General Terms and Conditions of Skillyard GmbH Status 01.08.2022
Link zur Deutschen Version
I. Validity of the General Terms and Conditions (GTC)
- Skillyard GmbH, Steingasse 1, A-4020 Linz, FN 536748k (hereinafter referred to as "Skillyard") provides an online platform for sports coaching and training sessions (hereinafter referred to as "Event(s)"), which connects coaches /trainers selected by Skillyard with athletes, who are objectively considered as clients (hereinafter also referred to as "Participants"), in order to enable faster and safer progress with individual feedback. Skillyard thus provides an intermediary service between a Participant and a coach/trainer.
- For current and future business transactions of Skillyard, which are concluded via the online portal of Skillyard at https://www.skillyard.co/, the following GTC apply exclusively; they are also binding for all future transactions, even if no express reference is made to them.
- The offer of Skillyard is aimed equally at consumers and entrepreneurs. Insofar as provisions of these GTC contradict mandatory provisions of consumer law, these shall apply exclusively in business transactions on both sides.
- Any provisions deviating from or supplementing these GTC - in particular general terms and conditions of business or purchase of the contractual partner Skillyard - shall only become an integral part of the contract if this has been expressly confirmed in writing by Skillyard.
II. Contractual relationship, prices and terms of payment, miscellaneous
- Skillyard promises the mediation of events between participants and coaches/trainers and acts here exclusively as an intermediary.
- The mediation service of Skillyard consists of the provision of an online platform for a fee, on which the selection of sports coaching and training sessions, coaches /trainers, the necessary equipment, locations and accommodation (for an appropriate surcharge), is made by the participants.
- By booking an event, the participant acquires a claim against Skillyard for the mediation of the respective event between him/her and the respective coach/trainer. With the sending of the order confirmation to the participant in the context of the booking, the mediation service of Skillyard is rendered ("conclusion of the contract").
- The provision of the mediated events themselves is not part of Skillyard's duties, but is provided by the respective coach/trainer on his or her terms. The services of Skillyard are limited to acquiring coaches/trainers, checking their descriptions of the experience and placing them with the participants.
- Skillyard does not sell related events, nor is Skillyard an organizer or retailer of travel packages under Directive (EU) 2015/2302.
- The arranged coaches/trainers are responsible for the events arranged on the online platform of Skillyard.
- The photographs used in connection with the respective events are for illustrative purposes only. The illustrations of the items (e.g. surfboards, wakeboards, snowboards, etc.) are non-binding and may differ from the actual ones.
- The times shown on the Skillyard website regarding the duration of each event are only indicative and not binding.
- Information on the availability of dates is shown on the website for the individual events and corresponds to the information provided by the respective coach/trainer at the time it is posted. Other participants may also be present at the experiences, which is why there may be waiting times.
- There is no entitlement to placement for a specific sports coaching or training session at a specific location with a specific coach/trainer.
- For the use of the online platform of Skillyard, the registration of the participant and the acceptance of these GTC is required. After the conclusion of the contract, the customer receives a personal account for the online platform of Skillyard, which enables him to use it.
- The participant can make use of various Skillyard services via the platform. These range from a one-time use or booking of a training session or a coach to regular services in the course of a subscription (e.g. several training sessions).
- Depending on the selected model (monthly cancellation / annual subscription), a paid continuing obligation (e.g. subscription model) can be terminated by either party at any time at the end of a monthly or annual billing period subject to a notice period of 2 months.
- One-time payments for certain sports coaching and training units used (e.g. provision of accessories) are due for payment within 10 days of receipt of the invoice at the latest.
- If a test phase for the use of the online platform has been agreed upon between Skillyard and the participant, the use of the platform is free of charge for its duration. After the expiration of this test phase, the participant's account shall be subject to a fee and shall become an unlimited contractual relationship.
- The trial period lasts 1 month. 2 weeks before the end of the trial period, Skillyard will inform the participant about the paid extension - beyond the trial period. If Skillyard does not receive a notice of termination from the participant before the expiration of the 1-month trial period and after Skillyard has informed the participant about the fee-based extension, the trial subscription will turn into a fee-based contractual relationship.
- Skillyard reserves the right to terminate the contract prematurely during the agreed contract period for good cause - without setting a grace period. As important reason are in particular
- Late Payment,
- the dissemination of content that is harmful to the Participant's business,
- Abuse of the platform and the like, and
- the gross breach of contractual obligations agreed.
