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Terms and Conditions & Terms of Use

  1. General information
    PRO FITNESS & Motivation GmbH, FN 593374i, 5550 Radstadt, Ennsweg 3 (also known as: PRO Fitness), provides the smartphone app "GYMKY" and the website gymky.com (together also referred to as "GYMKY") as a means of registering free of charge, using services and information in the area of fitness and nutrition, creating individual training plans, communicating with other users, and purchasing products.

  2. Scope of application
    These terms of use apply to the use of the platform provided by PRO FITNESS on the website gymky.com and on mobile devices via the GYMKY app, including the services, information, and shop provided in this context (hereinafter also referred to as "GYMKY"). By using GYMKY, the user accepts the terms of use applicable to GYMKY at the time of use, which are valid from the time of publication on gymky.com/agb or provision in the GYMKY app. At the same time, the user acknowledges the privacy policy available at gymky.com/datenschutz. When using certain services, additional terms of use applicable to the specific service may apply. The user will be notified of this circumstance if necessary.
    PRO FITNESS reserves the right to amend or supplement the terms of use at any time, and these amendments or supplements shall take effect on the date of publication. If the user does not agree to the amended/supplemented terms of use, PRO FITNESS reserves the right to immediately discontinue free services to the user.

  3. Description of the service
    GYMKY is an electronic platform through which users (private individuals, creators; trainers, fitness studios, etc.) can create or make available individual training plans or other content, entries created by users can be shared with other users within the GYMKY platform or other social networks, services can be used or offered, and goods can be purchased.
    The user also has the option of accessing paid services (subscriptions, see section 7) and purchasing products (see section 8) via the GYMKY APP.

  4. Special rules of use
  5. The user must ensure that the information they enter on GYMKY and which is visible to others with regard to fitness, nutrition, and health is correct and complete. Incorrect information may lead other users to make unfavorable decisions. In this context, it should be noted that the content generated by users does not claim to be accurate or complete and that each user therefore follows recommendations on their own responsibility. If PRO FITNESS becomes aware of incorrect/incomplete entries, these may be deleted or marked with a warning notice. PRO FITNESS does not identify with the content generated and released by individual users or with the content of the links provided by GYMKY to third-party information offerings.
  6. The user transfers the free, temporally and spatially unrestricted right of use and exploitation to PRO FITNESS for all texts and content made available for viewing by the user via the GYMKY APP.
  7. For the duration of the respective contractual relationship, the user has the non-transferable, non-exclusive right to use the respective plans, recommendations, and the like within the scope of these terms and conditions. Irrespective of this, all intellectual property rights remain unrestricted with PRO Fitness or its vicarious agents (e.g., CREATORS).

  8. Registration and account security
  9. Registration on the GYMKY APP is generally free of charge. If free services are offered with registration, PRO FITNESS reserves the right to restrict, discontinue, or modify these at any time, or to make access to individual services subject to a fee.
  10. If PRO FITNESS is required by law to collect the user's identity, the user must provide their real name and valid address upon request and disclosure of the legal basis.
  11. To prevent misuse, the password chosen by the user must be kept secret and may not be disclosed to third parties; in particular, it is not permitted to grant third parties access to one's own account. Transferring the account to third parties is also not permitted. 
  12. Registration is not possible for persons under the age of 14. Users who have not yet reached the age of 18 require the consent of their legal guardian to conclude contracts for paid services (e.g., subscriptions).
  13. Upon registration, the user is asked to create a profile page about themselves, answering initial questions about themselves, their training, and their diet on a voluntary basis. Based on the answers, the user receives a defined training plan and nutritional recommendations. Depending on the information entered, the profile page may therefore contain personal data, in particular name, health data, profile and other photos, as well as personal opinions and ratings.

