General Terms and Conditions of Skulp GmbH ("GTC") 

Status: 30.09.2022

1. PREAMBLE

1.01 Skulp GmbH, Am Wissenschaftspark 9, 54296 Trier, Germany, registered in the Commercial Register of the Local Court of Wittlich under HRB 46199, ("SKULP"), operates, among other things, a cloud software (the "SKULP Cloud Software") as well as an online platform via mobile app and on its websites (collectively, the "SKULP Platform"). 

1.02 With the Skulp Cloud Software, personal trainers ("Trainer") can manage appointments for training sessions offered by them and process payments and invoicing towards their end customers ("Customers") or the Users. The payment processing is not done by Skulp but by Stripe, Inc. as payment service provider ("Stripe"). The main functions of the SKULP Cloud Software include appointment management, payment processing, invoicing and customer management. 

In particular, trainers can provide appointments for training sessions for users via the SKULP platform and manage published or booked appointments, mediate payment processing via the SKULP platform and create and provide the corresponding invoices to users based on the booked and performed training sessions. 

Users can book or cancel appointments through the SKULP platform, as well as make the payment process through Stripe and retrieve invoices generated by the trainer. 

The training units are carried out by the respective trainer on his own responsibility in his own name and on his own account. SKULP supports the trainer with the SKULP system towards the users thereby essentially only with the planning and booking of the appointments, with the clear presentation to the customer / user and with the billing and invoicing. SKULP does not provide any services or infrastructure to the trainer, so that the trainer can conduct any training sessions with users. For the user SKULP enables in particular the clear presentation of the appointments and the appointment management.

SKULP itself does not offer any training sessions or other services to the users, does not provide any such services and does not support the trainer in the fulfillment of the service contract between trainer and user. In particular, SKULP does not perform any payment services and only provides the interface for the payment service provider (Stripe) for payment processing between trainer and user. 

1.03 In these GTC, the following terms shall have the meanings assigned to them below:

1. a) The term "User" describes those persons (esp. consumers) who have downloaded the SKULP mobile app, who have registered with SKULP via the SKULP platform, as well as mere visitors of the websites operated by SKULP (esp. www.skulp.de).

1. b) The term "admin area" describes the internet-based software solution provided by SKULP to the trainer for the administration of his offered appointments, the bookings made and for billing, invoicing and administration of the payment functions (especially payment request, credit note and repayment).

1. c) The term "SKULP system" includes the SKULP platform as well as other management and booking services of SKULP (online and offline).

1. d) The term "Trainer" describes that natural or legal person who has concluded a contract with SKULP by opening an account on the SKULP platform to use the SKULP system as a provider of training sessions or consultations ("Partner Contract"). 

1. e) The term "transaction" means the complete process of a training session starting with the provision of appointments by the trainer to the booking of an appointment by the user and the billing of the training session by the trainer and payment. If this process is not completed, e.g. in the event of a cancellation, this shall nevertheless constitute a "transaction" within the meaning of these GTC.

2. scope of application, exclusion of third-party GTC, priority, amendment of GTC, written form

These GTC regulate the legal relationship between SKULP and the trainer, as well as SKULP and the user. This also includes, among other things, the obligations, how the trainer has to behave towards the user, especially which duties of care have to be observed by the trainer. 

2.01 Scope. For all legal relationships between SKULP and the trainer, as well as SKULP and the user, these GTC apply exclusively; they can be found at https://www.skulp.de/agb retrievable. Subject to the express written consent of SKULP, the application of general terms and conditions of the trainer or the user is excluded in any case. Acts of performance or silence by SKULP do not lead to the acceptance of general terms and conditions of the trainer or the user. The general terms and conditions also apply to all future business with the trainer or the user, even if in individual cases, especially in future supplementary or follow-up business, no explicit reference is made to them. The current version of these GTCs at the time of the respective conclusion of the contract or transaction or follow-up transaction shall always apply.