- Preismodell: Pricing model: The pricing model of Skillyard is available at https://www.skillyard.co/ at any time. The price offered on the Skillyard website on the day of booking is binding. All prices stated there are final prices in EURO and include VAT, but exclude other public charges and fees. Payment is made by credit card.
- For services ordered by the participant, which are not covered in the original order, Skillyard is entitled to an appropriate fee according to the conditions listed in the pricing model at https://www.skillyard.co/.
- The same applies to overruns of the offer, which are caused by changes of the participant. These are considered to be approved by the participant, even if no notification is made by Skillyard, and are to be remunerated appropriately.
- The following applies to consumers: If the participant defaults on an agreed (partial) payment, Skillyard is entitled to charge interest on arrears in the amount of 4% per annum. The assertion of further damage caused by default remains unaffected.
- The following applies to entrepreneurs: If the participant is in default with an agreed (partial) payment, Skillyard is entitled to charge default interest in the amount of 9.2% above the base interest rate p.a.. The assertion of further damage caused by default remains unaffected.
- In case of default of payment, Skillyard is entitled to refrain from further fulfillment of all existing legal transactions. Skillyard is not obligated to continue the services again until the participant has paid all fees for services already rendered on the part of Skillyard, regardless of the original contractual due date, and has prepaid Skillyard the entire agreed fee for the outstanding services.
- All expenses caused by the delay in payment as well as dunning and collection costs (in particular the fees of the collection agency involved, which result from the regulation of the Federal Ministry of Economics and Labour on the maximum rates of fees due to collection agencies, or if Skillyard carries out the dunning process itself, viz. €12.00 per reminder and €6.00 per half-year for keeping records of the debt) including legal costs shall be borne by the participant.
- The validity of a booking ends with the date of the selected event (sports coaching, training session(s), SpecialEvent, etc.). The validity of booked sports coaching and training sessions as well as the Special-Events cannot be extended. Beyond that, the regulation is made by the conditions of the respective coach/trainer or in direct consultation with them.
- A transfer of a booking to other participants is only possible with the prior written consent of Skillyard and the mediated coach/trainer.
- If a special accessory is required for the respective event, this will be communicated on the website of Skillyard and recommended if necessary. The booking of accessories is made separately and independently of this contract directly by the participant or the coach/trainer and the costs incurred for this will be charged directly to the participant by the coach/trainer or rental company. Skillyard is indemnified and held harmless by the participant for any damage to the accessories caused by their use.
III. Provision of software
- The following terms and conditions are the basis of the online platform to be provided by Skillyard to the participant for the booking of sports coaching and training sessions or mediation of the coaches and special events.
- The prerequisite for the use of the online platform of Skillyard and the use of the digitally provided services is a permanent internet connection, which must be provided by the participant or the third parties authorized by the participant (hereinafter jointly referred to as "participant"). The 29th Participant may choose to use the contents for himself/herself or to pass them on to third parties under the following conditions
- Authorized Party: The authorized party is a contractual partner or employee of the participant and receives login data for the platform from the participant for use. When using the Platform, the Authorized Party undertakes to comply with the rights and obligations formulated in these General Terms and Conditions to the same extent as the Participant itself.
- Admin-Account: Account of a participant in which the possibility is granted to independently create further user accounts or short profiles for his authorized persons.
- User-Account: Account of the authorized person created by Skillyard or participant and made available to the authorized person. It is not possible for user accounts to add further user accounts independently.
- Program: Programs within the scope of a special event represent an inseparable unit. Skillyard's service in the case of programs is to enable the use of sports coaching and training sessions. Even if individual dates of a program are cancelled by the participant - for whatever reason - If the participant does not attend or participate in the course, if he/she enters the course late or if he/she does not use the services, he/she is not entitled to a refund of the pro-rata program fees
- If events or parts of the program cannot be carried out for reasons for which Skillyard is not responsible (e.g official restrictions), the participant is only entitled to a refund of the fee paid for this part of the program. Further claims are excluded.
- Skillyard further reserves the right to cancel events for compelling reasons (e.g. due to non-achievement of the minimum number of participants, cancellation of coaches or technical complications) or to remove them from the range of offers. In this case, event fees already paid will be refunded without deduction. Further claims against Skillyard do not exist, even if the Cancellation is made at short notice.
