Terms & conditions - Xara Online

GENERAL TERMS OF USE

Xara Online (without Xara Cloud)

Updated: July 2017

I. General Terms of Use for all Products and Services

II. Additional Terms of Use for Domain Registration

1. Area of Validity

1.1 MAGIX Software GmbH (hereinafter referred to as "MAGIX") provides under the name "Xara Online" various services (hereinafter referred to as "the Service") on the basis of these general terms and conditions (hereinafter referred to as "the Terms and Conditions"). This does not apply to Xara Online Designer, for which special terms of use apply.

1.2 The following Terms and Conditions contain the basic rules for use of the Services by customers of MAGIX and apply for all future legal transactions and legal business dealings between the customer and MAGIX. Terms and conditions from the customer which deviate or expand on these Terms and Conditions - even when known - shall only come into force when they have been explicitly confirmed in writing by MAGIX.

1.3 MAGIX has the right to modify or supplement these terms of use given a reasonably timed period of notice. The notice shall be provided by email and on the MAGIX Internet site. The change shall be considered accepted by the customer if he or she does not raise objections or cancel the contract within one month of receiving the notice. MAGIX is entitled to timely contract cancellation in case of the customer's objection to the changes. If the customer raises objections at the time the changes are announced, he or she will receive a proper cancellation from MAGIX, as outlined in the precedent conditions. In its announcement of the changes MAGIX will indicate the options of raising objections and canceling the contract, as well as the terms and legal repercussions of exercising these options, especially with regard to ceased objections.

1.4 Observing an appropriate period of notice, MAGIX retains the right to terminate services without stating the grounds therefore. In case of made pre-payments, these will be reinstated in this case.

2. Registration

2.1 Use of the Services by the customer requires registration of an account. This registration creates a contractual user agreement for the Service between the customer and MAGIX. Registration is not permitted for persons under the legal age of majority or other natural persons with restricted legal competence.

2.2 The customer is obligated to provide truthful and complete data during the registration process. This applies especially for the address data, the banking information and the email address. The use of pseudonyms or aliases is not permitted. In the case of a change to the recorded data after completion of the registration, the customer shall update the information without delay. MAGIX shall send information and explanations regarding the contractual relationship to the customer's email address. The customer shall regularly check the email account which serves as the email contact address for MAGIX.

2.3 By submitting the registration form, the customer agrees to the terms of use and ensures that the information provided is truthful and that he or she is not prohibited from using the service according to the terms set out in section 2.1. If Xara MAGIX the registration, the customer shall receive a confirmation email with an activation link. Clicking on this link creates a user agreement between the customer and MAGIX.

2.4 Multiple registrations are not permitted.

2.5 During the registration the customer creates a password within the scope of technical feasibility; the email address provided by the customer serves as the username (username and password shall be referred to hereinafter as the "login details"). Usernames which violate the rights — especially name and trademark rights — of third persons, which are otherwise unlawful, or which are contrary to accepted principles of morality, are prohibited. The customer is obligated to keep his or her login details confidential and to protect them from being revealed to third parties. If the customer becomes aware that this confidentiality has been compromised or suspects that the login details are being used by third parties, he or she shall report this to MAGIX without delay. Should costs result from a third party using the login details or passwords to access MAGIX services, the customer shall be responsible for paying these costs insofar as he or she is responsible for his or her login details.

2.6 There is no inherent right to registration. MAGIX reserves the right to refuse the customer's registration without an explanation of the reasons.

3. Right of Withdrawal

3.1 Cancellation Policy for Service Contracts

Right of Withdrawal

You have the right to withdraw from this contract within fourteen days without stating a reason.

The withdrawal period is fourteen days starting with the conclusion of the contract.

To enact your right of withdrawal you must contact us at MAGIX Software GmbH, Customer Care, Borsigstr. 24, 32312 Lübbecke, Germany, Fax: +49 5741 310768, Telephone: +49 5741 345531, Email: shop@magix.net) and provide explicit notification (e.g. a letter sent by mail, fax or email) of your decision to withdraw from the contract. You may use the attached cancellation form for this if you so choose.

To enact your right to withdrawal it is sufficient to send the required notification before the withdrawal period has expired.

