Terms and conditions for the use of fitnessmarkt.com
fitnessmarkt.de services GmbH
- Referred to as provider in the following text –
(1) The provider operates a marketplace for fitness and health equipment on http://www.fitnessmarkt.com and http://www.fitnessmarkt.de. The following terms and conditions are valid for the use of the website and the publication of adverts.
(2) The registration and use of the website is permitted only to adults, contractually capable natural persons and legal entities.
(3) Any conditions differing from these terms and conditions are not valid except the provider expressly accepts them.
2 Explanation of the offered services
(1) The provider offers the technical platform for the operation of the marketplace. To publish an ad, the user has to create a free account.
(2) The provider is not a contracting party of the contracts concluded between the members outside the web-platform. The execution of the contract also takes place exclusively between the members.
(3) The published ads on the provider’s platform are not legally binding, but only a request without commitment to make an offer
(4) The members‘ use of the platform is only permitted as long as it is not contrary to statutory provisions or this terms and conditions.
3 Creating an account
(1) In order to fully use the services of the provider, a member must open an account by registering for free. In addition to free basic functions, members can book additional paid services, such as the visual highlighting of advertisements.
(2) Members can choose between a private profile and a commercial profile. The prerequisite for the creation of a commercial profile is that the member is commercially active within the meaning of the German Industrial Code (GewO). In the case of a commercial profile, the member has to observe special obligations which are regulated in these General Terms and Conditions, in particular under Section 5.4. Upon request, commercial users may also receive a so-called merchant profile, which contains their own marketplace. There is no right to set up a merchant profile, the decision about this is reserved by the provider.
(3) Legal persons must be registered by a natural person authorised to represent them, who must be named.
(4) With the completion of the registration process, the agreement to the validity of these general terms and conditions by the member and the activation of the member account by the provider, a user contract between the member and the provider comes into being.
(5) There is no legal claim to the opening of a member account. The provider reserves the right to refuse the conclusion of a contract in individual cases. The provider will inform the user of this immediately.
(6) The members must treat all access data confidentially and secure it against access by unauthorized third parties. In particular, the disclosure of access data to third parties without the consent of the provider is prohibited. If a member becomes aware of the misuse of the access data or their unauthorized use by third parties, the provider must be informed immediately.
(7) The member account is not transferable. The provider reserves the right to make the use of the service dependent on certain conditions, such as the verification of registration data, compliance with the general terms and conditions of the provider, the number of positive or negative evaluations or the payment of the agreed remuneration.
(8) Irrespective of registration, the member may not send any messages containing advertising content via the platform without the recipient's consent (in particular: spam messages). Furthermore, it is not permitted to transmit links in the messages that lead to pages outside the platform.
4 Profile and disclaimer information of the sellers
Members must provide all necessary data completely and truthfully when registering. The data can be edited by the member himself in the user account at any time. The members are obliged to always keep the information up to date.
(1) In the case of commercial profiles, additional information is required in accordance with the statutory provisions. The data will be used to create the legally prescribed imprint and published in the respective advertisement. Members with a commercial profile are obliged to inform the provider immediately about the task of the commercial enterprise or the freelance activity, insolvency or liquidation of their company.
(2) The provider cannot verify the accuracy of the information and is liable for false or incomplete information only from knowledge. The provider will immediately investigate indications of incorrect or incomplete seller data.
5 Obligations for registration and selling of fitness equipment
(1) On the platform of the provider, advertisements are only permitted to sell or request fitness or therapy equipment, gyms and accessories. Services or other offers for goods are not permitted.
(2) The seller has to give a truthful and complete description of the inserted articles. He has to truly state all relevant information for the implementation of the contract.
(3) The seller has to state his contact information like e-mail address, phone or mobile number in the provided fields.
(4) After the advertisement has been published, the advertisement may only be changed to the extent that the identity of the product remains unchanged. A subsequent change of the brand or category is therefore not permitted. Rather, an advertisement must be deleted and reposted unless the member expressly agrees otherwise with the provider.
