1. Scope of the T&Cs
1.1 The object of this contractual relationship is the use of the online-based course management programme SkedFlex Fitness (hereinafter "SkedFlex") and the websites, functions and services offered as part of SkedFlex, whatever the domains used.
1.2. This agreement is valid from the first day the Customer uses SkedFlex. Any earlier terms of any contract between CGH IT-Solutions and the Customer become invalid when these T&Cs come into force.
1.3. Any Customer’s terms and conditions distinct from these T&Cs shall not be recognised unless CGH IT-Solutions expressly agrees to their validity in writing. This shall also be the case if CGH IT-Solutions does not expressly agree to other terms and conditions in writing.
2. Termination and content of the contract
2.1. The contractual relationship between the Customer and CGH IT-Solutions comes into force with the conclusion of the registration process. The registration process is concluded, when the registration is confirmed by clicking on the link sent by email.
2.2. CGH IT-Solutions can terminate the contract within one week, should it be determined that the Customer is not credit-worthy after being assessed by approved credit assessment providers.
2.3. When concluding the contract, the Customer shall choose one of the price plans offered by CGH IT-Solutions. The scope of the SkedFlex services and the level of payment by the Customer are stated in the description of each price plan. For price plans which are not free, the Customer also chooses a payment interval, which also serves as the term of the contract.
2.4. After the application has been activated, the Customer can use SkedFlex for a two-week trial period without any costs arising. The contract becomes subject to payment after the end of the trial period, when the Customer enters account information during the trial period. Should the Customer not have concluded a contract subject to payment within the two weeks, the SkedFlex system set up by the Customer including all data collected shall be automatically deleted.
2.5. While the application is active, the Customer can book additional modules alongside price plans. These modules extend the application by the functionality given. Costs and contents of the additional modules can be viewed in the module descriptions. Each module can be tested for two weeks without incurring any additional costs. After two weeks, it automatically becomes subject to payment if the Customer does not cancel the module within the two weeks. Modules may be terminated at the end of the current settlement period.
3. Payment and billing
3.1. Payment takes place monthly and in advance. Payment sums given are net sums and are subject to the VAT applicable on the day the bill was issued.
3.2. CGH IT-Solutions reserves the right to amend the amount payable at any time. In the case of existing contracts, the amended charges shall not apply until the beginning of the following contract period.
3.3. The Customer can settle payment using any of the payment options offered by CGH IT-Solutions.
3.4. CGH IT-Solutions must send the Customer pre-notifications as part of the SEPA direct debit scheme at least one day in advance.
3.5. The bills are made available to the Customer electronically up to five days before either the payment is charged or the price plan changes.
3.6. Vouchers issued by CGH IT-Solutions may be used within the terms of their validity, to reduce a price plan payment by the respective amount.
3.7. If a payment cannot be collected, the customer must bear all resulting costs. In particular, these include bank charges arising from the rejection of direct debits and similar fees matching the extent to which the Customer is responsible for the event, which led to fees being incurred. CGH IT-Solutions can send the Customer payment reminders electronically.
3.8. Should the Customer fall into arrears with payments, a first reminder shall be sent seven days after the bill is due excluding any reminder fees. If payment is still outstanding, a second reminder will be sent ten days later and a reminder fee amounting to EUR 20.00 shall be charged. If no incoming payment is recorded within seven days of sending the second reminder, access to the application shall be temporarily blocked. Access to the application shall be re-enabled once the payment is received, unless CGH IT-Solutions or the Customer has already terminated the contract.
3.9. Compensation is only possible if the other party to the contract has claims, which are recognised or which have been determined by a court, unless the claims are for principal items or defects. A right of retention can only be claimed for claims arising from the contract concerned.
4. Customer obligations
4.1. The Customer ensures that all data he/she sends on his/her own behalf or on the behalf of his/her company are truthful and that all data and contents sent are legally permissible and free of any third party rights. The use of pseudonyms is not permissible. The Customer cannot pretend to be another person or company or misrepresent his/her identity in any other way.
4.2. During registration, a customer account is set up for the Customer, who can use this account to manage settings and access SkedFlex services.
4.3. In the case of an incomplete registration, CGH IT-Solutions reserves the right to delete the customer account within a week.
