Terms of Service for mentaga
Version from 03 March 2008
§ 1 Object of the Terms of Service
The following Terms of Service relate to the communication and information service provided on the Internet at mentaga.com. They govern in particular the legal relationships between mentaga as a provider and all people who use the offer at the site http://gym.mentaga.de/.
The services at mentaga.com can be used by registered users (“members”) who have accepted these Terms of Service.
The mentaga service offers both free services and also paid services (so-called “premium services”). Before using paid services, users are made aware that these services are fee-based and what costs apply. Members can use the paid services after payment of the corresponding fees.
§ 2 Private use by members
Mentaga offers its services exclusively for private purposes, and not for commercial or industrial purposes. Legal entities or partnerships cannot become members and may not use the service.
§ 3 Agreement
By registering, every member recognizes the conditions of use included in these Terms of Service.
Upon registering, a contractual agreement that follows the regulations of these Terms of Service exists between Mentaga and the registered member.
(2) Upon use of the paid services, another relationship, separate from the registration, arises between the provider and the member. Before conclusion of this contractual agreement, the member shall be informed that the service is fee-based and informed of the conditions of payment on the respective web page. The contractual relationships involving obligatory fees arise by the member acknowledging and accepting the obligatory fees by clicking on the conformation field on the respective web page.
(3) By using the mentaga service, every user agrees:
1. That the personal information provided upon registration is truthful, accurate, current and complete,
2. That in particular the information on the user provided upon registration for the paid services, including in particular address, telephone number, e-mail address and credit card information, is truthful, accurate, complete and current,
3. That he/she shall constantly keep the personal information complete, current and up to date,
(4) In order to access the mentaga service, members must have an Internet connection and pay all associated charges. Users are personally responsible for acquiring the means required for this access (e.g. computer, modem etc.).
(5) In the case of unlawful use of Mentaga services, in particular in the event of a breach of one or more of the regulations of these terms of service by a user, Mentaga reserves the right to block the access of the user in question to the areas that require registration, to delete created accounts, to refuse the user any present or future use of the services and to take further measures such as prosecution.
§ 4 Member’s account
(1) Upon completion of registration with Mentaga, every member receives a specific account (user account) with a corresponding password.
(2) Every member is solely and personally responsible for all actions relating to his/her account. Every member also bears the personal responsibility for the secrecy of the password and confidentiality of the account. The member is obliged to inform Mentaga or the customer service immediately by written letter or by e-mail of any illegitimate use of the account and of any breach of security.
§ 5 Costs and payment of paid services
(1) If the user uses an accessible, paid service at mentaga.com before being made aware of the obligation to pay for the service in question, use of the service in question is free of charge. Paid services include, in particular:
* The analysis and explanation of test results
(2) Payment for paid Mentaga services is generally with the user’s credit card. Other modes of payment are only allowed if explicitly permitted by Mentaga. The particular costs for paid services are explained along with the paid services themselves.
(3) Mentaga grants users access to the paid services only upon receipt of the full payment for the service in question.
(4) If a member’s access is barred due to breach of agreement, the unused credit shall be retained by Mentaga as a flat rate processing charge for prevention of breach of agreement by Mentaga.
(5) Questions regarding billing or costs cab be directed to Mentaga as an e-mail to firstname.lastname@example.org.
§ 6 Objections to the costing of paid services
(1) If members have any objections to amounts deducted or billed, these objections must be made by written letter to Mentaga and reasons given at the latest within 14 days of deduction of the costs objected to. If the member raises no objections by giving reasons for such objection within this 14 day period, the deducted or billed costs will be considered approved.
(2) Minor inconveniences to a service do not justify an objection. A minor inconvenience to a paid service is the case in which a member cannot use the paid service in question for a period of no longer than two consecutive days. This period extends to five days for services requiring payment for a single use. An additional condition for effective objection is that Mentaga is liable for the lack of availability of the paid service in accordance with these Terms of Service.
(3) In the case of justified objections, the member can set Mentaga a period of grace of five working days for proper fulfilment, and demand credit or an extension of the subscription. If the proper fulfilment does not take place within the period of grace, i.e. if the reason for the objection is not remedied, then the member is entitled to cancel the agreement. Unused credit is then reimbursed in accordance with clause 12 item 4 of these terms of service.
§ 7 Duration
(1) With the exception of the paid services, the duration of the contractual relationship is fundamentally indeterminate as long as the user uses the services in accordance with these terms of service and does not violate any laws.
(2) The duration of the contractual relationship for paid services can vary. The duration of membership regarding paid subscription services depends on the duration chosen by the member upon conclusion of the agreement according to the offer of paid services (usually 1, 3, 6 or 12-month basis). It begins with the user’s access to the paid service, i.e. upon receipt of payment by Mentaga. Details on the duration of the respective offers and services are given along with the particular services themselves.
