General Terms and Conditions for Bigpoint GmbH (hereinafter Bigpoint)
1 Scope of application
These General Terms and Conditions apply to the games and other services (“Services”) provided by Bigpoint on its Internet portal www.bigpoint.net/games/, Internet sites and in its app stores (“Websites”). These Services include downloading, installing and participating in games, creating a customer account, creating a profile page, participating in blogs and forums, uploading media including photographs, text and games and purchasing virtual items and other Services. The players of Bigpoint games and the users of the Services and Websites are hereinafter referred to as the “User”. In the following general terms and conditions (“Terms and Conditions”), any references to “Games” or “Services” shall relate to the Games and/or Services provided by Bigpoint. The business relationship between Bigpoint and the User shall be based exclusively upon these Terms and Conditions, the Data Protection Policy and the Imprint, both of which constitute an integral part of the Terms and Conditions.
The contractual partner is Bigpoint GmbH. The User’s Terms and Conditions are not considered part of the contract unless Bigpoint approves such Terms and Conditions in writing.
These Terms and Conditions expressly exclude issues arising from the use of the Website and Games with third-party hardware (e.g. PC, Apple, mobiles, tablets, etc.) or software (e.g. Google Play, iTunes, Windows Store) or the User’s Internet connection to access the Services, as these services are not supplied by Bigpoint.
1.1.1 Bigpoint offers its Games and Services to Users exclusively under the terms of § 13 of the German Civil Code (BGB). The use of Bigpoint Games and Services for purposes other than private entertainment, in particular pecuniary or any other commercial purposes, is hereby prohibited.
1.1.2 Only individuals who have reached the age of 18 are entitled to use the full scope of the Games and Services provided by Bigpoint. Users under a certain age who have the express consent of their legal guardian may nonetheless be prohibited from participating in specific Games owing to the age restrictions applied to such.
1.1.3 By registering to use and/or install the Games or Services, Users expressly warrant and declare that (i) they have reached the age of majority and are legally competent and/or (ii) if a minor, they have obtained the express consent of their legal guardian(s).
Furthermore, continued use of the Games and/or Services by minors attaining the age of majority shall signify approval of all the declarations of intent previously made in connection with the User contract unless Bigpoint is notified in writing of such approval being withdrawn within two (2) weeks of the date the minor reaches the age of majority.
1.2 Subject matter of the Contract, use of and changes to the Games and Services
1.2.1 Bigpoint offers its Users the use of the Games and Services provided by Bigpoint subject to the existing technical and commercial capabilities.
1.2.2 Participation in the Games is for entertainment purposes only.
1.2.3 Bigpoint provides certain information on the Websites and enables its Users to upload information to the Internet and create personal profiles, etc., which can be viewed by other Users of Bigpoint Games and Services and by third parties. Furthermore, the User can also communicate with third parties via the Websites, upload and share photos, videos, games, music and other media content, post blogs and comments including rating games, other Users, third parties and transactions.
1.2.4 The Games are Services provided by Bigpoint for the term of the contract comprising the provision of Game software for use in its respective form on the Bigpoint platforms or software of third parties. The use of Bigpoint Games and Services online is made possible through the provision of the relevant applications on the respective URLs by Bigpoint or third parties authorised by Bigpoint. The (licence) acquisition of Game software and/or individual elements is excluded unless stipulated otherwise by a specific provision. Bigpoint also reserves the right to provide or sell its Games on other digital media that may have a range of features that differ from the online versions of such Games. The sale of such Games is not subject to these Terms and Conditions.
1.2.5 The participation in many Games and the use of specific Services is expressly limited to individuals who have created a customer account (hereinafter “Account”) at the time of registration. An Account created with Bigpoint within the scope of the Services enables the User to access any of the Games subject to the conditions stipulated in section 1.1 above. Once an Account has been created, Users may sign into the relevant Website and access any Game or Service.
1.2.6 Users are authorised to create multiple accounts, but certain games operated by Bigpoint permit Users to play with one Account only (“prohibition of multiple Accounts”), and detailed information on this is provided in the Game rules. Bigpoint strongly recommends that all Users with multiple Accounts read the rules for the relevant Game, as a breach of the prohibition of multiple Accounts may result in an immediate suspension of the User.
Furthermore, even in Games that enable Users to have multiple Accounts, communication and any kind of interaction whatsoever between the Accounts of the same User is prohibited (ban on “pushing”). In particular, an Account may not be used to create advantages for another Account held by the same User to, for example, transfer Game items or currency from one Account to another Account of that User, and one Account cannot compete against another Account held by the same User.
