General Terms and Coniditions for KUBYclients
Clemens Kuby (hereinafter: Kuby) operates a portal at www.clemenskuby.com, among other things, whose services can be accessed exclusively via the Internet (hereinafter: portal). The portal offers Internet users (hereinafter: clients) the possibility to contact KUBYcompanions (hereinafter: companions) and KUBYstudents (hereinafter: students) to receive KUBYaccompaniment using the KUBYmethod.
1.2 These General Terms and Conditions (hereinafter referred to as Terms and Conditions) regulate all business transactions between Kuby and users of personal accompaniment by certified companions or students offered by Kuby. All escorts offered through the portal are provided exclusively on the basis of these Terms and Conditions, regardless of the communication channels through which the client receives accompaniments.
2. Subjects of the contract
2.1 The portal offers registered clients the possibility to make use of paid 1-on-1 accompaniment calls (hereinafter 1-on-1 calls). The registration can only be done online. The registration is free of charge. By registering, Kuby and the client enter into a portal usage agreement.
2.2 Separate costs will be charged for each individual 1-on-1 call. The client will be expressly informed on the portal and before booking each escort about the costs and the amount of the costs.
2.3 Kuby carefully trains and selects their companions and commits them to adhering to certain continuously improved quality guidelines. This is to ensure a high quality of the companions.
2.4 Information and advice provided by companions is neither suitable nor intended to replace professional advice from members of certain professions. Accompanying persons are therefore prohibited from providing medical, legal and tax information, among other things.
3. Entering a contract and Storage
3.1 The user relationship with regard to the free use of the portal comes into effect upon confirmation of the registration confirmation sent by Kuby by e-mail. By making use of a companion, the client enters into another contractual relationship with the respective companion or student, which is separate from the free portal usage contract and subject to a fee.
3.2 The contractual relationship with regard to the accompaniment comes into effect upon booking of each individual accompaniment.
3.3 The client books a 1-on-1 call with a companion or student of his or her choice at a free time provided by the companion at a fixed gross price per minute. The booking of an appointment is only possible online. In doing so, the client buys the accompaniment after selecting the companion or a student and choosing the date by clicking on the button “Book now”.
3.4 With the first booking the Customer is directed to the Portal of Digistore24, where he has to enter his payment data according to the payment options offered by Digistore24 and their General Terms and Conditions as well as to pay a small deposit or the flat rate for a student interview in order for the accompaniment to take place. During this process he gives Digistore24 a direct debit authorization (payment on demand), by which the invoice amount is automatically debited from the client’s specified means of payment according to the agreed gross minute price multiplied by the duration of the call immediately after the end of the call.
3.5 With the down payment at Digistore24 the contractual relationship between the Companion and the Client is established.
3.6 After the deposit has been credited, the Client receives a confirmation of the appointment from the Companion or student with a concrete zoom link as well as a reference to the possibility that this appointment can be postponed by the Client until a time determined by the Companion or student. If the client misses to join the zoom meeting on time, the actual waiting time of the companion of up to 15 minutes will be charged and debited (cancellation fee). The client has the option of proving that the companion did not suffer any or only minor damage due to his or her failure to attend.
3.7 The text accompaniment is carried out in such a way that the Client, after registration on the portal, creates his soul letter (project) and after completion (intermediate storage is possible at any time) sends the text to a companion or student to be selected by him, after he has accepted the price calculated according to the number of characters (without spaces and punctuation marks). With the first sending the Client is directed to the Digistore24 Portal, where he enters his payment data according to the payment options offered by Digistore24 and its General Terms and Conditions of Business, as well as the price for the text accompaniment.
3.8 The client has the possibility to view his soul letter at any time and to change or add to it. He can have it commented on again by the same companion or student, for which he must send it again for a fee, whereby only the newly inserted characters are charged.
3.9 The 1-on-1 call is first recorded by Zoom and then permanently stored on a cloud server rented by Kuby from OVH GmbH, Saarbrücken. The accompanying texts and comments are also stored there. This data can be accessed by Kuby itself, the company IAMDS GmbH, Passau, which provides technical support for the portal, and the companion or student. The data is stored for quality assurance (supervision of the companions and training of students) and documentation purposes.