IV. Requirements for participation in an event, rights and obligations of the contracting parties
- Participation in an event may require the fulfillment of personal requirements (e.g. age, health condition, weight, driver's license, etc.).
- The participant is responsible for meeting the personal requirements. A refund of the prize is excluded in case of non-fulfillment of the personal requirements.
- The participation requirements (additional or different from the individual events) communicated by the coach/trainer can be found in the description of the respective event on the website and can also be obtained directly from the coach/trainer.
- The participant is entitled to create additional user accounts via an admin account provided to him/her. Skillyard is obligated to create and maintain the technical and organizational conditions necessary for the creation of user accounts.
- The participant may only provide a user account to legal entities or natural persons authorized to do so.
- Skillyard is entitled to verify the identity of the authorized person. Skillyard is entitled to block the account of the authorized person until the verification of his/her personal data is completed.
- The participant is obliged to notify Skillyard of any change in his/her personal data and delivery address within 7 days. The participant shall indemnify and hold Skillyard harmless for any failure to report such changes in due time.
- The participant is obligated to transfer the rights and obligations of these General Terms and Conditions concerning the participants of the platform to each authorized person and indemnifies and holds Skillyard harmless for the submission of the authorized persons to these Terms and Conditions.
- Skillyard is entitled to exclude individual participants from further participation in the event or the use of other services and/or to block their account in the event of default of payment despite a reminder and a reasonable grace period.
- Unless otherwise agreed, Skillyard exclusively provides the online platform of Skillyard for the selection and booking of SportCoaches and training sessions for an event.
- The participant must provide the technical, personnel and organizational requirements necessary for the use of this platform, such as a suitable terminal device or a permanent Internet connection.
- Skillyard reserves the right to modify or improve the online platform at any time, insofar as this does not result in any impairment of use for the participants. This may result in visual, technical, content-related or other changes. A claim for improvement or modification exists for participants only insofar as the previous use is impaired by the changes.
- The participant undertakes not to use the Skillyard online platform in an abusive or illegal manner. The participant shall indemnify and hold harmless Skillyard and all of its vicarious agents from and against any and all adverse consequences resulting from any illegal, abusive or otherwise improper use of the platform and the associated services.
- In particular, damages resulting from the incorrect provision of data and facts or from the violation of personal rights, copyright, data protection or other standards by the participants are also covered.
- The participant undertakes to log out with his account after each use of the platform and to log in again before each use in order to prevent misuse of his account in case of loss or theft.
- The participant agrees to indemnify and hold Skillyard harmless for all consequences and disadvantages resulting from a loss, theft or disclosure of his/her login data or a loss, theft or disclosure of his/her terminal device during a valid login to the Skillyard platform.
- As a result of the risk of data loss and/or unavailability of the software, the participant undertakes to create back-up copies of the data and information stored by him/her in the platform at regular intervals, but at least once a week. Skillyard shall not be liable for any adverse consequences and damages resulting from a loss of data that could have been prevented or minimized by making backup copies.
- The participant undertakes to treat the (teaching) documents made available to him/her in the course of sports coaching and training sessions or other SpecialEvents as confidential and not to pass them on to third parties.
V. Appointment, availability, cancellation by participants
- Skillyard offers different options between participant and coach/trainer. The respective type is to be chosen during the booking process.
- In the case of the "Individual appointment with the coach/trainer" option, the appointment is made directly between the participant and the coach/trainer after the order confirmation has been sent. The contact details will be sent to the parties after completion of the placement.
- A completely error-free or uninterrupted system of the online platform cannot be guaranteed for technical reasons, which is why Skillyard does not guarantee a certain availability of the online platform
- In case of cancellation by the participant, Skillyard is entitled to require compensation payments as follows:
Skillyard reserves the right to claim a demonstrably higher reasonable amount of compensation (e.g. in the case of failure to transfer the booking to another participant).
- up to 60 days before the event: compensation amount of 30% of the net order sum;
- up to 30 days before the event: compensation amount of 60% of the net order sum;
- up to 1o days before the event: compensation amount of 100% of the net order sum;
VI. Performance deadlines and performance execution, cancellation by coach/trainer
- The performance deadlines or dates will be met by Skillyard as far as possible. Unless expressly agreed otherwise, they are non-binding and are always understood as the expected time of completion. Skillyard does not accept any fixed deadlines set by the participant, unless they are explicitly confirmed as fixed deadlines in writing.
