Contents
MAGIX Online Services
General Terms and Conditions
(As of June 2008)
Validity
MAGIX AG (subsequently "MAGIX") provides the services of the "Website Maker", (hereinafter called "Services") based on these General Terms and Conditions.
MAGIX has the right to modify or supplement these General Terms and Conditions of use or the Services from time to time given a reasonable period of notice. Notification of any modifications or supplemental terms and conditions will be made only by email and/or on the MAGIX Internet site. The changes will be considered accepted by the customer if within one month following the change announcement he/she has not raised any objections or terminated the contract. MAGIX may terminate the contract if the customer objects to the changes within one month following the change announcement. In its announcement of the changes, MAGIX will indicate the customer’s options for raising objections and how the contract can be terminated and any specific terms and conditions relating to each of these options. Subject to MAGIX’ right to modify or supplement these General Terms and Conditions, any differing, contradictory, or supplementary terms of use will not vary or amend the contract, even if acknowledged, unless MAGIX confirms such variation or amendment clearly in writing to the customer.
Contractual Offer, Conclusion of Contract, Contract Transfer
The customer’s contract for the use of the Services will come into force when it has been accepted by MAGIX. A request made by the customer to use any of the Services represents an offer to MAGIX to use such Services. The customer’s offer will be confirmed by MAGIX electronically. Confirmation by MAGIX does not constitute any binding agreement with the customer. Acceptance is provided by MAGIX in a separate email or via the website after ordering by the provision of an extra link by MAGIX by which the customer can activate his/her desired Service(s).
For fee-based Services, MAGIX offers a free test period. However, if the customer uses any additional fee-based Services during that time, the free test period will immediately come to an end and the fees will become payable by the customer for the tested Service(s). MAGIX will do all that they reasonably can to draw the customer's attention to this condition before starting to use the additional Services.
The customer should retain a copy of these General Terms and Conditions, details of the selected Service(s), as well as the MAGIX Service guarantee.
The right to cancel
The customer is entitled to cancel his request to use the Services at any time before MAGIX accepts the customer’s offer. The customer may cancel their contract within two weeks following acceptance of the customer’s offer. To meet the deadline for cancellation of the contract, the customer must send a return notification to MAGIX within the two week period referred to above. The notification does not require any explanation and is to be directed, in writing, to MAGIX AG, Customer Care, Borsigstr. 24, 32312 Lübbecke, Germany or by email to orange-shop@magix-website.com. In hard copy written form, it is sufficient for the customer to send a fax·( +49 (0) 5741/310768), an email or a letter. The customer’s right to cancel their contract expires at the end of the abovementioned two week period or once MAGIX, with the express permission of the customer or at his/her behest, has begun using any of the Services before the end of the two week period, whichever occurs sooner. After the end of the two week period, the customer can only terminate their contract in accordance with these General Terms and Conditions. This does not affect the customer’s legal rights.
Registration, Customer Details, Passwords
The customer confirms that all personal information he/she has provided to MAGIX is true, complete and accurate. If there are any changes to this data, the customer must inform MAGIX without delay. If required by MAGIX, the customer must confirm the accuracy and completeness of the data provided. If the customer’s information is found to be incomplete or inaccurate, MAGIX has the right to immediately stop providing the Services and to cancel the contract. For domain name registration, the customer must provide a valid postal address. PO Box addresses will not be accepted.
The customer is responsible for maintaining the confidentiality of the password provided by MAGIX for the purpose of access to the Services and must immediately inform MAGIX if there is any reason to believe that the password has become known to any third party or if it is being used in an unauthorised manner. Should costs result from a third party using the Service, the customer is responsible for paying any costs or fees incurred by MAGIX. This also applies if a third party uses Services to which the customer has free access (e.g. free mail Services).
Content, Usage
MAGIX stores the customer’s photos, videos, music and information ("Content") for the customer and allows the customer to have access to them. The customer is solely responsible for the Content on the MAGIX servers as well as the domain names chosen. The customer will not use any domain names or store any Content which is of an offensive, abusive, indecent, obscene or menacing nature or which infringes any intellectual property rights of any third parties (trademark, copyright, etc.). Furthermore, the customer will not use any keywords when submitting his/her website to search engines which are of an offensive, abusive, indecent, obscene or menacing nature or which infringe any intellectual property rights of any third parties. In particular the customer is obliged not to display any inciting contents, not to promote criminal activities or provide instructions for this purpose, nor offer or make available any Service to underage persons with content of a pornographic nature, content that endangers minors or glorifies war or violence. The same applies to the dispatch and content of emails. With its Services, MAGIX does not intend to provide a platform for political activities of any kind. Therefore the customer shall not present content of a political nature, such as party meetings, demonstrations, flyer/signature gathering activities as well as the illustration of political symbols.
