TK8 Sports Academy GmbH (hereinafter referred to as “Toni Kroos Academy”), Luxemburger Strasse 311, 50354 Hürth, Germany, offers its Toni Kroos Academy Services via its website and mobile applications (hereinafter collectively referred to as “app”). The app is offered to users in a free version (hereinafter referred to as the “FREE App”) and in a paid version (hereinafter referred to as the “PREMIUM App”), each offering a different scope of services. In some cases, separate services are also offered against remuneration. Moreover, the Toni Kroos Academy organizes training events at irregular intervals with trainers employed by the Toni Kroos Academy.
§ 1 Scope of Application
§ 2 Users
(1) The app is intended exclusively for the private use of users and is geared only towards consumers. Use of the app for commercial purposes is not allowed unless the Toni Kroos Academy has expressly agreed to this in writing.
(3) By downloading the app or registering for a training event or ordering other miscellaneous services, minor users affirm that they have obtained the consent of their legal guardians. At its sole discretion, the Toni Kroos Academy may request written proof of consent from the legal guardian of minor users. If the user is unable to provide proof of such consent within a reasonable period, the Toni Kroos Academy is entitled to terminate the contract for good cause.
§ 3 App Use Agreement
(1) Use of the app requires downloading the app and installing it on a compatible device of the user.
(3) If the download occurs via third-party app stores, the following provisions are also valid for third-party services.
§ 4 Third-party Services
(2) Obtaining the app via app stores requires an account for the respective app store. In order to use the app and all its functions, it may be necessary for the user to be logged on to the services of the manufacturer of his mobile device or the operating system used.
(3) Depending on the app store, the license is valid for all of the user’s mobile devices linked to the respective app store.
§ 5 App scope of services, System requirements, Changes
(1) The scope of services of the app are being governed by the applicable information available on the website of the Toni Kroos Academy or in the relevant app store.
a) FREE App: Use of the FREE app is free of charge. The user has no entitlement to the use of the FREE app and its functions.
b) PREMIUM App: Use of the PREMIUM app is subject to a fee. The obligation of the Toni Kroos Academy to provide users access to the PREMIUM app refers to the app in its respective version available.
c) Purchase of separate services against remuneration: Toni Kroos Academy will inform the user separately about the content of the services, requirements and prices before the user makes use of any paid services.
(2) The system requirements and compatibility information required for using the app result from the applicable information available on the website of the Toni Kroos Academy or in the relevant app store. In this respect, the user is required to ensure that the device he/she is using and the data connection are technically suitable for displaying the content of the app in appropriate quality. If the computing power of the devices or the data connection is insufficient, the response time of the app and the quality of the playback may be impaired.
(4) The app settings and content may possibly be bound to the user’s device. In the event the app is deleted and subsequently reinstalled, as well as in the event there is a change of the device used with subsequent reinstallation of the app, the user shall have no claim against the Toni Kroos Academy for restoration of all app settings and content.
(5) The app and its functions are continuously developed and updated by the Toni Kroos Academy, among other reasons to improve usability. The user has no entitlement to this.
(6) The Toni Kroos Academy has the right to make changes and further developments to the FREE App at any time. Users have no entitlement to the maintenance of a certain condition or functional scope of the app, to the extent that changes do not affect the usability of the PREMIUM App itself. The Toni Kroos Academy also reserves the right to offer new functions for the app or only for the PREMIUM App and/or to remove functions from the app, to modify them or to make functions previously only available in the PREMIUM App also available in the FREE App. Changes and further developments may affect the necessary system requirements and compatibility requirements for the user. To the extent that users of the PREMIUM App can no longer use individual functions for the aforementioned reasons or if functions previously available exclusively for the PREMIUM App are also made available in the FREE App, the Toni Kroos Academy will offer the users as a substitute other premium functions for the PREMIUM App. In such cases, the user may terminate the contract with immediate effect. No further entitlements of the user shall exist in this respect.
§ 6 Cancellation policy for consumers in the case of contracts for paid services
(1) For the purchase of the PREMIUM App and other paid services via third party app stores, we refer to their cancellation policy and the right of cancellation granted by them.
(2) For the paid participation in training events of the Toni Kroos Academy: According to Article 312 g (2) No. 9 of the German Civil Code (Bürgerliches Gesetzbuch, (“BGB”)), there is no right of withdrawal for contracts for the provision of services related to leisure activities, if the contract provides for a specific date or period of performance.
§ 7 Codes of Conduct and User Obligations
(2) When creating their profile in the app, users are allowed to choose a username.
