BBG Entertainment GmbH, Cuvilliéstr. 14, 81679 Munich, Germany, (hereinafter referred to as “BBG”) offers the Internet-based online game “Einstein Brain Trainer” (hereinafter referred to as “Game”) as well as associated additional services to this Game (e.g. performance rankings). Hereinafter the expressions “Game” includes also all additional services to this Game, unless the context indicates otherwise. The users of the Game are hereinafter referred to as “User” or “Users”.
§ 1 Scope
1. BBG provides all services and additional services, associated with the offered Game exclusively according to these Terms of Service (hereinafter referred to as “TOS”).
3. Rules and requirements for participation in the Game are published on its homepage and/or within the Game. With his participation in the Game the User also accepts these rules and requirements as binding.
4. Matters relating to services provided by third parties (for example internet service providers or mobile carriers) are not affected by these TOS.
§ 2 Description of the offered service
1. BBG offers the Users the possibility to participate in the offered Game within the framework of the existing technical and operational possibilities.
2. In order to play the Game the Users have to connect to the respective server of the Game through a client software or a web browser. BBG provides the necessary game servers and makes available any required clients for download and use.
3. The Users are responsible for maintaining their device (e.g. PC, phone, tablet) in a condition which allows the use of the Game. In this regard it is above all necessary that the device of the Users meets the minimum system requirements of the Game and that it has a sufficiently fast internet connection.
4. The use of the Game in its respective basic version is free. However BBG offers Users the possibility to subscribe to an extended version of the Game against payment (for the payment modalities see Section 7). Users will be informed separately about the respective functions, requirements and prices in each Game or on the website of BBG.
5. The Game offered by BBG is constantly further developed, updated and modified. This shall provide the Users with the best gaming experience and enjoyment of the game for as long as possible. Therefore Users are always only entitled to participate in the respective current version of the Game. BBG reserves the right to suspend, restrict or to change the operation of the Game or individual features of the Game in full or in part from time to time without stating any reasons.
6. BBG warrants an annual average availability of 90% for the Game. Excluded from this are times in which the servers of the Game are not available via the Internet because of technical or other problems which are beyond the control of BBG (e.g. force majeure, fault of third parties, etc.), as well as times in which routine maintenance work is carried out. The liability of BBG for a non-availability of the servers in case of wilful intent and gross negligence remains unaffected. The access to the Game can be limited by BBG if the security of the network operation or the maintenance of the network integrity, in particular the avoidance of serious interferences to either the network, to the software or to stored data require this.
§ 3 Users entitled to participate
1. BBG offers the Game primarily to consumers in the meaning of Section 13 BGB [German Civil Code]. A consumer is every natural person who enters into a legal transaction for a purpose that is outside his trade, business or profession.
2. Only persons who are either 18 years old or whose legal representatives have approved the participation are entitled to participate.
3. User warrants and represents with the registration for participation in the Game that he is of the age of consent and has the capacity to conclude legal transactions. If User is a minor, he warrants and represents the Consent of his legal representatives. BBG is entitled to request a written proof that User is of the legal age of consent or of the declaration of consent of his legal representatives.
4. Use of the Game for commercial purposes is not permitted. The participation in the Game is for entertainment purposes only.
5. Only such persons are entitled to participate who do not already have or have had an account for the Game, which was terminated, deleted, blocked or restricted by BBG according to this TOS, especially Section 13, because of a contractual breach of the User. The creation of a new account to circumvent these penalties is not permitted.
§ 4 Conclusion of agreements
1. The prior registration and creation of a member account (hereinafter referred to as “Account”) is required for participation in the Game. The necessary registration is carried out either online by completing a registration form in the Game, on the website of the respective game or directly on the website of BBG or through sign in services provided by third parties such as Facebook or Google+, in so far as these are explicitly authorised by BBG.
2. In addition Users have to accept these TOS by clicking on a checkbox during the registration. Users may print out these TOS or save and store them on any permanent data carrier.
3. All fields marked as “mandatory” must be filled out by Users. All information given in the registration form have to be accurate, no matter whether they are mandatory or given voluntarily. During registration Users have to enter an email address under which he can actually be contacted.
4. By sending the registration form, the respective User submits a binding offer to become a member of the services. However this does not yet conclude an agreement. Only with the acceptance by BBG of this binding offer an contract will be concluded. BBG will confirm the receipt of the User’s application via email to the email address stated by User. This confirmation is not a binding acceptance of the membership offer. The confirmation can, however, be sent together with such acceptance. In addition, the acceptance can also be declared explicitly separate from the confirmation of the receipt or by the first act of fulfilment of the agreement by BBG. There is no entitlement to conclusion of an agreement to create an Account, to participate in the Game or to use the additional services.
