§ 1 Subject matter of the contract and installation
(2) The Software can be administered by the Licensee via web interface. In order to answer your questions, Magicline maintains a customer hotline (hereinafter: Support) which is available from Monday to Friday (excluding national public holidays) from 8:00 a.m. to 6:00 p.m CET.
(3) If the Licensee chooses the hardware support, the Licensee may make use of the separate technical support if problems in the hardware control or in the software cannot be resolved via Support. In this case, the Licensee will be given a scheduled telephone appointment for a service call lasting a maximum of 30 minutes or for a computer connection via the Internet. If the time is not sufficient to resolve the problem, a new telephone appointment must be booked. This support only covers hardware compatible with the Magicline solution. With the booking of a hardware support session, the Licensee allows the computer connection to its system (remote maintenance) for the elimination of possible problems at its own risk. In case of individual consulting appointments, up to two separate telephone appointments of 30 minutes each are included per booking. If there is a further need after the first appointment, the second appointment must be used within a period of three months after the booking.
(4) The Licensee shall be responsible at its own expense for ensuring that it meets the system requirements necessary to use the Software and that it has Internet access up to the transfer point.
(5) The functional scope of the Software as well as the hardware and software system requirements, which the Licensee must meet at its own expense, are available on Magicline's website at www.magicline.com.
(6) Magicline shall make the current version of the Software available to the Licensee and expressly reserves the right to make content-related and technical updates at any time. The Licensee shall bear the costs of any adjustments to the Licensee's hardware and software systems resulting from a new version of the Software.
(7) Magicline commissions Eurofit24 GmbH as subcontractor for the provision of selected services, such as the setup of Magicline as well as the support for the Licensee as part of the onboarding process.
(8) The services to be provided by Magicline to the Licensee are hereinafter collectively referred to as the "Service."
§ 2 Rights of use of the service
(1) Magicline grants the Licensee the non-exclusive, non-transferable right to use the Service for a limited period of time as specified in the User Agreement (hereinafter: the License). The Licensee may only use the Service for its own business activities at the respective location of the sports or wellness facility via its own personnel, subject to the limitation set forth in Section 2 Clause (2) below.
(2) Each License is only valid for a single location of the Licensee, but it can be used by multiple users at this location. Multiple locations are delimited according to their postal address (i.e., the specific address) and not only according to the political municipality (e.g., Hamburg) in which they are located, so that several locations (e.g., four locations in the city of Hamburg) may also be located in one political municipality.
(3) The Licensee shall not be entitled to any rights not expressly granted to the Licensee above. In particular, the Licensee shall not be entitled to sell the License or to transfer it to third parties for a limited period of time - in particular by renting or lending it. The Licensee shall take the necessary precautions to prevent unauthorized persons from using the Software.
(4) The Licensee is obligated to refrain from placing an excessive load on the networks through the indiscriminate and improper input of data and/or the distribution of malware.
(5) The Software is protected by copyright and competition law; Magicline is exclusively entitled to all rights in relation to the Licensee. The Licensee is not authorized to make any changes to the Software. Third-party software may only be integrated with the prior written consent of Magicline.
(6) If the Licensee violates one or more of the above provisions for reasons for which the Licensee is responsible and, insofar as a warning is required, does not cease the violation despite a warning in text form, Magicline may block the Licensee's access to the Service. In the event of a culpable violation of one or more of the above provisions, the Licensee shall pay a contractual penalty of six times the monthly usage fee for each violation. The right to assert a further claim for damages under offsetting of the contractual penalty remains unaffected.
§ 3 Usage fee
(1) In addition to the one-time setup fee, the Licensee shall pay the monthly usage fee specified in the User Agreement. All prices/fees are exclusive of VAT at the respective statutory rate. Invoices are issued on a monthly basis.
(2) The license fee shall be calculated on the basis of the number of term contracts per location, plus any additional services booked. The monthly usage fee for the previous calendar month must be paid no later than the third working day of the following month. Magicline will collect the usage fee on a monthly basis. If the direct debit authorization has been revoked, Magicline is entitled to charge a fee of € 5.00 per (monthly) payment.
