(hereinafter “Terms of Use”)

1. Subject Matter & Scope, General

1.1. The following Terms of Use govern the use by you as a user (hereinafter “User”) of the BLACKROLL-App (hereinafter “App”), a mobile application provided by BLACKROLL AG, Hauptstraße 17, CH-8598 Bottighofen, Switzerland (hereinafter “BLACKROLL”), which can be downloaded via the app stores of Apple and Google. Various services, in particular relating to exercises with BLACKROLL products, are offered free of charge via the App (hereinafter “Service Offering”). The use of the App and the Service Offering is governed exclusively by these Terms of Use in their respective current version.

1.2. By installing and using the App and by making use of the Service Offering, the User accepts the applicability of these Terms of Use in their respective current version.

1.3. Deviating, supplementary or conflicting terms and conditions of the User shall not be recognized unless BLACKROLL expressly agrees to their applicability in text form.

1.4. The Service Offering may only be used in its respective current version. In order to use the App, the User may from time to time be required to download and install a new version of the App.

1.5. Supplies and services based on an order in BLACKROLL’s online shop made available via the internet, accessible at shop.blackroll.com, are not governed by these Terms of Use but exclusively by BLACKROLL’s General Terms and Conditions available there in their respective current version.

1.6. Supplies and services based on an order in the webshop of an independent distributor of BLACKROLL products (hereinafter “Distributor”), to which this App links, are governed exclusively by the General Terms and Conditions available there in each case. In such case, a contractual relationship is formed exclusively with the respective Distributor and not with BLACKROLL.

2.1. Use of the Service Offering and the performance of the exercises, including movement analysis, are at the User’s own risk. This includes, in particular, configuring a workout independently, selecting an already created workout or carrying out movement analysis for the creation of an individual training plan.

2.2. BLACKROLL recommends that Users should be examined and advised by a physiotherapist, manual therapist, masseur, physician or specialist physician before performing exercises, especially if they have doubts and/or more severe pain or recurring injuries.

2.3. The exercises presented in the Service Offering should not be performed by pregnant or breastfeeding mothers.

3.1. BLACKROLL provides exercises for BLACKROLL products (so-called rollouts or other training sessions) free of charge to private end consumers via the App.

3.2. In providing the Service Offering via the App, BLACKROLL partially uses services/software from third-party providers, which are identified accordingly. BLACKROLL points out that, in this respect, the general terms and conditions or license terms of the respective third-party provider apply.

3.3. BLACKROLL applies customary business care in selecting, maintaining and editing the content of the Service Offering. However, BLACKROLL cannot assume any warranty or guarantee for the accuracy, completeness or timeliness of the Service Offering provided free of charge.

3.4. The provisions under Section 9 of these Terms of Use remain unaffected by the foregoing provisions in Sections 3.2 and 3.3.

3.5. BLACKROLL is entitled at any time to modify the Service Offering provided free of charge, to make new services/functionalities available free of charge or for a fee, and to discontinue services/functionalities provided free of charge. In each case, BLACKROLL will take the legitimate interests of Users into account.

3.6. The User has no claim to updates of the App or the Service Offering.

4.1. Minors may use the Service Offering only if the relevant consent of their legal representatives has been obtained.

4.2. BLACKROLL makes the Service Offering available free of charge. In connection with the use of the App, costs may arise, in particular for data transfer charged by the respective network operator. These costs must be borned by the User.

4.3. Before using the App for the first time, the User must select a country, which results in the User being assigned to a country area; this affects in particular the third-party content displayed and the online shop linked in the App. The App is available only in the selectable countries. The selection can subsequently be adjusted in the App settings. BLACKROLL further points out that the use of the Service Offering from abroad (outside Germany) may incur additional costs, which the User must bear and should clarify directly with their local provider. Downloading or accessing the App in a foreign roaming network may be restricted or impaired.

4.4. Each User is provided with a training program. By means of in-app messages or, where the User has consented on the device side, push notifications, the User receives recommendations and information about their training program as well as suitable products and services from BLACKROLL.

4.5. Unless expressly provided otherwise, the User receives a non-exclusive, non-sublicensable right, limited in time to the duration of the contractual relationship, to install and use the App in accordance with these Terms of Use to the extent made available by BLACKROLL. The User may reproduce the App only to the extent necessary for use in accordance with the contract. Modifying the App and retranslating the provided program code into other code forms (decompilation) as well as other types of reverse engineering of the various production stages of the App software are prohibited. Mandatory statutory rights remain unaffected.