5. Users are allowed to register and use a single Account for the game. The creation of multiple Accounts for the same Game by the same User (so called “multiaccounts”) without prior approval by BBG is prohibited. This is a major contractual undertaking and a violation gives BBG the right to immediate termination of all Accounts belonging to the User (see Section 13 para. 4).
6. During registration the User has to choose a member name under which he will be visible for other Users. Member names with pornographic, racist or with hate-inciting contents, as well as member names which glorify war or violence or which are insulting or member names with other unlawful content are prohibited. A breach of this provision entitles BBG to suspend the User’s Account immediately and/or to immediate terminate the contract with the User in case a suspension of the Account is not sufficient in regard to the severity of the breach (see Section 13 para. 4).
7. The User may not – irrespective of the manner – assign his Account to third parties without the prior written consent of BBG. A transfer of the Account against payment, thus a sale of the Account, is always prohibited. It is also expressly prohibited without any exception to trade Accounts for the Game, to sell, to buy, to rent or to lease them or to offer or to accept them for a consideration.
8. If payments have to be made for services over a certain period of time, the User agrees to a subscription contract with BBG. The length of the subscription is listed in the rules and descriptions for the respective Game or service.
§ 5 CANCELLATION POLICY
You can withdraw your contractual declaration in text form (e.g. letter, telefax, email) within a period of one month. The period starts when you have received this instruction on your right to withdraw in text form, but not before the conclusion of the contract and not before we have fulfilled our informational obligations under Art. 246 Section 2 in connection with Section 1 para. 1 and 2 EGBGB as well as our obligations under Section 312g para. 1 sentence 1 BGB in connection with Art. 246 Section 3 EGBGB. It is sufficient to send the withdrawal within the time limit. The withdrawal has to be addressed to:
BBG Entertainment GmbH
Fax: +49 (0) 89 35498 499
Consequences of revocation:
In case of an effective revocation, both parties have to return the mutually received services and received profits based on the use (e.g. interests) are to be returned. If you are not able to return completely the services or if you can only return them in part or only in deteriorated condition, you are obliged to pay compensation to this extent, as the case may be. This means that payments may have to be provided by you for the time until revocation.
Reimbursements of payments have to be made within 30 days. The time limit starts for you with sending your withdrawal, for us with receipt of your withdrawal.
Please note: The right to withdraw ends premature if the contract has been completely fulfilled by both parties upon your express demand before you have exercised your right to withdraw.
End of instruction on your right to withdraw
§ 6 General rules
1. The Game is only provided according to the rules of the contract and these TOS: Registered Users can connect to a server by using their login name and their personal password. Users can also login with their Google+ or Facebook account.The automatic creation of Accounts or the automatic login to Accounts is not permitted. Only the official client software or the websites provided by BBG may be used to connect to the servers.
2. The User is not entitled to use measures, mechanisms or software in connection with the website, the client, or other software provided by BBG which may disturb or disrupt the function of and/or the progress within the Game. In case of doubt the User should contact BBG in writing before using such software and obtain a written permission. The User may not take any measures which may result in an unreasonable or excessive load for the technical capacities and drain the resources of BBG. The User is in particular not permitted to block, overwrite or modify contents generated by BBG unless User receives prior written approval by BBC.
3. The User is not permitted to add elements to the Game software or to change, to delete or modify in any other form elements of the Game software without the prior and explicit written approval by BBG. The User is in particular not permitted to copy, to remove or otherwise use graphical elements or to try to decompile the source code of the software.
4. Using the Game for commercial purposes is only permitted after prior written approval by BBG. An approval for the use of the Game for commercial purposes may include the right to – with their consent – create Accounts for third parties.
5. The User is not allowed to carry out or have others carry out, use or apply any software or hardware-based application made by third parties which enables him to influence the state of the Game or the progress within the Game or to receive services which he could otherwise only acquire against payment. Therefore, the User is in particular prohibited from obtaining fee-based services or other benefits, such as for example the systematic or automatic control of the Game or individual game functions, by using third party software or other applications (in particular so-called “Bots”, “Hacks” or “Cheats”). In case of doubt the User should contact BBG in writing before using such software and obtain a written approval.
6. Users further undertake to comply with the statutory provisions while using the Game. They are in particular prohibited from distributing contents of all kinds and in any form with a pornographic, racist, insulting reference or reference which glorifies violence, war or any other unlawful reference as well as contents which are suitable for infringing the rights of third parties. The User is also prohibited from distributing within the Game commercial advertising for products or software of third parties or in any unauthorized manner works of third parties, which are protected by copyright or by other rights.
