Preamble

The offer to use the digital fitness and health platform is aimed exclusively at business customers, i.e. entrepreneurs within the meaning of §§ 1 to 3 UGB. The contract is concluded with Fit-Up GmbH (FN 518159 z), Harrachstraße 12, 4020 Linz (Austria) ("Fit-Up"). Further contact details and the name of the person authorized to represent Fit-Up GmbH can be found in the legal notice at https://www.fit-up.com.

Validity of these GTC

1. These General Terms and Conditions ("GTC") apply exclusively to the contractual relationship with Fit-Up. The contractual partner receiving access to the fitness and health platform on the basis of the contract with Fit-Up is referred to as the "Corporate Partner". These GTC are binding for the entire current and future contractual relationship with Fit-Up, even if no explicit reference is made to them.

2. Regulations that deviate from or supplement these GTC, in particular the general terms and conditions of the business partner, do not apply. They only become part of the contract if Fit-Up expressly confirms this in writing.

3. We reserve the right to make changes to these GTC, for example to implement legal requirements or to take account of changes to the functions of the fitness and health platform. The current GTC are available at https://www.fit-up.com/agb. Fit-Up will notify the Corporate Partner of changes to the GTC in a timely manner. The corporate partner gives Fit-Up his consent to the transmission of the amended GTC by e-mail. If the Corporate Partner does not object to the validity of the new GTC within six weeks of notification, the amended GTC are deemed to have been accepted by the Corporate Partner.

Object

1. Fit-Up operates and manages an online platform, including a mobile app for the iOS and Android operating systems, on which employees of the corporate partner can purchase courses and other services in the area of fitness and health, depending on the scope of the contract and availability.

2. Fit-Up grants the Corporate Partner access to the platform in accordance with the contract, which provides its employees with offers relating to fitness, health and nutritional advice and support. Employees of the corporate partner of the online platform can make use of Fit-Up's services under certain technical conditions.

3. Unless expressly agreed otherwise, Fit-Up provides the Corporate Partner with a certain number of accesses to the online platform for its employees. The respective Corporate Partner is responsible for sending invitations to employees to access the Fit-Up online platform.

Scope of services

1. Fit-Up offers various service packages for the online platform, which differ in terms of the scope of services, the usage options for the corporate partner and its employees, and the fees. The corporate partner decides on a specific service package when concluding the contract.

2. Fit-Up is committed to increasing the number of courses available and is committed to providing a varied program.

3. Fit-Up is responsible for ensuring that the use of courses and programs and other agreed services runs smoothly from a technical perspective.

4. Fit-Up is responsible for the technical maintenance and content design of the online platform. Fit-Up is available to the corporate partner and its employees for queries in connection with the use or in the event of technical problems by e-mail at hello@fit-up.com on weekdays (Mon to Fri from 8:00 a.m. to 5:00 p.m.).

5. Fit-Up reserves the right to change the functional scope of the online platform as well as the associated mobile apps and their general design or to offer different services, provided this is not unreasonable for the Corporate Partner in individual cases.

Contract term and termination

1. Unless expressly agreed otherwise in writing, the contract is concluded for a period of twelve months from the date of its legally effective conclusion. Ordinary termination is excluded. An aliquot refund of fees already paid is also excluded.

2. At the end of twelve months, the contract is automatically extended by a further twelve months unless the Corporate Partner demonstrably declares in writing to Fit-Up that it does not wish to extend the contract no later than 90 calendar days before the automatic extension.

3. The automatic renewal after twelve months takes place at the prices valid at the time of the automatic renewal for the service package agreed between Fit-Up and the Corporate Partner. The Corporate Partner acknowledges and confirms that the contract will be extended for a further twelve months at the Fit-Up prices valid at the time of the automatic extension, unless the Corporate Partner objects to the contract extension in accordance with point 4.2.

4. If the contract is concluded for a period other than twelve months, it shall be automatically extended after expiry of the original contract term by the duration of the original contract term and the provisions of this point shall apply mutatis mutandis, unless other modalities have been expressly agreed in writing. For example, a contract concluded for six months is automatically extended by a further six months after the expiry of six months.

5. Upon termination of the contract, for whatever reason, the resulting performance obligation of Fit-Up towards the corporate partner and its employees expires.

6. If Fit-Up is unable to fulfill its performance obligation for reasons for which it is responsible, Fit-Up will inform the corporate partner of this within five days. In this case, the corporate partner has the right to terminate the contract extraordinarily.

7. If the Corporate Partner fails to meet its payment obligation after Fit-Up has sent a written reminder setting a fourteen-day grace period, Fit-Up is entitled to terminate the contract for cause.

