Portal Utilization General Terms and Conditions

Part 1 – General Provisions

1. Scope of Applicability

1.1 Alexander Sviridov, Waldwiese 34, 03096 Briesen – Germany (hereinafter referred to as “Portal Operator”) manages online portals under the domain names en.iactiveyou.com, en.idiveyou.com, en.isurfyou.com, en.iclimbyou.com, en.ikiteyou.com, en.isailyou.com, en.ifitnessyou.com, en.imentalyou.com, on which the Provider can create Provider’s own profiles for different sports and recreational activities. On these portals, Providers can also promote their services to portal visitors (hereinafter referred to as “Users”). The term “Provider” as used in the following shall comprise all natural persons and legal entities, who offer diving classes, dive tours, dive safaris or other recreational or sports activities (e.g. diving instructions, dive masters, dive centers, organizers of diving safaris, tour guides etc.). Portal Users have the option to contact the Providers based on the contact information provided on the website.

1.2 These Portal Utilization General Terms and Conditions (PUGTC) shall apply to all contracts between the Portal Operator and the Provider and to all contracts made via the portal between the Portal Operator and Users.

1.3 These PUGTC apply exclusively. General terms and conditions of the User / Provider which deviate from these PUGTC are not valid, unless the Portal Operator expressly agrees to them.

1.4 The Portal Operator shall have the right to change these PUGTC for materially justified reasons (e.g. changes in case law, the status of legislation or market conditions) and subject to compliance with a reasonable advance notice period. Existing Providers / Users shall be notified of such changes via e-mail no later than two weeks prior to the effective date of such changes. Unless the existing Providers / User objects by the deadline set in the change notification, Provider´s / User’s consent to the change shall be presumed. The notification on the intended change to be made to these PUGTC shall disclose the deadline and the consequences of objecting to the changes or the failure to object.

 

2. Scope of Services

2.1 The Portal Operator manages and maintains online portals that allow the establishment of contacts between Users and Providers registered on the portals. The portals also offer options to publish reviews and comments in response to topic-related contributions and to review individual courses or Providers. The sole services provided by the Portal Operator shall be the provision and maintenance of the portal. Subject to deviating agreements made between the Parties or applicable legal mandates, the Provider shall provide the services and shall negotiate the content of the contracts between the Provider and the User at Provider’s complete discretion; this shall apply in particular to the duration, point in time and the type of services to be rendered.

2.2 It is hereby emphasized that the Portal Operator shall at no time assume the role of a contracting party in the contract made between the User and the Provider. Such contracts shall be made exclusively between the Provider and the User.

2.3 The Portal’s average annual availability level is 99%. This figure excludes any required regular maintenance work as well as time periods, during which availability is limited as a result of incidents the Portal Operator is not responsible for (e.g. force majeure, third party actions, technical problems or changes in the legal status).

 

Part 2 – Contract Between the Portal Operators and Providers

3. Subject Matter of the Agreement

3.1 The portal operator provisions the provider via the websites operated by him, with the possibility for his personal promotion along with his services via a personal account. Providers may also post additional content on the portal in exchange for payment of additional fees (e.g. career opportunities or travel arrangements); the prices and other related terms for this service can be found on the portal.

3.2 The Provider shall act autonomously and shall not be subject to Portal Operator’s instructions as far as Provider’s implementation of the services offered is concerned, unless otherwise agreed upon in these PUGTC. Subject to any deviating agreements or provisions mandated by law, the Provider shall organize his activities and the content of the contract between him and the Users at Provider’s complete discretion. This shall in particular apply to the duration, timing and type of services.

3.3 It is hereby emphasized that the Portal Operator shall at no time assume the role of a contracting party in the Agreement made between the User and the Provider. Such Agreements shall be made exclusively between the Provider and the User.

 

4. Registration on the Portal and Execution of the Agreement

4.1 Users can create an account on the portal. For this purpose, they are required to enter the information requested as mandatory information, completely and truthfully in the online registration form. The registration constitutes the conclusion of a free of charge contract of use between the user and the portal operator. This contract of use can be terminated by either party to the contract at any time without notice; however as soon as a chargeable package has been booked, the contract of use can only be terminated together with this chargeable package, subject to the notice periods for this chargeable package.

4.2 After the registration, the provider can book chargeable packages with extended scope of services. The provider is only entitled to create a provider profile after booking a chargeable package.

4.3 In order to purchase a chargeable package, the provider must submit a corresponding offer. The acceptance of the offer is effected by way of a corresponding notification of the portal operator.

