As of November 2008
Range of validity
Contractual Offer, Conclusion of Contract, Contract Transfer
The customer contract for the use of the Service becomes valid through its acceptance by MAGIX. Access to the customer offer will be immediately confirmed by MAGIX electronically. Confirmation of access does not represent any binding agreement on behalf of the customer. Acceptance is confirmed in a separate email or via the website after ordering through means of an extra link with which the customer can activate his/her desired Service.
For fee-based Services MAGIX offers a 14-day free test period. By taking recourse to additional fee-based Services (domain, email mailboxes, or others) this free test period comes to an end, and a contract for the tested Service with the usual conditions comes into effect. The customer's attention will be directed to this condition before recourse to additional Services.
End user right of withdrawal involving distance sales contracts
Right of return
The customer may recall the contract in writing within 14 days of submission without providing any reasons (e.g. by post, fax, email), or (if the item was transferred to the customer before this period expires) by returning the item. The period begins upon receipt of this information in writing, but not before receipt of the item by the recipient (in case of recurring deliveries of identical items, not before receipt of the first delivery), and also not prior to fulfillment of our duty to inform as per Article 246 section 2 and according to section 1 subsections 1 and 2 of the EGBGB (Introductory Law to the German Civil Code). Timely sending of the cancellation or item is sufficient to ensure the right of return period. Cancellations shall be addressed to: MAGIX AG, Customer Care, Borsigstr. 24, 32312 Lübbecke, Germany.
Consequences of return
In case of an effective withdrawal, the value of goods received by both sides shall be reimbursed and possible use shall be returned (e.g. interest). If the value of goods or usages (e.g. use advantages) ordered can not be returned or can only be returned in a worsened condition the value must be replaced. This means, provided that the performance existed in the service, you may still have to fulfil your contractual payment obligations for the period until the withdrawal. You only have to provide compensation for the worsening of the product and the benefits taken if you used the product for more than the examination of the product attributes and its functions "Examine the attributes and functions" means to test and try the product as it can be done in a regular warehouse/shop. Goods capable of being delivered as a parcel by post shall be returned at our risk. The customer shall bear all regular costs for the return postage if the delivered goods correspond with the ordered software and if the price of the item to be returned does not exceed €40.00 and if at a higher price of the item at the time of cancellation the equivalent or the contractually agreed partial payment has not been fulfilled. Otherwise you can return the goods free of charge. Goods that cannot be sent by post as a parcel will be collected. The obligation to refund payments must be fulfilled within 30 days. The period begins for the customer upon sending of the right of recall or of the items in question; for us, this period begins when they are received.
With respect to a service, your right to revoke expires if the contract has been fully completed on both sides at your request before you have exercised your right to revoke.If you are a business as defined by Sec. 14 of the German Civil Code, and are exercising your commercial or freelance duties on closing the contract, the right of revocation shall not apply. The right to cancel the order does not cover instances described in Section 312d IV of the German Civil Code, or specifically any delivery of services, audio, and video material or software, provided that the delivered data storage devices have been unsealed by the customer or contracts for software programs that are download version.
End of cancellation instructions
Registration, Customer Details, Passwords
The customer certifies that, within the scope of the contract offer or during the term of the contract, all personal information he/she has provided as well as any other circumstances relevant to this contract are complete and valid. If there should be any changes to this data, the customer must inform MAGIX without delay; the customer must confirm the data given a corresponding inquiry from MAGIX. Upon violation, MAGIX has the right to immediately stop the contractual Services and, given this special circumstance, to cancel the contract. In relation to domain registration, the customer must provide a valid postal address. Entering postbox details is not sufficient. The customer is required to keep the password, provided by MAGIX for the purpose of access to the Services, strictly confidential and must immediately inform MAGIX should the case be that a third party comes to know it. Should costs result from a third party using the Services, the customer is responsible to pay for any incurring costs or damages. This also applies if a third party uses Services to which the customer has free access (e.g. free mail Services); the customer is then liable to pay MAGIX a fee (within reason) for any damages caused.