Charges, invoices and price adjustments

1. The fee depends on the service package selected for the use of the online platform. Fees are stated in euros. Statutory VAT will be charged additionally at the applicable rate. Any fees are to be paid by the corporate partner.

2. Unless otherwise agreed in writing, all fees are due for payment in full in advance within 14 days of Fit-Up issuing the invoice.

3. The invoice is to be paid by bank transfer without deductions. The Corporate Partner agrees to receive all invoices by e-mail to the e-mail address provided to Fit-Up.

4. In the event of late payment, default interest in the amount of 5% p.a. shall be deemed agreed. Default of payment shall be deemed to exist if payment has not been made within three calendar days after expiry of the payment deadline (point 5.2.) and a written reminder.

5. The fee shall be paid irrespective of the actual use or acceptance of the online platform by the employees of the corporate partner.

6. For newly concluded contracts, the price for Fit-Up services valid at the time the contract is concluded applies. In the case of automatic renewal of the contract, the price valid at the time of automatic renewal applies. Any discounts for Fit-Up services granted to the corporate partner when concluding a new contract only apply to the original contract term and not to the term of an automatically extended contract.

7. Fit-Up is entitled to change the fee with effect from the next renewal period. Fit-Up will notify the Corporate Partner of the change to the fee in the invoice sent to the Corporate Partner for the extension period.

8. The price shall be indexed according to the consumer price index 2020 published monthly by Statistics Austria or an index replacing it. The starting point is the index figure last determined for the month in which the contract is concluded. Fluctuations of up to 3 % are not taken into account, but if they are exceeded, the entire change is taken into account in full. The new index figure is the starting point for the calculation of any further changes. 

Other obligations of the corporate partner

1. The Corporate Partner is obliged to keep access data for the online platform secret from unauthorized third parties. The Corporate Partner shall store login data, passwords and company-wide defined access codes (= promo codes) in such a way that access to this data and the online platform by unauthorized third parties is impossible. The Corporate Partner undertakes to inform Fit-Up immediately as soon as it becomes aware that unauthorized third parties have access data.

2. The Corporate Partner informs Fit-Up immediately about important changes in the sphere of the Corporate Partner that may be relevant to the contractual relationship.

3. The Corporate Partner may only transfer rights and obligations arising from the contract to third parties with the prior express written consent of Fit-Up.

Repayment of fees already paid in advance

1. The Corporate Partner is only entitled to a (pro rata) refund of fees already paid in advance if the Corporate Partner terminates the contract for good cause for which Fit-Up is responsible.

2. In all other cases of contract termination, (aliquot) repayment of fees already paid in advance is excluded.

Liability provisions and compensation

1. The liability of Fit-Up for damages caused by slight and simple gross negligence is excluded. Liability is also excluded for pure financial loss, loss of profit, damage to third parties, indirect damage and consequential damage.

2. The reversal of the burden of proof pursuant to Section 1298 ABGB is excluded.

3. Claims for damages against Fit-Up or employees of Fit-Up expire within six months of knowledge of the damage and the damaging party.

4. The Company Partner (or its employees) shall be responsible for providing the necessary technical requirements for accessing and retrieving the online platform and shall also bear all access and data transfer costs.

5. Fit-Up provides its services on an "as is" and "as available" basis, and points out that all warranties of any kind are excluded. Fit-Up does not warrant that the online platform will meet the needs of the partner company and its employees or that it will be available without interruption, promptly, accurately or error-free.

6. The Corporate Partner is aware that the services and applications accessible via the Internet are subject to typical failure risks that cannot be controlled by Fit-Up. In this respect, Fit-Up assumes no liability for the uninterrupted functionality and accessibility of the online platform. In particular, necessary maintenance work, compelling security reasons as well as events that are beyond the control of Fit-Up (e.g. disruptions of public communication networks and the Internet, power failures or similar events) can lead to disruptions or temporary suspension of the availability of the online platform. Fit-Up is not liable if the online platform is partially or completely unavailable due to technical circumstances. Under certain circumstances, data may be lost. Fit-Up accepts no liability for the availability of the online platform or the absence of technical faults or data loss.

7. The receipt of content through the use of the online platform (e.g. streaming, downloading, etc.) is at the sole risk of the corporate partner and its employees. Fit-Up assumes no responsibility or liability for the deletion or incorrect storage or transmission of any content. Fit-Up is not liable for the loss, misuse or unauthorized use of login data for the online platform.

