General Terms and Conditions of XYRALITY Gmb

 

Section 1: Scope, Essential Characteristics of the Services Offered 

  1. XYRALITY GmbH (hereinafter also referred to as XYRALITY) offers a variety of games for use, especially online games and those which may be played on mobile terminals, plus other offerings and services. The games and their contents as well as the software required to run the games on the users end-device are by no means delivered as physical objects. The games their contents as well as the software required to run the games on the user’s end-device are exclusively digital contents that are not located on a physical data storage device. This also applies if virtual objects are offered, purchased and delivered in the games. XYRALITY GmbH provides these services to the users of these games solely on the basis of these Terms and Conditions.
  2. The above services are primarily used by means of computers or Smartphones on the internet, via phones, ISDN, DSL, mobile communications, UMTS, or any other equivalent connection. Moreover, they can also be used via other various internet- enabled terminals; however, the scope of functions and/or the representation may be restricted thereby. The subject matter of these Terms and Conditions are not the possible questions which may be present regarding the cession of the connections as well as the access of the websites, of the online games and of the third-party software (browsers, access software), because these services are not provided by XYRALITY GmbH.

Section 2: Consumers

  1. XYRALITY GmbH offers its games and other services only to consumers in the sense of section 13 of the German Civil Code (BGB). The utilization of the games and services of XYRALITY GmbH for profit-making purposes or other commercial purposes is excluded.
  2. Persons entitled to the use are those who have reached the age of 18 by the date of the registration for utilization or those whose legal representatives have given their consent to the utilization. The rules of individual games might stipulate that persons who have not reached a specified age may not participate even if their legal representatives have given their consent.
  3. With the registration for the use of the games and/or services, the user explicitly assures (i) they are of legal age and legal competence or (ii) the existence of the consent of the legal representative for minors, resp.

Section 3: Subject Matter, Usage and Modification of the Games and Services 

  1. XYRALITY GmbH allows its users to participate in the games and use the services offered by them on the internet, on Smartphones or other platforms within the existing technical and operational bounds.
  2. The games may be used for entertainment purposes only.
  3. The games and services contain certain information provided by XYRALITY GmbH and the users are allowed to store information and personal profiles which may be viewed by other users of the games and services or by third parties. Furthermore, the user of the games and services may exchange with and communicate information to third parties.
  4. The use is facilitated by the provision of the applications by XYRALITY GmbH on the respective URLs of the games and services or by the provision of software as a download for different technical terminals on different portals for free or against payment. From case to case or even generally, XYRALITY will not itself provide or offer some or all games in whole or individual applications (client software or applications) required to run the games on the user’s end-device or virtual objects offered inside the games for free or for payment as digital contents. The user in these cases will be referred by XYRALITY to the respective websites and/or webshops or app stores of the respective contracting partner of XYRALITY (hereafter also called third-party providers) or re-routed by XYRALITY to the websites and/or webshops or app stores of the respective third-party provider, on which the aforementioned content is provided or offered for free or for payment.
  5. The use of the games and services is only available to persons who opened up a customer account (hereinafter referred to as Account) by becoming registered users. An Account may be created in a game or service of XYRALITY GmbH.
  6. A user may become registered by filling in a form and providing the information requested therein and/or by starting an application on a Smartphone or computer. The games may be used once XYRALITY GmbH has created an Account for the user.
  7. The games of XYRALITY GmbH contain elements of interactive actions of players with each other. In order to ensure a fair competition among the players, the following actions are prohibited:
    1. Use of multi-accounts:A game may consist of several game worlds separated from each other. The users may not create more than one Account in one game world.
    2. Use of tools, scripts, bots or other computer programs:Users are not allowed to use tools, scripts, bots or other computer programs which are suitable for the automatic execution of actions in a game. XYRALITY GmbH games must only be used by the respective players themselves.
    3. Use of errors for one’s own advantage:It is not allowed to use bugs and/or programming errors for one’s own purposes.
  8. XYRALITY GmbH online games and services are updated and adapted on an ongoing basis. The user is only allowed to use the latest version of the respective game or other service on offer.
  9. The user cannot claim the right to create an Account.
  10. The user cannot claim the right to publish their profile or messages in the internet forums, chats or in the games by XYRALITY GmbH.
  11. The user cannot make a claim to the right to have the games and/or services maintained in the version which already existed when the contract was concluded. XYRALITY GmbH reserves the right to discontinue the operation of a game and/or service at any time without giving any reasons whatsoever..

