Magicline GTC General terms and conditions of business

(1) Magicline GmbH (hereinafter: Magicline) provides its customers, the operators of sports and wellness facilities, (hereinafter: licensees) with professional membership administration software (hereinafter: software) in the form of a web-based online service and also offers various optional additional services. The provision of the software takes place in the form of a so-called "Software as a Service" service, in which Magicline not only provides the software online for use in a constantly updated form, but also takes over the IT infrastructure together with the usual security measures and the storage of the application data entered into the system by the Licensee (hereinafter: data). The data is stored on servers operated either by Magicline and/or a third party provider, whereby the server location is always within the European Economic Area. The details result from the Magicline data protection declaration, which is available at www.magicline.com.

(2) The Software can be administered by the Licensee via web interface. For the purpose of answering questions Magicline maintains a customer hotline (hereinafter referred to as "Support") which is manned from Monday to Friday (excluding national public holidays) from 08:00 to 18:00 hours.

(3) If hardware support is chosen, the Licensee can make use of the separate technical support if problems in hardware control or software cannot be clarified via the support. In this case, the Licensee will be given a fixed telephone appointment for a service call lasting a maximum of 30 minutes or for a computer connection via the Internet. If there is not enough time to solve the problem, a new telephone appointment must be booked. The support covers only hardware compatible with Magicline. By booking the hardware support, the licensee permits the computer connection to his system (remote maintenance) to solve possible problems at his own risk. In the case of individual consultation appointments, up to two separate telephone appointments of 30 minutes each are included in each booking. Should there be further demand after the first appointment, the second appointment must be taken within a period of 3 months after the booking.

(4) The Licensee is responsible at his own expense for ensuring that he fulfils the system requirements necessary for the use of the Software and has Internet access up to the transfer point.

(5) The functional scope of the Software as well as the hardware and software system requirements that the Licensee must meet at his own expense are available on the Magicline website at www.magicline.com.

(6) Magicline shall make the Software available to the Licensee in its current version and expressly reserves the right to make content and technical updates at any time. Any adaptation costs arising from a new version of the hardware and software systems of the Licensee shall be borne by the Licensee.

(7) Magicline commissions Eurofit24 GmbH as subcontractor for the provision of selected services, such as the setup of Magicline and the support of the Licensee in the context of onboarding.

(8) The services to be provided by Magicline to the Licensee are hereinafter collectively referred to as "Service".

(1) Magicline grants the licensee the simple, non-transferable right to use the service for a limited period of time for the duration specified in the user agreement (hereinafter: licence). The licensee may only use the service for his own business activities at the respective location of the relevant sports or wellness facility by his own personnel, subject to the restriction stipulated in § 2 number (2) below.

(2) Each license is valid for only one single location of the Licensee, but is multi-user capable there. Several 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) can be located in one political municipality.

(3) Licensee shall not be entitled to any rights not expressly granted to Licensee above. Subject to § 2 clause (7), the Licensee is in particular not 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 the Software from being used by unauthorized persons.

(4) The licensee shall be obliged to refrain from excessive loading of the networks by undirected and improper input of data and/or distribution of malware.

(5) The Software is protected by copyright and competition law; all rights to the Software are the exclusive property of Magicline in relation to the Licensee. The licensee is not entitled to make changes to the software. The connection of third-party software is only permitted with the prior written consent of Magicline.

(6) If the Licensee violates one or more of the above provisions for reasons for which he/she is responsible and, insofar as a warning is required, does not omit the violation despite a warning in text form, Magicline may block the Licensee's access to the service. In the event of culpable violation of one or more of the above provisions, the Licensee shall pay a contractual penalty amounting to six times the monthly usage fee for each violation. The assertion of a further claim for damages, taking into account the contractual penalty, remains unaffected.

(1) In addition to the one-time setup fee, the licensee must pay the monthly usage fee as stated in the usage agreement. All prices/fees are plus VAT at the statutory rate applicable at the time. Monthly invoices will be issued.