3.10 The client gives his consent to storing before the beginning of the conversation or before the creation of his text. He will be given the opportunity to purchase the conversation recording separately. The client has the possibility to revoke his consent and to demand the deletion. Kuby will comply with this request in accordance with the possibilities of the general terms and conditions of the aforementioned companies and inform the client of the deletion.
3.11 After logging in to the portal under “My KUBY”, a client may view all data provided by him/her during registration and make changes, as well as get an overview of the accompaniments he/she has used and the fees charged for them, and print these data.
- RIGHT OF REVOCATION FOR CONSUMERS
4.1 If the client is a consumer within the meaning of § 13 BGB, he/she has a right of revocation regarding the contractual relationship with the respective companion.
4.2. Information: If the client makes use of accompaniments via an individual Internet connection established by him/her, he/she is not entitled to a right of revocation with regard to this accompaniment pursuant to § 312 para. 2 no. 11 BGB.
According to § 312d Abs. 3 BGB, the right of revocation expires in the case of a service if the contract is completely fulfilled by both parties at the express request of the consumer before the consumer has exercised his right of revocation.
5. Services provided by Kuby
5.1 Kuby shall grant registered clients access to their password-protected “My KUBY” area on the portal.
5.2 Kuby shall provide the portal and provide technical support in establishing contact between clients and the companions listed on the portal / in the app. Client and companion are responsible for their technical and factual accessibility and arrangeability.
5.3 The companions provided on the portal can be supplemented or changed by Kuby at any time, in particular in order to improve them, to adapt them to legal requirements or technical developments. Furthermore, Kuby expressly reserves the right to temporarily or permanently discontinue parts of the portal or the entire portal offer.
5.4 Kuby shall endeavour to keep the portal available for retrieval or use without interruption as far as possible. However, even with all due care, downtimes – for example due to maintenance work and software updates as well as technical or other problems that are beyond Kuby’s control – cannot be excluded. Kuby’s technical services are therefore limited to the provision of the portal within the scope of Kuby’s technical and operational possibilities. The client shall have no claims for downtime. Furthermore, Kuby does not guarantee the establishment, maintenance and technical quality of communication between the client and the companion or student.
6.1 Both the registration as a client and the use of the companions as a client are only permitted to persons of full age and unlimited legal capacity. Kuby reserves the right to refuse to provide accompaniments to unsuitable persons (e.g. intoxicated persons, persons of unsound mind or minors).
6.2 Each client is obliged to provide truthful information regarding the requested personal data when registering and to keep his or her personal data up to date. Multiple registrations, registrations under false names or with false data as well as registrations with fraudulent intent are not permitted and will result in civil and criminal proceedings.
6.3 When registering, the client chooses a user name and a personal password. After registration, the Client receives a secret PIN number by e-mail, with which he must identify himself the first time he uses it. He can then convert the PIN number into his own password in his Kuby area, provided it contains certain security requirements (such as: 1 number, one capital letter and a special character with at least 8 characters). The client is free to upload a profile picture in his area.
6.4 The portal may not be misused for commercial use and self-advertising by the client. A client account is not transferable and may not be given to third parties for use. The client is obliged to keep his access data (user name, password) protected from access by third parties and to inform Kuby immediately in the event of loss or suspicion that third parties have gained knowledge of it. A culpable breach of the above obligations may lead to the immediate blocking of the client’s access to the portal or to the escorts. The Client is liable for all accompaniments used by third parties via his client account or his access data, if he is responsible for the use by third parties.
6.5 Immediately after an accompaniment, each client will receive a free offer to deep dive into the conversation that has just taken place. The offer of of the deep dive consists of several aspects (statements) under which the client can see and assess his expansion of consciousness. The client is asked to tick off at least three or more aspects that spontaneously correspond to his feeling about the conversation.
6.5a In addition to the aspects, each client can submit a free form comment, limited to 1000 characters, on the conversation just conducted.
6.5b The free form comment should be formulated as a summary of the project solution. It must not contain any unlawful, personally offensive statements.
6.6 The portal and the accompanying documents may only be used within the framework of the applicable law and in compliance with these conditions. In particular, the Client is prohibited from making statements on the Portal or during the accompaniment services which are harmful to minors, extremist, deceptive, insulting, pornographic, glorify violence or otherwise offensive, or which violate other applicable laws or infringe the rights of third parties.