(3) Users are solely responsible for their own username and other personal content. Unless expressly agreed otherwise, such content is external content for the Toni Kroos Academy. The Toni Kroos Academy neither adopts the content as its own, nor does the Toni Kroos Academy endorse it.
(4) Users are obligated to protect their access to the app from unauthorized access. Under no circumstances are the device, the registration to the app store, the login name or the account of another user allowed to be used without authorization.
(5) Users may not use any measures, mechanisms, or software in connection with the app that may impair the operation or individual functions of the app. Moreover, users may not take any action that has the objective of causing an excessive burden on the technical capacities of the Toni Kroos Academy in the provision of the app. Also, no content of the app may be blocked, overwritten, or otherwise altered in its presentation by users, unless expressly permitted by the Toni Kroos Academy.
(6) Users are not allowed to add elements to the app or delete, overwrite, or otherwise modify existing elements of the app, nor copy or otherwise use graphic elements of the app, unless the Toni Kroos Academy has expressly permitted such conduct. Decompilation of the app’s program code is permitted only to the extent mandated under statutory provisions.
(7) Users may not use any tools for unauthorized interference in the operation of the app (e.g. “bots” or “hacks”) or offer them to other third parties. In particular, users are prohibited from gaining the benefits of the PREMIUM App through the use of such devices without having purchased them, or from tampering with the odds of winning prize drawings or competitions for themselves or other users through such devices. The planned exploitation of obvious programming bugs in the app for one’s own advantage is also not permitted.
(8) Users are not allowed under any circumstances to introduce into the app any content that is illegal or infringes on the rights of third parties. Users are not entitled to the inclusion of content. The Toni Kroos Academy is entitled, but not obliged, to check the content of users. This applies in particular to the opportunity provided, where applicable, to communicate among users or with the Toni Kroos Academy within the app. In particular, content submitted is not allowed to offend common decency, for example, by offending religious feelings or to be racist, discriminatory, or sexist. The distribution of pornographic content is also prohibited in the app.
(9) Users are not allowed to distribute commercial advertising for products, services, or other offers of third parties in the app or refer to content that contains such advertising.
(10) The Toni Kroos Academy secures its systems against any attacks on IT security, e.g. by viruses. Nevertheless, the possibility of the systems being compromised can never be ruled out. In addition, there is always the risk of third parties contacting users on behalf of the Toni Kroos Academy. That is why users must check all incoming messages from the Toni Kroos Academy for possible malware. This also applies to messages from other users.
§ 8 Special provisions for training events
(3) Conclusion of Contract: The reference to the respective training event in the app or on the Toni Kroos Academy website constitutes a non-binding invitation to users to conclude a contract. By sending his registration, the user makes a binding offer. The Toni Kroos Academy can accept the offer by sending a confirmation of registration by e-mail; otherwise the contract is not concluded. If participation is not possible, the Toni Kroos Academy will inform the user by e-mail without being obligated to do so.
(4) Cancellation, non-participation due to the user: Cancellation free of charge is not possible after conclusion of the contract (receipt of the registration confirmation). In the event of non-participation in the event, the user will be charged the full participation fees (minus any expenses saved by the Toni Kroos Academy); there is no entitlement to a refund or compensation for training hours missed for which the user is responsible. The right to terminate for good cause remains unaffected.
(6) Subject to change: The Toni Kroos Academy may make necessary content, method and organizational changes or deviations prior to or during the event, provided that these do not significantly change the scope of services of the announced event for the participating users. This also applies to the use of technical training aids. In particular, the Toni Kroos Academy may replace the appointed trainers with other equally qualified trainers in the event of an important reason such as an illness or accident. Claims of the user, in particular for withdrawal, reduction or compensation for damages, do not exist in these cases.
(7) Important Notes:
a) Duties of Participants: The participating users are individually responsible for proper clothing as well as for the safekeeping of any belongings they bring along with them. During the event, they are required to follow the instructions of the employees, vicarious agents and assistants of the Toni Kroos Academy and comply with the rules of the training event. If these instructions are culpably not followed and there is a risk of endangering the safety of other participating users or the serious disruption of the smooth running of the event, the user may be excluded from further participation. In this case, there is no entitlement to a refund of the participation fee. Minor users are to be picked up immediately by a parent or guardian in the event of a declared exclusion.
b) Insurance: Participating users must have health and liability insurance, minors through their parents or legal guardians. By registering for the event, the user warrants the existence of appropriate insurance policies. The decision to take out additional insurance is within the discretion of the user or his parent or legal guardian.