The customer may not send any data or save it on a MAGIX data carrier if the type of data or its composition (e.g. viruses), size or duplication (e.g. spamming) would be a danger to the existence or operation of the computer centre or the MAGIX data network.
The customer also must not procure, install, use, execute, or make available software, files, information, or other content relating to MAGIX Services for which he/she does not have the necessary rights, which infringe or may infringe the intellectual property rights of any third parties, especially copyright, trade marks, registered designs, or patents.
The customer must refrain from endangering the operation and the system security of the MAGIX network or connected networks or the circumvention of security regulations ("hacking", "cracking") and not to interfere with Services ("Denial-of-Service attacks").
The customer must refrain from accessing or attempting to access the MAGIX network or connected networks, from making changes to the physical or logical structure of the software or the operating systems, and from using the setup, software, or other measures which could lead to such changes. The customer is to refrain from testing for security vulnerabilities ("Port scan") in the MAGIX security regulations (on all systems, networks, hosts, accounts, or other systems parts), in MAGIX customer accounts, or other Internet user accounts.
If MAGIX is aware of any breach by the customer of its obligations set out here, MAGIX is entitled to refuse to accept Content, to delete the pages and links to it, and/or to immediately terminate the contract at its sole discretion. The aforesaid shall not restrict any other rights MAGIX may have against customer by law or equity.
MAGIX shall have no liability for any third party claims resulting from any breach of contract.
For further details of the customer's obligations relating to User Generated Content please refer to the User Generated Content Terms and Conditions document
Rights of use and recognition duty
Unless explicitly stated by the customer, MAGIX does not own and will not receive any usage rights for the Content entered into the Services by the customer with the exception of those which are required for the proper operation of the Service. If the customer loads his/her Content into the Service, he/she automatically declares him/herself to be agreed that the Content be accessible and usable by everyone. Furthermore, the customer permits MAGIX to use his/her content in connection with the Service at any time.
The customer acknowledges that it may be liable to third parties should the customer choose to offer telecommunication or media Services on his/her Internet pages. The customer acknowledges and agrees that as between himself/herself and MAGIX the customer is solely responsible for any claims arising out of or in connection with such telecommunication or media Services.
Additional Terms & Conditions for Website Service Customers in case of domain purchase.
On procuring and/or maintaining domains on behalf of its customers, MAGIX acts only as an intermediary between the customer and the organisation providing domain allocation. MAGIX does not have any control over domain availability or allocation and shall not be liable for any costs, losses, damages or expenses arising out of or in connection with the procurement or maintenance of any domains.
MAGIX cannot guarantee that the domains applied for by the customer will be available or allocated to it or that allocated domains do not infringe any third party rights or will endure on a continued basis. The various top-level domains are regulated by a number of different, usually national organisations. Each organisation which allocates domains has various conditions for registering and maintaining top-level domains, the associated sub-level domains, and the proceedings during domain-related disputes. As long as top-level domains are the subject matter of the contract, the relevant domain conditions of the corresponding NIC (Network Information Center) shall also apply.
For the transfer of a domain to a third party, the customer is solely responsible for terminating their domain contract and transferring the domain.
The customer must immediately report any type of loss of his/her domain to MAGIX. Should the customer intend to repurchase his/her domain from a third party, he/she must immediately inform MAGIX about negotiations with third parties, respond to requests from MAGIX relating to such negotiations, and grant MAGIX the right to repurchase on behalf of the customer, if and as long as this does not materially negatively influence the interests of the customer.
Services
MAGIX grants the customer a basic, non-transferable right to use the Services selected by the customer. The customer’s right to use the Services and the domain ceases on expiry or termination of the contract, whichever occurs first. MAGIX is entitled to activate the domain at its sole discretion.
Should the customer use any of the Services in addition to those in his/her originally chosen tariff, these Services remain as additional Services, even if the customer chooses not to use a Service that corresponds to an additional Service at the original tariff at any time within the duration of the contract.
Within the framework of the Service, MAGIX permits the customer to use a so-called subdomain as in the following example http://subdomain.website.orange.co.uk (for example http://username.website.orange.co.uk) for the duration of the contract. The customer is not entitled to any particular subdomain. The subdomain is maintained by MAGIX. All intellectual property rights in the subdomain belong to MAGIX or its licensors. After the contractual period has expired or terminated, the customer will not have any rights to the transfer of the subdomain either.