2.02 Changes, special right of termination. Changes of the GTC by SKULP are possible at any time unilaterally by announcement on digital way (without signature); they become legally valid 6 weeks after announcement for all circumstances within the scope of the current contracts between SKULP and the trainer or SKULP and the user, which occur after the coming into force of the change, unless the trainer or the user objects within this period by letter, but in any case in written form. In case of an objection or in case of omitted notice the previous GTC remain applicable for current contracts and business. However, in case of an objection SKULP is free to terminate current contracts with a notice period of 8 weeks and to block the account of the trainer or user for new transactions after the expiration of this notice period. For the conclusion of current transactions the account remains usable under application of the last agreed upon AGB. In case of a blocking of the account due to non-acceptance of the new GTC, the respective trainer or user can reactivate the account after blocking by confirming the validity of the respective current GTC and continue the contractual relationship. Other changes or deviating agreements between the trainer or user and SKULP must be in writing to be effective.

2.03 "Written form" means written form in accordance with § 126 BGB. Insofar as written form is provided for, the cancellation or amendment of the written form clause shall also require written form. For the mere text form, an email without signature shall be sufficient, provided that the respective dispatch address obviously contains the domain of the sender and the email allows the sender to be identified without doubt.

3. admission, activation, use, price changes, discounts

3.01 Admission, obligation to update. The trainer will be included in the SKULP system with his prices and dates entered in the admin area as well as other relevant information. The trainer is obligated to regularly check and update the entered information (especially prices and dates as well as information relevant for invoicing). In descriptive texts the trainer is not allowed to insert references to the telephone number or websites of third parties.

3.02 Activation. The activation of the trainer profile in the SKULP system is done by SKULP, after all required information of the trainer is available. Only after activation of the trainer profile SKULP can activate the appointments of the trainer for booking by users. All appointments set by the trainer in the admin area are automatically offered online for booking via the SKULP platform. The activation of user profiles is done by SKULP after all required information of the user is available. 

3.03 Responsibility. All data and information, which the trainer or the user himself can enter in the SKULP system and deposit for publication, he has to enter, maintain and update himself. SKULP is not obliged to control the data transmitted or entered by the trainer or user. The risk of faulty data transmission lies with the trainer or user.

3.04 Incorrect information. The trainer acknowledges that misleading and/or incorrect information provided by the trainer, such as the required equipment, location or time of the training session may result in claims for damages. The trainer indemnifies SKULP on first demand from all claims of third parties resulting from information he/she has transmitted to SKULP or has entered into the SKULP system. If the trainer does not immediately correct incorrect/misleading information despite SKULP's request, SKULP is entitled to remove all incorrect/misleading information or, if applicable, to take the entire trainer profile offline until the trainer has made the correction.

3.05 No identity verification. The trainer further acknowledges that SKULP does not verify the identity and age of the user. The conclusion of the contract between trainer and customer takes place exclusively in the relationship between trainer and customer and without the involvement of SKULP.

3.06 Operational disturbances. The trainer or the user will inform SKULP immediately in case of operational disturbances. 

3.07 Price changes. Desired price changes have to be made by the trainer himself in the SKULP system. The price changes have no influence on training units already booked prior to the publication of the price change and contracts and transactions concluded in this respect. The trainer has to fulfill the concluded contract or the current business insofar at the previous price.

3.08 Discounts. SKULP is entitled without consultation with the trainer to grant discounts on the prices set by the trainer at his own expense, for example within the framework of voucher and other promotions.

3.09 Employee training. The trainer is obliged to inform his employees responsible for bookings about the existing cooperation with SKULP and to familiarize them with the use of the SKULP system. The trainer is obliged to instruct his employees to handle bookings made via the SKULP system in accordance with the contract (and above all binding).

