Imprint

Magmapool Sales & Marketing Services AG
Bahnallee 11-13
D-56410 Montabaur, GERMANY
Tel.: +49 (0) 26 02 – 68 69 6 – 0
Fax: +49 (0) 26 02 – 68 69 6 – 99
info@magmapool.de
magmapool.de

Executive Board:
Dr. Detlev Fey (Vors.), Helga Geller

Chairman of the Supervisory Board:
Dr. Susanne Theilig

District Court of Montabaur, Commercial Register: HRB 7224
VAT ID pursuant to Sect. 27 of the Value Added Tax Act (UStG): DE 227667991

Magmapool develops and operates (internet) technology-based motivational, incentive, and reward systems for businesses, specifically sales reward programs, including reward management and reward shipping as well as travel and event management. Software developments are continuously implemented for this purpose.


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General Terms
of Magmapool Sales &
Marketing Service AG

FOREWORD

The following General Terms and Conditions are a component of every contractual agreement with Magampool Sales & Marketing Service AG, Bahnallee 11-13, 56410 Montabaur (referred to as Magmapool hereinafter). The following provisions apply exclusively unless otherwise expressy agreed in writing. The contracting party hereby acknowledges these conditions. The contracting party’s general terms annd conditions, in particular, are not a component of contracts with Magmapool or of contracts issued by Magmapool. Magmapool reserves the right to change or supplement the General Terms and Conditions and the desciption of services with an advance notice of 14 days.

These changes will be announced via e-mail, fax or postal service. The changes are considered to have been acknowledged and accepted if no objection has been raised within 14 days..

1. SERVICES PROVIDED BY MAGMAPOOL

Magmapool provides the customer with software products in conjunction with services. The software products are application service provider (ASP) products. The foundation ist software wich may be used by the customer for a specified time. The use of the software is entirely Internet-based.

Magmapool provides the customer with non-exclusive, non-transferable access to their software for the duration of the contract. Establishment of the requirements for connecting to the software via the web is the sole responsibility of the customer. Magmapool is no liable for establishing or maintaining the data connection between the customer’s network and the point of transfer operated by Magmapool.

Refer to the indivudal quotation for the detailed list of services, and prices of the software products and services Magmapool provides the customer with complete awards management in accordance with the individual agreement.

2. RIGHTS AND OLIGATIONS OF THE CUSTOMER

Only the customer and their registered participants may use the software. The customer is obligated to ensure that only registered participants use the system and that each registered participant uses the system only as authorized and approved in this contact.

Entitlements for fulfillment of the contract exist exclusively between Magmapool and the customer directly. Claims and rights by third parties, in particular the direct claims by participants against Magmapool, will not be honored.

The customer is obligated the maintain strict secrecy of access data and passwords obtained for the purpose of accessing Magmapool software and to store them especially well-protected against access by third parties, as well as against misuse and loss; also, the customer is obligated to notify Magmapool immediately upon becoming aware of knowledge of access data or passwords by unauthorized third parties. The above-named obligations must also be fulfilled if the customer receives access data and password which serve for the identification of his person to Magmapool upon submission of statements concerning the contractual relationship. Persons who use the customer’s access data and password upon submission of such a statement will be refuted by Magmapool as authorized to submit any such statement. The customer is liable to Magmapool for adherence to the above-named obligations. The customers releases Magampool from any costs and claims by third parties which arise from violation of the above-named obligations.

3. FEES

Prices for srvices provided by Magmapool are a component of each individual contract. A payment due date of 14 days applies unless a different payment schedule is named in the contract. Any valid statutory sales tax is expected in addition to the above-mentioned fees.

In the event of late payment, Magmapool is entitled to charge interest and late fees. Additionally, Magmapool is entitled to withhold any outstanding services and deliveries in the event of late payment.

4. DELIVERY OF AWARDS AND PRODUCTS

Delivery of awards and products are made at the customer’s expense in accordance with the quotation. Delivered awards and products remain the property of Magmapool until all requirements associated with the contractual relationship havve been fulfilled.