(5) Offers sold or no longer available to the member must be deleted immediately.
(6) The final price has to be stated inclusive VAT and never as net price. The price has to include all parts according to price regulation and other laws. This includes not only VAT, but also other costs like shipping fees which come up during the implementation of the contract. When stating the sales price it has to be indicated if the price is sold by a private person without VAT or by a commercial seller including VAT. It also has to be indicated if the percentage rate differs from the German VAT percentage, e.g. if the article is sold abroad with a differing VAT percentage.
(7) It is prohibited to insert pictures, texts or other contents which harm trademark rights, copyrights or competition laws. This is particularly important for:
Contents whose utilization or publication harms copyrights, ancillary copyrights or industrial property rights (trademark rights, design patents or samples)
Pictures or videos which harm third persons‘ rights of the own picture as well as the right to a name or personal rights
(8) The setting of links in the ad description is only allowed after consulting the provider. The provider has the right to delete links. This concerns especially links which lead to illegal content or harm a third person’s rights.
(9) The advertising of sham offers that serve only as publicity for the sale of goods and services outside the provider’s platform is prohibited. The publication of advertising media that doesn’t serve the initiation, execution or order fulfilment on the provider’s platform is only admitted after being expressly authorized by the provider.
(10) It is prohibited to manipulate search functions of the platform or other search engines via advertisements on the platform, e.g. by misusing brand names or other search terms in the article description or description.
6 Duration of contract
(1) The free membership contract between the provider and the member for the use of the platform is concluded for an indefinite period. The contract can be terminated by the member at any time with a notice period of fourteen days to the end of the month by notifying the provider (in writing, by telephone, by e-mail).
(2) In the event of termination by the member, already billed services for current advertisements cannot be refunded.
(3) The provider can terminate the user contract at any time with a notice period of fourteen days to the end of the month without giving reasons. The right to block member accounts remains unaffected. Already billed services for advertisements will be refunded proportionately.
(4) The right to extraordinary termination remains unaffected for both parties.
7 Run-time of ads
(1) The runtimes of advertisements, the renewal possibilities, special offers for dealers, the respective prices as well as the payment modalities are separately regulated in the current price list. These can be found here.
(2) The service provision of the provider begins with the day of the online placement of the member profile, for advertisements with the day of their online placement.
(3) The payment is due immediately after contract conclusion. The customer is liable for damages caused by delay due to late payment.
(1) A commission is due for each purchase contract arranged by the provider.
(2) A purchase contract is deemed to have been arranged by the provider if the contact leading to the conclusion of the contract between the customer and member has been initiated in any way by the provider (e.g. independent use of the contact form, mediation of the customer in telephone, written, digital or other form). This also applies if there was an independent contact or a business relationship between customer and member before.
(3) The commission is also due on the sale of equipment for which no advertisement has currently been created by the member (e.g. customer specifically requests a device that has not been advertised from the member or, after a purchase negotiation, a device other than the device that has been advertised and initially requested is sold).
(4) The commission is also due for advertisements that were already published on fitnessmarkt.com before the introduction of the commission regulation.
(5) The payment is due immediately after contract conclusion. The customer is liable for damages caused by delay due to late payment.
(6) The members are obliged to inform the provider immediately and truthfully about the conclusion of a contract between member and customer or to give truthful information to the provider upon request. If contradictory or untruthful information about the conclusion of a contract is given by the member and/or customer, the contract in question is deemed to have been concluded. The same applies if the provider does not receive any information from the member within 1 week upon request.
(7) In all cases of clause 8.e. the commission is due in the amount of the currently valid commission rate on the purchase price according to the price list. In the case of advertisements without a purchase price, a commission flat rate of 500 euros applies, with the exception of studio sales and advertisements with a value of 10,000 euros or more, where the value for calculating the commission is estimated. It is the member's responsibility in the cases of Section 8.e. to prove that no contract has been concluded.