4. compensation, booking, cancellation

4.01 Compensation for failure to perform. The trainer is also obligated to SKULP to provide the training session to the user at the contractually agreed conditions/times specified in the booking via the SKULP platform. For booked training units, which are not fulfilled by the trainer, SKULP reserves the right (esp. to maintain user satisfaction and to avoid such evaluations that cast a bad light on SKULP instead of the responsible trainer) the right to be exercised at its discretion (but primarily oriented to the booking amount, fault, reaction of the user) to compensate the user beyond the replacement of the paid amount with up to € 50, - in special cases with up to € 100, - (if necessary in the form of a value voucher) (contractual penalty). The trainer is obligated, regardless of fault, to compensate SKULP for this compensation, provided that SKULP makes the implementation of the compensation credible (for example by sending the relevant email correspondence). Further claims remain unaffected by this contractual penalty.

4.02 Booking. Bookings on the SKULP platform are made as agreed in the partner contract as direct bookings based on availabilities set and published by the trainer without further inquiry to the trainer. All direct bookings and cancellations made via the SKULP system will be sent to the trainer directly via the admin area and/or automatically via email. The trainer accepts that SKULP confirms direct bookings to the user without further action by the trainer. The trainer agrees to answer booking requests during normal business hours as soon as possible, but at the latest within [12 hours]. 

4.03 Non-appearance. In order to avoid undesirable conflicts in case of unannounced, late appearance of the user, the trainer must always keep the booked training session free until the end of the booked appointment, unless the trainer would have been informed in advance that the user cannot attend the appointment.

4.04 Cancellation. If the trainer grants the user free or chargeable cancellation rights, he has to enter this in the admin area accordingly. The trainer is also obligated to SKULP to comply with the cancellation rights stored there. A subsequent adjustment of the cancellation policy for already booked appointments is not permitted.

4.05 Cancellation Booking. In the event of a cancellation, SKULP is entitled to credit the User the respective fee for the cancelled booking in the form of a bookable appointment for the respective training unit, taking into account any fees and charges incurred with the respective trainer. The user is entitled to use credited cancellation bookings with the trainer to book offered appointments of this training unit.

4.06 Refunds. Responsible for repayments of credited cancellation bookings to the respective user is primarily the trainer. If the trainer does not comply with such a user request and the user requests the payment of credited cancellation bookings from SKULP, SKULP is entitled to make a corresponding repayment to the trainer and, if applicable, to charge the trainer for any balances arising therefrom. Any recourse of the trainer against SKULP is expressly excluded. In case of a possible repayment by the trainer, service fees will not be refunded. Thus, the party who paid the service fee at the time of booking will also not be refunded.

5. charges, billing and billing objection period, annual charge adjustment

5.01 User Fee. As consideration for the use of the Skulp-System (esp. to offer and manage his training units) the trainer is obliged to pay a "fee" in the amount of 8% net of the price for the respective training unit to SKULP. Applied promo codes, which reduce the payment amount, are excluded from this. The fee always refers to the deposited session price.

5.02 Stripe. The billing of the training units between the trainer and the customer / user as well as the billing of the fee shall take place via SKULP. The trainer will deposit his existing Stripe account for billing or set up a new Stripe account for billing as part of the registration on the SKULP platform.

5.03 Due Date. SKULP's claim for payment of the fee arises with the execution of a booking by a user and is due for payment at the latest with invoicing via Stripe. Since with the execution of the booking process the service of SKULP has been rendered, the claim to the fee remains valid even in case of a cancellation or a cancellation booking and will not be refunded or credited to the trainer. The internal cost allocation in the relationship between trainer and customer is defined by the trainer in the admin area and is visible to the customer when booking. 

5.04 Disputes. SKULP is entitled without further ado to initiate chargebacks of bookings paid via Stripe due to user complaints ("Disputes") to the trainer or to indemnify and hold the trainer harmless in this respect. The trainer has to contact the user directly regarding the clarification of a possible claim. In this respect, SKULP is not liable for the chargeback to the trainer. 