§ 7 Payment
1. Against payment of a fee BBG enables Users to subscribe to an extended version of the Game. The extended version of the Game offers additional functions, which are not available in the free basic version of the Game. BBG can also grant the Users the possibility to use other additional services (e.g. change of server, Ingame-name changes) against the payment of a fee. Prior to usage the type, function and price of additional services will be announced to the Users in the Game and/or on the website of BBG. The offered additional functions which are with costs allow the use of certain additional functions over specified periods of time in compliance with the rules of the Game.
2. Because of the ongoing development of the Game BBG reserves the right to offer new additional functions and/or to remove these from the extended version of the Game, to change these or to make these available in the free basic version of the Game. If the User has already made payments for additional functions for a period of time in the future and can no longer use these for the afore-mentioned reasons or if they are also made available in the free basic version, BBG shall, at the choice of the User, alternatively offer other additional functions for the Game and/or reimburse the paid amount on a pro rata basis to the User. In these cases the User also has the right to terminate the subscription with immediate effect. Any further claims of the User in this respect are excluded.
3. With the final confirmation of the order by BBG or a payment service provider used by BBG the fees for subscriptions or any additional services become due and payable for the User in advance. The due payments shall as a general rule be debited from the bank account stated by the User or charged via credit card or made using suitable payment systems.
4. BBG may at any given time reduce the prices for subscriptions and/or additional functions permanently or for a certain period of time and offer new products, services or settlement modalities permanently or for a limited period of time. Any price changes do not affect running subscriptions.
5. In the event of default, BBG is entitled to charge the statutory interest rate, to disable the access to the extended version of the Game or even suspend the Account of the User immediately. The User will not be charged for the respective subscriptions fees belonging to a suspended Account for as long as the Account remains suspended.
6. Should reversal debits and / or cancellation fees for the cancellation of debits be incurred to BBG through User’s fault or a lack of backing of his payment account, User shall bear the thus incurred cancellation fees and costs. BBG shall have the right to debit these incurred costs. BBG is entitled to request these costs together with the original fee from the User’s Account by a repeated debit.
7. Setting off against counterclaims by the User is only permissible if these counterclaims are undisputed or have been declared legally binding by a court against BBG. The User can only exercise a right of retention if his counterclaim is based on the same contractual relationship. An assignment of the User’s claims against BBG to third parties is excluded.
8. BBG can also additionally offer to the User alternative payment methods, for which the User has to use the services of third parties and which can require considerations other than monetary payments. If the User uses services of third parties any corresponding agreements shall also accordingly be concluded additionally between the User and the third party. The general business terms of these third parties can possibly be included in such contracts with third parties. BBG has no direct influence on their contents and as a general rule no knowledge thereof either and is not party to such agreements between Users and any third party.
§ 8 User Obligations
1. The principal obligation of the User is the payment of any possible incurred fees (Section 7), unless the user is only using the free basic version. Another principal obligation is to correctly and completely submit all data which BBG rightfully requests upon entering into the contract, or in the course of the contractual relation with the User. Therefore, when signing up, the User represents that the information relating to him or other facts relevant for the contract (especially payment details) and which he provides in the registration form or upon conclusion or during the course of the contractual relation are accurate, complete and correct.
2. The Users are aware that they play together and communicate with numerous other Users in the Game. In order to ensure a successful interaction it is necessary to comply with the rules. The Users accept the rules and requirements for the participation in the Game as binding. The Users will follow the instructions of BBG, represented by the management team of the Game. The Users shall also refrain from everything which disturbs or disrupts the operation of the Game and the thriving interaction between Users.
3. BBG has the right to delete user generated content if this content violates the rules laid out in Section § 6 para. 6. BBG also has the right to delete user generated content if there is any indication that this content violates these TOS, the rules of the game or other conditions of participation of if the user generated content is in any way unlawful.
4. Users are not entitled to a restoration of deleted information or content.
5. BBG secures its systems against virus attacks. Nevertheless, a virus attack can never be completely ruled out. Moreover, it can occur that unauthorized third parties send emails by using the name of BBG without the consent of BBG, which for example contain viruses or so-called Spyware or links to web contents, which contain viruses or Spyware. BBG has no influence on this. The Users should therefore check all incoming emails, which have been sent under the name of BBG for viruses. This shall also apply to emails sent by other Users.
6. BBG is not liable for any damages or loss of data which can be suffered on the Users’ computers through the installation of software, which does not stem from BBG.