c) Health of participating users: There are health risks associated with participation in sporting events. That is why drills are to be carried out under the professional supervision of the employees, vicarious agents, and assistants of the Toni Kroos Academy. The prerequisite for participation is that the user be fully able to engage in sporting activities and be physically healthy, does not suffer from any contagious disease and has a current vaccination against tetanus at the time of the event. Lists of any medications being taken and relevant allergies of the participating users are to be communicated to the Toni Kroos Academy in writing along with registration. In the event of slight injuries to minor users occurring during the event, the parent or guardian agrees that the user shall be cared for by the Toni Kroos Academy supervisors. In the event of illness or injury to a participating user, the user authorizes the Toni Kroos Academy to take all necessary steps and actions for the user’s safe, appropriate treatment and/or transportation home. In the case of minor users, the Toni Kroos Academy shall also inform their parents or legal guardians without delay. In case the Toni Kroos Academy incurs costs due to emergency medical treatment of a user, the user is obligated to assume these costs.
§ 9 Remuneration and payment processing
(1) If users have purchased the PREMIUM App, fee-based participation in a training event or other services, they are obliged to pay the applicable remuneration. The prices shall apply that were published by the Toni Kroos Academy on the website and in the app or in the respective app store at the time when the contract was concluded.
(2) Payment processing is geared to the respective agreed terms of payment. If the purchase is made via third-party app stores, payment processing is geared to their terms and conditions.
(3) For paid participation in training events, remuneration must be paid in full to the Toni Kroos Academy before the start of the event.
§ 11 Warranty
(1) The app is state of the art. However, the Toni Kroos Academy cannot ensure that the app is completely error-free. Therefore, users must reckon with the possibility that the app may not work error-free in every function, even if the Toni Kroos Academy makes every effort to provide an app that is as error-free as possible and to ensure full usability. Minor software errors cannot be ruled out by the Toni Kroos Academy. To the extent these significantly impair the use of the app, the user may assert his statutory claims arising from a defect, whereby a distinction must be made between the statutory warranty for paid services and that for services provided free of charge.
(3) Any defects occurring in the app must be documented by the users in a substantive manner, in particular taking into account any displayed error messages. Prior to reporting an error, the user should consult the troubleshooting help menu available in the app.
(4) Errors in the app caused due to external influences for which the Toni Kroos Academy is not responsible (e.g. operating errors for which the user is responsible, third-party software installed on the user’s device, force majeure, changes, or other manipulations by third parties) are excluded from the warranty.
(5) The Toni Kroos Academy makes no warranties about the app, its usability, or any specific functionality.
§ 12 Limitation of liability
(1) The following provisions apply to the liability of the Toni Kroos Academy as well as to the own liability of its employees, vicarious agents, and assistants – regardless of the legal grounds:
(2) For paid services (e.g. within the framework of the PREMIUM App or in the case of paid participation in training events), the Toni Kroos Academy shall have unlimited liability only for damages in the case of intent and gross negligence. In the event of a breach of essential contractual obligations, the Toni Kroos Academy shall also be liable for slight negligence, limited to the damage typically foreseeable at the time of the conclusion of the contract. Essential contractual obligations, also so-called cardinal obligations in the sense of case law, are those obligations which enable the proper execution of the contract and on the fulfillment of which the user may rely on.
(3) For free services (e.g. within the framework of the FREE App or in the case of free participation in training events based on sweepstakes or prize drawings), the Toni Kroos Academy shall have liability only for damages in case of gross negligence or intent. In the event of gross negligence, liability shall be limited to the damage typically foreseeable at the time of conclusion of the contract.
(4) The aforementioned limitations of liability do not apply to liability for injury to life, limb, and health or in the event of the assumption of a warranty by the Toni Kroos Academy or for liability under the Product Liability Act. In this case, statutory liability applies, whereby a distinction must be made between the statutory liability for paid services and that for services provided free of charge.
(5) The liability of the Toni Kroos Academy within the scope of application of Article 44a of the German Telecommunications Act (Telekommunikationsgesetz, (“TKG”)) al-so remains unaffected.
(6) The above provisions do not imply any change in the burden of proof to the detriment of the user.
§ 13 Industrial property rights and Copyrights
(1) Rights of the Toni Kroos Academy: All content of the app and of websites of the Toni Kroos Academy are the exclusive property or are industrial property rights held exclusively by the Toni Kroos Academy or the respective licensors. They are protected by copyright and other industrial protective rights. The Toni Kroos Academy reserves the right to prosecute any unauthorized distribution, reproduction, exploitation, or other violation of rights.