Section 4: Game and Service User Contract – Contract Offer and Conclusion of a Contract

  1. Upon filling in the registration form, the user makes a binding offer for the conclusion of a game and service user contract (also “user’s application”). For this purpose, all of the data boxes on the registration form which are marked as mandatory must be filled in completely and correctly.
  2. The contract between XYRALITY GmbH and the user will be concluded with the acceptance of the user’s application by XYRALITY GmbH. The acceptance can be made by XYRALITY GmbH either expressly or through the first performance action.

Section 5: Revocation clause

Right of Revocation

You have the right to revoke this contract within fourteen days without stating any grounds. The revocation period is fourteen days from the day on which the contract is concluded. To exercise your right of revocation, you must inform us

XYRALITY GmbH
Friedensallee 290
22763 Hamburg
Tel.: +49 (0) 40 – 35 73 001 – 0
Fax: +49 (0) 40 – 35 73 001 – 99
E-Mail: widerruf@xyrality.com

by means of a clear statement (e.g. a letter sent by post, telefax or e-mail) of your decision to revoke the contract. You can use the enclosed sample revocation form to do this but that is not required.
To meet the deadline for the revocation period, it is sufficient that you send the communication of your exercise of the right of revocation prior to the expiration of the revocation period.

Consequences of Revocation

If you revoke this contract, we must repay you all payments that we have received from you without delay and within fourteen days of the date on which the communication of your revocation reaches us; these include the delivery costs (with the exception of any additional costs that result from your requesting that you selected a different mode of delivery from the inexpensive standard delivery that we offer). We will use the same means of payment for this repayment as you used in the original transaction unless something else was expressly arranged with you; in no case will you be credited for any fees from this repayment.

If you have demanded that the services you ordered should begin during the revocation period, you must pay us a pro-rata fee that corresponds to the proportion of those services received through the date on which you inform us of the exercise of your right of revocation with respect to this contract as compared to the entire scope of services provided for in this contract.

End of revocation clause

Section 6: Premium Features – Contract Offer and Conclusion of the Contract 

  1. The user can enable Premium Items or Features (in the following just called Premium Items or Premium Features) against payment of remuneration. These Premium Features or Functions exclusively digital content not stored on a physical data storage device. Various Premium Items or Features may be offered for the individual games. Information on the types and charges of the Premium Features offered, on the functions and the requirements of such features can be found on the website of the respective game world. This may be, depending on the relevant Premium Item or Feature and charge, a single payment, the recharge of a credit which may be used in the respective game according to the relevant rules for certain functions, or payments which are to be made for a certain period of time (for example day, week, month, quarter of a year, half-year, year). Payments will be made using legal means of payment. XYRALITY GmbH can use the services of third parties to carry out the payment process.
    We hereby expressly state again that the Premium Features involve services and offerings that allow the user to continue to use the game in a modified manner, rather than deliverables or delivered items provided.
    Separate contracts between XYRALITY GmbH and the user or between third parties (e.g. App Store) and the user will be concluded for every purchase of Premium Items. Should the user contract third parties to acquire Premium Items, XYRALITY GmbH shall only guarantee the game features for a particular Premium Item defined in the rules of the game if the acquisition of these Premium Items through the relevant third parties is expressly offered by XYRALITY GmbH.
    The contract for the purchase of a Premium Item shall only be deemed fulfilled by XYRALITY GmbH and/or by the third party when the respective Premium Item is delivered in the quantity ordered and in the manner provided for in the respective game.
  2. The games are continuously developed. XYRALITY GmbH therefore reserves the right to introduce new Premium Items or Features at any point in time. XYRALITY GmbH also reserves the right to discontinue any Premium Features and/or to offer them as part of the free version in the course of the adaptation and development of the games. If the user has already made payments for a future period of time for Premium Items or Functions which are no longer available to him/her, because they are not offered anymore and/or are available as part of the free version, XYRALITY GmbH will instead, at the choice of the user, offer other Premium Items or Functions alternatively and/or reimburse the amount paid to the user on a pro rata temporis basis. In this case, the user is entitled to terminate the contract with immediate effect. Further claims of the user are excluded.
  3. If payments for Premium Features are to be made at regular intervals, the user effectively enters into a subscription for these Premium Features that will automatically be renewed if it is not cancelled by the user before the end of the set time limit. The subscription terms are described in the rules for and the description of the respective game.
  4. XYRALITY GmbH is authorized to ask for advance payment for the use of Premium Items and Features.
  5. In case of arrears, XYRALITY GmbH is entitled to claim interest of 5% above the respective prime rate. XYRALITY GmbH is entitled to discontinue the services and to suspend the user’s Account(s) if payment is overdue.
  6. If XYRALITY GmbH incurs cancellation fees due to the fault of the user, an inadequate account balance or a lack of funds to cover the charges, the user shall be responsible for the costs thus incurred.
  7. The user may only offset claims by XYRALITY GmbH with undisputed or legally valid claims of his own. The user can only withhold payment if their counterclaim is related to the same Terms & Conditions. The right of the user to assign his/her claims to a third party is invalid.

