Hüküm ve Koşullar (H&K)

§ 1 Scope and provider

(1) These General Terms and Conditions (GTC) apply to all contracts for hosting, server, domain and related services between MagicHosting, owner Elias Bieber, c/o POSTFLEX PFX-363-573, Emsdettener Straße 10, 48268 Greven, Germany, email: [email protected], phone: +49 155 60936666 (hereinafter “MagicHosting” or “we”) and our customers.

(2) A consumer is any natural person who concludes a contract predominantly for private purposes (§ 13 BGB). A business is anyone acting in a commercial or independent professional capacity when concluding the contract (§ 14 BGB). Provisions that only apply to one of these groups are expressly marked.

(3) Deviating terms of the customer only apply if we expressly agree to them in text form. Individual agreements take precedence over these GTC (§ 305b BGB).

(4) We may decline an order without giving reasons. There will be no discrimination on grounds prohibited by the German General Equal Treatment Act (AGG).

(5) This version applies to contracts concluded or renewed after its publication. Existing contracts remain subject to the version agreed at the time of conclusion unless § 20 provides otherwise.

§ 2 Customer account and minors

(1) A customer account is required to place orders. Please provide true and complete information and keep it up to date. The account is personal. Keep your login details secret and inform us immediately if you suspect misuse.

(2) We conclude contracts with persons aged 18 or over. Minors aged 7 or over require the prior consent of their legal guardians. The consent form we provide (see “Information for parents”) must be sent to [email protected] before ordering. We do not conclude contracts with children under 7.

(3) If a minor has ordered without the required consent, the contract is provisionally ineffective until approved by the legal guardians (§ 108 BGB). If we ask the parents for approval, it is deemed refused unless given within two weeks. If approval is refused, we unwind the contract in accordance with the law and refund amounts paid. We may suspend the service until this is resolved.

§ 3 Conclusion of contract

(1) Our product descriptions are not yet a binding offer. By clicking “Order with obligation to pay” you submit a binding offer. Before that, you can review your details in the order process and correct input errors.

(2) Immediately afterwards you receive an automatic confirmation of receipt. It only confirms that the order was received. The contract is concluded when we accept the order: by providing the service or by an express declaration of acceptance, at the latest within 5 days. If we do not accept, we refund amounts already paid without delay.

(3) The booked term starts when the service is provided. We send you the contract text (order details and these GTC) by email; your orders and invoices are also available in the customer area. The contract language is German.

§ 4 Services

(1) The type and scope of the services result from the product description at the time of ordering.

(2) Our servers are connected via a shared network (LACP: two bundled 10 Gbit/s ports per host). Stated bandwidths are maximum port values; a specific bandwidth per server is not guaranteed unless expressly stated otherwise in the product description.

(3) For root servers (KVM, LXC, dedicated) we are responsible for hardware, network, power supply and virtualisation. You are responsible for the operating system, software, updates, firewall rules and access credentials on the server unless a managed service has been expressly agreed.

(4) We may only change the service if there is a valid reason (e.g. replacing defective or outdated hardware, security reasons, changes in the law) and the agreed characteristics, in particular guaranteed resources and location, are retained. We will inform you of changes in good time beforehand. If a change impairs a consumer’s access to or use of the service more than insignificantly, you may terminate the contract free of charge within 30 days under § 327r BGB; we refund the fee pro rata for the unused remaining term.

(5) We aim for an availability of 99% as an annual average; this is not a guarantee. We announce planned maintenance at least 24 hours in advance where possible and schedule it at low-usage times. Your statutory rights in the event of outages, such as price reduction, remain unaffected.

§ 5 Acceptable use and customer obligations

(1) You are responsible for the content on your services and must comply with applicable law and third-party rights (in particular copyright, trademark, data protection and personality rights).