(3) Before the contractual duration of subscribed services lapses, Mentaga is entitled, but not obliged, to draw attention to the termination of the contractual relationship on paid services and the need for an extension 30 days before the end of the contact and again two weeks before the end of the contract.
§ 8 Information on data protection and privacy
The services of Mentaga necessitate the recording, processing, use and forwarding of personal data. Mentaga respects the privacy of all people who visit mentaga.com. We store and process the user’s recorded data in compliance with the prevailing regulations, in particular the Teledienstdatenschutzgesetz, TDDSG (German teleservice data protection act) and the Bundesdatenschutzgesetz, BDSG (German federal data protection act).
§ 9 Exclusive use of the service by members / non-assignment
(1) Unless otherwise regulated in another place, Mentaga promises
1. Members a non-exclusive, non-transferable and limited right to personal and private use of the website and the material contained therein and
2. Subscribed members to paid services the right to personal and private use of the paid services as long as the member fulfils the requirements of these terms of service.
(2) As registered users or subscribed members, users are obliged not to assign or transfer their rights from contracts with the provider, and not to grant any rights of use to any other person. Users are aware that
1. Only they themselves may use the personal account and corresponding password,
2. Rights to paid services may not be shared with other people.
(3) Mentaga is entitled to delete or block the user’s account if there is reason to suspect that the user in question is sharing access over the account and the password with another person. In this case, a refund of payments already made is excluded.
§ 10 Obligations of the members / legal consequences of violations
(1) Every member is obliged to treat e-mails or other messages or member data he/she receives in connection with the use of the mentaga database as confidential and not to make it accessible to third parties without prior consent from the member/originator in question. The same applies to names, telephone and fax numbers, residential and e-mail addresses and/or URLs of other members. Forwarding of any data of people without membership at Mentaga is prohibited.
(2) The user is solely responsible for content, data and material displayed, disseminated or transferred by him/her to other members within the services. The user pledges not to misuse any of the entire offer from Mentaga, any Mentaga services or their content, and to use these only in accordance with the prevailing laws of the competent jurisdiction.
(3) It is prohibited to use the services of Mentaga for commercial purposes, in particular for advertising, offering goods or services, or for obtaining such offers unless with the explicit consent of Mentaga,
(4) Users are obliged to inform Mentaga immediately of violations of the security regulations, such as loss, theft, illicit communication or use of the user’s identity data or his/her password. Until this information of violations of the security regulations, the user is personally responsible for any unlawful or otherwise illicit use of the services over his/her account.
(5) If factors point to illicit or otherwise inadmissible use as defined by these Terms of Service, Mentaga is entitled to block access to this content/data or to delete this content/data. Mentaga is also entitled to block the access of the user in question. In cases of doubt, Mentaga has the right to make the final decision on the permissibility of the use or content in question.
(6) In the case of breaches of these Terms of Service, in particular violations of law, Mentaga is entitled to cancel the membership without notice. Mentaga shall in this case also decide upon the initiation of prosecution and civil (court) proceedings at its own discretion and initiate appropriate proceedings against the user in question.
§ 11 Copyright / industrial property rights
(1) The content and material at mentaga.com, in particular the Mentaga tests, reports, charts, logos, icons and pictures, are protected by copyright and other industrial property rights held by Mentaga and other holders of rights to whom Mentaga has transferred rights of use. The user is obliged to respect the existing copyrights and other industrial property rights of Mentaga and other parties. In particular, according to the valid copyright or industrial property rights, without explicit consent, it is prohibited:
a) To expose, alter, transfer, reproduce, disseminate or modify the content of Mentaga protected by copyright or the services of Mentaga, or to disseminate or otherwise exploit them in modified form,
b) To add content to the offers of mentaga.com or delete content from the offers of mentaga.com,
c) To otherwise modify the content of mentaga.com or the services of Mentaga,
d) To remove signs of ownership (labels) from the content of mentaga.com or the services of Mentaga.
(2) The user pledges, under assumption of full liability, to observe the copyrights of third parties upon exposing, sending or otherwise disseminating any information, data or content, and to expose, send or otherwise disseminate or forward data or content to third parties only with the originator’s consent.
§ 12 Contract termination
(1) Every member is entitled to unsubscribe at any time without providing reasons. Upon unsubscribing, the data stored for the profile of the member in question shall be deleted and the contractual relationship described in clause 3 (1) is terminated.
(2) If a member of a paid service unsubscribes his/her registration, the contractual relationship defined in clause 3 of these Terms of Service remains unaffected by this. Upon unsubscribing, the member renounces the further use of paid services that have not yet been used. That means that a member who unsubscribes shall not have the payments already made reimbursed, either in full or in part.