(3) Magicline is entitled to reasonably increase the agreed user fee for the contractual services from time to time to compensate for increases in personnel and other costs, as well for as improvements resulting from the continued development of the Software. This increase in license costs may not exceed 20 percent within a period of two years. Magicline shall notify Licensee of any such price increase in writing or by email and publish it by posting an updated price list on its website. If the price increase (individually or together) amounts to more than 8 percent, the Licensee shall be entitled to terminate the contract within two months after announcement of the price increase with a notice period of three weeks to the end of the calendar month. If the Licensee exercises this right of termination, the prices that have not been increased shall continue to be charged until the termination takes effect. If the Licensee exercises this right of termination, the prices that have not been increased shall continue to be charged until the termination takes effect. The Licensee shall be granted a special right of use under the existing conditions for up to three months for a trouble-free transition phase.
(4) The Licensee may withhold payments or set off counterclaims only if the counterclaims are undisputed or have been finally adjudicated.
§ 4 Defects of the Magicline Service
(1) The Licensee is obligated to notify Magicline immediately of any defects in the Service. In doing so, the Licensee shall take into account Magicline's instructions for problem analysis within the scope of what is reasonable and shall forward to Magicline all information available to the Licensee that is necessary for remedying the defect.
(2) Magicline is obligated to remedy any defects in the Service. Defects shall be remedied at Magicline's discretion by repair or by replacement free of charge. The elimination of a defect may also take the form of instructions to the Licensee. The Licensee must follow any such instructions unless it is unreasonable to expect Licensee to do so.
(3) Termination by the Licensee pursuant to Section 534 (2) Sentence 1 No. 1 of the German Civil Code (hereinafter: BGB) due to failure to provide or withdrawal of the contractual use of the Service as well as a reduction of the usage fee or the assertion of damages or reimbursement of wasted expenditures pursuant to Section 4 (5) below shall only be permissible if Magicline has been given sufficient opportunity (at least two weeks) to remedy the defect and has failed to do so. A failure to remedy the defect shall only be assumed if it is impossible, if Magicline refuses to remedy the defect or if it is unreasonably delayed or if it is unreasonable for the Licensee for other reasons.
(4) The Licensee's rights due to defects in the Service are excluded if these defects are the result of software errors and the Licensee has made changes to the software without Magicline's consent.
(5) The Licensee may not enforce a reduction of the usage fee by deducting it from the agreed usage fee. Corresponding claims for enrichment and damages on the part of the Licensee shall remain unaffected.
§ 5 Limitation of liability
(1) Each party shall be liable without limitation in the case of intent and in the case of injury to life, body or health and within the scope of application of the Product Liability Act. The same shall apply in the absence of warranted characteristics.
(2) Magicline shall be liable without limitation in the event of gross negligence on the part of Magicline's legal representatives or executive employees. In the event of a grossly negligent breach of obligations by Magicline's vicarious agents, liability shall be limited to compensation for the foreseeable damage typical for this type of contract.
(3) Magicline shall be liable, limited to compensation for the foreseeable damage typical for this type of contract, for any damage that is based on a slightly negligent breach of material obligations by Magicline or by one of its legal representatives or vicarious agents. Material obligations are obligations, the fulfillment of which enables the proper performance of the contract in the first place and compliance with which the Licensee may rely on.
(4) Insofar as Magicline is liable in accordance with Section 5 Clause (3) above, the liability per damage event is limited to an amount of 50% of the total remuneration owed by the Licensee in the contractual year in accordance with the Usage Agreement, but no more than 100% of the total remuneration owed by the Licensee in the contractual year in accordance with the Usage Agreement. Any claims by the Licensee for loss of profit are excluded.
(5) If data is lost as a result of a defect in the Service, Magicline shall be liable for any resulting damage only up to the amount of the recovery effort that would have been incurred if the Licensee had made daily, complete, machine-readable backup copies.
(6) The strict liability of Magicline for defects in the Service already existing at the time of the conclusion of the contract according to Section 536a para. 1 BGB is expressly excluded.
(7) Magicline shall not be liable for any unauthorized use of the Service by the Licensee or if the Licensee fails to follow Magicline's operating or usage instructions. Licensee shall be free to prove that the unauthorized use and/or the failure to follow the instructions and/or the changes made to the Software had no (adverse) effect.