4.4. The Customer’s address and contact details must always be up to date. Disadvantages, which arise for the Customer based on incorrect information, shall be borne by the Customer. Disadvantages, which arise for CGH IT-Solutions based on incorrect information, shall be borne by the Customer if the Customer is responsible for giving false information.
4.5. It is the Customer’s responsibility to exercise the greatest possible care regarding the use of his/her access details and take any measures, which ensure the confidential, secure treatment of data and avoid the disclosure of said data to third parties. The Customer is responsible for any misuse of access data as long as he/she cannot demonstrate and prove that this was not based on his/her own fault. The Customer is required to inform CGH IT-Solutions immediately if he/she has reason to believe that a third party has become aware of access details and/or is misusing a customer account.
4.6. If claims are brought against CGH IT-Solutions because of inappropriate content or other infringements for which the Customer is responsible, the Customer shall indemnify CGH IT-Solutions upon first request and shall support CGH IT-Solutions in defending itself against said claims. The indemnification shall cover the necessary legal costs.
5. Usage authorisation
5.1. CGH IT-Solutions indicates that the Customer may only use the service for the individual purposes outlined in the contract. It may not be ceded to third parties, regardless of whether a fee is charged.
5.2. The Customer may only use SkedFlex via the input screens and interfaces provided.
5.3. Any actions, which are capable of hindering the functionality of CGH IT-Solutions’ services, software and infrastructure are forbidden. In particular, it is forbidden to place a load on the network, which surpasses the usage intensity and frequency to be expected from regular, normal usage of the services and interfaces (e.g. software, which permanently generates unnecessary access via CGH IT-Solutions’ interfaces due to technical errors).
5.4. CGH IT-Solutions reserves the right to restrict the use of SkedFlex, delete content or give the Customer a notice of termination if the Customer breaches these T&Cs or legal regulations and the relevant measure can be justified objectively.
6. Changes to price plans and termination
6.1 Unless otherwise agreed, contracts are concluded for an unlimited time period. These contracts may be terminated by both parties at the end of the month giving 2 weeks’ notice however, no earlier than at the end of a minimum period stipulated in the contract. The termination must be declared in writing and sent to email@example.com via email.
6.2. The Customer can change to a higher price plan at any time and immediately use the services offered in line with that plan (referred to as “upgrade”). Payments for the new price plan are charged minus payments already made for the previous price plan.
6.3. Changing to a lower price plan (referred to as “downgrade”) is possible at any time but the new prices will only be charged after the end of the previous contract. Moreover, a downgrade is only possible if the amount of data used by the Customer does not surpass the data limit of the lower price plan and no functions are used, which are not offered at the lower price. The Customer may possibly have to delete some data (e.g. number of members). The downgrade comes into force from the day of the change.
6.4. Free modules (deluxe package) are not terminated and changed into modules subject to a fee when a downgrade takes place. The modules can be terminated individually via the application.
6.5. Termination or downgrading before the end of a payment interval does not entitle the Customer to receive a reimbursement of the money paid advance.
6.6. Both parties to the contract retain the right to a premature extraordinary termination for cause. Extraordinary termination is permissible in particular if the Customer is in default of payments over a period of two months. Insofar as necessary, a written warning pertaining to the conduct objected to must precede extraordinary termination.
6.7. The Customer is responsible for securing his/her data after termination if the termination takes place before the end of the contract.
7. Changes to services and warranty
7.1. The scope of the services offered by CGH IT-Solutions, the user accounts and their technical configuration depend on the current state of SkedFlex’s technology and the description of services at the time the contract was concluded.
7.2. CGH IT-Solutions reserves the right to extend, amend or restrict functions insofar as this serves the purpose of technical progress or is necessary to prevent misuse or if legal regulations require CGH IT-Solutions to do so. If the amendment to the range of the functions causes a restriction, which is more than minor to the use of SkedFlex by the Customer as defined in the contract, the Customer is entitled to an adjustment of fees or termination.
7.3. Defects must be reported and a notification made promptly within a maximum of 7 days by the Customer via email to firstname.lastname@example.org.
7.4. CGH IT-Solutions remedies defaults through subsequent improvement. Only after this has been unsuccessful or has proven impossible and only after an improvement deadline of at least two weeks has been set and expired can the Customer claim a price reduction or right to withdraw. All notifications of defects by the Customer expire in one year. The decisive date for the reporting and notification of defects and the lapsing of such notices is as of the point in time, in which the Customer became aware of the defect or should have become aware of it without exercising gross negligence.