(2) The following is prohibited in particular:

• illegal content, in particular child sexual abuse material, incitement to hatred and glorification of violence;
• copyright infringements, e.g. distributing protected works without a licence;
• mining of cryptocurrencies;
• sustained load that noticeably affects other customers on the same host;
• attacks on third-party systems, port scans without the system owner’s authorisation, booter or stresser services and DDoS attacks; authorised security tests of your own systems are allowed;
• distribution of malware and phishing;
• sending unsolicited bulk email and openly accessible mail relays, DNS resolvers or proxies that can be abused;
• IP spoofing and the use of IP or MAC addresses that have not been assigned;
• Tor exit nodes (Tor relays without exit function are allowed).

(3) In the event of a violation, we will ask you to remedy it within a reasonable period. We may block the affected service in whole or in part immediately and without prior notice if there is a significant risk to third parties, our infrastructure or other customers, if an authority orders it or in the case of serious criminal offences. We only block to the extent and for as long as necessary, state our reasons and lift the measure as soon as the reason no longer applies.

(4) If you are responsible for a violation, you indemnify us against third-party claims based on it, including the necessary costs of an appropriate legal defence. We will inform you of such claims without delay, give you the opportunity to comment and will not acknowledge claims without your consent.

§ 6 Data volume (traffic)

(1) Unless the product description states otherwise, the following data volumes are included per calendar month:

• KVM and LXC servers: 20 TB
• Dedicated servers: 200 TB

(2) Traffic caused by DDoS attacks on your server is not counted.

(3) If the volume is exceeded on KVM or LXC servers, we may restrict the server’s network connection until the end of the current calendar month. The restriction is lifted automatically at the start of the next month. You can switch to a larger package at any time. For dedicated servers we agree on the further procedure with you; additional costs only arise if you accept an offer.

§ 7 Illegal content and Digital Services Act

(1) We are not obliged to generally monitor content or actively search for illegal activity (Art. 8 Digital Services Act, DSA).

(2) Notices of illegal content can be submitted via our reporting form (magichosting.de/legal/melden). We review notices promptly, diligently and objectively (Art. 16 DSA). Our point of contact for authorities and users is listed at magichosting.de/legal/dsa.

(3) If we restrict a service or content due to a notice, we will inform you clearly and specifically of the reasons, including the option to appeal (Art. 17 DSA, magichosting.de/legal/einspruch). This does not apply where an authority or the law prohibits such information.

(4) If we become aware of information giving rise to a suspicion of a criminal offence involving a threat to the life or safety of persons, we report this to the competent authorities without delay (Art. 18 DSA).

§ 8 Prices and payment

(1) The prices at the time of ordering apply. As a small business within the meaning of § 19 UStG (German VAT Act) we do not charge VAT; the prices shown are final prices.

(2) Services are paid in advance for the selected term, directly or from your credit balance. The available payment methods are shown in the order process and at magichosting.de/zahlungsmethoden.

(3) Price changes only apply to new orders and renewals. The price does not change for a term that has already been paid.

(4) In the event of late payment we may claim statutory default interest and proven damage caused by the delay. We do not charge for the first reminder that puts you in default. After an unsuccessful reminder with a deadline we may block the affected service until payment is made.

(5) If a payment is reversed (e.g. returned direct debit or credit card chargeback) and you are responsible for this, you bear the third-party fees actually incurred by us. We may block the services paid for in this way until the matter is resolved.

§ 9 Term, termination and end of contract

(1) The contract runs for the selected term paid in advance and then ends automatically. It is only renewed if you actively renew it or switch on automatic renewal.

(2) Automatic renewal (optional): You can switch it on for each server in the customer area. We then renew the server by 30 days at the end of each term and deduct the price from your credit balance as long as it is sufficient. If the balance is insufficient, the contract ends at the end of the term. You can switch off automatic renewal at any time before the end of the term.

(3) Ordinary termination before the end of the term is excluded. The right to terminate for good cause and your statutory rights, e.g. in the event of defects, remain unaffected.