(3) Mentaga is entitled to delete or block a user’s account or access to the services if there is reason to suspect misuse of the services or similar illicit conduct or conduct to the contrary of these Terms of Service. Upon breach of the contractual agreements and these Terms of Service, Mentaga shall block the access of the user in question to the services and revoke the user’s rights of use. In this case, there shall be no refund of payments already made.
(4) Mentaga is entitled to cease the offered services entirely or partly at any time with or without announcement/notice. Members who have an as yet unused entitlement to use the services that have (partly) been ceased shall receive a partial refund for the unused entitlement.
§ 13 Links to websites of third parties / disclaimer of liability for third party content
(1) The pages of the Mentaga website contain links (so-called hyperlinks) to websites of third parties. These are not part of the offer or services of Mentaga.
(2) The services offered and/or provided on the websites of third parties could be subject to additional terms and conditions and could incur charges for the member. Before using the offers and services of third parties, the member is obliged to inform himself/herself of the terms and conditions and prices of those services. Mentaga is neither party nor representative of the provider of any linked website.
(3) Mentaga has no influence on the content of the linked websites of third parties and does not adopt their content as its own, and hereby distances itself explicitly from their content. This disclaimer applies to all links at mentaga.com and to all pages to which any banners lead. Mentaga declares that at the time Mentaga placed the links, the correspondingly linked pages were free of illegal content.
(4) Mentaga assumes no liability for the content, material or data on linked third parties’ websites. In particular, Mentaga is not liable for the violation of copyrights or brand or personality rights committed on a page that contains a hyperlink.
§ 14 Liability of Mentaga
(1) The offers and services at mentaga.com, including the paid services, are provided as-is and without guarantee of any kind.
(2) Mentaga does not owe any specific results or the suitability of the services for specific purposes. Mentaga accordingly does not guarantee the correctness, accuracy or reliability of results of the offered services or the offered services themselves, suggestions, products, information, content or material at mentaga.com.
(3) Mentaga does not guarantee that the use of the services at mentaga.com shall be absolutely secure, available at all times or entirely free of errors or viruses.
(4) Mentaga assumes no liability for the correctness of test results and suggestions. The performance of the test as such is owed, but not specific results. Even if this is not permitted, members are capable of entering incorrect information or misusing the services.
(5) Mentaga assumes no liability for the uninterrupted availability of the system or for system-related failures, interruptions and faults of the technical systems and services. Mentaga is in particular not liable for faults in the quality of access to the services due to circumstances beyond Mentaga’s control or other events that cannot be attributed to Mentaga, such as failure of communication networks and gateways. Mentaga assumes no liability for minor interruptions in the services.
(6) Mentaga is not liable for damage to computer systems caused by use of the offer of mentaga.com that are the fault of the host or Internet provider.
(7) Mentaga is only liable for damages resulting from intentional or grossly negligent breach of duty or from culpable breach of an essential contractual obligation of Mentaga, its organs or its vicarious agents. The limitation of liability applies to contractual and to non-contractual claims. Liability according to the product liability law and for guarantees remains unaffected.
(8) In cases of simple negligence, Mentaga is only liable if an organ, employee or vicarious agent has violated a material contractual obligation. The extent of the liability in cases of simple negligence is limited to the typically foreseeable damage.
(9) All other liability is excluded.
§ 15 Indemnity
(1) Every member hereby indemnifies Mentaga against all liability and all claims and costs that other members or third parties assert against Mentaga or subsidiaries of Mentaga due to infringement of their rights by offers or content placed in the website of Mentaga by the member, or due to his/her miscellaneous use of the website of Mentaga.
(2) Every user also indemnifies Mentaga against all liability and all obligations, expenses, claims and costs that arise from damage due to offence, defamation, libel or slander, violation of general personality rights, violation of immaterial property rights and other violations of rights by other members. It must be pointed out that members can come into contact with content from other members that is obscene or vulgar and does not comply with our Terms of Service. Every member must carefully choose the kind of information he/she sends to other users or propagates through our service. Users use the services of Mentaga at their own risk.
§ 16 Set-off / right of retention
The user may only set off claims on the part of Mentaga against counter-claims of the user if such counter-claims are not subject to dispute or have been recognized by a court of law.
§ 17 Transfer of the agreement to third parties
Mentaga is entitled to entirely or partially transfer its rights and obligations under this agreement to third parties by giving four weeks prior notice. In such event, the agreement will be continued by the legal successor of Mentaga.
§ 18 Amendment of the Terms of Service
Mentaga reserves the right to amend these conditions of use at any time. The users will immediately be informed of such amendment via e-mail with the changes being highlighted to their e-mail address indicated upon registration and will be requested to consent to the amended Terms of Service. Unless the user objects to such amendment within one month after having been informed via e-mail, the amended or supplemented Terms of Service will become effective. The users must be informed about the consequences of the failure to object by the expiry of the above period upon the announcement of the amendments via e-mail.