6.7 It is not permitted to spread viruses, Trojans or other damaging data and/or content via the portal or accompanying documents. The use of the portal or the accompaniments is not permitted if there is a risk of damage to the portal or the companions due to telecommunication systems or other technical equipment or if the portal or the accompaniments could be excessively overloaded. In particular, it is not permitted to use the portal or the accompaniments in a way that adversely affects the availability of the portal or the accompaniments for other clients.
6.8 It is not permitted to use the portal or the accompanying services to advertise for Kuby’s competitors or to actively solicit clients or accompanying services from Kuby for Kuby’s competitors. The client is not allowed to use the portal or the accompanying services for concluding contracts that go beyond the services on the portal.
6.9 The client shall respect the privacy of other clients and shall behave in a factual and appropriate manner, also towards companions. Harassment through unsolicited calls, e-mails, Q-mails or chat messages, in particular the transmission of “junk e-mails”, “chain letters” or other unsolicited circulars in the Q-mail system, is not permitted.
6.10 Kuby shall store any form of messages (texts, mails, etc.) sent in the context of accompaniments for 6 months. After this period, these messages shall be securely archived. Kuby reserves the right to publish text accompaniments in anonymous form as testimonials on the portal.
6.11 Uncontrolled use of paid accompaniments may lead to high financial burdens. Clients must monitor the use of accompaniments and the resulting payment obligations themselves.
Complaints about the portal, accompaniments or companions and students can be made by e-mail to firstname.lastname@example.org.
- Preise und Abrechnung
9.1 The respective price per minute plus statutory taxes for a companion via Zoom is displayed on the portal. Billing takes place every 60 seconds; the calculation begins from the moment the companion enters the meeting room of Zoom at the agreed time.
9.2 The price for a conversation becomes due for payment when it ends, if one of the two has left the meeting room of Zoom.
9.3 The invoice for the payment of a conversation is made by Digistore24 in the name of the Accompanying Party to the Client.
9.4 The payment transaction concerning the performance of the companion in relation to the Client is handled by Digistore24 GmbH, St.-Godehard-Straße 32, D-31139 Hildesheim. Payments can be made by PayPal, a credit card accepted by Digistore24 and other means of payment such as SEPA. Digistore24 will issue an invoice to the client for each individual accompaniment.
9.5 With submission of his bank account data the customer revocably authorizes Digistore24 to collect due accompaniment fees from his specified payment method.
9.6After logging on to Digistore24, the Customer can obtain a detailed overview of the accompaniments used in the last 12 months and the fees due for them.
10.1 In the event of intentional or grossly negligent breaches of duty, as well as in the event of culpable injury to life, body or health, Kuby and its companions shall be liable without limitation for all damages resulting therefrom, unless otherwise stipulated below or by law.
10.2 In case of slight negligence, Kuby and the attendants shall be liable for property damage and financial losses only in case of violation of essential contractual obligations. Essential contractual obligations are such obligations whose fulfilment is essential for the proper execution of the contract, whose violation endangers the achievement of the purpose of the contract and on whose compliance the contractual partner regularly relies and may rely. Liability is limited to the foreseeable damage typical for the contract. This shall also apply to lost profits and savings that have not been made.
10.3 Any further liability for damages is excluded – regardless of the legal nature of the claim asserted. This applies in particular to tortious acts according to §§ 823, 831 BGB.
10.4 Any unrestricted liability of Kuby and its companions according to the provisions of the German Product Liability Act or due to fraudulent intent, lack of a warranted characteristic or assumption of a guarantee shall remain unaffected by the aforementioned limitations of liability.
10.5 According to the state of the art, data communication via the Internet or telephone network cannot be guaranteed to be error-free or available at all times. Therefore, any liability of Kuby or its companions for technical or other malfunctions is excluded.
10.6 Kuby is not responsible for the content, functionality, accuracy or legality of third-party websites linked to the portal.
10.7 The client must obtain access to the Internet at his own expense and risk and provide the necessary equipment. Kuby shall not be responsible for the loss or incomplete, delayed or otherwise improper transmission of data and services outside of Kuby’s sphere of influence.