5.05 Collection. The User pays for booked training sessions online via the payment options specified on the SKULP platform (e.g. Stripe). Payment transactions are currently handled exclusively via Stripe (https://stripe.com). Any fees charged by the payment provider are to be borne by the trainer. Current information is available on the SKULP platform. The credit risk for the amount paid by the user and to be forwarded to the trainer is borne by the trainer. The trainer also bears the cost of any transaction fees and the risk of currency fluctuations. The trainer can specify in the admin area that the fee is to be borne in whole or in part by the user and thus charged to the user in addition to the price for the respective training session.

5.06 Billing and objection period. SKULP settles the bookings made via the SKULP platform and the thereby collected fee towards the trainer as soon as possible for the previous billing period (maximum one month) towards the end of the month. The settlement will be sent electronically via the admin area or by email. Objections against the billing are to be communicated to SKULP via email as soon as possible, but at the latest within 14 days from receipt of the invoice. After expiration of this period the invoice is irrevocably considered as approved.

5.07 Authorization to issue invoices. The trainer authorizes SKULP for bookings of the user to issue invoices in the name of the trainer to the booking user under specification of the information given in the SKULP system, to the registered office of the trainer and the company form. The trainer is responsible for the content of the invoice and the deposit of a valid VAT identification number, i.e. including the correct indication of the VAT shown on it or any exemptions. SKULP assumes no liability towards the trainer and towards the user arising from or in connection with the preparation of the invoice for the trainer. 

5.08 Default. In case of default of payment of the trainer, the statutory default interest applies. In addition, the trainer agrees in the event of default to reimburse SKULP for any reminder and collection costs incurred, to the extent that they are necessary for appropriate legal action. The assertion of further rights and claims remains unaffected. In case of delayed payment an amount of € 10,- for each reminder is considered as agreed, unless the trainer proves a lower damage to SKULP. 

6. distribution of roles, availability, delimitation of responsibilities

6.01 Service contract between trainer and user. The contract for the respective training session, which is booked via the SKULP platform, is concluded exclusively between the user booking the training session and the trainer. The trainer is solely responsible for compliance with the relevant laws. SKULP is entitled to transmit the necessary data to the contracting parties (see privacy policy). The role of SKULP is exclusively to conclude service contracts about the respective training session in the name and for the account of the trainer with the user. SKULP is not liable for the behavior of the user during the use of the training session. It is the sole responsibility of the trainer to assert all claims arising from the contract with the user directly against the same. The trainer alone is responsible for the fulfillment of the resulting obligations. The trainer indemnifies SKULP, if the user nevertheless asserts claims against SKULP instead of against the trainer, from all claims of the user due to possible breaches of duty of the trainer, bears the necessary and reasonable costs of legal defense and provides adequate security for this.

6.02 Liability for information. SKULP assumes no liability for the accuracy and completeness of the information provided on the SKULP platform by the trainer himself/herself on his/her own responsibility (esp. prices and available times/course times for the training session) or for the incorrect or incomplete transfer of data (data migration of customer, training or invoice data). With regard to training and billing data, the trainer is obliged to check.

6.03 Malfunctions. Adjustments, changes and additions to the SKULP system as well as measures serving to determine and remedy malfunctions will only lead to a temporary interruption or impairment of the SKULP system if this is necessary for technical reasons or would otherwise only be possible with disproportionate effort. 

SKULP will perform these activities regularly during support hours. These can be changed at any time. Currently, the support hours are Monday to Friday from 09:00 to 17:00, Saturday is not considered a working day. 

6.04 Maintenance. Checking of the basic functions of the SKULP system is usually performed daily. The maintenance of the Cloud-Software is guaranteed during the usual office hours (weekdays, Monday to Friday) of SKULP. In case of severe malfunctions - the use of the cloud software is no longer possible or is significantly restricted - SKULP will initiate the maintenance within 4 hours from knowledge or information by the trainer or user, but no earlier than 4 hours from the beginning of the usual office hours (weekdays, Monday to Friday). SKULP will notify the trainer as far as possible of the start of the maintenance work immediately and perform it according to the technical conditions without delay. If the troubleshooting is not possible at the latest on the same day or the next working day (calculated from the above-mentioned time), SKULP will inform the trainer by the end of the next working day by e-mail, stating the reasons as well as the time period which is expected to be estimated for the troubleshooting. 