1.2.7 The prohibition on pushing applies to the Accounts of different Users. An Account cannot be used to dishonestly gain advantages through the Account of another User through the transfer of Game items or currency, or by deliberately losing a battle (“boosting”).
1.2.8 The use of programs that place an excessive load on the Services are strictly forbidden, and this applies to the use of any software that would influence normal gameplay, in particular programs that systematically or automatically control games or individual game functions (bots, macros, etc.). Any reproduction, analysis or modification of the Games, Game components or content provided within the scope of the Services is also prohibited.
1.2.9 The use of programming bugs and/or errors to achieve personal gain is strictly prohibited. Any identified bugs or errors should be reported immediately via the Support contact form.
1.2.10 The use of the Games and Services using anonymiser services (e.g. proxies) or other processes that conceal the location of the residence or the usual place of residence of the User is prohibited.
1.2.11 The User has no automatic right to open an Account or to publish any content whatsoever within the scope of the Services.
1.2.12 All the latest technical and other Game and participation requirements for the Services provided are contained on the respective Game Websites.
1.2.13 All the Games and Services are regularly updated, adapted, expanded and modified. The User’s right to play the game is limited to the current version of the Game and the Services respectively.
1.2.14 The use of the Games in their respective basic version is free of charge, and certain features are only available to Users for a fee (see section 7 below). Use of the Services is free unless otherwise agreed in the description of the respective Services.
1.2.15 The User has no right to maintain the Games and/or Services in the version existing at the time of the conclusion of the contract. Bigpoint reserves the right to cease operation of individual Bigpoint Games and/or Services at any time without providing the grounds for such. In such event Users may, at their own discretion, request that any fees paid in advance within the scope of continuing obligations that have a time limit (premium memberships, subscriptions, etc.) be credited to other Games and/or Services, or that Bigpoint refund any fees paid in advance. This right does not apply to fees for Services that have been fully rendered within the scope of individual obligations (e.g. individual orders). The User’s right to terminate the contract with immediate effect in the event of Games and/or Services that are unusable remains unaffected. Any further claims made by the User are excluded unless otherwise expressly stipulated in these Terms and Conditions.
2 Offer and conclusion of the contract
2.1 By completing the registration form or downloading and installing a Game, the User enters into a binding contract (hereinafter referred to as the “User Application”). All the fields marked “mandatory” on the registration form must be completed fully and correctly.
2.2 The contract between Bigpoint and the User is considered valid when Bigpoint approves the User Application. Confirmation of the User Application may be explicitly communicated by Bigpoint through the first contractual performance by Bigpoint or by the provision of the Game or Services.
2.3 Insofar as it is necessary to create an Account to use Games or Services, Bigpoint will promptly send a confirmation email acknowledging receipt of the User Application to the email address provided by the User. This acknowledgment of receipt does not represent a binding acceptance of the User Application. The confirmation may also be contained in the declaration of acceptance.
3 Right of withdrawal and sample cancellation form
Right of withdrawal:
Users may withdraw their contractual agreement to use Bigpoint Games and Services and to order Premium Features within a period of fourteen (14) days following the conclusion of such, without providing a reason for the cancellation.
The cancellation period is fixed at 14 days from the date of the conclusion of the contract.
To exercise the right of withdrawal, Users must notify Bigpoint (Bigpoint GmbH, Drehbahn 47-48, 20354 Hamburg, Germany, email: email@example.com) with a clear statement (e.g. with a letter sent via surfacemail, fax or email) of their decision to terminate the contract for the use of the Games and Services or to order Premium Features. The User may use the sample cancellation form provided below, but this is not mandatory. The withdrawal deadline shall be considered as fulfilled if the User sends the email regarding the right of withdrawal within the deadline set for such. For rapid processing, please specify the name of the Game and any Premium Features or Services, including the User’s name and User ID in the email subject line.
Consequences of withdrawal:
Should the User decide to cancel the contract, all payments made by the User to Bigpoint, including any associated delivery/shipping costs (excluding any additional costs incurred by the User by selecting another type of delivery other than the cheapest standard shipping offered by Bigpoint), shall be refunded immediately by Bigpoint, and no later than 14 days after receipt by Bigpoint of the withdrawal notification from the User. Bigpoint shall use the same method of payment to refund the User as that selected for the original transaction unless explicitly agreed otherwise with the User; under no circumstances shall the User be charged fees for such refund.