MAGIX stores the photos, videos, music and information ("Contents") for the customer or solely grants access to them. The customer alone is responsible for the contents on the MAGIX servers as well as the domains chosen and the name of his/her email address. The customer guarantees that these do not violate any legal prohibitions, are not contra bones mores or against third parties (name, trademark, personal, copyright, data protection rights etc.). Furthermore, the customer guarantees that the use of keywords when submitting his/her website to search engines does not violate any legal prohibitions, are not contra bones mores or against third parties. In particular the customer is obligated not to display inciting contents, to not 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 of emails. With its Service MAGIX does not intend to provide a platform for political activities of any kind. Therefore it is not permitted to present contents 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 center or the MAGIX data network. The customer is obligated not to send or let unsolicited emails containing advertisements be sent unless the express consent of the recipient concerned has been given. This applies especially if the emails are sent with the same content in bulk (so-called "Spamming"). Should the customer breach the aforementioned duty, MAGIX is entitled to discontinue the Service with immediate effect to such an extent that makes further breaches technically impossible. The customer is also obligated not to 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 upon the rights of third parties, especially national and international copyrights or commercially-protected rights, like trademarks, registered designs, or patents, or which infringe upon the personal rights of third parties, or to get access to information not meant for end users. The customer is obligated to 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 is obligated to refrain from accessing 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. The customer commits himself to pay a contractual penalty amounting to $5.050 (five thousand and fifty dollar) for every breach of these obligations. This does not exclude the right of MAGIX to assert a claim for further damages. If MAGIX is aware of any violation of the customer against the prohibitions set out here, MAGIX is entitled to refuse content, to delete the pages and links to it, and/or to immediately terminate the contract. A claim for damages on behalf of the customer is, in this respect, excluded. In this case MAGIX undertakes no obligation to verify the refused or deleted content. In case of the customer being in breach of the above-mentioned obligations, he/she is also liable to MAGIX for compensation of any resulting direct or indirect damages. The customer will not hold MAGIX responsible for any third party claims resulting from a breach of contract.
Rights of use and recognition duty
If the customer places content into his or her personal Online Album, onto a website created using Website Maker or in a weblog of the MAGIX Blog Service, the customer can decide for him or herself whether and to what extent the contents are to be made publicly accessible and which user rights to this content are granted to other users. As long as the customer does not confirm this expressly, MAGIX will not receive or retain any user rights to the content posted by the customer to his or her Online Album or website with the exception of the content necessary for the proper function of the Online Album or websites created using Website Maker. Use of the contents for purposes other than private by a third party is strictly forbidden. In addition, MAGIX customers have the right to use their contents in connection to the Online Album, Website Maker and the Blog. The customer must know that a legal recognition duty applies should the customer choose to offer telecommunication or media Services on his/her Internet pages. The customer shall exempt MAGIX from any claims relating to any breach of the aforementioned duties. Additional Terms & Conditions for Website Service Customers in case of domain purchase.
On procuring and/or maintaining domains MAGIX is active only as a mediator between the customer and the organization providing domain allocation. MAGIX does not have any control over domain allocation. MAGIX cannot guarantee that the domains applied for by the customer will be allocated or that allocated domains are free of third party rights or will endure on a continued basis. The various top-level domains are regulated by a number of different, usually national organizations. Each organization 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 domain contract must be terminated.
The customer is obligated to immediately report any type of loss of his/her domain. 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 the state of negotiations, and grant MAGIX the right to repurchase on behalf of the customer, if and as long as this does not negatively influence the interests of the customer.
MAGIX grants the customer a basic, non-transferable right to use the Service. The right of use for the Service and the domain within this framework ceases on expiry of the contractual period. MAGIX is entitled to activate the domain. Should the customer avail of Services in addition to those in his/her originally chosen tariff, these Services remain as additional Services, even if the customer chooses not to avail of a Service that corresponds to an additional Service at the original tariff at any time within the duration of the contract. Should the customer wish MAGIX to, for example, add an additional email account, the deletion of an email account at the original tariff will not have the effect of changing an additional email account into an email account at the original tariff. The additional email account remains intact until separately terminated or until the entire contract is terminated.
Within the framework of the Service, MAGIX permits the customer to use a so-called subdomain as in the following sample http://subdomain.magix.net (for example http://username.magix.net/website) for the duration of the contract. The customer is not entitled to any particular subdomain. The subdomain is maintained by MAGIX. The customer is not entitled to identity rights or (intellectual) ownership rights of the subdomain. After the contractual period has expired 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 be bestowed any rights to the graphical design of the user interface. This includes all MAGIX symbols and logos. Within the framework of the Website Service, MAGIX makes available a spam/virus protection program for receiving emails which can be activated and deactivated. Here, emails are allocated a specific spam level relative to various factors. Emails without any suspicious characteristics are forwarded to the customer's inbox. Emails classified as spam are forwarded to the so-called "spambox". This is technically separate from the customer's other inboxes in order to avoid any interference with his/her data. For security reasons, files with the extension .exe|.vbs|.pif|.scr|.bat|.com are automatically moved to the spambox. The size of the inbox made available to the customer is not reduced by the amount of data in the spambox. The mails here are deleted after 21 days. 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. Unless arranged otherwise, each email account in a tariff holds a maximum volume of 1 GB. MAGIX is, in this respect, not liable for the state of data.
The free Services of Free Online Album and Website Maker free are financed from, among other sources, from 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 offers
Within MAGIX Online World, MAGIX offers free services myGoya Online Desktop, Blog Service, Online Album free and Website Maker free. The customer has the opportunity to expand the range of services by upgrading to a fee-based offer (Premium Album, Classic Album, Website Maker easy and deluxe, private domain, additional email addresses and disk space upgrade). MAGIX retains the right to demand service payment for these services up to 12 months in advance. Payment is due upon the receipt of the confirmation mail. 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.