8. Fit-Up is not liable to the Corporate Partner for any direct or indirect tax obligations that may arise from the provision of the online platform to the Corporate Partner's employees in Switzerland or abroad.

9. The Corporate Partner warrants that it is entitled to freely dispose of any industrial property rights and that there are no restrictions due to third-party rights. The Corporate Partner shall indemnify and hold Fit-Up harmless in the event that third parties claim an infringement of their industrial property rights by Fit-Up or assert claims against Fit-Up.

Intellectual property rights

1. Fit-Up and any third parties retain all copyrights and other industrial property rights to the online platform and the published content, information, images, videos, databases, codes and data. Any modification, reproduction, publication, transfer to third parties and/or other use of the protected property without the prior written consent of Fit-Up or the third party concerned is expressly prohibited. In the event of a breach of this provision, the respective owner of the protected property reserves the right to assert any claims. By using the online platform, the corporate partner does not acquire any industrial property rights to the content of the online platform.

2. The Corporate Partner receives the non-exclusive, non-transferable and revocable right to make the online platform available to its employees after full payment of the agreed fee. The Corporate Partner is not entitled to grant third parties (with the exception of its employees) access to the online platform, to transfer rights of use or to grant sublicenses for the use of the online platform. The Corporate Partner shall not receive any rights of use to source codes or other development documentation.

3. The corporate partner is entitled to use the Fit-Up logo exclusively within the scope of this contract during the term of the contract. Any other use is expressly prohibited.

4. Fit-Up is entitled to use the logo and any other transmitted content of the Corporate Partner within the scope of this contract on the online platform and for its own advertising purposes. The business partner grants Fit-Up the worldwide, non-exclusive and free-of-charge right to use any industrial property rights of the business partner in connection with the logos or other content provided for the duration of the contract on the online platform and for Fit-Up's own advertising purposes, in particular to reproduce, distribute or depict these industrial property rights. Furthermore, Fit-Up is entitled to reproduce or use any trademarks and the logo of the corporate partner in the online platform, in newsletters, on the Fit-Up website and for Fit-Up's own advertising purposes.

5. Fit-Up guarantees that the online platform is free of third-party property rights that exclude or restrict the contractual use of the online platform. Fit-Up indemnifies and holds the corporate partner harmless for any infringement of third-party property rights.

6. If the contractual use is impaired by asserted infringements of property rights, Fit-Up is obliged to change the online platform as quickly as possible in such a way that these property rights are no longer infringed. If this is economically unreasonable, Fit-Up is entitled to terminate the contract with immediate effect and to reimburse the corporate partner for payments already made. The corporate partner is not entitled to any further claims arising from the termination of the contract.

Data protection and confidentiality

1. Fit-Up undertakes to comply with the relevant data protection provisions as amended from time to time and to require its employees to comply with these provisions and to take and maintain the necessary technical and organizational measures to ensure data protection. The Corporate Partner shall guarantee the security measures for the protection of personal data provided for in the relevant data protection provisions in the respective applicable version.

2. Fit-Up processes the data of its corporate partners (contact persons, contact details, companies, contractual conditions) for the fulfillment of the respective contract. This data is processed for the term of the contract and thereafter for the retention period under tax law. With regard to the employee data of the corporate partners, Fit-Up is the processor under data protection law and the corporate partner is the controller. The data processing agreement attached to these GTC is an integral part of this agreement. Details of data processing can be found in Fit-Up's privacy policy in the currently valid version, available at https://www.fit-up.com/datenschutz.

Miscellaneous

1. All legal relationships between Fit-Up and the Business Partner shall be governed exclusively by Austrian law, excluding the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods.

2. The exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be the competent court in Linz. The place of performance for the obligations arising from this contract is Linz.

3. Unless expressly agreed otherwise, sending an e-mail is sufficient to fulfill the written form requirement.

4. The Corporate Partner acknowledges that Fit-Up will also send contract-relevant information to the Corporate Partner by e-mail. The corporate partner is obliged to inform Fit-Up immediately of any changes to his contact information, in particular his e-mail address or postal address. If the corporate partner does not disclose a change of e-mail address, a declaration sent by Fit-Up to the most recently disclosed e-mail address is nevertheless deemed to have been received. Fit-Up is not liable for damages or disadvantages that arise from the violation of this obligation of the company partner to inform Fit-Up.

5. A set-off against claims of Fit-Up with counterclaims of any kind whatsoever is excluded.

6. Should individual provisions of these GTC be invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes closest to its meaning and purpose.

7. There are no verbal collateral agreements. Amendments or additions to a contract must be made in writing. This also applies to any waiver of the written form requirement.