Withdrawal will not be permitted if digital content is supplied that is not held on a tangible medium if the execution has already commenced with the User’s express prior consent and the acknowledgment that they thereby lose their right of withdrawal.
End of the right of withdrawal
Sample cancellation form
(If you wish to cancel the contract, please complete this form and return it to us.)
- To: Bigpoint GmbH, Drehbahn 47-48, 20354 Hamburg, Germany; email: firstname.lastname@example.org
- I/We(*) hereby declare that I/We(*) withdraw from my/our* contract for the purchase of the following products*/the provision of the following Service (*)
- Ordered on (*)/received on (*)
- Name of the user(s)
- Address of the user(s)
- Signature of the user(s) (for notification on paper only)
(*) Delete as applicable.
Bigpoint guarantees that its Games and Services will be available on average 90% (ninety per cent) of the time throughout the year. This excludes periods during which Bigpoint Website servers, individual Games and/or Services are not available on the Internet due to technical or other problems that are beyond the control of Bigpoint (force majeure, liability of a third party, etc.), and periods when routine maintenance work is carried out. The liability of Bigpoint regarding the unavailability of the Games and/or Services through malicious intent and gross negligence remains unaffected. Bigpoint may restrict access to its Games and Services where necessary for reasons of network security and for the preservation of network integrity, in particular with regard to the prevention of serious failures or disruptions to the network, software or stored data.
5 Access to and acknowledgment of these Terms and Conditions, changes and further notifications, contact by the User
5.1 The User accepts these Terms and Conditions as binding when submitting their User Application and using Bigpoint Games and/or Services. These Terms and Conditions apply to every login within the scope of the Services and to participation in the Games and/or other use of the Services.
5.2 Bigpoint reserves the right to change or amend these Terms and Conditions with regard to future arrangements at any time provided this is deemed necessary and if the User is thereby not disadvantaged in a breach of good faith.
5.3 The User will be notified of the changes made to the Terms and Conditions either on the Websites or by email. Changes to the Terms and Conditions will always be clearly indicated to the User the next time they log in. The amended Terms and Conditions shall be effective immediately provided the User has agreed to such. Furthermore, the conditions as stipulated in section 5.1 shall apply.
5.4 Should the User not agree to the amendments to the Terms and Conditions, both parties may terminate this contract with a notice period of one month, unless a mutual right of termination exists pursuant to section 8.2.1. The original Terms and Conditions will remain in effect until the termination comes into effect. Payments made for Games and/or Services prior to the termination date relating to a time-limited continuing obligation will be reimbursed to the User on a pro rata basis. Any additional claims by the User shall be excluded.
5.5 When notifying Users of the changes, Bigpoint will inform Users of their right to the non-acceptance of such and their right to termination.
5.6 Unless otherwise stipulated in these Terms and Conditions or in other agreements with the User, Bigpoint will generally communicate with the User by email. Users will ensure that they are able to receive all the emails sent by Bigpoint to the address they submitted at the time of registration and subsequently. They will also be responsible for the appropriate settings of the spam filter and for regularly checking all incoming email sent to this email address. For other correspondence, Bigpoint reserves the right to use any form of communication it considers necessary.
5.7 When contacting Bigpoint, the User will state which Games and/or Services and which Game or Service Account the correspondence relates to.
6 Game instructions and Game rules
6.1 The Game instructions and the Game rules of the relevant Games and Services will be published on the Websites of the respective Games or Services.
6.2 Users acknowledge that they play and communicate with numerous other Users in the Game worlds and it is therefore imperative that the rules are upheld by all Users to ensure an enjoyable gameplay experience. When participating, the User accepts the rules and conditions for the participation in the Games and Services as legally binding.
6.3 The User will also refrain from undertaking any activity which could disrupt the normal operation of the Games and/or Services or disrupt the successful gameplay interaction between Users.
7 Fees, payment conditions, late payment
7.1 Basic version
Bigpoint provides Users access to the Games and Services essentially and to the extent necessary, through the creation of a User Account and otherwise after downloading and installing a Game or Service. In this case, the User will initially only access a basic version of the Game. The creation of an Account and the use of the basic version are free of charge. The basic version of the Game can be used indefinitely and with no restrictions in Game function (notwithstanding the right of Bigpoint to terminate the Games). However, the basic version does not allow Users full access to all the Game features.