  14. Paid services
  15. If the user uses paid services or purchases products, the following applies:
  16. The user must create a "Premium Account" (premium user) and provide the information necessary to process payments, such as their full and correct first and last name, date of birth, etc.
  17. The contractual relationship is established between PRO FITNESS & Motivation GmbH, FN 593374i, 5550 Radstadt (hereinafter referred to as PRO Fitness) and the user (recipient of the service/purchaser). When a subscription is taken out, the CREATOR acts as an agent of PRO Fitness and does not itself become a contractual partner. All prices are in euros and are daily prices including the applicable statutory sales tax, but – unless expressly stated otherwise – exclude any specially stated shipping costs.
  18. If, after acceptance of the order, it transpires that the ordered product is not available for whatever reason, the user will be notified immediately and PRO Fitness may withdraw from the contract in this case. Claims by the user arising from the impossibility of fulfilling the contract are excluded. Payment for the services offered (e.g., subscriptions) or goods is made via the web shop or directly via the GYMKY APP. The possible payment methods (e.g., direct debit, or "in-app purchase" via the respective app store) and any additional fees will be displayed during the ordering process. The warranty is based on the respective statutory warranty provisions; the assignment of warranty rights by the user to third parties is excluded.
  19. The right of withdrawal and cancellation, including the legal consequences for consumers, can be found below. Unless otherwise agreed in writing, there is generally no right of withdrawal, cancellation, or exchange outside of consumer transactions.
  20.  
  21. CANCELLATION POLICY
  22. You have the right to cancel this contract within fourteen days without giving any reason. 
  23. The cancellation period is fourteen days and begins on the day the contract is concluded with PRO FITNESS and ends two weeks later on the same day of the week.
  24. To exercise your right of withdrawal, you must inform us (PRO FITNESS) of your decision to withdraw from this contract by means of a clear statement (e.g., a letter sent by post or email). To meet the withdrawal deadline, it is sufficient for you to send your notification of exercising your right of withdrawal before the withdrawal period expires.
  25. Consequences of withdrawal
  26. If you withdraw from this contract, we shall reimburse you for all payments we have received from you without delay and at the latest within fourteen days of the day on which we receive notification of your withdrawal from this contract. For this refund, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you.
  27. Exclusion of the right of withdrawal
  28. The right of withdrawal does not apply to contracts for the delivery of goods that are not prefabricated and for the manufacture of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.
  29. Note:
  30. The right of withdrawal does not apply to goods/services that are not suitable for return due to their nature or to goods/services that are manufactured according to customer specifications or clearly tailored to personal needs. Consequently, there is no right of withdrawal if the goods/services are downloaded at the customer's request. The right of withdrawal therefore does not apply to distance contracts for the delivery of digital goods (e.g., access to a member area, online coaching), as these cannot be returned. 
  31. Withdrawal is therefore only possible as long as the contract has not been completely fulfilled by both parties.
  32. The contract is considered fulfilled as soon as you have made the payment and product downloads have been carried out or you have received emails with digital products (PDF files, video links, email attachments). From this point on, withdrawal is no longer possible. 
  33. A refund of the purchase price is then no longer possible as a result of exercising the right of withdrawal.
  34. END OF CANCELLATION POLICY

  35.  
  36. Legal declarations of intent and other legally relevant declarations must be made in writing (including by electronic means, e.g., by email) to the last known or announced address. Proof of receipt (e.g., arrival of the electronic message at the incoming mail server) is the responsibility of the person making the declaration. The contract, order, and business language is German.