(2) The monthly net turnover relevant for determining the monthly usage fee is calculated by subtracting the statutory VAT from the Licensee's cumulative turnover (gross of the turnover-relevant items in the booking journal) recorded in Magicline under the heading "Finances" in the respective calendar month. The monthly usage fee is payable in the following month by no later than the third working day for the respective preceding calendar month. It shall be collected by Magicline on a monthly basis. If the direct debit authorization is revoked, Magicline shall be entitled to charge a fee of €5.00 per (monthly) payment.

(3) Magicline shall be entitled to increase the agreed usage fee for the contractual services from time to time as appropriate to compensate for personnel and other cost increases and improvements resulting from the further development of the Software. Magicline shall notify the licensee of this price increase in writing or by e-mail and publish it on the website by posting an updated price list. If the price increase (individually or collectively) amounts to more than 8% of the amount used to determine the usage fee on conclusion of the contract or in the case of an extension of the Agreement at the beginning of the extension year, the Licensee shall be entitled to terminate the Agreement within two months of notification of the price increase with three weeks' notice to the end of the calendar month [Example: Monthly usage fee > 0.5 % of the monthly net turnover > maximum increase without right of termination from 0.5 % to 0.54 % (0.5 % + 0.5 % x 8 %)]. If the Licensee makes use of this right of termination, the non-increased prices will continue to be charged until the termination becomes effective.

(4) The retention of payments by Licensee or the offsetting of payments by Licensee against counterclaims is only permissible if the counterclaims are undisputed or have been legally established.

(1) The licensee is obliged 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 framework of what is reasonable and shall forward to Magicline all information available to him/her that is necessary for the elimination of the defect.

(2) Magicline is obliged to rectify defects in the service. The rectification of defects will be carried out at Magicline's discretion by free rectification or replacement delivery. Furthermore, the rectification of a defect can also take place in the form of instructions to the Licensee. The licensee has to follow such instructions, unless this is not reasonable for him.

(3) A termination of the Licensee in accordance with § 534 Para. 2 Sentence 1 No. 1 of the German Civil Code (hereinafter: BGB) due to failure to grant or withdrawal of the contractual use of the service as well as a reduction of the usage fee or the assertion of damages or compensation for futile expenditure in accordance with the following § 4 No. (5) are only permissible if Magicline has been given sufficient opportunity (at least two weeks) to rectify the defect and this has failed. Failure to rectify the defect is only to be assumed if this is impossible, if Magicline refuses or unreasonably delays it or if it is unreasonable for the Licensee for other reasons.

(4) The rights of the licensee due to defects of the service are excluded if the defects of the service are based on software errors and the licensee has made changes to the software without the consent of Magicline.

(5) The licensee may not enforce a reduction of the usage fee by deduction from the agreed usage fee. Corresponding enrichment and compensation claims of the licensee remain unaffected.

(1) In case of intent as well as in case of injury to life, body or health and within the scope of application of the Product Liability Act, each party shall be liable without limitation. The same applies accordingly in the event of the absence of warranted characteristics.

(2) In case of gross negligence of the legal representatives or executive employees of Magicline, Magicline shall have unlimited liability. In the event of grossly negligent breach of obligations by vicarious agents of Magicline, liability shall be limited to compensation for foreseeable damage typical of the contract.

(3) Magicline shall be liable under limitation to compensation for the contract-typical, foreseeable damage for such damage which is based on a slightly negligent breach of essential obligations by Magicline or one of its legal representatives or vicarious agents. Essential obligations are obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the licensee may rely.

(4) Insofar as Magicline is liable in accordance with the above §5 number (3), the liability per damaging event shall be 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 to a maximum of 100% of the total remuneration owed by the licensee in the contractual year in accordance with the usage agreement. Claims of the Licensee for loss of profit are excluded.

(5) Should data loss occur as a result of a deficiency in the service, Magicline shall only be liable for any resulting damage up to the amount of the restoration costs that would have been incurred if daily, complete, machine-readable backup copies had been available at the Licensee's premises.