8.1. The customers recognise that 100% availability of SkedFlex is not technically feasible. However, CGH IT-Solutions strives to keep SkedFlex available as consistently as possible and ensures an annual average availability of 96% in accordance with the following limitations in this section.
8.2. CGH IT-Solutions cannot guarantee the availability of SkedFlex at any time when SkedFlex is not accessible due to technical or other problems, which are not within the control of CGH IT-Solutions (force majeure, third party responsibilities, necessary maintenance, disruptions to IT infrastructure or the Customer’s Internet access etc.). If the security of network operations or the maintenance of network integrity be endangered for reasons, which are not within the scope of responsibility of CGH IT-Solutions, CGH IT-Solutions can temporarily restrict access to SkedFlex as required.
8.3. Foreseeable outages due to maintenance work must be communicated to the Customer within a reasonable time in advance. In this respect, such outages do not constitute any claims.
8.4. CGH IT-Solutions carries out daily backups for its data pools. Upon explicit request by the Customer, CGH IT-Solutions can reactivate Customer data using a recovery procedure.
8.5. The Customer is responsible for his or her connection to the Internet. This is not part of the scope of the SaaS service.
9.1. CGH IT-Solutions is liable to pay compensation for damages in the case of intent or gross negligence.
9.2. In the case of simple negligence, CGH IT-Solutions is only liable for damages arising from loss of life, physical injury or damage to health as well as damages arising from the breach of an essential contractual obligation (obligation, which must be fulfilled, to enable the contract to be carried out correctly in the first place and which the parties to the contract rely on and have the right to rely on). In this case, CGH IT-Solutions is liable up to a sum, which is equivalent to service fees of up to a maximum of six months.
9.3. The data collected via SkedFlex is backed up on a regular basis. CGH IT-Solutions expressly disclaims any liability for the backup and availability of the data and services entrusted to it.
9.4. These limitations of liability are inapplicable if CGH IT-Solutions fraudulently withholds a defect or has ensured that such a defect is not present. The limitations of liability are also inapplicable for claims in terms of the Product Liability Act.
10. Amendments to the T&Cs
10.1. CGH IT-Solutions reserves the right to amend the T&Cs at any time with future effect. Amendments to essential provisions, which influence the contractual balance between the Customer and CGH IT-Solutions will only occur if there are compelling objective reasons, in particular of legal, technical or business nature.
10.2. CGH IT-Solutions will inform the Customer of the amended T&Cs at least in written form, meaning that the Customer has at least two weeks to object to the amendment(s). In the case of objection, CGH IT-Solutions can decide whether either the previous T&Cs continue to govern the contractual relationship with the Customer or that the Customer has the right to termination. If the Customer does not object to the amended terms within the objection period, the new T&Cs are deemed accepted.
11. Non-disclosure and data protection
11.1. The protection of customers’ data is CGH IT-Solutions’ highest priority and the disclosure of Customer data to third parties is prevented as far as legally possible. This particularly applies to enquires from authorities, which are not mandatory.
11.2. The parties to the contract are obligated to treat all confidential information, which they become party to while carrying out this contract, confidentially and to only use said information for purposes stipulated in this contract in terms with the data protection requirements. The parties to this contract shall obligate their permanent employees, freelance employees and other companies (independent and affiliated) they involve accordingly.
11.3. Confidential information in the context of these provisions is information, documents, statements and data, which are marked as such or which are to be considered as such based on their nature.
11.4. As part of the contract with CGH IT-Solutions, the Customer may conclude an agreement on commissioned data processing in terms of the Federal Data Protection Act.
11.5. The rights and obligations pertaining to non-disclosure outlined in this section shall not be affected by the termination of this contract.
11.6. Further data protection provisions and notices can be found in the Privacy Statement.
13. Final provisions
13.1. German law shall apply to this contract.
13.2. The exclusive place of jurisdiction for both parties to the contract is Aachen, Germany.
13.3. Should individual provisions in this contract be or become partially or entirely invalid or should there be an omission in this contract, the validity of the other provisions shall not be affected thereby. An appropriate provision shall replace the ineffective provision or eliminate the omission, which, as far as legally possible, comes closest to the intention of the parties to the contract or to what they would have intended, according to the meaning and purpose of this contract, had they considered this issue.
Last updated: 11/2018