(4) Voluntary goodwill for KVM servers: On request we terminate a KVM server early and credit 75% of the fee for the remaining days as credit balance. This credit cannot be paid out. This goodwill does not replace statutory claims; where such claims exist, they take precedence.

(5) Terminations can be made in text form (e.g. email to [email protected]) or via our cancellation button at magichosting.de/vertrag-kuendigen.

(6) You can request the deletion of your customer account at any time. Running services then end; we will point this out to you beforehand. Outstanding claims of both parties remain and will be settled.

(7) After the end of the contract we block the service and keep the data for another 14 days. During this time you can renew or back up your data; afterwards we delete it. If you switch to another provider, we support you on request in accordance with the EU Data Act: your data then remains retrievable for at least 30 days and we do not charge switching fees.

(8) We retain invoices and accounting records for 8 years, books and financial statements for 10 years and business letters for 6 years, each from the end of the calendar year in which they were created. Details are given in the privacy policy.

§ 10 Right of withdrawal for consumers

(1) Consumers can withdraw from the contract within 14 days without giving reasons. The period begins on the day the contract is concluded.

(2) To withdraw, inform us (MagicHosting, owner Elias Bieber, c/o POSTFLEX PFX-363-573, Emsdettener Straße 10, 48268 Greven, Germany, email: [email protected], phone: +49 155 60936666) by means of a clear statement, e.g. by email, letter or via our withdrawal function at magichosting.de/vertrag-widerrufen. You may use the model withdrawal form on that page, but you are not obliged to. To meet the deadline, it is sufficient to send the statement before the period expires.

(3) Consequences of withdrawal: We refund all payments received from you without delay and at the latest within 14 days of receipt of the withdrawal. We use the same means of payment as you used, unless expressly agreed otherwise; in no case will you be charged any fees. If you used credit balance, we credit it back to your balance or pay it out on request.

(4) If you requested that the service begins during the withdrawal period, you pay us a reasonable amount for the part of the service provided until the withdrawal (pro rata by days).

(5) For services, the right of withdrawal only expires once we have fully provided the service and you expressly agreed before the start that we begin before the end of the withdrawal period and confirmed that you lose your right of withdrawal upon full performance. This applies in particular to the registration of a domain, which is fully performed upon registration. Merely activating a server does not extinguish the right of withdrawal.

§ 11 Data backup

(1) We back up virtual servers (KVM, LXC, game servers) daily to separate storage in another data centre. These backups mainly serve recovery after failures of our infrastructure. On request we restore an existing backup. How long backups are kept is stated in the privacy policy. Backups for dedicated servers are agreed individually.

(2) Please also make your own backups of important data outside our systems. Our backups do not replace this.

(3) In the event of data loss, our liability is governed by § 12. If you have not made your own backups, this may be taken into account as contributory negligence (§ 254 BGB).

§ 12 Liability and warranty

(1) We are liable without limitation for intent and gross negligence, for injury to life, body or health, where we have given a guarantee, for fraudulently concealed defects and under the German Product Liability Act.

(2) In the case of simple negligence, we are only liable for breaches of material contractual obligations. These are obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance you may regularly rely, e.g. providing the booked server. In this case liability is limited to the foreseeable damage typical for the contract.

(3) The limitations in paragraph 2 also apply in favour of our employees and agents.

(4) Your statutory rights in respect of defects remain unaffected; for consumers §§ 327 et seq. BGB apply in particular.

§ 13 Domains

(1) We register domains via our partner with the respective registry. Their registration terms also apply. You, or the person you specify, are the holder of the domain.

(2) Whether a domain is assigned is decided by the registry. We do not check whether a domain infringes third-party rights; that is your responsibility.

(3) We remind you in good time before a domain expires. On request you receive the code for transferring to another provider (auth code) without delay and free of charge.