4.6. Unless expressly provided otherwise, BLACKROLL permits the User to access, display and use the Service Offering as intended via the App for their own non-commercial purposes in accordance with these Terms of Use. This permission does not grant the User any rights to content or other information made accessible in the App. Mandatory statutory rights (including reproduction for private and other personal use) remain unaffected. Any intended commercial use requires BLACKROLL’s express prior consent.

4.7. A claim to use the App and the Service Offering generally exists only within the scope of BLACKROLL’s technical and operational capabilities. BLACKROLL is entitled to interrupt operation of the App and the Service Offering without prior notice for compelling technical reasons or due to necessary maintenance work. In all other cases, prior notice will be given in an appropriate manner and with a reasonable notice period.

4.8. The User acknowledges that 100% availability of the App cannot be technically achieved. However, BLACKROLL endeavors to keep the Service Offering available as consistently as possible. In particular, maintenance, security or capacity issues as well as events outside BLACKROLL’s sphere of influence (such as disruptions of public communications networks, power outages, etc.) may lead to restrictions or temporary suspension of the Service Offering. BLACKROLL also reserves the right to make changes of the Service Offering (see Section 3.5).

4.9. The User shall inform BLACKROLL without undue delay if the User becomes aware of or suspects any misuse of access data. If misuse is suspected, BLACKROLL is entitled to block access to the App or the Service Offering until the circumstances have been clarified and the misuse has been remedied or can be ruled out. BLACKROLL reserves further rights. The User is liable for any misuse for which the User is responsible for.

4.10. The provisions under Section 9 remain unaffected by the foregoing provisions in Sections 4.7 and 4.8.

5.1. In order to use certain parts of the Service Offering, the creation of a free user account is required. This consists of an email address as a user name and a password (hereinafter “Access Data”). A user account may only be created by providing a current email address of the User. This email address also serves for communication with BLACKROLL in connection with the performance of the contract or, subject to corresponding consent, also for advertising communications to the User beyond that. The User warrants that the data provided when creating the User’s user account is accurate and complete. A user account may also be created by importing the User’s data from the social networks Facebook (using “Facebook Login”) or Google (using “Google Sign-In”).

5.2. After creating their user account, the respective User (hereinafter “Registered User”) receives access to additional training plans. In all other respects, Section 4.4 of these Terms of Use applies accordingly.

5.3. Consent is required for the use of that part of the Service Offering which is available only to Registered Users. If the User later withdraws consent once given, BLACKROLL is entitled to delete the respective User’s user account with immediate effect and to terminate the usage relationship to that extent. In all other respects, the User may continue to use the remaining part of the Service Offering.

5.4. BLACKROLL reserves the right to refuse the creation of user accounts without stating reasons. In such case, BLACKROLL will delete any data transmitted by the User without undue delay, if applicable. BLACKROLL will, however, take the User’s interests into account appropriately.

6.1. The App and the Service Offering contain content and other information (hereinafter “Content”) that is protected by trademark law, copyright law and other rights in favor of BLACKROLL or third parties.

Unless expressly permitted by BLACKROLL, the User is not entitled to edit, reproduce, distribute, publicly communicate, advertise with, or use such Content beyond the contractually agreed purpose. Only technically necessary reproduction for the purpose of intended use under these Terms of Use is permitted. Copyright notices and trademark designations may not be altered, suppressed or removed.

Users may use this Content only in accordance with these Terms of Use and within the framework specified by BLACKROLL in the App.

6.2. The User undertakes to refrain from any measures that jeopardize or disrupt the functioning of the App or the provision of the Service Offering. In particular, the User will not access data for which the User is not authorized.

6.3. The User is not permitted to place the Content and other information made accessible via the App into other databases, to read it out by means of robots or otherwise by machine, to publish it, to publicly communicate it or otherwise make it publicly accessible in any form, namely by means of an app and/or on the internet, unless this is expressly provided for within the Service Offering, for example by providing a share function. This may also not be done on behalf of third parties and/or on behalf of other users of the Service Offering.

6.4. Any use of the App for unlawful purposes is prohibited. In every use, the applicable laws, in particular copyright law, competition law, data protection law, criminal law, etc., must be observed. Any breach by a User may result in the immediate discontinuation and/or withholding of all Service Offerings and services. The same applies in the event of breaches of these Terms of Use. When taking such measures, BLACKROLL will take the legitimate interests of the respective User into account. BLACKROLL expressly reserves further rights.