6.05 Force Majeure. Should the disruption of the SKULP system or any other claim be based on force majeure (e.g. power failure beyond SKULP's control, hacker attacks), any liability of SKULP for the resulting consequences shall be void.

7. liability

7.1 SKULP is liable for damages only in case of intent and gross negligence of SKULP or one of its vicarious agents or legal representatives. If SKULP or one of its vicarious agents or legal representatives violates an essential contractual obligation (cardinal obligation) in a way that endangers the purpose of the contract, the liability is limited to the typical damage that SKULP could reasonably foresee at the time of conclusion of the contract, unless the breach of duty is intentional or grossly negligent.

Liability for consequential damages (including loss of earnings and loss of profit) is excluded. 

SKULP is not liable for the loss of data insofar as the damage is due to the fact that the trainer or user has failed to perform data backups and thereby ensure that lost data can be restored with reasonable effort. 

7.2 A limitation of liability shall not apply in the event of injury to life, body and/or health and in the event of liability under the Product Liability Act.

7.3 If the trainer or user is an entrepreneur, a legal entity under public law or a special fund under public law, the liability shall be limited to the sum of the contractual fees paid by the trainer or user to SKULP for the period of one year prior to the occurrence of the damaging event within the scope of the specific contractual relationship, except in cases of intent and gross negligence. 

8. rights of use of the Skulp Cloud Software, storage space

8.01 Right of Use. SKULP grants the trainer and the user the non-exclusive and non-transferable right to use the SKULP cloud software (hereinafter the "Software") provided for use as intended for the duration of the contract.

8.02 Editing, Duplication. The trainer and the user may only process and duplicate the software to the extent that this is necessary and covered by the intended use of the software according to the respective current service description. Necessary duplication includes loading the software into the working memory, but not (with the exception of the mobile app) the even temporary installation or storage of the software on data carriers (such as hard disks or similar) of the hardware used by the trainer or user.

8.03 Transfer to third parties. The trainer and the user are not entitled to make the software available to third parties for use against payment or free of charge. In particular, the Trainer and the User are prohibited from subletting the Software. The trainer and the user undertake to structure their possible contractual relationships with third parties in such a way that the gratuitous use of the software by the third party is excluded.

8.04 Protection. The trainer and the user are obliged to prevent unauthorized access by third parties to the protected areas of the software by taking appropriate precautions. To this end, the Trainer and the User shall instruct their employees to comply with copyright law. In particular, the Trainer and the User shall inform their employees that copying the Software is strictly prohibited.

8.05 Granted Storage Space. The trainer is not entitled to grant the storage space granted to him by SKULP to third parties, partially or completely, for use against payment or free of charge. The trainer agrees not to store any content on the storage space, the provision, publication and use of which violates applicable law, official requirements or agreements with third parties. The trainer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.

9. other rights/duties, data protection, ratings

9.01 Rights SKULP. SKULP is entitled to use photos, graphics, trademarks and logos and in any other way copyrighted works of the trainer and the user (which they have used or provided in the external appearance) in the SKULP system (esp. for the public presentation of the trainer or the user) and for related own sales and marketing purposes such as advertising or online measures (meta tags or keyword advertising) free of charge. A possible revocation of this consent does not apply to any produced commercials or other information and advertising material. SKULP is not obliged to coordinate any advertising measures with the trainer or the user beforehand. SKULP is entitled, but not obliged, to mention the respective name of the trainer. The trainer and the user warrant that this material is free from third party rights which exclude or restrict unrestricted use for the contractually intended purposes by SKULP. SKULP is entitled to translate the information provided by the trainer and the user into other languages and to shorten (esp. name of the trainer) or to adapt it to the standard maintained by SKULP (esp. editing, possibly rejection of photos).