(4) Cancelling in the customer area is not an instruction to delete the domain. If you give no instruction at the end of the contract, we ask you to do so with a deadline of at least 14 days. After that we may return the domain to the registry.

§ 14 Lifetime products

(1) In special promotions we offer products with a “lifetime” term for a one-off payment. “Lifetime” means: as long as MagicHosting continues its business operations. If we only discontinue the individual product, you receive an equivalent replacement product at no extra cost.

(2) If we cease business operations, we will announce this at least 3 months in advance so that you can back up your data. Your statutory claims remain unaffected.

(3) If a lifetime server has been switched off continuously for more than 2 months and there has been no login to the customer area during this time, we may deactivate it after notice by email and a period of 4 weeks. We will reactivate it at any time on your request. We may delete the data of a deactivated server no earlier than 12 months after deactivation and after further notice. Your claim to the service remains.

§ 15 Credit balance and payout

(1) Credit balance in the customer account is used to pay for our services. We distinguish between deposited credit (paid in by you) and bonus credit (from promotions, discounts or goodwill). For bookings, bonus credit is used first, then deposited credit.

(2) We pay out unused deposited credit on request, even if you have already used part of it. Bonus credit is not paid out.

(3) The payout is made within 14 days to the original means of payment or to a bank account in your name. We do not charge a fee. Only for payouts to accounts outside the SEPA area do you bear the bank fees actually incurred.

(4) We only request proof of identity where there is a specific reason, e.g. if the receiving account is not in the account holder’s name or there are indications of fraud. We only request the data necessary for this and decide within 14 days of receiving the documents.

(5) We may only set off against the credit balance claims that are due and either undisputed or established by final judgment.

(6) If we terminate your account for good cause (e.g. serious breach of the GTC or fraud), bonus credit is forfeited. Deposited unused credit is paid out in accordance with paragraphs 3 and 5.

(7) We may correct incorrect credits, e.g. due to a technical error. We will inform you about this.

(8) Statutory refunds, in particular after a withdrawal (§ 10), are governed solely by law. The rules of this section do not restrict them.

§ 16 Force majeure

(1) We are not liable for outages caused by force majeure. These are events beyond our control that we could not prevent even with reasonable care, e.g. natural disasters, war, terrorism, pandemics, strikes at third parties or official orders. DDoS attacks only count as force majeure if they could not be fended off despite the agreed and customary protective measures.

(2) You owe no fee for the duration of such an outage; we credit fees already paid on a pro rata basis. If the outage lasts longer than 30 days, either party may terminate the affected contract without notice.

§ 17 Data protection and data processing

(1) How we process personal data is explained in our privacy policy (magichosting.de/datenschutz).

(2) If you store personal data of third parties on our services, we process it on your behalf. You can obtain the data processing agreement under Art. 28 GDPR on request at [email protected] (see magichosting.de/avv).

§ 18 Dispute resolution

We are neither willing nor obliged to participate in dispute resolution proceedings before a consumer arbitration board. If you have a problem, please contact [email protected] directly; we will look for a solution together with you.

§ 19 Applicable law and jurisdiction

(1) German law applies, excluding the UN Convention on Contracts for the International Sale of Goods. For consumers, this choice of law only applies insofar as it does not deprive them of the protection of mandatory provisions of the country in which they have their habitual residence.

(2) If you are a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from the contract is our place of business. For consumers, the statutory places of jurisdiction apply.

§ 20 Changes to these GTC

(1) Amended GTC apply to new orders and renewals from the date of their publication.

(2) For running contracts, changes only apply if you agree to them. Without your consent, changes only apply if they are exclusively in your favour or if we are obliged to make them by a change in the law or a court or official decision; we will inform you of this at least 4 weeks in advance in text form. We do not unilaterally change the service, price or term of a running contract.

§ 21 Invalid provisions

If a provision of these GTC is invalid, the rest of the contract remains valid. The statutory provisions take the place of the invalid provision (§ 306 BGB).