- If the start of the performance or the execution is delayed and if Skillyard is not responsible for this delay, the agreed performance deadlines or completion dates will be extended or postponed accordingly. This does not affect the participant's right to withdraw from the contract in case of delays that make a commitment to the contract unreasonable.
- Events may be weather-dependent and therefore only take place in favorable weather conditions. The description of the respective event on the website will inform accordingly whether participation in an experience is dependent on certain weather conditions.
- In such a case, it is the responsibility of each participant to ask the coach/trainer about the weather conditions in good time. If the event cannot be held due to weather conditions, the participant can book an alternative date in consultation with the coach/trainer.
- Furthermore, events may be dependent on a minimum number of participants, below which the experience will not take place. In this case, the arranged bookings remain valid and a new date will be agreed between the participant and the coach/trainer. It is the responsibility of the coach/trainer to inform the participants in good time whether the minimum number of participants has been reached.
- Events may require the signing of a disclaimer by participants prior to execution. Information on this can be found in the descriptions of the events and on the electronic order confirmation for the placement. The disclaimer form is either available from the facilitator or can be requested from the coach/trainer in advance or on-site.
- If the provision of services becomes impossible or unreasonable due to a delay that is not within the sphere of Skillyard, Skillyard may withdraw from the contract without the participant being entitled to compensation. In this case, Skillyard reserves its claim for payment for all services actually rendered until the withdrawal.
- Withdrawal from the contract by the participant due to delay in performance or delivery is only possible by setting a reasonable - at least 14-day - grace period. The withdrawal is to be asserted by registered letter. The right of withdrawal only refers to the part of the service or delivery with regard to which there is a delay. If damages, consequential damages or lost profits result from a delay in performance or delivery caused by Skillyard, their compensation is excluded in case of slight negligence on the part of Skillyard.
- If a time for the provision of the service has been determined, the participant is not entitled to postpone the time of performance without Skillyard's express written consent. However, if Skillyard agrees to such a postponement, it is entitled to adjust the fee accordingly, if justified.
- In case of default of acceptance by the participant, Skillyard is entitled to demand payment for services rendered and to withdraw from the contract after a reasonable grace period.
- In the event that the participant agrees to the revocation of an order despite an ongoing commitment by Skillyard, Skillyard is entitled to demand a contractual penalty from the participant in the amount of 30% of the order value plus VAT, regardless of fault and not subject to judicial mitigation law, without proof of actual damages. The assertion of a higher damage remains unaffected by this.
- Unless total delivery has been expressly agreed upon, Skillyard is entitled to perform the delivery in parts and to issue partial invoices.
VII. Warranty and liability
- Skillyard is only liable for the provision of services in accordance with the legal provisions of warranty law. However, Skillyard is not liable for the provision of the events arranged by Skillyard by the coaches/trainers, but only for the careful selection of the respective coach/trainer, the proper arrangement of the event and for the proper and verifiable forwarding of information, notifications, declarations of intent and payments between participant and coach/trainer within the scope of the arrangement of the respective event.
- For entrepreneurs, the obligation to notify defects pursuant to Austrian § 377 UGB shall apply.
- In the event of any other loss of entitlement, the Participant shall inspect each delivery and service for visible defects without undue delay, but no later than 14 days after delivery or service, and shall give notice of any defects discovered in writing in a detailed manner without undue delay.
- The warranty period for Skillyard's services to entrepreneurs is 6 months from delivery and begins with the handover of the goods/performance of the service to the participant. Replacement deliveries or rectification of defects do not extend, suspend or interrupt the warranty period. Recourse claims against Skillyard according to § 933b ABGB are excluded. The assertion of defects does not entitle the participant to the defense of non- performance of the contract and to changes in payment terms.
- The existence of defects has to be be proven by the participant. § 924 ABGB is not applicable. The participant has the obligation to enable an immediate determination of defects by Skillyard.
- In case of warranty, Skillyard is entitled to determine the type of warranty (improvement, exchange, price reduction or cancellation) itself. The improvement shall take place at Skillyard's choice at the place of delivery or at Skillyard's registered office.
- Skillyard is only liable for damages in case of intent or gross negligence. In case of slight negligence, Skillyard is only liable for personal injury.