(8) Magicline shall not be responsible for improper use of the Service by other Licensees; Magicline shall not be liable in this respect. Section 278 BGB shall not apply in this respect.
(9) The above provisions shall apply accordingly to claims by the Licensee for reimbursement of wasted expenditures.
§ 6 Contract period and termination
(1) The contractual relationship shall commence upon the conclusion of the contract. The contract shall be renewed after the minimum contract period for 12 months at a time, unless it is terminated with one month's notice to the end of the contract period.
(2) The right of each party to extraordinary termination for good cause shall remain unaffected. The Licensee's special rights of termination pursuant to Section 3 Clause (3) and Section 4 Clause (3) shall also remain unaffected.
(3) Magicline may terminate the User Agreement without notice, in particular if the Licensee is in default of payment of the monthly fee for two consecutive months or is in default of payment of the fee in the amount of two monthly fees in a period extending over more than two months. Furthermore, Magicline has the right to terminate the contract without notice in the event of insolvency, over-indebtedness or imminent insolvency of the Licensee.
(4) In the event of termination without notice, Magicline may demand immediate liquidated damages in the amount of 70% of the monthly fees remaining until the expiration of the regular contract term. The Licensee reserves the right to prove a lesser damage.
(5) Any termination must be made in writing. Email does not meet the written form requirement.
(6) The Licensee's right to further use of the Service shall expire upon termination – regardless of the legal reason – of the User Agreement. However, Magicline will continue to provide the Licensee with the Licensee's data (i.e., all current and historical data available in Magicline's system at the time of termination of the User Agreement) entered in Magicline's system for up to four weeks after termination of the User Agreement (hereinafter: the "Follow-up Period") upon the Licensee's written request. The Licensee shall back up the data it has entered prior to the termination of the User Agreement. After the expiration of the Follow-Up Period, Magicline shall be entitled to delete the data without having to notify the Licensee again of the pending deletion.
(7) If the Licensee does not actively use a free Magicline for more than 18 months, i.e., the Licensee is inactive for more than 18 months (inactive = last login), Magicline shall have the right to delete the software including all the data it contains without informing the customer again about the deletion.
§ 7 Data Protection
(1) The Parties shall comply with the applicable data protection provisions and oblige their staff assigned in connection with the User Agreement and its implementation to maintain confidentiality and to observe data protection requirements on the basis of the applicable General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG-new) or future successor regulations.
(2) The prerequisite for the Licensee's use of the Services is, in addition to the existence of the User Agreement, the existence of an agreement on processing carried out on behalf of a controller pursuant to Art. 28 GDPR between the Licensee and Magicline.
(3) The Licensee is responsible for ensuring that the processing of personal data carried out by the Licensee when using the Service is permissible under data protection law. This applies in particular with regard to the permissibility of the processing of the respective data set pursuant to Art 6 (1) GDPR. The Licensee shall also be solely responsible for safeguarding the rights of the persons affected by the data processing pursuant to Art 12 to 22 GDPR. The Licensee shall be fully liable to Magicline for any damages resulting from the Licensee's failure to comply with data protection regulations. In this respect, the Licensee shall indemnify Magicline upon first request in the event of claims by third parties.
(4) Pursuant to Section 1.7, the Licensee's data will be provided to Eurofit24 GmbH as subcontractor of Magicline within the scope of the order processing agreed upon between the Licensee and Magicline. Eurofit24 GmbH shall provide necessary technical services, such as the setup of Magicline and support for the Licensee during the onboarding process. Details are regulated in the agreement on order processing.
§ 8 Other agreements
(1) In order to be effective, amendments to the User Agreement and the agreement on processing carried out on behalf of a controller must be made in writing. This also applies to the amendment of this written form requirement itself.
(2) Magicline may amend these General Terms and Conditions. The Licensee shall be notified of the amendments in an appropriate manner and the amendments shall apply if the Licensee does not object in writing within one month.
(3) The place of jurisdiction shall be Hamburg, Germany. However, Magicline shall also be entitled to take legal action at the Licensee's place of business.
(4) Should any provision of the User Agreement and/or the agreement on processing carried out on behalf of a controller be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The same shall apply in the event of the existence of a gap.
Status: April 2021