9.02 Rights Trainer. The trainer is entitled to indicate in his brochures and other publications (social media, e-mail newsletter, etc.) as well as on his homepage that he is connected to the SKULP system. For this purpose, the trainer is also entitled to use the designated logos of the trainer on the SKULP platform free of charge.

9.03 Data Protection. Personal data (of the trainer, his customers and his employees as well as the users) in the sense of the data protection act (esp. telephone number, address, email address, other content data etc.) are processed in accordance with the data protection declaration. This can be found at www.skulp.de in the imprint and on the homepage. The trainer undertakes in any case that all data that the trainer collects from users in the context of the booking (obligatory) are necessary for the booking and that these do not exceed the amount of data that is minimally necessary for the booking. In addition, the trainer undertakes not to process any health-related or other sensitive data via the SKULP cloud software or SKULP platform.

9.04 Ratings. The trainer irrevocably agrees that the rating of the trainer's training sessions by the users will be displayed on the SKULP platform. This rating is done in a 5-part scale and is displayed with "asterisks" analogous to the voting behavior of the users. There is no right to display all ratings, in particular SKULP is entitled not to publish ratings in case of suspicion of manipulation and to disregard them when calculating the average rating. Trainers are not allowed to recommend themselves; they are also prohibited to induce third parties to give ratings against payment.

10. contract term, termination

10.1 The contract between the trainer or user and SKULP is concluded in each case for an indefinite period. 

10.2 The contract can be terminated without further ado by deletion of the account by the user or the trainer. With deletion of the account all obligations of SKULP towards the other contracting party expire. In particular, SKULP is not responsible for the proper processing of current transactions after account deletion. In the context of the account deletion, the deletion of stored data takes place under consideration of the legal archiving and storage obligations, and under consideration of the principle of data economy. 

10.3 Termination for cause. For good cause SKULP is entitled to terminate the contractual relationship without notice, accompanied by the immediate blocking of the admin area and / or the possibility to accept bookings, this in particular in the following cases: 

• Refusal to provide the user with the service proven to have been duly booked, if this has occurred more than once in the last quarter;
• Charging the booked training session to the user despite timely cancellation, if this was the case more than once in the last quarter;
• Delay in payment of due charges, including unjustified invoice deductions despite the setting of a reasonable grace period.

10.4 Any further claims of SKULP, especially claims for damages and possible contractual penalties remain unaffected by a possible termination. Moreover, SKULP is only obliged to withdraw the block if the trainer has settled all outstanding claims and has sent a corresponding proof of payment of his own accord. Provided that there is no special urgency or special severity and it is not a "repeat offender", SKULP will endeavor to ask the trainer for a statement (however, within a short period of max. 3 days) before initiating the above-mentioned measures.

11. final provisions

11.01 Prohibition of assignment. The assignment of claims and other claims against SKULP is prohibited.

11.02 Offset prohibition. The trainer shall only be entitled to unilateral set-off if his claim has been acknowledged or determined by a court.

11.03 Receipt of Declarations. Declarations shall be deemed to have been received if they have been transmitted to the last known address or email address.

11.04 Law, Jurisdiction. German law shall apply exclusively, this under exclusion of the conflict of laws and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG). Place of jurisdiction for all disputes arising from the contractual relationship or future contracts or other claims between SKULP and the trainer or user (as far as legally permissible) is Frankfurt am Main.

11.05 Severability Clause. In the event that individual provisions of this contract are or become invalid or unenforceable in whole or in part, or in the event that this contract contains loopholes, this shall not affect the validity of the remaining provisions of this contract. In place of the invalid, unenforceable or missing provision, such valid and enforceable provision shall be deemed to have been agreed between the contracting parties with retroactive effect as the contracting parties would have agreed, taking into account the economic purpose of this contract, if they had been aware of the invalidity, unenforceability or absence of the relevant provision when concluding this contract. The contracting parties are obliged to confirm such a provision in the form provided.