7.2 Premium features
The User may acquire features for a fee which are not available in the basic version (“Premium Features”) e.g. advanced game functions or additional virtual Game products. No intangible and/or tangible assets are transferred when acquiring Premium Features, and the assignment of such to third parties is prohibited.
Premium Features may vary depending on the Game. Information regarding the cost of the Premium Features offered, the functions included with such and their requirements for use can be viewed on the Website of the respective Game. Depending on the specific Premium Feature and cost, one-time payments may be made to credit a Game with features or items which may be used for certain purposes subject to the relevant Game rules, or payments may be due periodically, i.e. on a daily, weekly, monthly, quarterly, six-monthly or yearly basis. All the charges are gross amounts and include the applicable taxes.
The Games are constantly evolving, and Bigpoint therefore reserves the right to offer new Premium Features at any time. In the course of adapting and developing the Games, Bigpoint also reserves the right to discontinue individual Premium Features with effect for the future and/or to offer them in the basic version (see section 7.1 above). In the latter case, claims from Users for the reimbursement of fees already paid are excluded.
Section 1.2.15 shall apply in the event of a permanent discontinuation of a Game.
If the User is a minor, they shall expressly declare when ordering the Premium Features that they have the means to pay for such Services or that such means were freely available to them.
If payment is made through a mobile-based method of payment, (e.g. Premium SMS, Premium Call, short codes, etc.), the order and payment of the terminal with the mobile application shall be deemed authorised and initiated by the owner on the User’s behalf if the User and the terminal owner are different persons.
If access via downloadable software for mobile phones is available for specific Games, the rules governing Premium Features will also apply to the payment of any costs arising.
7.3 Subscription / automatic renewal
If payments for Premium Features are required for a specific period of time, the User shall register for a subscription or a continuing obligation for such Premium Features that will automatically be renewed if it is not cancelled by the User before the end of the fixed term pursuant to section 8.2 below. The subscription terms are provided in the respective Game rules.
7.4 Payment conditions and due date of payment
Bigpoint is authorised to request advance payment for the use of Premium Features (see section 7.2 above). Such payments will be due upon conclusion of the contract and via the payment method selected by the User, (e.g. bank account, credit card, Premium SMS, etc.). The amount to be collected will be listed on the credit card bill or bank statement against Bigpoint.
Any objections to mobile billing may be raised within eight weeks following receipt of such mobile bill pursuant to § 45 i TKG (German Telecommunications Act).
The calculations forming the basis of the billing shall be considered applicable insofar as there is no indication of manipulation.
7.5 Amendments to charges
7.5.1 Bigpoint reserves the right to reduce costs or to offer new products, services or methods of payment at any time, either on a temporary or permanent basis. In addition, Bigpoint is authorised to increase charges for all Services that do not represent subscriptions (continuing obligations), at any time and with effect for the future.
7.5.2. Charges within the scope of continuing obligations may be modified with a notice period of six weeks either in writing or by email sent to the email address provided by the User. The amended cost will take effect if the User does not object to the modified charge within six weeks. The contractual relationship will continue under the modified conditions and costs. When notifying the User of such changes, Bigpoint will inform the User of their right to object to such, to cancel the Services, the deadline and the legal implications in force if they fail to submit an objection within the period specified. Should the User object within the deadline, both parties reserve the right to terminate this contract with a notice period of one month, unless a mutual right of termination exists under section 8.1. The original tariffs will remain in effect until the termination of the contract. Any fees (payments) made for continuing obligations that extend beyond the termination date will be reimbursed to the User pro rata. Further claims by the User shall be excluded.
7.6 Late payment
In the event of late payment, Bigpoint is authorised to charge interest at the current legal rate prevailing at the time. Bigpoint is also entitled to discontinue the Services and to suspend the User’s Account(s) when payment becomes overdue. No compensation for any current subscriptions shall be made during the Account suspension period.
7.7 Direct debit reversals, cancellation fees
Should Bigpoint incur cancellation fees arising from a fault of the User arising from circumstances for which the User is responsible or owing to cancelled transactions, the User shall bear all the costs associated with such.
Bigpoint reserves the right to demand payment of the costs incurred by repeated attempts to debit the charges from the User’s account in addition to the original charge. Bigpoint also reserves the right to demand an admin fee of up to EUR 5.00 per cancelled transaction The User reserves the right to prove that no damage or a substantially lower level of damage was incurred.
7.8 SEPA procedure
Any direct debit authorisations the User may have granted to Bigpoint up to 1 February 2016 will be/has been converted into a SEPA direct debit authorisation. Bigpoint shall notify Users within five banking days prior to the debit of their account.