Section 7: Term, Resolutory Condition, Termination

  1. The contracts between the user and XYRALITY GmbH are concluded for an indefinite period of time if the specific offer does not stipulate otherwise. If no limited period of time has been agreed upon for a specific offer, both parties may terminate the contractual agreement in a due and orderly manner at the end of the calendar month following the date of the termination notice. This applies to the benefit of XYRALITY GmbH when the operation of a game is discontinued.
    If the user does not use the Account opened with XYRALITY GmbH over a consecutive period of 36 months, the underlying contract (Game and Service Use Contract as designated in section 4), the contract shall be dissolved upon the last day of the 36th month without notice of termination being required. The user will be notified of the successful resolution of the contract via the e-mail most recently indicated to XYRALITY GmbH. Within 14 days, the user may request that XYRALITY GmbH transfer the respective account balance of the available Premium Items or Features to another Account of the same user upon termination of the contract within the meaning of section 6, paragraph 1.
  2. The contracts for the acquisition of Premium Items can no longer be terminated from the moment that the contract obligations have been completely fulfilled by the parties (upon payment of the fee and making the relevant Premium Item/s available to the user in the quantity ordered).
  3. In the case of a subscription, the contractual relationship is extended automatically, unless the contract has been terminated by the user at least 14 days prior to the end of the contract period. This provision shall only apply if the contract has been terminated by the user at least 14 days prior to the end of the term.
  4. There is no need to state reasons in the case of orderly termination.
  5. The right of the parties to terminate the user contract with immediate effect for good cause remains unaffected by the above provisions during the term of the contract.
    XYRALITY GmbH is entitled to terminate the contractual agreement especially for, but not limited to, the following reasons:
  • The use of multi-accounts in one game world (cf. section 3.7.A)
  • The use of automated tools and scripts (cf. section 3.7.B)
  • The use of errors for one’s own advantage (cf. section 3.7.C)
  • The user deliberately providing false information upon registration or while completing payment of Premium Features
  • The user is late in paying fees and has not paid despite having received two
    reminders
  • The user knowingly violates any law or the rules of the Games and Services, and
    does not discontinue his/her actions despite having received a warning. A warning is not required in the case of a severe offense where it would be unreasonable to expect XYRALITY GmbH to remain bound by the contract
  • The user violates criminal law
  • The user exploits the game or the services for profit-making purposes
  • The user uses any other person’s player Account against their will.
  • In the event that XYRALITY GmbH correctly terminates the contractual agreement for good reason with immediate effect, XYRALITY GmbH is entitled to charge the amount of 75 per cent of all fees which the user would have had to pay for the rest of the term had the user terminated the contract of their own volition within the set time limit as governed by the contractual agreement (in particular for the Premium Features which were already ordered). The user’s right to prove that no damage occurred or that a substantially lower level of damage was caused due to the termination remains unaffected.
  • If there is no option for terminating the contract in the respective Games, the termination must be submitted in written form, e-mail is considered to be in compliance with the requirement of written form.
    The extraordinary termination shall always be in writing giving the reasons for termination.