Payment can be made using a bank transfer or via a credit card payment. 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 goes into effect 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 a month's notice until the end of the month. If the customer raises no objections, the new price goes into effect, but only after the extension of the contract following the announcement of the change. For the rest of he current contract the price change has no effect.
Should the customer delay in payment, MAGIX is entitled to all cancel Services included in the subscribed Service, and the customer also remains obliged to pay the agreed fees during this period of restriction. As long as 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. The customer can only contest demands from MAGIX with unopposed or legally arbitrated counterclaims. The customer can only exercise the right of retention if the counterclaim refers to the same contractual relationship. Assigning customer's claims against MAGIX to third parties is excluded.
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, assemblage/disassemblage, repair attempts or other manipulations are excluded from the guarantee.
Third Party Rights
MAGIX will not hold the customer accountable for any legitimate third party claims which are based on a possible breach of industrial property right or copyrights by MAGIX in the Federal Republic of Germany, providing the customer has immediately notified MAGIX of such claims in writing and providing the right to all technical and judicial defense measures and settlement negotiations are reserved by MAGIX. Aforementioned duties of MAGIX are not applicable if the third party claims are based on breaches occurring through actions of the customer, especially through the upload contents to the corresponding Service by the customer.
MAGIX stores the data for the customer or solely grants access to them. MAGIX is not liable for the contents.
MAGIX is only liable to slight negligible damages incurred by it or its assistant(s) if a duty is violated, even if it is extra-contractual, the adherence to which is of special importance in order to be in compliance with contractual use (Cardinal duty), as well in cases of damage to the life, body and health. On violation of a cardinal duty, liability for such damages, the possibility of which has to be considered within the framework of the present agreement, is limited if premeditation or gross negligence exist or if it is forced as a result of damages to life, body or health. MAGIX statutory liability in case of personal damages and damages pursuant to the Product Liability Act remains unaffected. MAGIX is not liable for damages controllable by the customer or damages that could have been prevented by the customer had reasonable measures been taken to do so. MAGIX is liable for data loss only to the extent of costs incurred during restoration if backups are available. 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 concerned with damages incurred through data espionage, hacker attacks, defective hardware or software or acts of God. A change in the burden of proof to the disadvantage of the customer is related to the foregoing provision. MAGIX is not liable for damages that occur as a result of third parties infringing upon customer copyrights 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 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.
Personal data is collected, processed, and utilized by MAGIX without further explicit customer agreement during the contractual period only for the purpose of contract fulfillment, 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 and third parties providing this is required for the calculation of payment and the billing of the customer. Furthermore, 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.
Contractual Period and Cancellation
The contractual period depends on the respective Service and tariff selected by the customer.
The duration of fee-based services is prolonged automatically by the duration of the selected offer, at the most by 12 months, unless the contract is cancelled in writing at least 8 weeks before its expiration by one of the parties. If the customer took advantage of additional services (domain, email inboxes, etc.), the duration of the complete contract will be prolonged automatically, and the total amount due will be billed. The contractual service agreement ends with the expiration of the contract for the additional services. This automatic contract extension does not apply to any special modules for expanding disk space (space module). If the customer decides to prolong a contract made during a special promotion, the contract will be prolonged with the conditions and prices for the service that are valid after the expiration of the promotion period with corresponding terms and payment obligations.
A written notice of contract cancellation is to be sent to MAGIX Online Services GmbH c/o MAGIX AG, Customer Care, Borsigstr. 24, 32312 Lübbecke, Germany. The notice can also be sent as as a fax (+49 5741/310768) or a letter. For cancellations, please use our forms "Domain cancellation" and "Termination of contract".
The right of termination without notice remains unaffected.
MAGIX has the right of cancellation without notice especially if
- the customer has provided false information during registration,
- the customer culpably violates the conditions for participation or the condition guidelines for domains,
- the customer changes his place of residence but does not automatically inform MAGIX of his new address within 14 days,
- the customer delays paying arrears amounting to at least two monthly contributions.
In case of cancellation without notice, MAGIX is entitled to a compensation fee amounting to 75% of the sum of all monthly contributions that would have been paid if the contractual obligations would have been fulfilled by the customer. The right of the customer to provide evidence of minor damages remains unaffected. In case of termination for an important reason, MAGIX has the right to freeze the Service and possible domain names/email addresses of the customer forming part of the contract.
The laws of the Federal Republic of Germany govern the legal relationship of the customer and MAGIX. As long as the contractual partner is a merchant, a corporate body under public law or under fund assets governed by public law, or holds his/her residence outside the Federal Republic of Germany, Berlin will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract relationship. MAGIX also has the right to bring proceedings against the customer at its general court of jurisdiction.