9 Right of revocation
If you use the provider's platform as a consumer, the following right of revocation applies to you:
You have the right to revoke this contract within fourteen days without giving reasons.
The revocation period is fourteen days from the date of conclusion of the contract.
To exercise your right of withdrawal, you must inform us by post, telephone or e-mail by means of a clear declaration (e.g. a letter, fax or e-mail sent by post) of your decision to withdraw from this contract. You can use the attached model withdrawal form, but this is not mandatory.
In order to comply with the revocation period, it is sufficient that you send the notice of the exercise of the revocation right before the expiry of the revocation period.
Consequences of the revocation
If you cancel this agreement, we will refund all payments we have received from you, including delivery costs (except for the additional costs resulting from your choosing a delivery method other than the cheapest standard delivery offered by us), immediately and at the latest within 14 days from the day we receive notice of your cancellation of this Agreement. We will use the same means of payment for this refund as you used for the original transaction, unless expressly agreed otherwise with you; in no event will you be charged any fees for this refund.
If you have requested that the Services commence during the cancellation period, you shall pay us an appropriate amount corresponding to the proportion of the services already provided by the time you notify us of the exercise of the right of withdrawal under this agreement compared to the total scope of the Services provided for in the agreement.
Model withdrawal form
If you wish to cancel the contract, please fill out this form and send it back to us:
fitnessmarkt.de services GmbH, Rollnerstrasse 14, 90408 Nuremberg, Germany:
I/we* hereby revoke the contract concluded by me/us* for the provision of the following service
Name of the consumer __________________________
Address of the consumer ______________________________________
Signature of the consumer (only if communicated on paper)
* Delete if inapplicable
10 Contract between members
(1) The publication of ads on the provider’s platform is no legally binding offer for the conclusion of a contract, but only a possibility to get in contact.
(2) The provider is never contracting party for concluded contracts outside the platform – even if the contract is concluded on the base of an ad on the platform. The settlement and fulfillment of the contract outside the provider’s platform is not part of the contract between provider and members.
11 Copyrights and rights of use
(1) When publishing texts, images and/or video files, the user agrees not to violate any current laws or rights of third parties (in particular name, copyright or data protection rights). He is obliged to inform the provider immediately about possible infringements. In case of suspicion of legal violations, the provider is entitled to immediately put the advertisement or the profile of the customer offline.
(2) The user grants the provider free of charge the simple, transferable, spatially and content-related unrestricted right to texts, images or video files which he uses himself to design his advertisements or his profile or which the provider has used for the creation of advertisements or profiles on his behalf. The right of use also includes the permission to use, reproduce and distribute the data for further advertising measures (in particular on partner sites to increase reach) and to edit them within the limits of the author's personal right.
(3) The customer assures and guarantees that he is entitled to transfer the aforementioned rights of use, duplication and distribution and that no rights of third parties conflict with this.
(4) As far as the provider creates texts or other contents for the customer, all copyrights and rights of use remain with the provider. Their use by the customer outside the online portals of the provider is only permitted with the explicit written consent of the provider.
(5) The exclusive rights of use for the provider's websites lie with the provider. The adoption of content, structure or design is neither permitted in whole nor in part.
12 Liability of the provider
(1) The provider is liable according to the legal regulations for intent and gross negligence of fitnessmarkt.de services GmbH, its legal representatives, executives or other vicarious agents. The same applies to the assumption of guarantees or other strict liability as well as claims under the Product Liability Act or culpable injury to life, limb or health. The liability of the provider for simple negligent breaches of essential contractual obligations caused by fitnessmarkt.de services GmbH, its representatives, executives and simple vicarious agents, i.e. such obligations on the fulfilment of which the user regularly relies and may rely for the proper execution of the contract, is limited to the damage typically foreseeable at the time of conclusion of the contract.