7.1. All content posted or made available by Distributors in the App (e.g. in the news section and in push notifications) (hereinafter “Third-Party Content”) is exclusively the content of the respective Distributor. BLACKROLL does not adopt such content as its own. For clarification, it is pointed out that the webshop of a Distributor (which may also be accessible via the App) does not constitute Third-Party Content in this sense, but rather an independent service offering outside the App, of which the provision is beyond BLACKROLL’s control.

7.2. Third-Party Content may be displayed to the User, for example in the news section of the App or as part of push notifications or in-app messages, provided that the User has activated these functions on the device side. This is the case if the User has selected a country other than Germany, Austria or France within the App. After selecting a country, the User is informed of this circumstance and of the identity of the respective Distributor responsible for the Third-Party Content.

7.3. If a User considers certain Third-Party Content to be infringing, the User may report it to BLACKROLL by email at [email protected]. BLACKROLL will comprehensively review the reported Third-Party Content and, in the case of justified reports, remove the corresponding content without undue delay. In the case of content concerning the webshop of the respective Distributor, the User should contact the Distributor directly; further information, in particular contact details, can be found in the legal notice of the webshop.

BLACKROLL processes the User’s personal data in accordance with the provisions of applicable data protection law. For further information, please refer to the App’s data protection notices.

9.1. Irrespective of the legal basis, BLACKROLL is liable for damage suffered by the User that is based on an intentional or grossly negligent breach of duty by BLACKROLL or its vicarious agents, as well as for injury to body, life or health and in the case of claims under the Product Liability Act in accordance with the statutory provisions.

9.2. Unless otherwise provided in a guarantee assumed by BLACKROLL, BLACKROLL is otherwise liable, irrespective of the legal basis, only to the following extent:

9.2.1 For damage caused by slight negligence, BLACKROLL is liable only to the extent that such damage is based on the breach of essential contractual obligations without which achievement of the contractual purpose would be jeopardized and on the fulfillment of which the User may therefore regularly rely on (so-called cardinal obligations). In such cases, BLACKROLL’s liability is limited to compensation for the typical and foreseeable damage for the contract.

9.2.2 Within the framework of the foregoing provisions, BLACKROLL’s liability for the loss of data is limited to the typical restoration effort that would have been incurred if the User had performed regular and appropriate data backups under the circumstances.

9.3. The foregoing provisions apply accordingly to compensation for futile expenses.

9.4. The foregoing provisions apply to the same extent in favor of BLACKROLL’s statutory representatives, corporate bodies, employees and vicarious agents.

10.1. The contractual relationship between BLACKROLL and the User regarding use of the App may be terminated by BLACKROLL without stating reasons in text form (e.g. by email) with a notice period of ten (10) days. The User may terminate the contractual relationship with BLACKROLL at any time without observing a notice period in text form (e.g. by email to [email protected]).

10.2. The right to extraordinary termination for good cause remains unaffected.

10.3. After termination of the present usage relationship, irrespective of the reason, BLACKROLL is entitled to block the User with immediate effect.

11.1. New versions of these Terms of Use will be communicated to the User in text form (e.g. by announcement within the App) and will become part of the contract if the User does not expressly object to the new version in text form within one month of receipt of the notice of amendment. The User will be informed of the significance of their silence when the new version is communicated. If the User does not agree to the new version, the User may no longer use the App.

11.2. The contractual relationship and all legal relationships between BLACKROLL and the User connected with the use of the App are governed by Swiss law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

11.3. If the User acts as a consumer, the foregoing choice of law applies only to the extent that this does not deprive the User of the protection afforded by mandatory provisions of the law of the country in which the User has their habitual residence.

11.4. If the User is a merchant, a legal entity under public law or a special fund under public law, or if the User has no general place of jurisdiction in Switzerland, Kreuzlingen (Canton of Thurgau, Switzerland) shall be the exclusive place of jurisdiction for all disputes relating to these Terms of Use and the legal relationships/contractual relationships arising hereunder between the User and BLACKROLL. However, BLACKROLL is also entitled to bring an action at the User’s registered office or at any other permissible place of jurisdiction.

11.5. The contractual language is German.

As of: 24 April 2019 (Version 1.0)