Consequences of Cancellation

If you cancel this contract, we shall be obligated to reimburse all payments received from you including delivery charges (except in the case of additional costs resulting from your selection of services outside the scope of the standard delivery offered by us) without delay and at the latest within fourteen days of receiving your notification of contract cancellation. The same payment method that you used for the original transaction will be used for the reimbursement except in the case where a different explicit agreement has been arranged with you; under no circumstances shall you be charged any fees for this reimbursement.

If you have requested that the Service begin during the withdrawal period, you shall be required to pay an amount for your use of the Service up to the point in time that your withdrawal notification is received. The amount shall be proportional to the period of use relative to the total fee for the full contractual period.

- End of Cancellation Instructions -

3.2 Cancellation Policy for Digital Content

Right of Withdrawal

You have the right to withdraw from this contract within fourteen days without stating a reason.

The withdrawal period is fourteen days starting with the conclusion of the contract.

To enact your right to withdrawal it is sufficient to send the required notification before the withdrawal period has expired.

Consequences of Cancellation

- End of Cancellation Instructions -

4. Content - Customer responsibilities

4.1 MAGIX stores the files and information (together referred to as "Content") for the customer and solely grants access to them. The customer alone is responsible for the contents provided by him or her on the MAGIX servers as well as the domains he or she has chosen. The customer shall create backup copies of all data provided to MAGIX Online which shall be stored on additional data carriers that do not belong to MAGIX.

4.2 The customer guarantees that his or her content, domains and the keywords he or she submits to search engines are not legally forbidden, are acceptable according to conventional custom and do not infringe on the rights of third parties (trademarks, copyrights etc.). In particular the customer obligates himself or herself not to display any racially prejudiced content, content that promotes criminal activity or provides instructions for this purpose or to make accessible, transmit or distribute content that is pornographic, commercially erotic, dangerous to minors or a glorification of war and violence. This also applies to hyperlinks or other connections which access content that the customer has placed on third party websites.

4.3 MAGIX does not intend the Service to be a platform for political activities of any kind. Therefore it is not permitted to present content of a political nature, such as party meetings, demonstrations, flyer campaigns or petition actions as well as the illustration of political symbols.

4.4 The customer is obligated to maintain his or her systems and programs in a manner which does not impede the security, integrity or availability of the systems used by MAGIX to provide the Services. MAGIX reserves the right to block Services when systems act or react in a manner that is not consistent with the standard operating behavior and thus pose a threat to the security, integrity or availability of the MAGIX systems. In particular the customer is not permitted

► to send or store on a MAGIX server any data that could pose a danger to the condition or operation of MAGIX systems due to its type or properties (e.g. viruses), size or duplication (e.g. spamming);

► to threaten the operation or security of the MAGIX systems or circumvent security regulations ("hacking", "cracking") or infiltrate services ("Denial of Service Attacks");

► to make any changes to the physical or logical structure of the software provided by MAGIX or the operating system of the MAGIX systems;

► to perform any investigations of security precautions ("port scans").

5. Reaction of MAGIX upon breach of obligations

5.1 If the customer breaches his or her obligations as set out in sections 4.2 through 4.4, MAGIX shall be entitled to discontinue the Service in a manner that is technically necessary and with immediate effect in order to prevent any further breach of obligations. In addition, MAGIX shall be entitled to immediately discontinue the Services in the required scope:

► Where false information was entered during the registration process (section 2.2)

► Where the customer has violated the terms and conditions, in particular in the case of multiple registrations (section 2.4)

► Where login details have been lost or there is reason to believe that they are being misused by third parties (section 2.5)

► In the case of any other important reason, MAGIX is permitted to block the relevant Services or Content for the duration of the period of the violation or until the disagreement with the customer or the third party has been resolved.

5.2 If the alleged violation of rights was committed through or under a domain, MAGIX shall be entitled to take measures to make this domain inaccessible.

5.3 In cases where the violation of rights through a domain can be clearly determined based on objective evidence as well as for violations of sections 2.2, 2.4, 4.2 and 4.4, MAGIX shall be entitled to terminate the contract without notice. In the event of this, the customer shall have no right to claim compensation for damages.

5.4 If the customer violates any of the terms set out in section 5.1, the customer shall also be obligated to compensate MAGIX for any direct or indirect resulting damages. The customer exempts MAGIX from responsibility for any third party claims resulting from a breach of contract.