(2) The foregoing limitations of liability shall not apply in the event that the provider expressly assumes guarantees or in the event of damage resulting from injury to life, limb or health.
13 Liability for members‘ content
(1) The provider is not liable for correctness, quality, completeness, reliability, type and kindness or credibility of contents inserted by members. They are no expressions of the provider’s opinion and the provider is not owner of the members‘ contents.
(2) The provider is not liable for the conclusion, settlement and fulfillment of contracts between members. The provider only makes the platform as medium of establishing contacts available.
(3) According to the legal regulations of the German Act of Telemedia Services (TMG) the providers of services are not bound to prove the transmitted or saved data of third parties or to search for evidence which shows illegal acts without concrete hints. Liability for the content of third parties is only given if the provider has knowledge of the illegal acts or information.
(4) After being informed about relevant infringements by third parties, the provider will lock or delete illegal contents immediately as well as take measures to prevent this infringement in future.
14 Liability exemption
(1) The members support the provider with the defense against claims of third parties that refer to contents published by members, especially by providing all necessary information for the defense.
(2) The member is obliged to take all costs which are necessary for legal action – especially all necessary attorney fees and legal charges – which are produced due to the claims of third parties because of the content published by the member. This is not valid if the member is not liable for the rights violation.
15 Granting of the right of utilization
(1) The members grant the provider a simple, not temporary restricted, not transferable and irrevocable right of utilization of the transmitted contents for the publication of ads on the provider’s website.
(2) The provider reserves the right to edit the members‘ contents to guarantee e.g. the standardized form of publications. This is especially valid for the content of ads like pictures, texts, videos in every kind of format. The members expressly agree to this kind of editing.
16 Locking of accounts, exclusion of members
(1) If there is certain evidence of a member violating legal regulations or this terms and conditions (especially prohibitions mentioned in no. 4 and 5), the provider has the right to lock the affected ads. The provider can ban a member from the use of the platform for repeating violations of the regulations. When deciding for an action, the provider takes into account the interests of the affected member, especially if the member is liable for the breach.
(2) If a member had been locked conclusively, there is no claim for re-establishment of the locked member account. After being locked, the member is not allowed to use the provider’s service with another account. It is also prohibited for the banned member to create another account with a different name.
(3) In case of locking of a member’s account, the member has the right to cancel the contract with the provider immediately.
17 Change of services/ Adoption of the contract
(1) The provider has the right to edit, update, expand, decrease or disestablish single services on the platform.
(2) The provider has the right to transfer his rights and duties of this contractual relationship partly or completely to a third party after the period of 4 weeks after announcing. In this case, the members are allowed to cancel their membership after announcement of the adoption of the contract.
18 Applicable law, court of jurisdiction
(1) It is agreed on the applicable law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. This is not valid, if the consumer lacks urgent norms of consumer protection due to this choice of law.
(2) For all legal action arising from this contract and these terms and conditions the company’s head office in Nuremberg (Germany) is the only court of jurisdiction, if the member is entrepreneur according to the German Civil Code, a corporate body organized under public law or public separate assets.
(1) fitnessmarkt.de services GmbH takes the protection of personal and confidential data very seriously and undertakes to respect the privacy of its customers. Personal customer data is handled in accordance with the relevant legal data protection regulations.
20 Change of the terms and conditions, final clause
(1) The provider reserves the right to change the terms and conditions without stating reasons. The changed terms have to be sent the members by e-mail 4 weeks before the change at the latest and the changed parts have to be emphasized. The members get advised of the meaning of the period and the legal consequences. If the member doesn’t disagree within 4 weeks, the changed terms are valid. The members are advised separately of the meaning of the period of 4 weeks in the e-mail that contains the changed terms.
(2) If one regulation of these terms and conditions is or becomes invalid, the other regulations stay unaffected.
The current version of these General Terms and Conditions is December 2018.