7.9 No guarantee of gains or prizes
Bigpoint cannot guarantee any gains or prizes to Users. In particular, Users have no right to claim the payment of a prize unless such claim is explicitly stipulated in these Terms and Conditions.
A claim to the payment of a prize is only permitted if Bigpoint has explicitly offered or advertised such.
Moreover, claims to payments of prizes shall be excluded if Bigpoint learns that a potential claim to a prize may be the result of technical or legal manipulations and/or the result of any other kind of criminal conduct in general. By using Bigpoint Games and Services, Users thereby agree that Bigpoint may conduct a thorough investigation at any time pertaining to the legality of claims for prizes, and may withhold the payment of such from Users without their consent while the claim is under investigation. Claims to prizes will also be forfeited if the User has not complied with the rules of the Game. If a reason to doubt a claim arises, Users must provide sufficient evidence that they acted in accordance with the Game rules. The User acknowledges and explicitly accepts this obligation to provide evidence, even if this is not expressly the case in law.
7.10 No offsetting, right of retention or cession
The User may only offset a claim from Bigpoint for outstanding accounts if their counterclaims cannot be disputed or are legally established. Users may only exercise their counterclaim if such is based on the same contract. The right of Users to assign their claims against Bigpoint to a third party is excluded.
8 Term, termination, blocking of Users
All agreements between the User and Bigpoint are for an indeterminate term unless a specific period has been otherwise stipulated in a specific offer from Bigpoint.
8.2 Ordinary termination
Either party may terminate the contractual agreement with a period of notice and without providing the reasons for such, as follows:
8.2.1 If no limited contractual term has been agreed for a contract, both parties reserve the right to an ordinary termination at any time and with immediate effect.
8.2.2 If a contract for Games or Services for the use/provision of Premium Features has been agreed for a determinate period (see also section 7.2), such contract will automatically be renewed for the same period upon the expiry of the original contract. This shall not apply if the User terminates the contract within a period of 14 days prior to the end of the contractual term.
8.3 Termination on serious grounds
8.3.1 The mutual right of the parties to terminate the contract at any time on serious grounds shall remain unaffected by the above provisions.
8.3.2 If Bigpoint is responsible for the extraordinary termination of the contractual agreement, the User will receive a pro rata refund for any payments made by them for the respective time-limited Services, if applicable, (for time-limited Premium Features in particular) which apply to the period after the termination becomes effective. Further claims of the User shall be excluded unless otherwise specified in these Terms and Conditions.
Bigpoint has the right to terminate the contractual agreement in particular for, but not limited to, the following reasons:
- If the User is late in paying charges of at least EUR 5.00 and has not paid despite having received two reminders.
- If the User knowingly violates any laws Game rules and/or rules governing the use of the Services and does not desist, despite having received a warning. A warning is not required in the event of a serious offence where it would be unreasonable to expect Bigpoint to remain bound by the contract.
- If the User has not used their Account for a period of four weeks despite having received a reminder from Bigpoint.
Cases in which it would be unreasonable to expect Bigpoint to remain bound by the contractual agreement generally include the following:
- If the User violates criminal law.
- If the User violates the prohibition of multiple Accounts which may be stipulated in the respective Game rules (see section 1.2 above).
- If the User violates the prohibition of pushing (see section 1.2 above).
- If the User violates the prohibition of non-authorised scripts and/or the prohibition on the systematic or automatic control of Games and/or the prohibition on reproduction, analysis of or modification to the Games, the Game elements or the content within the scope of the Services (see section 1.2 above).
- If the User violates the prohibition on exploiting programming errors (bugs) (see section 1.2)
- If the User violates the prohibition on the use of anonymiser services (see section 1.2)
- If the User deliberately provides false information when registering (registration form for a User application, see section 2 above) or when paying for Premium Features (see section 7.1).
Should Bigpoint be justified in terminating the contractual agreement on serious grounds, Bigpoint is entitled to claim the corresponding damages from the User.
8.4 Blocking of the User
Notwithstanding the right of termination, Bigpoint is entitled to temporarily block the User’s access to the Services should any suspicion arise of an abuse of the Games or Services provided by Bigpoint (in particular a violation of the prohibitions in section 1.2 and or any other unauthorised manipulation) and/or with respect to the User’s conduct that would entitle Bigpoint to an extraordinary termination in accordance with section 8.3.
