HTML5 Games – full-service agency Famobi
Terms of Service
Famobi GmbH, Schanzenstraße 6-20, Kupferhütte 4.2, 51063 Cologne, Germany, (hereinafter referred to as “Famobi”) offers a platform with HTML5 games playable over the internet (hereinafter referred to as “Games”) as well as associated additional services to the Games. Hereinafter, the expression “Games” includes also all additional services to these Games, unless the context indicates otherwise. The users of the Games are hereinafter referred to as “Users”.
Section A: General Terms
§ 1 Scope
1. Famobi provides all services associated with the Games exclusively according to these Terms of Service (hereinafter referred to as “TOS”). The general terms included in Section A apply always; the special terms included in Section B are applicable additionally in case of registrations and paid services.
§ 2 Description of the Offered Service
1. The use of the Games in their basic version is free. However Famobi may offer Users the possibility to use extended versions of certain Games against payment (for the payment modalities see Section B, § 16). Users will be informed separately about the respective functions, requirements and prices in each Game or on the website of Famobi, if applicable.
2. The Games are offered by Famobi on an “as is” basis and can be further developed, updated and modified. This shall provide the Users with the best gaming experience and enjoyment of the Games for as long as possible. Therefore Users are always only entitled to participate in the respective current version of a Game. Famobi reserves the right to suspend, restrict or to change the operation of any of the Games or individual features of the Games in full or in part from time to time without stating any reasons.
3. Famobi warrants an annual average availability of 90% for each individual Game. Excluded from this are times in which the servers for a Game are not available via the Internet because of technical or other problems which are beyond the control of Famobi (e.g. force majeure, fault of third parties, etc.), as well as times in which routine maintenance work is carried out. The liability of Famobi for a non-availability of the servers in case of wilful intent and gross negligence remains unaffected. The access to a Game can be limited by Famobi 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 General Rules
1. Using the Games for commercial purposes is only permitted after prior written approval by Famobi.
2. Users further undertake to comply with the statutory provisions while using the Games. 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 Games 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.
§ 4 General User Obligations
1. Famobi 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 Famobi without the consent of Famobi, which for example contain viruses or so-called Spyware or links to web contents, which contain viruses or Spyware. Famobi has no influence on this. The Users should therefore check all incoming emails, which have been sent under the name of Famobi for viruses. This shall also apply to emails sent by other Users.
2. Famobi is not liable for any damages or loss of data which can be suffered on the Users’ device through the use of the Games, which does not stem from Famobi.
§ 5 Condition Defects
1. Famobi makes the Games available to the Users in their current version only. The Users can not claim the maintenance or establishment of a certain condition/scope of functions of the Games and/or of the additional services. The Games as well as the additional services shall only be deemed defective if the ability to play them 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 Famobi.
3. Famobi assumes no guarantees within the legal meaning.
§ 6 Liability
1. As long as Famobi is providing its services for free Famobi is not responsible for damages unless they are caused intentionally or by gross negligence.
2. If Famobi requests a fee for its service, Famobi shall be liable in case of wilful intent and gross negligence to an unlimited extent. In case of slight negligence Famobi 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 Famobi. The liability of Famobi 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 Famobi, in particular also for the benefit of the shareholders, employees, representatives, bodies and their members, which relates to their personal liability.
6. Famobi 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.
§ 7 Industrial Property Rights and Copyrights
Famobi or the respective licensor have the exclusive property or the exclusive ownership of all rights to the contents of the respective Games. The illicit distribution, reproduction, exploitation or otherwise infringement of the industrial property rights and copyrights of Famobi shall be prosecuted under civil and/or criminal law.
§ 8 Third party Content Responsibility
1. Famobi 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 Famobi 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. Famobi neither adopts the contents nor does Famobi 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. Famobi does not assume any responsibility for the contents of any sites to which there are direct or indirect links from the sites of Famobi. Famobi does not control these sites and explicitly distances itself from their contents.
4. Should contents be reported to Famobi which infringe rights, Famobi shall exercise its rights to deletion and remove these contents immediately.
§ 9 Data Protection
§ 10 Changes to these TOS
1. Famobi 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 Games 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 a 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 Famobi.
3. The User is entitled to object to a change or extension towards Famobi 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. Famobi 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.
§ 11 Final Provisions
1. 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.
2. Should individual provisions of these TOS be or become invalid the other provisions of these TOS shall remain unaffected.
3. 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.
Section B: Special Terms for Registrations and Paid Services
§ 12 Users entitled to Participate
1. Famobi offers the Games only 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. User warrants and represents with the participation in the Games 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. Famobi 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.
§ 13 Conclusion of Agreements
1. The prior registration and creation of a member account (hereinafter referred to as “Account”) may be required for participation in some of the Games or in order to use extended versions of certain Games.