  37. Subscriptions
  38. CREATORS (trainers, fitness studios, influencers, etc.) provide training content such as training plans, workouts, exercises, and recipes via the GYMKY APP.
  39. The user can select a CREATOR and obtain the services offered by that CREATOR, such as training plans, training programs, and training content, using a special code (conclusion of a subscription).
  40. The user can choose between the various terms offered in the APP. The subscription is automatically renewed for the originally selected term if it is not canceled at least 24 hours before the end of the current billing period. The subscription fees corresponding to the selection are listed in the APP or in the web shop before selection.
  41. The user can cancel the subscription at any time via their profile page or, if ordered via an app store, via the app store. In this case, the cancellation takes effect at the end of the originally agreed term and the user is still entitled to use the subscription for the remaining duration of the paid term. A refund of subscription fees already paid will only be made in cases required by law or in the event of justified early termination of the subscription agreement by the user. If PRO FITNESS offers a free trial period, the following applies: No payment is due within the first three days of completing the order process for the respective subscription, and the user may cancel with immediate effect. If no cancellation is made within these three days, i.e., by 12:00 a.m. on the third day following the date of conclusion, the regular cancellation options apply.
  42. During the term of the subscription, the user is entitled to change the CREATOR at any time without incurring additional costs. 
  43. Upon expiry of the subscription (e.g. due to time or early termination), the contractual relationship ends and access to the paid services is blocked. 
  44. The specific service description of the respective subscription can be viewed by the user before conclusion.
  45. Communication with the CREATOR takes place via the GYMKY APP; the user has no right to personal contact with the CREATOR.

  46. Shop
  47. Products offered in the GYMKY APP web shop can be purchased independently of the conclusion of a subscription. 
  48. Unless expressly stated otherwise during the ordering process, the terms and conditions for concluding subscriptions apply mutatis mutandis.

  49. Provision and exchange of user content
  50. As part of the service, the user may provide data, information, and other content, such as photos and videos (hereinafter also referred to as "the content"). The user grants PRO FITNESS a non-exclusive, transferable, sublicensable, perpetual, irrevocable, worldwide license to all content, in particular to the photos and videos provided, to which intellectual property rights may be established, immediately upon provision of the content on GYMKY, a non-exclusive, transferable, sublicensable, royalty-free, worldwide license for use and distribution, which shall only end when the content is removed or the account is deleted by the user providing it.
  51. The user guarantees that all content provided by them does not violate the law or public decency. In addition, the user guarantees that they are entitled to all rights to the content, in particular photos, images, and texts, and that the provision of the content does not infringe any third-party rights, in particular third-party copyrights/ancillary copyrights. The user is obliged to indemnify and hold PRO FITNESS harmless in the event of legal claims by third parties. 
  52. The user must always observe data protection regulations when providing content.
  53. PRO FITNESS is entitled to remove the content provided by the user at any time without giving reasons. 
  54. In the event of a violation of the principles of this point, PRO FITNESS is entitled to block the account of the respective user without prior warning.

  55. Prohibited activities when using the service and security
  56. When selecting the content provided, the user must always observe the aims and purposes of GYMKY. In particular, the provision of the following content or the performance of the following activities is prohibited:
  57. – Accessing third-party content for the purpose of collecting data and content;
  58. – Uploading viruses or other content that damages or deactivates the service or third-party content;
  59. – Obtaining third-party login information and/or accessing an account assigned to another person or transferring rights to a third party;
  60. – Providing photos and/or videos that are threatening, promote or glorify violence, or are pornographic; this also applies in particular to racist, xenophobic, offensive, and discriminatory content;
  61. – Actions that make it impossible for GYMKY to function properly or disrupt or overload the service, as well as any form or attempt of a denial-of-service attack;
  62. – Violation of the intellectual property rights of PRO Fitness or its vicarious agents, cooperation partners, and advertising customers; in particular by attempting to modify, copy, reproduce, reverse engineer, or decompile the platform and/or the programs used to provide the platform;
  63. PRO FITNESS is not obliged to check the content provided by users for legal admissibility. However, if illegal content is reported, PRO FITNESS will immediately block the illegal content. Reports can be sent to support@gymky.com at any time.
  64. In the event of suspected misuse of the service, PRO FITNESS is entitled to deny the user concerned access to the service or to block the user's account. 