Bigpoint cannot be held responsible for any scores or achievements obtained and, should the player be blocked, shall not be liable for any tangible and/or intangible damages owing to the loss of opportunity to participate during the period of the suspension.
9 Responsibilities and other obligations of the User, liability for information uploaded by the User, copyright
The primary obligation of the User is to pay all applicable charges, unless they are using the free basic version of the Game and/or Services (see section 7 above). In addition, the primary obligation of the User is also to comply with all the applicable Game rules and provide accurate and complete information required by Bigpoint when concluding this agreement and during the term thereof. Users therefore declare that all the information relating to their person or other facts relevant to the contract (in particular bank and credit card details) and which Users state on the User application form or during the contractual agreement are, to the best of their knowledge, complete and correct. The User shall notify Bigpoint immediately of any changes to this information, and shall confirm the data following a corresponding request from Bigpoint. In the event of a repeated violation of the rules, despite warnings to this effect, or a serious breach in accordance with section 8.3, Bigpoint reserves the right to suspend all the contractual Services and deliveries immediately and without warning and to terminate the contract.
9.2 Installation of software
Bigpoint shall not be liable for any damages or loss of data arising from the installation of hardware or software that has not been provided by Bigpoint and which the User has used on their computer, mobile phone or other (mobile) terminal (“Terminal”) to access the Games and Services.
9.3 Further obligations of the User
9.3.1 Bigpoint may sometimes provide the Games or Services online. Bigpoint neither provides nor installs any of the software required locally on the User’s Terminal (in particular operating systems, web browsers and plug-ins, including Flash or Java). Bigpoint can provide no support for such software. The User shall be responsible for maintaining the Terminal in a state which enables the use of Bigpoint Games and Services, and Bigpoint cannot provide technical support for the installation of any software required locally.
9.3.2 The User shall treat all non-public Account and access data (login, passwords, AccountID, etc.) in a strictly confidential manner with respect to third parties. The obligation of confidentiality also applies to friends, acquaintances, family members and other players (e.g. clan members) or other Users of the Services. Users will immediately notify Bigpoint if they learn or suspect that an unauthorised third party has accessed such access data. Bigpoint advises Users to use the contact form to do this for evidence reasons. Should a third party use an Account after obtaining the User’s access data because the User failed to take sufficient protective measures against unauthorised access, Users must assume the same liability for such misuse as if they themselves actually performed such action owing to the risk and uncertainty caused regarding who manipulated the Account and who will be liable in the event of a contractual or legal infringement of said Account. Bigpoint reserves the right to consider all input into an Account using the User’s access data as input carried out by the authorised User. Bigpoint recommends Users to change their passwords regularly as a security measure. Users are solely responsible for the access to and use of their Account.
9.3.3 Should Bigpoint have justifiable grounds to suspect that an unauthorised third party is unlawfully in possession of a non-public Account or access data, Bigpoint may, but is not required to do so, and at its own discretion, change the account access data without prior notice, or suspend the respective Account as a security measure. Bigpoint will promptly inform the authorised User and will, upon request, promptly communicate the new access data to such User. The User has no right to request Bigpoint to restore the original access data.
9.3.4 The User is neither entitled to sell their complete Account nor any individual Game items, Premium Features or Game functions to a third party, or to transfer such in any other way. This shall not apply to the sale or transfer of offers or products created and provided by Bigpoint for this purpose.
9.3.5 Although Bigpoint protects its systems against viruses, virus infections can never be completely eliminated. In addition, unauthorised third parties may also send emails using Bigpoint’s name but without the consent of Bigpoint, and such emails may contain viruses, spyware or links to web content which may also contain viruses or spyware. Bigpoint has no influence over such occurrences. The User agrees to check all incoming emails sent or supposedly sent by or in the name of Bigpoint for potential viruses. The also applies to emails from other Users of the Games or Services.
9.3.6 The User agrees to adhere to the instructions of Bigpoint, its employees, assignees and vicarious agents, including specifically, but not limited to administrators and moderators of forums for a specific Game and/or Service.
9.3.7 The User agrees that they shall not, under any circumstances, use the Account, login name or password of another User.
9.4 The User’s obligations regarding information submitted
9.4.1 Users shall exercise due care when selecting the information they make available to other Users when uploading such within the scope of the Services.