4.4 The booking of chargeable packages is reserved exclusively for individuals of legal age or legal entities acting in their capacity as entrepreneurs or as members of a company (for example instructors). Consumers are not entitled to book chargeable packages. The portal operator reserves the right to review this entrepreneurial status, by requesting appropriate evidence.

4.5 The portal operator may provision the provider with a chargeable package for a limited period (test phase). During this test phase, the provider can create a public provider profile. The duration of the test phase and the other conditions can be found on the website. After expiration of the test phase, the provider is provisioned with the chargeable functions, only if he opts for a chargeable package.

 

5. Prices, Due Dates and Default

5.1 The scope of services as well as the prices shall be contingent upon the package ordered in each case and shall be disclosed to Providers before the contract is executed.

5.2 In the event that the Provider should be in default of payment, the Portal Operator shall have the right to block or delete the account. The deletion of an account shall be considered in particular in the event of repeated (not necessarily consecutive) default of payment. In the event that the account should be blocked, the term of the contract shall continue without interruptions. The owed amount shall be subject to late payment interest in accordance with the statutory provisions set forth in German Civil Law (BGB).

 

6. Term of Contracts and Termination

Subject to deviating agreements, the chargeable packages have a term of 12 months calculated with effect from the date of the booking. Insofar as these are not extended by the provider prior to the end of the contract period, an automated extension does not take place. The free of charge contracts of use can in principle be terminated at any time, however not during the term of a chargeable package. The right to extraordinary termination without notice shall remain unaffected, wherefrom.

 

7. Rights and Obligations of the Provider

7.1 The Provider shall ensure that all content uploaded or made available by him is in compliance with applicable laws (in particular data privacy and consumer protection, copyright, etc.) and that conflicting third party rights do not exist. In particular, the Provider shall be required to have all-encompassing publication rights for the image materials provided as well as any other data and documentation supplied by the Provider. Moreover, the offered services must be in compliance with applicable laws. In particular, it shall be mandatory for Provider to have the qualifications to render the respective service and shall meet the legal conditions in effect in Provider’s country (especially government agency issued permits) for the provision of the respective services.

7.2 Content and offers that are in violation of applicable laws shall be prohibited. The Portal Operator shall have the right to delete such content without prior notice.

7.3 In the event of any violation of the obligations set forth in this Section, the Portal Operator shall have the option to terminate the Contract with immediate effect (extraordinary termination) or to block the account or to delete specific content. Decisions on the sanctions to be imposed shall be made at Portal Operator’s complete discretion. However, the Portal Operator shall take into account the type and seriousness of the violation.

 

8. Copyrights and Licensing Rights Inherent in Promotional Materials

The Provider shall grant the Portal Operator – subject to any agreements to the contrary – a simple, transferable licensing right without any limitations of time and geography, in the videos, images, copy and other content supplied by the Provider. The Portal Operator shall be permitted to utilize the respective content or parts thereof in Portal Operator’s own advertising. In particular, the Portal Operator shall be permitted to use images, copy or videos or parts thereof in promotional banners on third party websites, in forums and/or on social media (e.g. Facebook or Instagram). The Provider shall ensure that the supplied content is not attached by any third-party rights and that it is in compliance with the applicable legal provisions.

 

Part 3 – Legal Relationship Between the Portal Operator and Portal Users

9. Execution of the Contract / Registration and Service Scope

9.1 Users have the option to register an account on the portal. To do so, they have to enter all of the information requested as required information completely and truthfully into the online registration form. The subsequent approval of the User account results in a free licensing contract between the User and the Portal Operator.

9.2 Hence, the only scope of services provided by the Portal Operator is the provision and maintenance of the portal content and functions. Contracts on the organization of certain events (e.g. diving classes) shall be made exclusively between the User and the Provider.

9.3 Prior to submitting their registration, Users may at any time correct entries made via the cursor and keyboard functions.

9.4 The contract language is English.

 

10. Rights and Obligations of the User

10.1 With the assistance of the available contact media (e-mail, chat, etc.), Users have the option to contact the Providers. Moreover, the User may enter comments and ratings for events the User has attended or for Providers the User has booked.

10.2 The User shall undertake not to misuse the comments tool for illegal purposes. Only Users who have actually participated in the respective event or had a desire to participate in the event and / or have personally experienced the Provider in this role shall be permitted to enter comments or ratings. Posted ratings and comments must be truthful and must not contain any misleading or incorrect information or vicious criticism or insults. The Portal Operator shall have the right to delete such content and to block or delete the respective User’s account and to terminate the Licensing Agreement.