7. The Users shall keep all access data for the Services (login, passwords etc.) strictly confidential and shall not disclose these to any third parties unless BBG‘s prior written approval of the transfer of the Account in writing. The Users must not use the Account, the login name or the password of another User under any circumstances without authorization. If a third party uses an Account after it has obtained the User’s access data, because the User has not sufficiently protected it against third party access the User will be held liable as if he had acted himself.
8. The Users shall inform BBG immediately as soon as they gain knowledge that unauthorized third parties have possession of their access data. BBG points out that for security reasons passwords should regularly be changed.
9. In the event of a justified suspicion that access data became known to unauthorized third parties BBG is not obliged but entitled for security reasons at its sole discretion to change the access data without prior notification or to suspend the use of the respective Account. BBG shall inform the authorized User hereof immediately and upon request inform of the new access data within a reasonable period of time. The User can not claim the restoration of the original access data.
10. BBG shall as a general rule communicate with the Users by email, unless these TOS or any agreements with the Users state otherwise. The Users must therefore ensure that emails which are sent by BBG can reach them at the email address designated during the registration or which was subsequently communicated to BBG. They shall ensure this among others by setting their spam filter accordingly and checking their email address regularly. BBG reserves the right to choose another suitable form of correspondence.
§ 9 Condition/defects
1. BBG makes the Game available to the Users in the current version only. The Users can not claim the maintenance or establishment of a certain condition/scope of functions of the Game and/or of the additional services. The Users are aware that the Game and the additional services – as all software – can never be completely free of faults (“bugs”). Therefore, the Game as well as the additional services shall only be deemed defective if the ability to play it or use these is seriously and sustainably disturbed. The afore-mentioned provision does not change the burden of proof to the disadvantage of the User.
2. Excluded from the warranty are principally those defects which are caused by external influences, operating errors for which the Users are responsible, force majeure or changes or other manipulations not carried out by BBG.
3. BBG assumes no guarantees within the legal meaning.
§ 10 Liability
1. As long as BBG is providing its services for free BBG is not responsible for damages unless they are caused intentionally or by gross negligence.
2. If BBG requests a fee for its service, BBG shall be liable in case of wilful intent and gross negligence to an unlimited extent. In case of slight negligence BBG shall only be liable in the event of the breach of essential contractual undertakings or the breach of a guarantee. Essential contractual undertakings, also known as primary undertakings as defined by established case law, refer to undertakings that initially enable performance of the contract and on whose performance the counterparty may rely.
3. The afore-mentioned restrictions to liability shall not apply to the liability for the injury to life, body and health or in the event of the assumption of a guarantee by BBG. The liability of BBG according to the Product Liability Act (“Produkthaftungsgesetz”) as well as in the field of application of Section 44a TKG (Telecomunications Act) remains unaffected.
4. The liability for compensation is respectively limited to the foreseeable damage in case of the breach of essential contractual duties. The damage which can be foreseen is limited to EUR 60,00 per Account.
5. The aforementioned limitations of liability also apply for the personal liability of staff, employees, assistants, representatives and vicarious agents of BBG, in particular also for the benefit of the shareholders, employees, representatives, bodies and their members, which relates to their personal liability.
6. BBG shall only be liable for giving advice insofar as the question relates to the Game.
7. The afore-mentioned regulations do not change the burden of proof to the disadvantage of the User.
§ 11 Industrial property rights and copyrights
BBG or the respective licensor have the exclusive property or the exclusive ownership of all rights to the contents of the respective websites and the Game. The illicit distribution, reproduction, exploitation or otherwise infringement of the industrial property rights and copyrights of BBG shall be prosecuted under civil and/or criminal law.
§ 12 Third party content / responsibility
1. BBG makes a platform for the communication available to the Users through which they can communicate with each other. The Users are personally responsible for the contents of this communication as well as all other contents which are published by Users on the homepage.
2. The contents as they relate to BBG are third party contents within the meaning of Section 8 para. 1 Telemedia Act (TMG). These contents exclusively express the personal opinion of the respective User. BBG neither adopts the contents nor does BBG agree to such contents. The same shall apply to contents which in any way infringe rights of third parties. Breaches can lead to the immediate deletion or blocking of the contents and/or suspension of the Account and to the termination of the Account.
3. BBG does not assume any responsibility for the contents of any sites to which there are direct or indirect links from the sites of BBG. BBG does not control these sites and explicitly distances itself from their contents.
4. Should contents be reported to BBG which infringe rights, BBG shall exercise its rights to deletion and remove these contents immediately.