9.4.2 The User shall not use the Services to spread any content (e.g. images, videos, links, names, words) that contains promotional, political, religious, insulting, offensive, violent, sexist, pornographic or other immoral or objectionable material, in particular racist, politically extreme left- or right-wing content, persons or depictions. In addition, the User agrees not to use any copyrighted or otherwise legally protected terms, names, images, videos, music, games or other material. If in doubt, the User shall promptly remove any content contested by Bigpoint. Bigpoint is also entitled to remove such questionable content itself. The User undertakes to respect any applicable laws and regulations at all times, especially with regard to youth protection, data privacy, protection of personal rights, protection against slander and defamation, copyright laws and trademarks.
9.4.3 The User is not authorised to use the Services for illegal or unauthorised purposes. In particular, Users are strictly prohibited from using the usernames or email addresses of other Users to send unsolicited emails, promotional messages or for any other commercial exploitation without their express prior consent.
9.4.4 Bigpoint reserves the right to delete any content submitted by the User that is in culpable violation of the above rules and regulations.
9.4.5 Bigpoint is in particular entitled to delete any information submitted by the User in whole or in part should concrete evidence arise of a breach of these Terms and Conditions, the instructions and rules of the respective Services, or which is otherwise illegal. In the case of information, this includes:
- Information which is obviously offensive, racist, fanatical or which glorifies violence;
- Information which is of a harassing, insulting, threatening, obscene, defamatory nature or which is libellous to other persons;
- Information which is sexist, pornographic or otherwise harmful to minors or which contains links to websites unsuitable for minors;
- Information which is false or misleading and/or which is intended to promote illegal activities;
- Illegal or unauthorised copies or the distribution of works protected by copyright, for example by providing illegal computer programs or links to illegal computer programs, information on how to bypass copy protection measures, illegal copies of music, links to illegal copies of music or other copyright infringements;
- The sending of junk mails, “chain letters” and/or unsolicited mass emails, instant messages, spimming and spamming;
- Restricted sites or images that are hidden or password-protected;
- Information promoting or endorsing criminal activities or providing instructions for committing criminal activities including, but not limited to, the production or purchase of arms, child pornography, fraud, drug trafficking, gambling, stalking, spamming, spimming, distribution of computer viruses and other harmful files, copyright infringement, patent infringement and/or theft of trade secrets;
- Information soliciting other Users to disclose personal information for commercial or illegal purposes, or inducing them to disclose login data;
- Information promoting commercial or sales activities, such as contests, raffles, swapping offers, classified ads and/or pyramid schemes;
- Information containing image(s) of other persons without their express consent.
9.4.6 The User is not entitled to request Bigpoint to restore such deleted information.
Moreover, Bigpoint is also entitled to exclude the User from further participation in the respective Services and, in the case of repeated infringements of the aforementioned prohibitions despite written notice, to terminate the User’s Account without prior warning. Bigpoint reserves the right to make any further necessary and additional claims, particularly the entitlement to damages.
9.4.7 Users will inform Bigpoint if they become aware of an abuse of the Services by other Users or third parties (e.g. the dissemination and sending of content that is prohibited under section 9.4.5.). Bigpoint requests that such information be provided in writing (e.g. email) to ensure that effective measures can be taken.
9.5 The User’s liability regarding information submitted
9.5.1 Users are solely responsible for any text, files, images, photographs, videos, sounds, music, copyrighted or other material, information etc. (“Uploaded Information”) which they upload within the scope of the Services or share with other Users. Bigpoint neither condones nor approves such Information.
9.5.2 Bigpoint has no control over the Uploaded Information within the scope of the Services. Bigpoint does not evaluate the Uploaded Information before it is made public, but reserves the right to review and evaluate all the Uploaded Information for breaches against these Terms and Conditions and/or game rules. If Bigpoint learns that specific Uploaded Information is illegal, it will delete such immediately.
9.5.3 Any liability on the part of Bigpoint for Uploaded Information, in particular the accuracy, completeness and reliability of content, material or information is excluded.
9.6.1 The User retains all the rights to the Uploaded Information. By posting information on the Websites and within the scope of other Services, the User grants Bigpoint a non-exclusive, free of charge licence, revocable at any time if such content is removed, to make the content available to the public within the Scope of the Services and to edit (format, size, etc.), publicly offer, display, reproduce and distribute such content for the purposes of adapting it to the requirements of the Services.
9.6.2 Furthermore, Bigpoint has no right of use to the Uploaded Information provided by the user and Bigpoint is not authorised to use or distribute Uploaded Information outside the scope of the Services.