(6) The strict liability of Magicline for faults in the service already existing at the time of conclusion of contract in accordance with § 536a para. 1 BGB is expressly excluded.

(7) If the licensee makes unauthorised use of the service or if operating or usage instructions issued by Magicline are not followed by the licensee, Magicline shall not be liable. The licensee shall be free to prove that the unauthorised use and/or failure to follow the instructions and/or changes to the Software have had no (detrimental) influence.

(8) Magicline is not responsible for improper use of the service by other licensees; any liability on the part of Magicline is excluded in this respect. § 278 BGB is not applicable in this respect.

(9) The above provisions shall apply mutatis mutandis to claims by the Licensee for compensation for futile expenditure.

(1) The contractual relationship begins with the conclusion of the contract. The contract is not tied to a specific term and can be terminated by either party at any time with one month's notice to the end of a calendar month.

(2) The right of each party to extraordinary termination for good cause remains unaffected. The Licensee's special termination rights pursuant to § 3 number (3) and § 4 number (3) also remain unaffected.

(3) Magicline may in particular terminate the usage agreement without notice if the Licensee is in default of payment of the monthly fee for two consecutive months or, in a period extending over more than two months, in default of payment of the fee in the amount of two monthly fees. 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, flat-rate damages in the amount of 70% of the monthly fees remaining until the end of the regular contract term. The Licensee reserves the right to provide evidence of a lower damage.

(5) Any termination must be in writing. E-mail does not maintain the written form.

(6) Upon termination of the User Agreement - for whatever legal reason - the Licensee's right to continue using the Service shall expire. However, Magicline will continue to provide the Licensee with the data of the Licensee placed with Magicline (i.e. all current and historical data available in the Magicline system at the time of termination of the User Agreement) for up to 2 weeks after termination of the User Agreement (hereinafter referred to as: follow-up period) upon corresponding written request by the Licensee. The Licensee shall save the data entered by him/her even before termination of the User Agreement. After expiry of the follow-up period, Magicline is entitled to delete the data without the Licensee having to be informed of the pending deletion again separately.

(1) The parties shall observe the applicable provisions of data protection law and oblige their employees deployed in connection with the User Agreement and its implementation to maintain confidentiality and to observe data protection on the basis of the applicable Basic Data Protection Regulation (DS-GVO) and the Federal Data Protection Act (BDSG-neu) or future successor regulations.

(2) The prerequisite for the use of the services by the licensee is, in addition to the existence of the usage agreement, the existence of an agreement for order processing in accordance with Art. 28 DS-GVO between the licensee and Magicline.

(3) The licensee is responsible for ensuring that the processing of personal data carried out by the licensee 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 in accordance with Art. 6 para. 1 DS-GVO. The Licensee is also solely responsible for safeguarding the rights of the persons affected by the data processing in accordance with Articles 12 to 22 DS-GVO. The licensee is fully liable to Magicline for damages resulting from the non-observance of data protection regulations on the part of the licensee. In this respect the licensee shall indemnify Magicline upon first request in the event of claims by third parties.

(4) The Licensee's data will be made available to Eurofit24 GmbH as a subcontractor of Magicline in accordance with § 1.7 within the scope of the order processing agreed between the Licensee and Magicline. Eurofit24 GmbH provides necessary technical services, such as the setup of the Magicline as well as the support of the Licensee within the scope of onboarding. Details are regulated in the agreement for order processing.

(1) Amendments to the usage agreement and the agreement on commissioned data processing must be made in writing to be effective. This also applies to the amendment of this written form requirement itself.

(2) Magicline may amend these General Terms and Conditions. The changes will be notified to the Licensee in a suitable manner and shall apply if the Licensee does not object in writing within one month.

(3) Hamburg is agreed as the place of jurisdiction. However, Magicline is also entitled to bring an action at the registered office of the licensee.

(4) Should a provision of the usage agreement and/or the agreement on commissioned data processing be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The same applies in the event of a gap in the regulations.

Status: Mai 2018