If the customer uses graphics or content from MAGIX for the design of the Service or templates from MAGIX, he/she does not own and will not acquire any rights to the graphical design of the user interface. This includes all MAGIX symbols and logos.
The customer is not entitled to have the same IP address assigned to the server for the duration of the contract. Only one MAGIX tariff can be used for each of the customer's Internet domains. MAGIX is, in this respect, not liable for the state of data.
The free Services of Website Maker are financed from, among other sources, advertising. In the context of using these Services the customer accepts the addition of advertising banners, text announcements and other advertising forms of third parties.
Prices and Payment for fee-based Services
Besides free Services, MAGIX also offers fee-based Services. MAGIX is entitled to demand payments for these fee-based Services for up to 12 months in advance. Payment is due on receipt of the confirmation mail. All fees are inclusive of VAT at the applicable rate.
Payment occurs via bank draft or via credit card. In the case of a domain purchase MAGIX is entitled to activate a domain only once payment of agreed fees for the registration has been made.
The customer agrees, if necessary, to accept invoices electronically.
MAGIX is entitled at any time to increase prices after a period of six weeks following written notice. The change in price becomes effective from the start of the next contractual period if the customer does not object to the modified price within six weeks. Should the customer object within this time period, both parties are entitled to cancel the contract with a period of no less than one month's notice to terminate the contract at the end of the current contractual period. If the customer raises no objections, the new price will come into effect from the extension of the contract following the announcement of the change and for new contracts. For the rest of the current contract, the price change has no effect.
Should the customer delay in payment, MAGIX is entitled to suspend or cancel all Services included in the subscribed Service, and the customer also remains obliged to pay the agreed fees during this period of restriction.
If any individual domains of a tariff are terminated by the customer or are terminated as a result of binding judgments in domain-related disputes, the customer has no claim to apply for a free replacement domain. No replacement will be supplied for either individual domains offered by a Service or for additional individually booked domains which were terminated prematurely providing the termination was not incurred as a result of actions carried out by MAGIX.
Guarantee
MAGIX guarantees an annual mean server availability of 98%. This does not include times in which the server is not available over the Internet due to technical or other problems not under the sphere of influence of MAGIX (force majeure, third party defaults, etc.). MAGIX can restrict access to the Services if this is required in order to maintain network security, network integrity, prevent server network problems, or safeguard software or stored data.
It is furthermore guaranteed that the Service corresponds to the essential functional descriptions. MAGIX does not make any guarantees for the display of pictures or files. The customer must notify MAGIX, in writing, of any possible defects that might occur and provide the respective error protocols. Errors resulting from outside influences, operating errors or changes, additions, assembly/disassembly, repair attempts or other manipulations are excluded from the guarantee.
Third Party Rights
MAGIX will indemnify and hold harmless customer for any legitimate third party claims which are based on a possible breach of industrial property right or copyrights by MAGIX, providing the customer has immediately notified MAGIX of such claims in writing and providing the right to all technical and judicial defence measures and settlement negotiations are reserved by MAGIX. However, the customer will remain accountable if the third party claims are related to any breach of the contract occurring through actions of the customer, especially through the upload of Content to the corresponding Service by the customer.
Liability
MAGIX does not limit its liability if the customer dies or is injured as a result of MAGIX’ negligence or if he/she suffers loss as a consequence of any fraud by MAGIX.
MAGIX stores the data for the customer or solely grants access to it. However, MAGIX is not liable for the Content.
MAGIX is not liable for loss or damage controllable by the customer or loss or damage that could have been prevented by the customer had reasonable measures been taken to do so. MAGIX is not liable for data loss except to the extent of costs incurred during restoration if backups are available. However, the customer's attention is specifically directed to the fact that he or she is individually responsible for making backups in reasonable numbers and at reasonable time intervals. MAGIX provides no replacement for lost files.
MAGIX will try to protect its customers with the care customary for its line of business. MAGIX can, however, in no way be liable for loss or damage incurred through any factor beyond MAGIX’s reasonable control including but not limited to data espionage, hacker attacks, defective hardware or software or acts of God or otherwise for any loss or damage which is indirect or not reasonably foreseeable by MAGIX.
MAGIX is not liable for any business connected to the customer or otherwise for any loss or damage which is related to that business including without limitation loss of profits, savings, revenue or business interruption.
MAGIX is not liable for loss or damage that occurs as a result of third parties infringing upon customer intellectual property rights for uploaded content.