9.6.3 The User acknowledges and accepts that any Uploaded Information within the scope of the Services may be accessed globally through the Internet. Users also declare that they agree to these conditions when submitting any information.
9.6.4 This licence shall become invalid when the User deletes any content from the Services.
10 Claims for defects
10.1 Bigpoint grants the User access to the Games and Services in their current version only (section 1.2). Users have no right to demand the maintenance or restoration of a specific version or range of functions of the Games and Services and/or a score. When purchasing Premium Features, the User is granted all the statutory and contractual rights. The User acknowledges and agrees that, similar to any other software, the Games and Services provided by Bigpoint can never be totally free of errors. The Games and Services can only therefore be considered defective if their playability or usability is severely compromised and over a prolonged period of time.
Users shall document any faults regarding the Games and Services and/or other services or products supplied by Bigpoint, and will provide a full written report of the error messages displayed. Before reporting potential bugs, Users must consult the instructions for the Games and Services and any other troubleshooting tools provided by Bigpoint (in particular FAQ lists and discussion forums for problems). Users will use their best endeavours to support Bigpoint in its attempts to remove the bug or defect from the relevant Game or Service.
10.2 Users will immediately notify Bigpoint of any faults upon detection of such. For the purposes of evidence, it is advisable to submit such reports in writing (by fax, letter or the Support contact form) to Bigpoint.
10.3 Excluded from any warranty shall be defects and errors caused by external influences, faulty handling by the User, force majeure or any changes or manipulations that are not carried out by Bigpoint.
10.4 Bigpoint can assume no liability for legal guarantees.
11 Liability and limitation of liability
11.1 Users shall be directly and immediately liable to third parties for violating any of their rights. The User shall indemnify and hold Bigpoint harmless from any damage caused by the User’s failure to observe these Terms and Conditions. The User shall indemnify and hold Bigpoint harmless from any claims by third parties against Bigpoint for violations of their rights arising from content posted by the User or due to an infringement of other obligations. Users shall also be liable for any costs incurred by Bigpoint for legal defence, including court costs and legal fees. This shall not apply if the User is not liable for such infringement.
11.2 Insofar as Bigpoint offers Services free of charge, Bigpoint shall assume no liability for any damages other than malicious damage or damage arising from gross negligence. This does not apply however to liability for injury to life, bodily injury, damage to health or in the event of the provision of a guarantee by Bigpoint.
11.3 Insofar as Bigpoint provides Services for a fee, Bigpoint shall assume unlimited liability for malicious intent and gross negligence. In the event of minor negligence, Bigpoint shall only be liable for breaches of material contractual obligations or breaches of a guarantee. Material contractual obligations include those that enable the contract to be properly executed and on the performance of which the User can rely. The above limitations of liability do not apply to injury to life, bodily injury, damage to health or in the event of the provision of a guarantee by Bigpoint. Bigpoint’s liability under product liability legislation shall remain unaffected.
11.4 The obligation to pay damages shall be limited to foreseeable damages arising from a violation of material contractual obligations.
11.5 Foreseeable damages shall be limited to €200.00 per Account.
11.6 The above exclusions or limitations of liability shall also apply to the liability of the personnel, workers, employees, representatives and agents of Bigpoint, especially regarding the personal liability of shareholders, workers, representatives, company bodies and their members.
11.7 Bigpoint shall only be liable for any advice or responses provided that relate to queries regarding the content of the products supplied by us.
11.8 Bigpoint expressly disassociates itself from the content of any sites to which direct or indirect references, “links”, exist from within the Services offered by Bigpoint. Bigpoint shall assume no responsibility whatsoever for such content or sites, and the relevant operators shall be exclusively liable for any content provided on such.
12 Final Clauses
12.1 Any notifications and declarations made to Bigpoint by the user must be made in writing, and this shall also apply to the amendment or cancellation of the requirement of the written form.
12.2 The legal place of jurisdiction is Hamburg, Germany.
12.3 The law of the Federal Republic of Germany shall apply (i) to these Terms and Conditions, including any future amendments, (ii) to any contracts concluded based on these Terms and Conditions and (iii) to any further claims of any kind arising thereof, to the exclusion of the provisions pertaining to the UN Convention on contracts for the international sale of goods and to the exclusion of German International Private Law.
12.4 Should any provisions of these Terms and Conditions be or become invalid, the validity of the other provisions shall remain unaffected.
HTC Reg. HRB-Hamburg 94148
VAT ID No.: DE813 602 704
CEO: Wanqin Liu