Section 8: Special Conditions for the Use of Ways of Communication (in Particular Discussion Forums, Chats, Comment Functions) on the Websites of XYRALITY GmbH and Within the Games Offered by XYRALITY GmbH

  1. XYRALITY GmbH may provide different ways of communication to the user (particularly discussion forums, chats, blogs, guest books, comment functions and the like) for individual contents and articles on the XYRALITY GmbH websites, which may be utilized by the user as far as they are actually available. For this purpose XYRALITY GmbH only provides the technical prerequisites for the exchange of information. However, claims towards the provision of such ways of communication will not be entertained.
  2. The user assumes sole responsibility for the content or information published by him/her and undertakes to completely indemnify XYRALITY GmbH from all third- party claims. We therefore expressly disclaim any responsibility for the contents uploaded by the users. The user, however, grants the permanent, irrevocable and non- exclusive right to XYRALITY GmbH to make use of the contents and information uploaded by him. We would like to point out that XYRALITY GmbH does not actively monitor the contents uploaded. However, random checks are carried out. Moreover, every user has the possibility to inform XYRALITY GmbH about contents which may be of illegal nature. XYRALITY GmbH will then react as quickly as possible, edit the registered contents or delete them as necessary.
  3. The user shall not publish or distribute content on the XYRALITY GmbH websites and particularly by means of the ways of communication provided there, which:
    1. violate applicable law and are illegal or immoral
    2. violate brands, patents, utility models and design patents, copyrights, business secrets or other rights of third parties
    3. are of an obscene or racist nature, glorify violence, are pornographic, morally damaging juveniles or endanger or disturb the development of children and young persons in any other way
    4. are of offensive, harassing or libellous nature
    5. contain chain letters or pyramid schemes
    6.  create the false impression to be provided or supported by XYRALITY GmbH
    7. contain personal data of third parties without their express consent
    8.  are of a commercial or particularly of an advertising nature.
  4. It is only admissible to mention websites, companies or product names if the main purpose is not advertising.
  5. All users of the ways of communication provided on the XYRALITY GmbH websites and in the games shall undertake to use appropriate language. Abusive criticism or offense against persons which are of a disparaging nature shall not be permitted.
  6. Regardless of the other rights according to these terms of use, XYRALITY GmbH is entitled to modify or to delete contents and information in whole or in part which violate these rules and regulations. In addition, XYRALITY GmbH is entitled to exclude the offending users completely or temporarily from continued use of the online games, XYRALITY GmbH websites, or other services and offerings.

Section 9: Consequences From a Breach of Duty

  1. XYRALITY GmbH may not be held liable for damages resulting from a breach of duty which lies within the responsibility of a user.
  2. Regardless of all other statutory or contractual rights, XYRALITY GmbH may on their own discretion take the following measures if a user culpably violates legal provisions, third-party rights, these terms of use or the respective applicable supplementary terms and rules of the game:
    1. Change or delete contents
    2. Send a warning to a user
    3. Publish an inappropriate behaviour in the online game concerned mentioning the username
    4. Temporarily or permanently suspend a user from individual or all online games and contents of the XYRALITY websites
    5. Exclusion of a user
    6. Warn of a temporary or permanent virtual ban in case of violations of section 8 or
    7. Terminate the user’s contract without notice.
  3. If a user has been suspended or excluded, he/she is not allowed to register again without the prior consent of XYRALITY GmbH. The user may not claim the right to the cancellation of a suspension, of an exclusion, of a virtual ban, or of other measures.

Section 10: Limitation of Liability

  1. The user shall be personally and directly liable where he/she is responsible for a breach of third-party rights. The user shall undertake to reimburse all damages to XYRALITY GmbH, which result from the non-compliance with the duties arising from these terms of use. The user shall indemnify XYRALITY GmbH from all claims asserted by other users or any other third parties against XYRALITY GmbH based on violations of their rights by content published by the user or due to the violation of other duties. The indemnity claim shall also include the necessary legal defence costs incurred by XYRALITY GmbH, including all court and attorney fees. This does not apply if the user is not responsible for the violation of the right.
  2. The liability of XYRALITY GmbH, regardless of the legal basis, whether for contractual breach of duty or for inadmissible action, is finally determined according to the following regulations:
    1. As far as XYRALITY GmbH provides the service which results in liability free of charge, XYRALITY GmbH is only liable is case of intent or gross negligence.
    2. For services subject to payment and personal injury, XYRALITY GmbH has unlimited liability in case of intent or gross negligence and XYRALITY GmbH is liable without limitation in the case of personal injury. However, in the case of slight negligence, XYRALITY GmbH is only liable for the violation of essential contractual obligations, default within the control of XYRALITY GmbH or impossibility. Liability for the violation of essential contractual obligations is limited to the amount of damages typical for this type of contract which XYRALITY GmbH could reasonably expect upon conclusion of the contract based on the circumstances known at that point in time. In terms of this provision, “essential contractual obligations” are obligations required to make the proper fulfilment of the contract and the achievement of its purpose possible in the first place so that the user can therefore trust that they will be met.
    3. XYRALITY GmbH is not liable for disruptions within the network that are beyond the control of XYRALITY GmbH.
    4. XYRALITY GmbH may only be held liable for the loss of data according to the aforementioned paragraphs if such a loss would not have been avoidable by means of appropriate data saving measures by the user.
  3. The preceding limitations of liability do not apply in the case of express guarantees issued by XYRALITY GmbH, in the case of malice, in the case of damages for the loss of life, personal injury or the impairment of health or in the case of mandatory contrary legal regulations.