  65. Warranty and liability
  66. A functioning Internet connection is a prerequisite for using the service. PRO FITNESS does not assume any warranty and/or liability for the uninterrupted availability of the service or the legality of the content or services provided by users and/or third-party providers. In particular, PRO FITNESS shall not be liable for technically induced failures, interruptions, missing or faulty data transmissions or other problems in this context, as well as their consequences. No availability guarantee is given. PRO FITNESS will make every commercially reasonable effort to avoid downtime of the platform, but accepts no liability for the platform or any part thereof being available at any given time or for any given period. The user acknowledges that PRO FITNESS may have to carry out temporary maintenance work, which may result in the temporary unavailability of the service. In this context, the exclusion of liability agreed upon in the above point applies mutatis mutandis to PRO FITNESS.
  67. Outside of consumer transactions, PRO Fitness shall only be liable for damage caused by it if this is due to intentional or grossly negligent actions on the part of PRO Fitness or its vicarious agents; liability for indirect damage, lost profits, and/or pure financial losses is excluded. With the exception of personal injury, such liability is limited to the value of the delivered goods or the price of the other service. For consumer transactions, an exclusion of liability applies only to property damage and only in cases of slight negligence on the part of PRO Fitness or its vicarious agents. The user has no legal claim to the storage of data and content voluntarily provided by them by PRO FITNESS. If such data or content is stored, PRO FITNESS is not liable for any loss of data. The user acknowledges and agrees that they are responsible for installing or using suitable software to meet their specific requirements for virus protection and/or the accuracy of their data, or for taking measures outside the platform (e.g., by storing data on external data carriers) that enable lost data to be reconstructed.
  68. The user must notify PRO FITNESS immediately if they discover that part of the platform is not working or if they otherwise experience a significant malfunction or connection problem that impairs their access to or use of the platform.
  69. The user acknowledges that updates for the GYMKY APP may need to be downloaded and installed in order to maintain access to the platform and its services. Until such updates are installed, certain services offered on the platform may be temporarily unavailable to the user.
  70. PRO FITNESS is not liable for content provided by users. If PRO FITNESS refers to third-party information offerings via links or other references or promotes the services of third-party providers, this does not mean that PRO FITNESS makes this content and these services part of its own service. PRO FITNESS also does not control the content provided by users or the information offered by third parties or third-party services and accepts no liability whatsoever for their content and/or availability. In connection with the training/nutrition plans and other recommendations, it is noted that individual, specific success cannot be guaranteed or assured for the user. The desired success depends mainly on the user meeting the expected physical, health, and mental requirements and participating in the respective program. If third-party content and services are provided via the platform/GYMKY APP, in particular via links to websites and services of these third parties, these are expressly marked. Unless expressly stated otherwise, this content is neither controlled nor endorsed by PRO FITNESS. PRO FITNESS therefore accepts no responsibility for third-party content, in particular if it is misleading, incomplete, incorrect, offensive, indecent, or otherwise objectionable. All business conduct and/or correspondence between users and third parties is carried out without any responsibility on the part of PRO FITNESS. In particular, PRO FITNESS is not liable for any losses or damages of any kind resulting from such transactions, and the use of third-party content is at the user's own risk.
  71. If you access the platform via services or software provided by third parties, you acknowledge and agree that PRO FITNESS is not responsible or liable for any loss or damage of any kind resulting from the use of such third-party services or software.

  72. Data protection and declaration of consent to the use of personal data
  73. The user acknowledges the PRO FITNESS privacy policy. that
  74. a) the personal data provided by the user during registration and subsequently when updating the user profile, as well as information, data, and other content provided by the user on GYMKY, may be stored and used by PRO FITNESS for the purpose of providing the service, and that freely released content may be published.
  75. b) some or all of the data and information generated or specifically created during the use of the service, such as access times, location of access, activities on GYMKY, etc., stored and used not only for the provision and optimization of the service, but also for advertising, marketing, and market research purposes by PRO FITNESS and its cooperation partners and advertising customers;
  76. c) the personal data provided during registration and subsequently when updating the user profile, in particular the contact details, including the email address provided by the user, may be used by PRO FITNESS to send emails with information about the service, even if these messages contain advertising from PRO FITNESS and/or PRO FITNESS's cooperation and advertising partners in addition to information about the service; PRO FITNESS is also entitled and grants the user its express consent in this regard to store and use this contact information independently of the service for advertising, marketing, and/or market research purposes of PRO FITNESS and its cooperation and advertising partners.PRO FITNESS will also store and use anonymized data and information about the respective user, which the user provides on GYMKY or generates through their user behavior, for the purposes of: – compiling statistics and identifying trends; – market research; – marketing and advertising; – demographics. PRO FITNESS will also make this data available to third parties, in particular cooperation partners and advertising customers, or tailor advertising on GYMKY accordingly. The user agrees to the use of their data for these purposes.– demography
  77. PRO FITNESS will also make this data available to third parties, in particular cooperation partners and advertising customers, or use it to tailor advertising provided on GYMKY. The user expressly agrees to this. 
  78. The user is entitled to revoke the declaration of consent in points 2. b) and c) at any time. Revocation must be notified by email to support@gmyky.com. Revocation of the declaration of consent in point 12. a) is effected by deleting the account.