5. PRICE ADJUSTMENTS

Magmapool reserves the right to adjust the amount of fees for ongoing system use and processing, as well as for agreed upon handling fees, no more than on time annually. Any price adjustments must be agreed by the customoer. If the customer has not objected to the price adjustment within four weeks of being notified of the changes, they are understood to be granted. Magmapool is obligated to inform the customer of the consequences of their failure to object when notifiying them of the changes.

Prices for awards or products, as well as prices for shippin expenses, may be adjusted by Magmapool in correspondence with the market pricing (the current price list available online is valid). Magmapool will notify the customer of this without delay. The customer is entitled to remove awards from the pool and replace them with other awards from Magmapool’s range of awards.

Magmapool may add equivalent awards or products to the shop and deliver them in lieu of awards and products that are no longer available or deliverable at the time the prticipant requests them.

6. DUE DATE

The costs for syste setup, as well as planning and communication measures, are due at the time of completion. Monthly fees are due at the end of each month. A payment deadline of 14 days applies to all payments. Beginning with the second reminder, a late fee of €10,00, as well as late payment interest become payable.

Any valid statutory sales tax is expected in addition to the above-mentioned fees. There are no fees charged for data communications within the Magmapool network.

The customer may offset against the claims assessed by Magmapool only if such claims are not contradicted or are legally determined.

7. PROPERTY RIGHTS

The customer acknowledges that the services provided by Magmapool, in particular any ideas, concepts, creative services, and any other work output included in netcentive® , and other Magmapool products are the intellectual property and exclusive rights of Magmapool. The customer is obligated to maintain secrecy of all Magmapool trade and business secrets as well as information they are provided concerning Magmapool software, services, and prices, even if they are subject to special legal protection. They are also prohibited from using them for other purposes, copying, selling them, or making them accessible to third parties, and are required to safeguard them from unauthorized access by third parties. Use or exploitation of this information for any purpose other than what is absolutely necessary for the contract in question requires prior written consent from Magmapool. The preceding obligations apply even after the termination of this contract.

Upon termination of this contract, the customer is further obligated to submit to Magmapool all documents and records of information with which they have been presented in regards to this contract. Insofar as data and information is stored by the customer in electronic form, they are obligated to transmit this to Magmapool and delete it if requested. The obligation to delete this is not applicable insofar as the contracting party is required to store it for legal protection of their own rights.

8. AVAILABILITY

The contracting parties agree that 100% availability of the system is not attainable. In this respect, the parties agree that an availability of 99% is contractually attainable. This does not include times in which the server is not accessible via the Internet because of technical or other problems which are outside the influence of Magmapool (force majeure (acts of God), fault of third parties, etc.). Furthermore, such times as Magmapool or the service provider require for the performance of any possible technical maintenance or to convert the system to new hardware or software components are not included. Magmapool may restrict access to services in the event this is required for the security of the network, to maintain network integrity, in particular the avoidance of serious disruptions of the network or software or the stored data.

9. DURATION AND TERMINATION

The duration of the contract will be determined at the time the contract is issued. If no other agreements have been made, a contract duration of two years applies and may be extended by one year respectively. It may be terminated with a prior notification of six months from the end of the term.

The right of termination for cause remain unaffected. Any termination must be in written form in order to be effective. In the case of termination for cause by Magmapool, Magmapool is entitled to charge an amount equal to all monthly fees which the customer would have had to pay in the case of simultaneous notification of termination. The customer is expressly permitted to prove that the damage has not occurred at all or is substantially lower than the fixed sum.

10. LIABILITY

Magmapool AG is liable for damages only in the event they or one of their agents has violated a significant contractual obligation (cardinal obligation) which threatened the fulfillment of the contract or if the damages can be attributed to gross negligence or intent by Magmapool.

If a culpable violation of a significant contractual obligation (cardinal obligation) occurs without gross negligence or intent, Magmapool’s liability is limited to such typical damages which were reasonably foreseeable for Magmapool at the time of conclusion of the contract. Magmapool’s liability in regard to expressly warranted features in the case of personal injury, as well as those based on mandatory legal regulations, remains unaffected.