2. All information given in the registration form have to be accurate, no matter whether they are mandatory or given voluntarily. During registration, User has to enter an email address under which he can actually be contacted.
3. 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 Famobi of this binding offer an contract will be concluded.
4. The User may not – irrespective of the manner – assign his Account to third parties without the prior written consent of Famobi. Any trade, sale, rent or lease of the Account is always prohibited.
5. If payments have to be made for services over a certain period of time, the User agrees to a subscription contract with Famobi. The length of the subscription is listed in the rules and descriptions for the respective Game or service.
§ 14 RIGHT OF WITHDRAWAL
1. Right of WITHDRAWAL: You have the right to withdraw from this contract within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us (Schanzenstraße 6-20, Kupferhütte 4.2, 51063 Cologne, Germany, Telephone +49 221 7880610, Fax +49 221 7880618, E-mail firstname.lastname@example.org) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the model withdrawal form , but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal: If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
Premature expiration of the right of withdrawal: If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract
End of these instructions on your right of withdrawal
2. Model withdrawal form: To withdraw from this contract of sale, please send us the following information:
- I/we (*) hereby cancel the contract which I/we (*) entered into for the purchase of the following products (*)/provision of the following services (*)
- Ordered on (*)/received on (*)
- Name(s) of consumer(s)
- Address of consumer(s)
- Signature of consumer(s) (for printed forms only)
*) Please delete the unnecessary word or phrase
Please address to:
Schanzenstraße 6-20, Kupferhütte 4.2
Telephone: +49 221 7880610
Fax: +49 221 7880618
§ 15 Further General Rules
1. The User is not allowed to carry out or have others carry out, use or apply any software or hardware-based application which enables him to influence the state of the Games or the progress within the Games or to receive services which he could otherwise only acquire against payment.
2. 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 Games or individual game functions, by using software or other applications (in particular so-called “Bots”, “Hacks” or “Cheats”). In case of doubt the User should contact Famobi in writing before using such software and obtain a written approval.
§ 16 Payment
1. Against payment of a fee, Famobi enables Users to buy or subscribe to an extended version of certain Games. The extended version of a Games offer additional functions, which are not available in the free basic version of the Games. Famobi can also grant the Users the possibility to use other additional services 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 Games and/or on the websites of Famobi. 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 Games.
2. Because of the ongoing development of the Games Famobi reserves the right to offer new additional functions and/or to remove these from the extended version of the Games, to change these or to make these available in the free basic version of the Games. 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, Famobi shall, at the choice of the User, alternatively offer other additional functions for the Games 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 Famobi or a payment service provider used by Famobi 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. Famobi 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, Famobi is entitled to charge the statutory interest rate, to disable the access to the extended version of the Games 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 Famobi through User’s fault or a lack of backing of his payment account, User shall bear the thus incurred cancellation fees and costs. Famobi shall have the right to debit these incurred costs. Famobi 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 done by the User is only permissible if these counterclaims are undisputed or have been declared legally binding by a court against Famobi. 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 Famobi to third parties is excluded.
8. Famobi 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. Famobi 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.
§ 17 Further User Obligations
3. 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 Famobi’s prior written approval of the transfer of the Account in writing. 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.
4. The Users shall inform Famobi immediately as soon as they gain knowledge that unauthorized third parties have possession of their access data.
5. In the event of a justified suspicion that access data became known to unauthorized third parties Famobi 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. Famobi shall inform the authorized User hereof immediately and upon request inform of the new access data within a reasonable period of time.
6. Famobi 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 Famobi can reach them at the email address designated during the registration or which was subsequently communicated to Famobi. They shall ensure this among others by setting their spam filter accordingly and checking their email address regularly. Famobi reserves the right to choose another suitable form of correspondence.
§ 18 Term and Termination
1. Fee-based subscriptions are concluded for a limited period of time. A subscription is valid for the period referred to within the agreement. 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.
2. If the User cancels the agreement prior to the end of the term, then any contract services not yet used by the User expire.
3. The right to terminate the agreement for good cause at any time remains unaffected by the afore-mentioned provisions. Famobi may terminate the contract especially in case (i) 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; or (ii) 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
4. 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 Famobi. An adherence to the agreement cannot be deemed reasonable for Famobi as a general rule (i) if the User violates criminal law; (ii) if the User uses a Game in an inadmissible manner (cf. §§ 3 and 15 above); or (iii) iIf the User provides incorrect data during the registration (cf. § 13 above) when paying for services which are liable to costs (cf. § 16 above).
If Famobi is responsible for the extraordinary termination, and if the User has paid in advance for the use of the extended version of a 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.
5. 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.
Cologne, 17 December 2014
A service provided by:
Schanzenstraße 6-20, Kupferhütte 4.2
51063 Cologne, Germany