  79. Health information

  80. The training/nutrition plans, recommendations, and similar information offered via the GYMKY APP are not a substitute for a personal trainer/consultant. Users who have diabetes, are pregnant, have a chronic illness, or have other health impairments are expressly advised to consult a doctor before using the app.
  81. The services offered are expressly not suitable for the treatment of morbid obesity. 
  82. Users who experience signs of cardiovascular disease, respiratory disease, musculoskeletal disorders, or other health problems should consult a physician before using the services to rule out any possible risks of participation.
  83. The provision of medical information is expressly excluded. 
  84. In order to minimize the risk of injury from the outset, users should perform exercises with caution when doing them for the first time. Training is carried out at your own risk; when exercising, users should not overexert themselves or perform the suggested movements jerkily. It is recommended that users take out their own insurance against accidents and injuries that may occur in the course of training subscribed to via the GYMKY APP.

  85. Intellectual property rights
  86. All rights to the platform or the GYMKY APP and the material published on and/or via it (with the exception of any content provided by the user) are the (intellectual) property of PRO FITNESS, its licensors, and/or other providers and are protected by law. This includes, in particular, patents, trademarks, logos, company/trade names, rights to domain names, copyrights, design rights, database rights, rights to undisclosed or confidential information (such as know-how, trade secrets, inventions, and similar intellectual property rights) – regardless of whether they are registered – and applications for such rights worldwide. The user is granted the right to use the intellectual property of PRO FITNESS only within the limits of these Terms of Use. Within this framework, the user has the limited, personal (non-transferable) right to access the freely released content of the platform (its content).
  87. PRO FITNESS reserves the right, within the scope of the agreement made with users or the Terms of Use, to monitor access to and/or use of the platform/GYMKY APP and to restrict, change, or revoke rights of use.

  88. Miscellaneous – Choice of law – Place of jurisdiction
  89. Should one or more provisions of these Terms of Use be or become invalid or void, this shall not result in the invalidity or voidness of the entire Terms of Use, but the invalid or void provision shall be replaced by a provision that comes closest to the economic content of the provision concerned.
  90. Users who are considered consumers under the legal provisions of their country of residence are subject to the mandatory consumer protection provisions of their country of residence. These Terms of Use therefore do not affect any mandatory consumer rights and any provisions that may conflict with mandatory legal provisions shall not apply to such users (consumers).
  91. PRO FITNESS reserves the right to change these Terms of Use at any time. The Terms of Use are published in their current version. If you use the information service on a recurring basis, we recommend that you review the Terms of Use each time. We refer you to the "European Online Dispute Resolution Platform (ODR Platform)" provided by the European Commission (available at https://ec.europa.eu/consumers/odr).
  92. Austrian law applies, excluding the UN Convention on Contracts for the International Sale of Goods and any referral provisions of international private law. 
  93. Insofar as there is no mandatory place of jurisdiction, the exclusive jurisdiction of the competent court for Vienna Innere Stadt is agreed. For legal action taken by PRO Fitness against users who are consumers within the meaning of the KSchG, the court in whose district the consumer's place of residence, habitual abode, or place of employment is located shall have jurisdiction.

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