§19 Right of revocation of the user
The member is entitled to revoke the agreement made with Mentaga in writing within two weeks from the start of the agreement (date of registration) without indicating any reasons. The period for revocation will be deemed met if the revocation is posted in time. The revocation must be sent to: email@example.com The right of revocation will expire prematurely if Mentaga has started to perform the service before the expiry of the period for revocation with the express consent of the member or if the member himself/herself has caused such performance.
§ 20 Final provisions
(1) Any diverging individual agreements must be made in writing in order to be effective.
(2) Any and all legal relationships arising from and in relation with the agreement will exclusively be governed by the law of the Federal Republic of Germany without regard to the German provisions on conflict of laws. If it is possible to effectively agree on a place of jurisdiction, the place of jurisdiction will be Hamburg.
(3) If any provisions of these Terms of Service entirely or partially are or become ineffective, this will not affect the remaining provisions. Such ineffective provision shall then be replaced with a substitute regulation that meets or comes close to the purpose of the agreement and that would have been agreed upon by the parties in order to achieve the original purpose if they had be aware of the ineffectiveness of the provision. This applies accordingly to any gaps that arise in relation with these Terms of Service.
2. We hereby expressly indicate that the data is recorded by cut-e with domicile in Hamburg/Germany and stored, processed and used in Germany.
3. Acting as the provider of the mentaga.com services, cut-e GmbH will respect the privacy of all persons visiting the websites of mentaga.com. We store and process the user’s recorded data in compliance with the prevailing regulations, in particular the Teledienstdatenschutzgesetz, TDDSG (German teleservice data protection act) and the Bundesdatenschutzgesetz, BDSG (German federal data protection act).
4. If in accordance with the legal provisions, your consent is required for the recording, storage, processing and use, Mentaga will ask you to give such consent. The user may at any time entirely or partially revoke his/her consent towards Mentaga to have effect in the future by sending an e-mail to firstname.lastname@example.org.
II. Recording and storage of data by Mentaga
1. Mentaga records, stores, processes and uses personal data in order to provide user-friendly, demand-oriented and customized services to the members.
2. When carrying out our tests and storing test results as well as upon registration for making an agreement with Mentaga, you disclose data to us that are stored by Mentaga. These e.g. include your first name, age, sex and e-mail address (upon registration).
Credit card information, i.e. data on the credit card of a member, or bank account data are only recorded and stored when a member registers for a paid service. These personal data, which are necessary in order to prepare and make the agreement, are called stock data.
Provided that this is possible within the scope of the offered services, Mentaga gives you the opportunity to freely decide whether to disclose your data to us.
3. Mentaga records and, if necessary, stores technical information for the purpose of carrying out market research, analysing the user behaviour and improving the services of registered and unregistered users when users access the mentaga.com website. Furthermore, the number of users visiting the sites of Mentaga is recorded for the above purposes. However, if will not be possible to identify any persons or allocating any test activities based on this information. Such information might, for example, include: IP address, the type of the used Internet browser, the type of the used operating system and the domain name of the website last visited by the user.
4. From time to time, Mentaga will ask the members for further information via surveys in order to improve the services. Each member can freely decide whether or not to take part in such surveys.
5. The member is entitled to ask for complete and free information about his/her stored personal data at any time.
III. Data security
1. Mentaga hereby expressly informs the members that comprehensive data protection cannot be guaranteed for data transmitted in open networks such as the Internet based on the state of the art. Therefore, the member is solely responsible for the security of the data transmitted to the Internet by the member.
2. Mentaga on its part contributes to the protection of the data entrusted to it by means of the highly qualified employees of its security team, which are obliged to treat the data as confidential.
3. The member is solely responsible for keeping secret the password and any other information included in the member’s account.
IV. Disclaimer of liability
Mentaga cannot be held liable for the content of any linked external websites.
V. Declaration of consent
1. I consent to the recorded data being stored, processed and used in Germany.
2. I consent to Mentaga recording, processing and using the personal data of my profile – such as sex, age – for the purpose of consulting, advertising, secure, effective and customized use of the various services and for improving the services provided by Mentaga.
4. I consent to my personal data being processed and used for Mentaga marketing actions, e.g. newsletters to be send to my e-mail address. I know that this consent can be revoked at any time by sending an e-mail to email@example.com and that I may unsubscribe to this information.
5. I consent to Mentaga transmitting my financial information, i.e. credit card information (data on the credit card) or data on my bank account, to a payment provider in an encoded form for invoicing purposes and to my data being recorded, processed and used there.
6. I consent to Mentaga processing and using my personal data for the protection of predominant interests in the clarification of any misuse of the services, provided that there is a recorded precise indication for such misuse, and any related prosecution beyond the end of the contractual use relationship and transmitting it to prosecution authorities and third parties the rights of which have been infringed, if this is necessary.