§ 13 Term and Termination
1. The agreements between the User and BBG are concluded as fee-based subscriptions for a limited period of time.
2. The subscription is valid for the period referred to within the agreement, e.g. 1 month, 3 months, 6 months, 12 months. The subscription agreement ends upon the end of the term, but it may be extended by the user by paying the fee for an extension of the subscription.
3. If the User cancels the agreement prior to the end of the term, then any contract services not yet used by the User expire.
4. The right to terminate the agreement for good cause at any time remains unaffected by the afore-mentioned provisions. BBG may terminate the contract especially for, but not limited to, the following causes:
a. the User culpably breaches laws, these TOS, the rules and/or regulations for use of additional services and despite a warning repeatedly does not behave properly in the same or similar manner
b. the User is in default with the payment of fees with an amount of at least EUR 10.00 and does not pay despite two reminders
5. In case of serious breaches an immediate termination is possible without requiring a prior warning. A serious breach is a breach with which the adherence to the agreement cannot be deemed reasonable for BBG. An adherence to the agreement cannot be deemed reasonable for BBG as a general rule in the following cases:
a. If the User violates criminal law
b. If the User uses a Game in an inadmissible manner (see Section 6 above)
c. If the User breaches the ban on multiaccounts (see Section 4 para. 5)
d. If the User provides incorrect data during the registration (cf. Section 4 above) or when paying for services which are liable to costs (cf. Section 7).
If BBG is responsible for the extraordinary termination, and if the User has paid in advance for the use of the extended version of the Game or additional functions for a period of time beyond the period of termination, the considerations shall be reimbursed to the User on pro rata basis for the remaining period of the term.
Further claims of the User are excluded in this respect unless these TOS state otherwise.
6. In case of infringements of the User of Section 8 para. 2, BBG – in addition to the right to termination – is entitled to temporarily block the access of the User to his Account after prior warning or if technically feasible and appropriate to remedy the infringement, as a less restrictive measure without prior warning to exclude the User specifically only from participation in the further communication with other Users (“muting”). A warning is not necessary if there are special circumstances which, by weighing up the mutual interests, justify the immediate blocking of the Account. The User shall be informed about the reason for the blocking by BBG. The same shall apply in the event of an improper credit card use, use of incorrect credit card data as well as providing incorrect data in the event of the participation in the direct debit procedure. The blocking of the access includes that all contents and information which stem from the excluded User may be removed from the database and from the websites by BBG immediately.
7. Each termination has to be made in text form. The reasons for the extraordinary termination have to be disclosed in writing upon request in case they are not already contained in the letter of termination.
§ 14 Data protection
$ 15 Changes to these TOS
1. BBG reserves the right to change or extend these TOS from time to time with effect for the future if a change or extension should prove necessary and if the User is not disadvantaged contrary to good faith. A change can in particular be necessary in order to make adjustments to a change to the legal situation or to reflect changes to the scope of services and/or the additional services with regard to the Game due to further developments. Newly pronounced court decisions shall also be deemed as change to the legal situation.
2. A change or addition shall as a general rule be announced at least two weeks prior to entry into force in the suitable manner in text form. As a general rule the reference to changes to the TOS shall be referred to by publication via email or on the website of the Game and always at the next login of the User to the Game.
3. The User is entitled to object to a change or extension towards BBG within one month after publication and possibility of the acknowledgement. In the event of a timely objection both parties are entitled to terminate the contract according to the termination regulations of this contract. Other rights to termination remain unaffected hereby. Further claims of the User are excluded. If the User does not object within the period for objection or if he continues to use the services after this time, the change or addition shall be deemed as accepted and shall become a part of the agreement.
4. BBG shall particularly point out the possibility of the objection and the termination, the deadline and the legal consequences to the User in the notification about the changes to the TOS in particular with regard to an omitted objection.
§ 16 Final provisions
1. If one party delays, waives or refrains from asserting its rights within the framework of these TOS or if it grants the other party deadlines, this shall not impair the existence of the respective right.
2. The law of the Federal Republic of Germany shall apply exclusively to all agreements concluded based on these TOS and associated claims. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
3. Should individual provisions of these TOS be or become invalid the other provisions of this TOS shall remain unaffected.
4. Amendments and addendums to the agreement for use as well as collateral agreements require text form. This shall also apply to any amendment to the text form requirement.
5. The German version of these TOS is decisive.
Munich, 3rd March 2013
A service provided by:
BBG Entertainment GmbH,
81679 Munich, Germany
Phone.: +49 89 35498-100
Fax: +49 89 35498 499
Managing director: Stephan Berendsen
Court of Registration: Amtsgericht Munich
Reg. No.: HRB 173990
VAT ID No. DE 261708580