5.5 In a case where the Services have been blocked, the customer shall not be permitted to register for the Service again without explicit consent from MAGIX. MAGIX shall retain the right to remuneration during the duration of the block.

5.6 If the customer is in arrears by a minimum of two monthly payments for a fee-based service, MAGIX shall also be entitled to block the customer's access to the Service and/or reduce the Service to the level of a free offer in addition to the right of cancellation of the Service according to section 12.4. Insofar as the customer exceeds the available storage volume in the free offer, MAGIX shall require the customer to immediately reduce the amount of storage space used. If the customer does not cooperate with this request, MAGIX shall be entitled to delete content until the allowed storage volume is reached. If the customer does not cooperate with this request, MAGIX shall be entitled to delete content until the allowed storage volume is reached.

6. Rights of use

MAGIX stores the Content for the customer and solely grants access to it. The customer alone shall decide which of this Content he or she has saved on the MAGIX servers will be publicly accessible or accessible or to specifically selected users. The customer grants MAGIX any rights to the Content insofar as these are necessary for the correct fulfillment of the respective Services.

7. Services

7.1 MAGIX grants the customer a basic, non-transferable right to use the Service and the software included with the Service for the period of the contract. The granting of user rights to third parties is not permitted. In this respect, a transfer is not allowed. The customer shall delete and cease the use of any copies of the remaining software upon termination of the contractual relationship. Free service offers may only be used exclusively for private and non-commercial purposes.

7.2 Insofar as the customer within the scope of an offer obtains software with permanent user rights (e.g. purchased software), section 7.1 shall not apply. In this case the granting of rights shall take place exclusively according to the respective end user agreement.

7.3 Within the scope of the Service, MAGIX permits the customer to use a so-called subdomain as in the following sample http://subdomain.xara.hosting (e.g. http://username.xara.hosting/website). The customer is not entitled to a 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.

7.4 The customer is not entitled to have the same IP address assigned to the server for the duration of the contract. In cases where the security, integrity or availability of the systems used by MAGIX to provide its Services are threatened - especially in the event of a Denial of Service Attack on a customer's domain - MAGIX shall be entitled to deactivate the domain or reroute it to an external IP address. Only one MAGIX tariff can be used for each of the customer's Internet domains.

7.5 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.

7.6 Some of the free offers are financed by advertising among other things. In the context of using these services the customer accepts the addition of advertising banners, text announcements and other advertising forms of third parties.

7.7 Within the scope of certain offers the customer has the option of cooperating with third parties by allowing the integration of advertising material into his or her site. In these cases MAGIX shall only make available the technical requirements for the integration. The corresponding contractual agreement is exclusively between the customer and the third party and shall be directly concluded by these parties.

8. Prices and Payment for Fee-based Services

8.1 Remuneration for fee-based Services shall be payable 12 months in advance insofar as no other shorter invoicing period has been arranged. Payment is due upon receipt of the confirmation email or notice of a contract extension.

8.2 MAGIX is entitled at any time to increase prices after a period of at least six weeks following notice. The change in price shall take 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 at the end of the month, subject to a month's notice but not before the current contract expires. If the customer raises no objections, the new price shall take effect, but only after the extension of the contract following the announcement of the change. For the rest of the current contract, the price change has no effect.

8.3 If the customer becomes in arrears with payments, MAGIX shall be entitled to discontinue all Services within the scope of the offer and the customer shall remain obligated to pay the agreed remuneration for this period.

9. Guarantee

9.1 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.

9.2 MAGIX further guarantees that the EPG Service complies with the basic descriptions of the functions. This does not include a guarantee for the display of the Content.

10. Liability

10.1 MAGIX shall be liable to the customer for damages according to the legal definition insofar as these damages were caused by deliberate or gross negligence, were the result of failure to provide the guaranteed properties of the Service, were related to a culpable breach of the contractual obligations (see section 10.2), were the result of culpable injury to health, body or life, or in the case of liability according to product liability laws.

10.2 Principal contractual obligations (cardinal duties) are those contractual obligations whose correct performance is essential to making the contract at all possible, whose adherence can regularly be relied upon by the contractual partners and whose breach impedes the injured party's ability to fulfill the purpose of the contract. For damages that occur as a result of a breach of cardinal duties, liability shall be limited to the typical damages that MAGIX could reasonably foresee upon conclusion of the contract unless the breach resulted from deliberate or gross negligence.

