing copyrights and other rights on the contents of service packages subject to cost and the other contents in Bornfab’s offer. He/she may not reproduce, disseminate or make these contents publicly accessible or remove any technical protection measures or copyright markings or rights symbols, unless this is expressly permitted.
4.6 The User is obligated to make hard and software and a broadband internet connection for the retrieval of the agreed contents or services from the offer of Bornfab available at his/her own cost.
4.7 If You are suffering from diabetes or if You are pregnant or suffer from abnormal obesity, You may use Bornfab’s offer for training only if a physician has confirmed to You that the training is harmless.
5. Terms of Payment, Delay, Offsetting and Right of Withholding
5.1 All agreed compensation is understood including the statutory value added tax. Shipment costs will not be incurred. Bornfab is entitled to transmit electronic invoices.
5.2 If payment in one complete sum for a certain period has been agreed, the total sum shall be due in the beginning of the period, unless agreed otherwise. For the rest, the agreed fees shall be due immediately, unless agreed otherwise.
5.3 Payment is permissible exclusively using the agreed payment instrument. By agreeing to the direct debit procedure, the User authorizes Bornfab to collect payments owed by him/her from the indicated account of the User.
5.4 The User shall have a right to offset only to the extent that his/her counter claim against Bornfab has been found valid by final and absolute judgment or if it is uncontested or acknowledged. The user shall have a right of withholding only if and insofar as his/her counter claim is based on the same contractual relationship.
5.5 If a user does not fulfil a due payment obligation to Bornfab, Bornfab will have the right to block the User’s access temporarily until the owed payment is received, after giving prior warning and without prejudice to further statutory and contractual rights. In that case, the term of the contract shall remain unaffected by the temporary block.
5.6 The User shall refund Bornfab for the losses and required expenses (e.g. cost of return debits), which are incurred by Bornfab due to absent or belated payment by the User or other disruptions to the payment by the User (e.g. a lack of funds on the account in breach of duty in case of a direct debit mandate), unless the User has no fault in these instances.
6. Term of Contract, Automated Extension, Pausing, Termination
6.1 The contract for a service package subject to cost will be valid for the respectively agreed term. After its end, it will respectively prolong automatically by the agreed term of the contract, whereas at most for one year, unless the User or Bornfab terminate the contract in observation of the following period: three days before the end of the respectively current term. In deviation thereof, the contract can be terminated by both Parties at any time during the free trial period; in that case, a contract on any service package subject to cost that may have been ordered in conjunction with this free trial period will also end, i.e. no contract period subject to cost will follow to this free trial period.
6.2 Termination requires the written form for validity. The User can also declare termination online using the relevant feature provided for this purpose in the user account.
6.3 The statutory right of both Parties of extraordinary cancellation for good cause remains unaffected. Cause for extraordinary cancellation is given for Bornfab in particular if the User intentionally provides false information in the course of the registration or order and/or later change of his/her data, or if he/she has repeatedly violated the GTC, provided that Bornfab has given warning regarding the observation of the User’s relevant contractual duty without success before the extraordinary cancellation (warning).
6.4 Insofar as Bornfab offers and agrees with the User on a free trial period for a service package subject to cost, the agreed contract period for the service package subject to cost shall prolong accordingly; in that case, the extended period will run first (if applicable, with an ordinary right of special cancellation by the User where agreed) followed by the regular term of the service package subject to cost.
6.5 If the User has signed a contract for a service package via Bornfab’s website (i.e. this does not apply to the purchase via apps or the app store provider, e.g. Apple /iTunes, Google, Amazon) and for as long as the User is not in default of fulfillment of his/her contractual obligation, he/she can pause the service package subject to cost up to two times for a total period of at most 90 days within 365 consecutive days by activating the relevant setting provided for this purpose in his/her user account. In that case, he/she will not be able to use the service package subject to cost during the suspended period and the term of the service package subject to cost will prolong by the time of the pause as agreed.
7.1 Bornfab shall be liable for the User’s contractual and other claims on the merits exclusively for losses of the User (1) which have been caused intentionally or gross negligently by Bornfab, its legal representatives or vicarious agents, (2) which are due to an injury to life, body or health in result of a breach of duty by Bornfab or one of its legal representatives or vicarious agents, (3) in cases of liability pursuant to the Product Liability Act, the assumption of a guarantee or for fraudulent deceit, and (4) which have been caused by the breach of a duty the fulfillment of which makes the correct execution of the contract possible in the first place and the fulfilment of which the User regularly relies and may rightly rely upon (so-called cardinal duty).
7.2 In cases of (1), (2) and (3) of the above paragraph, Bornfab shall be liable for unlimited amount. For the rest, liability shall be limited to the predictable damage that is typical for the contract.
7.3 In cases other than the ones named in para. 1 and para. 2, and irrespective of the next paragraph, Bornfab’s liability is excluded regardless of the legal reason.
7.4 The aforestated liability limitations shall apply accordingly to all bodies, employees and vicarious agents of Bornfab. They do not cause a change in the statutory burden of proof.
8. Final Provisions, Miscellaneous
8.1 No verbal or written side agreements exist.
8.2 If individual provisions of these GTC or the concluded contract should be or become fully or partly invalid in other respects, the remaining contract shall stay in full force and effect. The statutory provision shall replace the invalid provision.
8.3 German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods. This choice of law shall apply in relation to consumers, however, only insofar as the protection is not withdrawn that is granted by compulsory provisions of the law of the state in which the consumer maintains his/her place of habitual abode.
8.4 The place of jurisdiction agreed for all disputes arising from the contractual relationship between the User and Bornfab is the place of Bornfab’s registered office if the User is a merchant, a legal entity of public law or a public-law investment fund. Irrespective thereof, Bornfab retains the right to sue the User also at its statutory place of jurisdiction.
8.5 In the case of complaints about Bornfab, the User can contact the European platform for online dispute resolution in consumer matters: https://ec.europa.eu/consumers/odr/
8.6 Bornfab is not obligated and not willing to participate in dispute resolution procedures before a consumer mediation office.
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Instruction on revocation
If you are a consumer, you have the following right of revocation:
Right of Revocation
You have the right to revoke this contract without a statement of reasons within 14 days.
The right of revocation is valid for 14 days from the day of the conclusion of the contract.
To exercise your right of revocation, you have to inform us (Bornfab email: email@example.com) by an unambiguous declaration (e.g. a letter sent by mail or by email) of your decision to revoke this contract. For this purpose, you can also use the attached sample revocation form (see below) but it is not mandatory to do so.
It is sufficient for observation of the revocation deadline if you send the notice on the exercise of the right of revocation before the expiration of the revocation period.
Consequences of revocation
If you revoke this contract, we shall return all payments to you that we have received from you, including delivery costs (except for the additional costs arising for the reason that you have chosen a different kind of delivery than the most affordable standard delivery offered by us), without delay and at the latest within 14 days as of the date on which the notice of your revocation of this contract was received by us. We will use the same payment method for this repayment as you have used in the original transaction unless it was explicitly agreed otherwise with you; in no case will any fees be charged to you for this repayment.
Your right of revocation will expire early in the case of a contract for the delivery of digital contents kept on a non-physical data carrier if you have expressly agreed prior to the expiration of the revocation period that we will begin with the execution of the contract and you have confirmed that you have taken notice of losing your right of revocation by agreeing to the start of the execution of the contract.
In case of a contract for the performance of services, the following shall apply: If you have requested that the services should begin during the revocation period, you shall pay us an appropriate amount, at the rate of the services already performed up until the time when you inform us of the exercise of the right of revocation relative to the overall scope of the services intended under the contract.
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