- Skillyard is not liable for indirect damages, loss of profit, loss of interest, missed savings, consequential damages and financial losses. Skillyard's liability expires 6 months after the participant's knowledge of the damage and the damaging party, but in any case within 3 years after complete performance of the service.
- The participant must prove that Skillyard is at fault.
- The exclusion of liability also includes claims against Skillyard's employees, representatives and vicarious agents due to damage caused by them to the participant - without reference to a contract on their part with the participant.
- Any liability of Skillyard is also limited to the amount of Skillyard's business liability insurance available in the specific case of damage. The maximum amount limited with the sum insured includes all claims existing against Skillyard, such as in particular for damages and price reduction. Possible deductibles of a pecuniary damage liability insurance do not reduce the liability. If there are two or more competing injured parties, the maximum amount for each individual injured party is to be reduced in proportion to the amount of the claims.
- Skillyard makes every effort to display data and map sections correctly on the website and in print media. For printing errors, spelling mistakes or erroneous misrepresentation of maps, any resulting liability is excluded, provided that it is a slight degree of negligence and the present error does not exceed the extent of what is reasonable.
- If, in whatever case, a penalty has been agreed at the expense of Skillyard, it shall be subject to the judicial right of moderation and the assertion of damages in excess of the penalty shall be excluded.
- Any rightful claims for compensation on the part of the participant shall in any case be limited to the value of the order sum of the respective order.
VIII. Copyrights, third party content and miscellaneous
- Documents made available to Skillyard physically or electronically, such as analyses, concepts, samples and other documents in particular, shall remain the intellectual property of Skillyard. Any use, in particular the passing on, duplication and publication by the participant, requires the express written consent of Skillyard.
- Documents issued by Skillyard may be reclaimed by Skillyard if an order is not placed.
- Skillyard reserves all rights, in particular trademark and copyright, to the entire content of the website, in particular to trademarks, logos, texts, graphics, photographs, layout and music. Insofar as the use is not compulsorily permitted by law, any use of the contents of the platform beyond the contractual performance obligations, in particular storage in databases, duplication, distribution or processing, requires the express written consent of Skillyard.
- The platform contains third-party applications and content or links to third-party content. Skillyard is not liable for these contents or the technical functionality of the interfaces or applications provided in this regard. Insofar as links to third-party websites or applications are established, the participant acknowledges that these are operated by third parties and that Skillyard has no influence on the content of these sites and on the information published there.
- Skillyard assumes no liability for the suitability of the platform for the purpose intended by the participant. The same applies to merely optical deviations that do not impair the proper use of the platform. Skillyard shall not be responsible for service disruptions due to force majeure, in particular the failure or overload of global communication networks.
- Events of force majeure are in particular all effects whose prevention or avoidance are beyond Skillyard's control.
- Insofar as Skillyard provides planning and development services for the preparation of an offer of the participant, these are to be remunerated by an appropriate fee if an order is not placed. The non-remuneration of the planning and development services must be agreed upon in writing.
IX. Prohibition of set-off and retention
- The participant may only offset Skillyard's claims against claims that have been determined by a court or expressly acknowledged in writing. Otherwise, compensation is excluded.
- The participant is not entitled to withhold payments with reference to warranty, guarantee or damage compensation claims.
X. Consumer Business
- The cancellation of the booking and thus the withdrawal of the participant from the brokerage contract with Skillyard is excluded according to § 18 Abs 1 Z 10 FAGG.
- Unilateral withdrawal from the contract without good cause is excluded.
XI. Jurisdiction and applicable law
- For all disputes arising from legal transactions between the Contractor and the Participant, including disputes about the conclusion, legal validity, amendment and termination of these legal transactions, the transactions, the exclusive jurisdiction of the court with subject-matter jurisdiction for A-4020 Linz is agreed, to the extent permitted by law.
- As far as legally permissible, Austrian law shall apply to the exclusion of the conflict of law rules of the Austrian Convention on Contracts for the International Sale of Goods and the UN Convention on Contracts for the International Sale of Goods.
- Skillyard does not make use of the possibility to submit to an alternative dispute resolution procedure Participants who are consumers have the possibility to submit complaints to the EU online dispute resolution platform: http://ec.europa.eu/odr.
XII. Severability clause
- Should one or more point(s) of these GTC be or become invalid, the remaining points shall remain unaffected. Instead of the legally ineffective point, such a point shall be deemed to be agreed which is legally effective and comes closest to the economic purpose of the ineffective point.