(2) If users provide the Toni Kroos Academy with content (e.g. videos of their own football exercises) for use, the following shall apply:
a) The user shall inform the Toni Kroos Academy whether his/her content is to be evaluated by a trainer of the Toni Kroos Academy.
b) The user shall inform the Toni Kroos Academy whether his/her content (eval-uated by a trainer, if applicable) is to be published via the App.
c) In the event that the user’s content is evaluated by a trainer, the user grants the Toni Kroos Academy a non-exclusive, royalty-free license to make such content available to the trainers (also with the involvement of third parties, e.g. via a platform that is not publicly accessible) and to use the content un-changed or, in compliance with the user’s (copyright) personal rights, in an edited or redesigned form for the purposes of the evaluation. This includes in particular the right to comment graphically on the contents. The results cre-ated in this way are made available to the user exclusively for use for his own private purposes; he/she is not entitled to the physical exploitation or public reproduction of the results created.
d) In the event that the user’s content is published via the App, the user grants the Toni Kroos Academy a royalty-free license, which may be revoked at any time, to make this content publicly available to third parties worldwide with-in the scope of the App, either unchanged or, in compliance with the user’s (copy-right) personal rights, in edited or redesigned form. This includes in par-ticular the right to graphically comment on, retouch, colorize or compose the contents. Toni Kroos Academy shall only be granted a non-exclusive license to use to the user’s unchanged content. In case of editing or redesigning, Toni Kroos Academy shall be granted the exclusive license to use to the results created.
e) The user warrants that he/she owns all rights to the content provided by him/herfor the use by the Toni Kroos Academy and/or its trainers and that in particular the rights of third parties are not violated thereby.
f) Unless otherwise agreed, the user shall have no claim against Toni Kroos Academy to exercise the licenses granted, in particular to make the user’s content available to the public.
g) Toni Kroos is not obligated to name the user as the author of his/her content.
(3) Under certain circumstances, the Toni Kroos Academy may also wish to use individual content provided by users for the app for marketing purposes, e.g. on the websites and social media channels of the Toni Kroos Academy, Toni Kroos or third parties. This applies in particular to the use of images and film recordings of participating users made at the training events. These may be distributed and published by the Toni Kroos Academy and the advertising agencies commissioned by it without any restrictions in terms of time, place, or content for the purposes of its own or third-party advertising, including merchandising purposes. Such uses require a separate agreement.
§ 14 Data Protection
§ 15 Terms of contract and termination
(1) The contractual relationship between the user and the app is concluded for an indefinite period, unless otherwise agreed.
(2) The user can terminate the contractual relationship at any time by deleting his user account within the app and subsequently deleting the app from all his devices.
(3) The Toni Kroos Academy may terminate the user contract concerning the FREE App at any time. The ordinary termination of the user contract for the PREMIUM App is only possible at the end of the use period for which payment has already been made.
(5) The Toni Kroos Academy has the right to discontinue the FREE App at any time. Furthermore, it shall have a special right of termination of the PREMIUM App if it ceases to operate the app altogether. In this case, it may extraordinarily terminate all contracts relating to the operation and use of the app effective on the date on which the app is discontinued. The Toni Kroos Academy will provide at least 3 months’ advance notice in case the app is discontinued. Other rights of termination remain unaffected.
(6) Notice of termination shall be provided in written form, which shall be deemed to have been complied with if the user is informed by means of a notice within the app.
§ 16 Contact
Users can contact the Toni Kroos Academy via the media and addresses listed below:
TK8 Sports Academy GmbH
Luxemburger Strasse 311
(3) Users may voice their objection to the Toni Kroos Academy concerning announced changes or additions within one month of the announcement. In the event of a timely objection, both parties may terminate the contract extraordinarily. If the user does not object within the objection period or if he/she continues to use the services thereafter, the change or addition shall be deemed accepted by him and shall become part of the contract.
§ 18 Dispute resolution
(1) The EU Commission provides a platform for extrajudicial online dispute resolution (ODR platform), which can be accessed at https://ec.europa.eu/consumers/odr.
(2) The Toni Kroos Academy is neither willing nor obligated to participate in dispute resolution proceedings before a consumer arbitration board.
§ 19 Links to third-party websites
To the extent that the Toni Kroos Academy provides links to third-party websites in the app or on its websites, it is not responsible for the content of the linked pages. The Toni Kroos Academy does not control these sites.
§ 20 Final provisions
(1) Users may not transfer their rights under this contract to third parties unless the Toni Kroos Academy has given its prior written consent to such a transfer.
(2) The user shall only be entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed or have been acknowledged by the Toni Kroos Academy.
a) carries out its professional or commercial activity in the state of residence or
b) aligns such activity in any way to that state of residence or to several states, including that state of residence.