10.3. MAGIX shall not be liable for damage which can be controlled by the other contracting party or which the other contracting party could have prevented by taking measures which can be reasonably expected of it. MAGIX is liable for data loss only to the extent of costs incurred during restoration if backups are available. These limits shall not apply for damages caused by deliberate or gross negligence of cardinal duties resulting in culpable injury to health, body or life, or for those with liability according to product liability laws.

10.4 A change in the burden of proof to the disadvantage of the customer is not related to the foregoing provision.

11. Data Protection

11.1 Personal data is collected, processed and used 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 and within the scope of legal data protection regulations. More information about this is available in our Privacy Statement.

11.2 MAGIX is entitled to communicate the customer's invoicing data to other service providers and third parties providing this is required for the calculation of payment and the invoicing of the customer.

12. Contractual period and cancellation

12.1 The contractual period is defined by the respective service and offer selected by the customer. The contractual period of fee-based services is automatically extended by the length corresponding to the selected offer, by a maximum of 12 months, unless the contract is canceled by one of the parties, in writing, at least 8 weeks before the expiry of the contract.

12.2 If the customer make use of additional Services during the contract period which are not included in the booked offer, the contractual period for these additional Services shall be defined by their respective terms and conditions.

12.3 Cancellation must be submitted through our online form or in writing to MAGIX Group Ltd c/o MAGIX Software GmbH, Customer Care, Borsigstr. 24, 32312 Lübbecke, Germany. In text form a letter or fax to +49(0)5741/310768 is sufficient. For cancellation in text form please use our form letter for contract cancellation or domain cancellation if possible. Doing this expedites processing.

12.4 The right to terminate the contract for an important reason shall remain unaffected. Except in the cases outlined in section 5.3, MAGIX shall be entitled to termination without notice if the customer is in arrears with payments amounting to at least two monthly payments.

12.5 In the 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 had been fulfilled by the customer. The right of the customer to provide evidence of minor damages remains unaffected.

12.6 MAGIX retains the right to transfer the Service in whole or partially to third parties or to charge a third party with the execution of contractual provision of services in whole or partially. In this case, the customer will be informed with sufficient notice.

13. Final clauses

13.1 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 a customer's claims against MAGIX to third parties is excluded.

13.2 The legal relationship of the customer and MAGIX is governed by English law. If the contractual partner is a merchant, a corporate body under public law or under fund assets governed by public law, the headquarters of MAGIX shall 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.

II. Additional Terms of Use for Domain Registration

1. Area of Validity

1.1 The following additional terms of use include further regulations which shall apply in the case of a domain registration.

1.2 Insofar as the following additional terms of use include regulations which deviate from the General Terms and Conditions that apply to the customer, these additional regulations shall take precedence.

2. Services from MAGIX

2.1 When 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.

2.2 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.

2.3 MAGIX is entitled to only activate a domain once payment of agreed fees for the registration has been made and the customer's email address has been validated.

3. Customer obligations

3.1 Within the scope of a domain registration, the customer is obligated to provide a valid postal address. The provision of a post office box is not sufficient. Should it become evident that the data entered for a domain registration is false and MAGIX is unable to contact the customer, MAGIX shall be entitled to delete the domain.

3.2 The customer is obligated to cooperate within a reasonable scope during the registration, transfer and deletion of domains, the changing of entries in the database of the issuer and during a change of provider and registration authority.

4. Procedure for domain deletion and contract termination

4.1 Insofar as a domain is canceled by the customer or by binding decisions in domain disputes, the customer shall not be entitled to receive free replacement domain within the scope of the same offer.

4.2 Deletion orders for domain(s) require the signature of the domain owner/Admin C.

4.3 If the customer cancels the domain contract without simultaneously ordering the deletion of the domain, MAGIX shall be entitled to return the domain to the issuer after the contract has ended and a reasonable period of time has passed. MAGIX shall inform the customer that in this event he or she may be entitled to remuneration from the issuer. Alternatively, MAGIX shall also be entitled to delete the domain after a reasonable period of time.

4.4 If MAGIX rightfully cancels the contract due to a delay in payment or for an important reason, MAGIX shall be entitled to set a reasonable deadline for the deletion of the affected domain(s) insofar as the customer communicates no other instructions.