The conditions of participation are determined by the customer and may be updated by the customer. Magmapool accepts no liability in regard to the conditions of participation.

Deadlines and delivery times are non-binding unless otherwise expressly agreed to in writing. Delivery times of awards by Magmapool, in particular, are subject to the proper and timely delivery by suppliers and manufacturers.
Risk is transferred to the customer as soon as the shipment has been submitted to the person performing the transportation. If the shipment is delayed or impossible due to no fault of Magmapool, the risk is transferred to the customer upon notification of readiness to ship. Acceptance of transportation costs by Magmapool does not affect the transfer of risk.

Warranty claims and any guarantees are forfeited by self-performance of repairs, performance of repairs by unauthorized third parties, or disregard of manufacturer’s instructions. Magmapool is entitled to either repair or replacement as they choose. Conversion, reduction, rescission, and all claims by the customer for damages beyond that are excluded in such a case. Insofar as repairs fail or replacement is impossible, a credit will be granted for the award points. Damages due to normal wear, operational errors, improper use, external intervention, and improper opening of devices do not warrant a claim.

11. DATA PROTECTION

Magmapool processes personal information as necessary for the performance of the contract, as well as for accounting purposes, and to fulfill legal requirements.

Magmapool is active in award projects of customers in the sense of order processing in accordance with article 28 of the General Data Protection Regulation (DSGVO). In terms of data protection, the responsibility lies with the customer transmitting the data and specifically declares that the necessary consent of the data subject has been processed. Processing of personal information of participants in an award project takes place in order to fulfill the contract. Legal basis for this is Art. 6 Para. 1, S.1, lit. b DSGVO.

Transfer, sale, or other transfer of personal information to third parties does not occur unless it is required for fulfillment of the contractual process or there is express consent. For instance, it is necessary to transfer the address and the ordering information to the supplier or the transportation company for orders of awards and products from the shop.

Each contracting party with Magmapool is obligated to neither divest or otherwise transfer the personal information and business data issued to them.

The preceding obligations apply even after the termination of this contract.

Personnel employed by Magmapool in the processing of data are to be bound in writing to confidentiality.

Upon written request, the party concerned can obtain information about their personal information being processed. Magmapool has enacted technical and organizational measures in accordance with Article 32 of the DSGVO in order to ensure proper data protection during data processing.

Magmapool expressly points out that comprehensive protection of data for transfer via open networks such as the Internet cannot be guaranteed with the current state of technology and that the service provider can technically access offers and, under certain circumstances, other data stored on the web server at any time. Other Internet users are sometimes also in a position technically to gain unauthorized access to the network security and control communications.

Magmapool is not obligated to provide any management or surveillance beyond the proper point and award administration. The customer is responsible, in particular, for the observance of any trade and tax-related retention requirements. Additional information concerning data processing when visiting the website can be found in the data protection declaration.

12. ADDITIONAL AGREEMENTS AND SEVERABILITY CLAUSE

No verbal additional agreements have been made. Changes and amendments to these General Terms and Conditions must be made in writing. This applies also to the waiver of the form requirement.
The place of performance for all obligations and the exclusive place of jurisdiction for all conflicts, regardless of legal cause, is Montabaur. Magmapool may also assert claims at the general place of jurisdiction of the contracting party. The parties agree to the application of German law.

If any one of the above-mentioned provisions of the General Terms and Conditions or this contract is invalid or becomes invalid, the validity of the remaining provisions remains unaffected. The invalid provision is replaced by the provision which comes closest to fulfilling the original purpose.

Date: 12/11/2018

Magmapool Sales & Marketing Services AG,
Bahnallee 11-13, 56410 Montabaur

Telefon: 02602/68696-0
Fax 02602/68696-99
E-Mail: info@magmapool.de
Handelsregister: Montabaur HRB 7224
Vorstand: Dr. Detlev Fey (Vors.), Helga Geller