 

11. Booking of Events / Contacts with Providers

11.1 Users shall have the right to submit inquiries about the Providers’ services. Users may either submit binding or non-binding inquiries to Providers. The prices as well as the service and payment terms shall be directly and individually negotiated between User and Provider. Both, User and Provider, may use the communications channels provided on the portal for this purpose (e.g. chats, e-mail or phone) to submit binding offers or pricing proposals or non-binding inquiries. The Contract shall be deemed executed as soon as a binding offer made by one Party is accepted by the other Party.

11.2 The contract for the provision of the individual services is concluded exclusively between the provider and the user. The portal operator is – without prejudice to mandatory contractual or statutory liability reasons – not involved in any way whatsoever and assumes no liability whatsoever for the quality or execution of the booked courses or other services ordered.

 

12. Termination of the Licensing Agreement

Portal Operator and User shall have the right to terminate the Licensing Agreement at any time with immediate effect. Such terminations shall be without prejudice to contracts in effect between User and Provider.

 

Part 4 – Liability and Indemnification from Liability

13. Limitations of and Indemnification from Liability

13.1 The Portal Operator shall not assume any liability for the content of Provider or third party offers, unless a situation of mandatory statutory or contractual liability arises (ref. next Section). The same shall apply to incidents, delays, errors and/or other service impairments resulting from deficiencies, Provider or User software or hardware incompatibility. Moreover, the Portal Operator shall not assume any liability for Internet accessibility and availability. In particular, availability may be temporarily limited due to maintenance work or for other reasons. Any liability for the consequences of limited availability – regardless of the type and reasons – shall be excluded.

13.2 The Portal Operator shall not in any way be involved in the contractual relationship between the Provider and the User. This contract as well as the arising service obligations shall be generated exclusively between the Provider and the User.

13.3 Notwithstanding the foregoing disclaimer, the Portal Operator is liable to the contractual partner from all contractual, non-contractual and statutory (also tortious) claims for damages and expenses as follows:

The Portal Operator shall be fully liable for any and all legal grounds

  • in case of intent or gross negligence,
  • in case of intentional or negligent injury to life, body or health,
  • on the basis of a guarantee promise, insofar as nothing else is regulated,
  • due to mandatory liability such as the Product Liability Act.

If the Portal Operator negligently violates a substantial contractual obligation, the liability is limited to the contract-typical, foreseeable damage, unless the liability of the above paragraph is unlimited. Significant contractual obligations are obligations which the contract imposes on the Portal Operator according to its content in order to achieve the purpose of the contract, the fulfillment of which enables the proper execution of the contract at all, and upon which the contractual partner may regularly rely.

In all other cases, the Portal Operator´s liability is excluded.

The above liability provisions also apply with regard to the liability of the Portal Operator for his vicarious agents and legal representatives.

13.4 If a third party asserts a claim against the Portal Operator because the Provider / User has violated the law or the provisions of the PUGTC, the Provider / User must reimburse the Portal Operator for the costs incurred. This includes the reasonable costs of legal defense (in particular court costs and attorneys´ fees) in the amount required by law. Sentences 1 and 2 shall not apply if the Provider / User is not responsible for the infringement. Irrespective of this, the Provider / User is obligated to notify the Portal Operator of potential third-party claims without delay.

 

Part 5 – Data Protection and Final Provisions

14. Data Protection

We treat your personal data confidentially and according to the legal data protection regulations. The transmission of your data without your express consent is not possible or only within the scope of the necessary processing of the contract, for example to the companies entrusted with the delivery of the goods. For more information, please refer to our Privacy Policy.

 

15. Final Provisions

15.1 The laws of the Federal Republic of Germany shall apply to the contracts between the portal operator and the provider / user, under the exclusion of the UN purchase law, insofar as this choice of law does not result, in a consumer being thereby deprived of mandatory consumer protection standards.

15.2 If the Provider / User is a merchant, a legal person under public law or special fund under public law the court is competent at our headquarters in 03096 Briesen (Germany), unless an exclusive court of jurisdiction is established for the dispute. This also applies if the customer has no place of residence within the European Union.

 

16. Information on Online Dispute Settlement / Consumer Protection

The EU Commission provides a platform for online dispute resolution on the Internet at: http://ec.europa.eu/consumers/odr

This platform serves as a point of departure for the out-of-court settlement of disputes arising from online purchase or service contracts in which a consumer is involved. The suppliers are not obliged and are unwilling to participate in consumer arbitration proceedings under the CSBG.

Our e-mail address is: support@iactiveyou.com

 

Status: 11/2017