MAGIX explicitly distances itself from the content of all pages containing direct or indirect references (so-called "links") to MAGIX products. MAGIX is not liable for these pages and/or their content. The respective providers themselves are responsible for the content of these pages. MAGIX accepts no liability for third party advertising published in the context of free Services nor for the products or services offered therein.
Data Protection
Personal data is collected, processed, and utilized by MAGIX without further explicit customer agreement during the contractual period only for the purpose of contract fulfilment, including invoicing. Data collection, utilization, and processing are performed electronically.
The customer’s attention is also drawn to the fact that MAGIX is entitled to collect, process, and utilize the customer stock and connection data if this is required for the recognition, limitation and removal of defects and errors in the telecommunication systems. If the circumstances require this action, MAGIX is entitled to collect, process and utilize stock and connection data insofar as this is required to reveal and prevent Service acquisition by false pretences and other illegal utilization of the telecommunication networks and Services. In accordance with these measures, MAGIX will also inform the respective law enforcement agencies in such cases.
MAGIX creates user profiles, using pseudonyms, for the purpose of advertising and market research and the appropriate configuration of teleServices. The Customer has the right to object to the processing and utilization of his or her data at any time. On request, MAGIX will present the customer with the stored data for his/her pseudonym, immediately and free of charge. On request of the customer, this information can also be passed on electronically.
MAGIX is entitled to communicate the customer's billing data to other Service providers, third parties providing this is required for the calculation of payment and the billing of the customer and to Orange. Otherwise, MAGIX will neither communicate customer data nor the content of customers' private messages to third parties without the customer's consent.
MAGIX explicitly points out to the customer that the data protection and data security for data transmissions in public networks such as the Internet can as yet not be fully guaranteed with the current state of technology. The Customer knows that it is technically possible for the Provider to gain insight into the pages and possibly other data stored on the web server by the Customer at any time. Other participants might also have the technical capability of illegally manipulating the network security and controlling the data traffic. The customer is fully responsible for the safety and security of the data transmitted by him/her via the Internet and stored on web servers.
The customer agrees that MAGIX can send emails for the duration of the contract regarding technical support, technical hints, information on the range of Service of the customer's chosen package, any enhancement possibilities and other information related to the Website Service.
For details regarding data privacy please refer to the privacy policy document.
Contractual Period and Termination
The contractual period depends on the respective Service and tariff selected by the customer.
If the customer purchases any fee-based Services, the existing contract in question shall be automatically extended by the length corresponding to the selected tariff for such fee-based Services, by a maximum of one year, unless the contract is terminated by one of the parties, in writing, giving no less than 8 weeks notice before the expiry of the contract. If the customer chooses to take advantage of additional Services during the contractual period (domain, email accounts, etc.), the duration of the entire contract will automatically extend and, therefore, the contract will automatically extend until the term of the additional Service expires. This automatic extension does not apply to possible special data storage volume extension modules (space modules) or data transfer volume extension modules (traffic modules) ordered by the customer.
Should a customer decide to extend a contractual agreement signed within the framework of a special offer beyond the duration of this offer, the regular tariff for the product in question, with the corresponding duration and charges, will apply once this special offer period has expired.
If the customer does not wish to extend the contract, he/she may give no less than 8 weeks before expiry a notice of termination in writing to be sent to MAGIX AG, Customer Care, Borsigstr. 24, 32312 Lübbecke, Germany or by email to orange-shop@magix-website.com In text form, it is sufficient to send a fax·( +49 (0) 5741/310768) or a letter.
The customer has the right to terminate the contract immediately by giving notice to MAGIX if MAGIX is no longer able to provide the Services for reasons beyond its control. In such cases, MAGIX will refund any pre-paid fees which have not been used up.
MAGIX has the right to terminate immediately by giving notice to the customer if:
- the customer has provided incomplete or inaccurate information during registration,
- the customer materially breaches these General Terms and Conditions or the condition guidelines for domains,
- the customer becomes bankrupt or other insolvency proceedings are brought against him/her or if the customer fails to make payments as they fall due;
- the customer changes his/her place of residence but does not inform MAGIX of his/her new address within 14 days,
- the customer materially breaches the specifications laid down in these General Terms and Conditions in relation to Content used by the customer,
- the customer delays paying fees amounting to at least two monthly contributions.
In all cases of termination, MAGIX has the right to suspend the Services and possible domain names/email addresses of the customer forming part of the contract.
Final Provisions
The laws of England govern the legal relationship of the customer and MAGIX. The English Courts will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract relationship.