11. Use rights
11.1 All trademarks and other protected signs mentioned on the portal are subject without restriction to the respective legal provisions and the right of determination of the respective rights holder. It cannot be concluded from the information on the portal alone that word and picture marks are not protected for Kuby or third parties.
11.2 All rights to content published on the portal (text, data, images, videos, databases) are reserved. In particular, it is not permitted to reproduce, modify, distribute, make publicly accessible, broadcast or use in any other way, either in whole or in part, any content, whether for private or commercial purposes, without the consent of Kuby.
11.3 The client shall transfer to Kuby the exclusive right, unlimited in time and space, to publish, reproduce, distribute, make publicly available, demonstrate, (re)broadcast and use in any other way, be it in a physical or non-physical form, to publish, reproduce, distribute, make publicly available, demonstrate, broadcast and use in any other way, be it in a physical or non-physical form, the deep dives provided by the client in the course of the use of the portal or the accompaniment on the portal itself or in the course of the promotion of the portal. Kuby may, without the client’s consent, sublicense corresponding rights of use to third parties or transfer them to third parties in whole or in part.
11.4 For the duration of the portal usage contract, the client shall grant Kuby the simple right, unlimited in space and content, to make the profile picture uploaded by the client in his client area accessible to companions in the admin area for the purposes of portal operation.
11.5 The client guarantees that the content made available to Kuby (e.g. deep dive comments, images) is free of third-party rights and shall indemnify Kuby against all claims of third parties that these third parties may assert against Kuby due to the use of such content, including court costs, reasonable legal defence costs and claims for damages.
- Rights of set-off and retention, offsetting
12.1 As far as the client is not a consumer, he is only entitled to set-off and retention rights if the counterclaim is undisputed or legally binding. Furthermore, a right of retention can only be exercised by the client if the counterclaim is based on the same contractual relationship.
12.2 If the client is simultaneously registered on the portal as a Companion, Kuby shall be entitled to offset or set off claims of the Companion/Client against Kuby against claims of Kuby against the Companion/Client or to exercise a right of retention.
- Contract period / termination / blocking
14.1 The portal usage contract runs for an indefinite period and can be terminated by either party at any time without notice. The termination is carried out by deleting the client account.
14.2 Kuby reserves the right to partially or completely block the client’s access to the portal or to accompaniments until the facts of the case have been clarified, if there are concrete indications that the client:
– has signed up to the portal with false names/data or more than once,
– has given his client account to third parties for use,
– has manipulated, falsified or otherwise abused the evaluation system,
– has infringed the rules of use set out in point 6,
– gegen die in Ziffer 6 aufgeführten Nutzungsregeln verstoßen hat.
When making his decision, Kuby takes into account the degree of fault and the legitimate interests of the client.
14.3 Cancellations and suspensions do not waive any claims for remuneration of the companions for paid accompaniments already used by the client.
- Änderung der AGB
15.1 Kuby is entitled to amend these terms and conditions at any time, provided that essential provisions of the contractual relationship are not affected thereby and that this is necessary to adapt to developments that were not foreseeable at the time of the conclusion of the contract and whose non-consideration would noticeably disturb the balance of the contractual relationship. Material provisions are in particular those concerning the type and scope of the contractually agreed services and the term including the provisions on termination. In addition, changes may be made to close gaps in the regulations that have arisen after the conclusion of the contract, such as changes in case law.
15.2 Kuby shall expressly inform the client of any changes. The client may object to the changed terms and conditions within a period of three weeks after notification of the changes. Kuby shall expressly inform the client of his right to object in the notification of change. If the client does not object within this period, the new terms and conditions shall apply from the day of expiry of the period.
16.1 The EU Commission provides an online portal for online dispute resolution (ODR portal), which can be found here https://ec.europa.eu/consumers/odr/. Consumers have the possibility to use this portal for the settlement of their disputes. Neither Kuby nor the companions are legally obliged to participate in arbitration proceedings and unfortunately cannot offer to participate in such proceedings.
16.2 The invalidity of individual provisions of these conditions shall not affect the validity of the remaining provisions.
16.3 Place of jurisdiction is Aichach, Germany and/or Augsburg, Germany.
Last updated: 29 July 2020