Section 11: Data Protection

  1. XYRALITY GmbH collects, processes and uses personal data of the user only to the extent the user has agreed or as required or permitted by the German Federal Data Protection Act (BDSG), the German Telemedia Act (TMG), or other applicable legal regulations.
  2. Additional information is available in the XYRALITY GmbH data privacy statement.

Section 12: Apple App Store Supplementary Regulations for Software and Data Available through the App Store of Apple Inc. 

The terms and regulations of this section are applicable in addition to the terms of license and warranty as well as the Privacy Policy of XYRALITY GmbH for software which has been made available to you via the App Store of Apple Inc. (“Apple”).

  1. Subject to the Terms and Conditions of XYRALITY GmbH which is a part of the Game and Service Use Contract, the user acknowledges that Apple is involved in the aforementioned case as a third party to the relevant agreement (with regard to the acquisition of software and data from Apple), and is therefore entitled to assert the above-mentioned claims in its own name vis-à-vis the user.
  2. The license for this software is non-transferable and the use of the software is only allowed on an iPhone, iPod touch or iPad which is your property. The license to use the software or data acquired from Apple allows the user to use this software or data to the extent allowed by the Terms of Use of Apple acknowledged by the user.
  3. Claims regarding the manufacture or maintenance of the guaranteed product features or functions can be asserted against XYRALITY GmbH only. Moreover, the relationship between the user and XYRALITY GmbH is subject to the provisions of section 6, paragraph 1 of these Terms and Conditions with respect to the software or data acquired from Apple.
  4. If the user in a particular case has claims against Apple directly, these claims shall be limited to the refund of the purchase price.
  5. Apple has no obligation towards the user to perform maintenance or support services in connection with the software or the related data. Apple shall not be held liable towards the user with regard to any claims in connection with the software concerning the product liability, the non-compliance with statutory provisions, consumer protection or similar legal regulations or violation of intellectual property.
  6. Apple will also not be held liable in cases in which the Apple Software or related data or their use infringe the copyright or other third-party rights.
  7. Upon request, the user will confirm in good faith that he/she i) is not resident in any U.S. embargoed or terrorism-supporting countries, ii) is not subject to any restrictions imposed by the U.S. Government.

Section 13: Final Provisions

  1. Notifications and declarations made by the user towards XYRALITY GmbH shall be made in writing as well as the amendment or annulment of the written form requirement. This will only apply, unless otherwise specified or agreed upon in particular cases.
  2. The place of performance is the city of Hamburg (Germany). If the user moves his domicile or his permanent place of residence out of the reach of the code of civil procedure of the Federal Republic of Germany after signing the contract, the legal venue shall be the city of Hamburg (Germany). This also applies if the residence or usual domicile of the consumer is not known at the time of filing an action.
  3. The law of the Federal Republic of Germany is only applicable to the contracts concluded by XYRALITY GmbH on the basis of these General Terms and Conditions and for claims of any kind resulting from the latter; the provisions of the United Nations Convention on Contracts for the International Sale of Goods and the German law of conflicts are excluded.
  4. Should provisions of these General Terms and Conditions and/or the contract be or become invalid, the validity of the remaining provisions shall remain unaffected.

Hamburg, 13.06.2014

XYRALITY GmbH 

Friedensallee 290 

22763 Hamburg

Tel.: +49-40 – 35 73 001 – 0 

Fax: +49-40 – 35 73 001 – 99

Managing director: Sven Ossenbrüggen

Commercial Register Hamburg HRB 115332

Sales tax identification number (UstId): DE 274 189 349