General Terms of Use

 

 

Xara Online

 

Updated: July 2015

 

 

I. General Terms of Use for all Products and Services

II. Additional Terms of Use for Domain Registration

 

 

 

1. Area of validity

 

1.1 Xara Group Ltd (hereinafter referred to as "Xara") 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").

 

1.2 The following Terms and Conditions contain the basic rules for use of the Services by customers of Xara and apply for all future legal transactions and legal business dealings between the customer and Xara. 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 Xara.

 

1.3 Xara 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 Xara 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. Xara 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 Xara, as outlined in the precedent conditions. In its announcement of the changes Xara 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.

 

 

 

2. Registration

 

2.1 Use of the Services by the customer requires a registration. This registration creates a contractual user agreement for the Services between the customer and Xara. 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. Xara 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 Xara.

 

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 accepts 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 Xara.

 

2.4 Multiple registrations are not permitted.

 

2.5 During the registration the customer creates a password within the scope of the technical possibilities; the entered email address serves as the user name (user name and password shall be referred to hereinafter as the "login details"). User names whose use infringes on third party rights, in particular trademarked and legally protected names, or any other names which are unlawful or violate conventional customs, are not permitted. The customer is responsible for keeping the login details confidential and preventing access to them by 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 Xara without delay. Should costs arise from the misuse of the customer's login details by third parties, the customer shall be responsible for paying these costs insofar as he is the legal representative of the information.

 

2.6 There is no inherent right to registration. Xara 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 (Xara Group Ltd c/o MAGIX GmbH & Co. KGaA, 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 of withdrawal you must contact us (Xara Group Ltd c/o MAGIX GmbH & Co. KGaA, 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.

 

- End of Cancellation Instructions -

 

 

 

4. Content - Customer responsibilities

 

4.1. Xara stores the photos, videos, music 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 Xara servers as well as the domains he or she has chosen and the names of his or her email addresses. The customer shall create backup copies of all data provided to Xara Services which shall be stored on additional data carriers that do not belong to Xara.

 

4.2 The customer guarantees that his or her content, domains, the email addresses administered by him or her 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 Xara 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 aforementioned responsibilities apply equally to the sending of emails (also insofar as these only contain a hyperlink to a corresponding offer). as well as the registration of domains.

 

4.5 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"). When sending emails it is forbidden to enter false sender data or to conceal the identity of the sender in any other form. The customer is obligated to provide clear indication when emails are sent for commercial purposes.

 

4.6 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 Xara to provide the Services. Xara 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 Xara systems.

 

► In particular the customer is not permitted to send or store on a Xara server any data that could pose a danger to the condition or operation of Xara systems due to its type or properties (e.g. viruses), size or duplication (e.g. spamming);

► to threaten the operation or security of the Xara 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 Xara or the operating system of the Xara systems;

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

 

 

 

5. Reaction of Xara upon breach of obligations

 

5.1 If the customer breaches his or her obligations as set out in sections 4.2 through 4.6, Xara 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, Xara shall be entitled to immediately discontinue the Services in the required scope:

 

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

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

► When 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

 

Xara 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, Xara 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 4.6, Xara 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 sends spam email as defined in section 4.5, Xara shall be entitled to temporarily block the email accounts on the server. If an Internet address which is administered by Xara or contains content stored on Xara servers is mentioned or linked in this email, Xara shall be entitled to temporarily block the domain or the content.

 

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

 

5.6 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 Xara. Xara shall retain the right to remuneration during the duration of the block.

 

5.7 If the customer is in arrears by a minimum of two monthly payments for a fee-based service, Xara 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, Xara shall require the customer to immediately reduce the amount of storage space used. If the customer does not cooperate with this request, Xara shall be entitled to delete content until the allowed storage volume is reached.

 

 

 

6. Rights of use

 

Xara 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 Xara servers will be publicly accessible or accessible or to specifically selected users. The customer grants Xara any rights to the content insofar as these are necessary for the correct fulfillment of the respective Services.

 

 

 

7. Services

 

7.1 Xara 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, Xara 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 Xara. The customer is not entitled to identity rights or (intellectual) ownership rights of the subdomain. After the contractual period has expired the customer shall not have any rights to the transfer of the subdomain.

 

7.4 Xara reserves the right to limit the size of incoming and outgoing email messages insofar as this is reasonable for the customer. Unless arranged otherwise, each email account in an offer shall hold a maximum volume of 1 GB. In this respect, Xara accepts no liability for the state of the data.

 

7.5 Depending on the offer, Xara shall make available to the customer spam and virus protection, which can be activated or deactivated, for the receiving of email messages. Email messages classified as spam will be stored in a so-called "spam folder". For security reasons, files with the extension .exe|.vbs|.pif|.scr|.bat|.com are automatically moved to the spam folder. The size of the inbox made available to the customer is not reduced by the amount of data in the spam folder. Xara shall be entitled to delete the messages in this spam folder after 21 days.

 

7.6 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 Xara to provide its Services are threatened - especially in the event of a Denial of Service Attack on a customer's domain - Xara shall be entitled to deactivate the domain or reroute it to an external IP address. The customer is only entitled to use one Xara service offer for each Internet domain.

 

7.7 If the customer uses graphics or content from Xara for the design of the Service or templates from Xara, he or she shall not own and shall not be granted any rights to the graphical design of the user interface. This includes all Xara symbols and logos.

 

7.8 Some of the free offers are financed by advertising among other things. Within the scope of using these Services the customer shall agree to the display of advertising banners, text announcements and other forms of advertising from third parties.

 

7.9 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 Xara 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 Xara is entitled at any time to increase prices after a period of six weeks following written 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 with a period of a month's notice until the end of the month. 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. The price change shall have no effect on the current contract period.

 

8.3 If the customer becomes in arrears with payments, Xara 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 Xara guarantees an annual mean server availability of 98%. This does not include times in which the server is not available through the Internet due to technical or other problems not under the sphere of influence of Xara (force majeure, third party defaults, etc.). Xara 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 Xara further guarantees that the Service corresponds with the basic descriptions of the functions. This does not include a guarantee for the display of the Content.

 

 

 

10. Liability

 

10.1 Xara 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 Xara could reasonably foresee upon conclusion of the contract unless the breach resulted from deliberate or gross negligence.

 

10.3 Xara shall not be liable to the customer for controllable damages or damages which could have been prevented by the customer with reasonable measures. In the case of data loss, Xara shall only be liable to the amount of the required reconstruction expenses upon the existence of backup copies. 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 Xara 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 Xara 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 one year, 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 in writing or through our online form to Xara Group Ltd c/o MAGIX GmbH & Co. KGaA, 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, Xara 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, Xara 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.

 

 

 

13. Final provisions

 

13.1 The customer can only contest demands from Xara 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 Xara to third parties is excluded.

 

13.2 This Agreement shall be governed by English law. As long as the contractual partner is a merchant, a corporate body under public law, Hemel Hempstead, will be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract relationship. Xara 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 Xara

 

2.1 When procuring and/or maintaining domains, Xara is active only as a mediator between the customer and the organization providing domain allocation. Xara does not have any control over domain allocation.

 

2.2 Xara 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 Xara 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 Xara is unable to contact the customer, Xara 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 cancelled 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, Xara shall be entitled to return the domain to the issuer after the contract has ended and a reasonable period of time has passed. Xara shall inform the customer that in this event he or she may be entitled to remuneration from the issuer. Alternatively, Xara shall also be entitled to delete the domain after a reasonable period of time.

 

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