handy-games.com GmbH (hereinafter referred to as “HandyGames”) offers games for various terminal devices via a range of App Stores.
§ 1. Scope
- HandyGames objects to the validity of any general terms and conditions of Users. Any general terms and conditions of Users become only an integral part of the agreement between the User and HandyGames, if HandyGames provided its express consent to them in writing.
§ 2. Users eligible to participate
- HandyGames offers its Games only to consumers. It is prohibited to use the Games for commercial purposes. Participation in the Games is for entertainment purposes only.
- Only persons of legal age or persons whose legal guardians have provided consent to the use are allowed participation.
- With his/her participation in a Game, the User represents that he/she is of legal age and of legal capacity. If the User is a minor, then the legal guardian must provide consent. HandyGames is entitled to request at any time written proof of the User’s legal age or the written consent of the legal guardian.
- As soon as a minor uses a Game after he/she becomes of legal age, then all Agreements in connection with him/her concluded before achieving legal age are deemed approved provided he/she does not revoke the approval toward HandyGames within two weeks upon reaching legal age.
§ 3. Right of withdrawal
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 (handy-games.com GmbH, i_Park Klingholz 13, 97232 Giebelstadt, Germany, Telephone +49 (0) 9334 9757 – 0, Fax +49 (0) 9334 9757 – 19, 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 attached 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 to cancel
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 to withdrawal
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:
i_Park Klingholz 13
Fax +49 (0) 9334 9757 – 19
§ 4. Limits of use / prohibited conduct
- HandyGames prohibits such actions because it does not intend to commercialize game content and asset and status positions acquired within Games and it would like to ensure that Users always play in a fair manner.
- The User is prohibited from selling, purchasing, renting, leasing, offering, accepting, disseminating or copying virtual items or virtual currency – in whatever form – to third parties, unless expressly permitted by the Game Rules. A system potentially provided by the Game or by HandyGames to trade virtual items and virtual currency of the Game, constitutes such an exception. In this case, the transfer of virtual items or virtual currency from one User to the other is only permitted, if the transfer takes place – no matter if within or outside the Game – without consideration in exchange or if the consideration consists solely of virtual items or virtual currency of the same Game and these are transferred within the Game itself by a function provided by the Game. The trade or exchange of virtual currency and virtual items against consideration in any form other than virtual currency and virtual items of the same Game is expressly prohibited.
- The User may not utilize any ancillary means, which maliciously modify Game Scores or game process (specifically so-called “bots”, “hacks” or “cheats”). In addition, the User may not offer or promote such ancillary means. In particular, the User is prohibited from using third party software or other applications to obtain virtual currency, Premium Features or other benefits such as the systematic or automatic control of a Game or of individual game functions. The same applies to the intentional utilization of program errors (“exploits”) for one’s own benefit.
- The User is not permitted to add elements to a Game or to change, delete or modify in any other manner any game elements without the express prior written consent of HandyGames. In particular, the User is not permitted to copy, remove or otherwise utilize any graphic elements or to try to decompile the source code of Games. This does not apply to the extent that decompiling has been permitted in accordance with Section 69e of the German Copyright Act (UrhG).
- The User will refrain from anything that could endanger the performance and availability of the Games or any other services.
- The User is not entitled to use any means, mechanisms or software in connection with any Game or any other services provided by HandyGames, which can disturb the function and the Game’s process. In particular, the User is not permitted to block, overwrite or modify the contents generated by HandyGames unless HandyGames has permitted it specifically in writing.
- The User is prohibited from transferring his/her Games to third parties without the prior written consent of HandyGames. Any transfer consent of HandyGames does not entitle to transfer for a fee provided this has not been expressly permitted in the consent.
- By using the services, the User will not violate any applicable legal provisions such as the criminal code and youth protection provisions or third party rights and the User assures not to contribute or transmit any illegal or immoral contents to the Games. This includes specifically any contents (including member names, etc.), which are
– insulting, racist, sexist, pornographic, obscene, inciting, glorify violence or war,
– which are suitable to cause serious moral harm to children and young people or which threaten their wellbeing,
– which can damage the reputation of HandyGames and its products,
– suitable to violate copyrights, patents, brands or any other intellectual property rights, the rights to a person’s own image and other personal rights or third party rights.
- The User is not permitted to disseminate commercial advertising for third party products or programs and unsolicited advertising within or otherwise using the Games. The User will honour the privacy of third parties. In addition, the User is not permitted to disseminate within or otherwise using the Games unauthorized any third party work that is protected by copyrights or other rights.
- Therefore, HandyGames is authorized to implement suitable measures and programs to uncover any contractual violations of Users. HandyGames can set a deadline for a written statement for the User, in the event of a justifiable reason. If the statement of the User is unsuitable to dispel the suspicion of a violation or culpable act of the User, then HandyGames is entitled to assume a culpable violation of contractual duties. HandyGames reserves itself the right to check individual actions for plausibility and compatibility with §§ 4.1 to 4.10 and – if necessary – to stop these actions.
- HandyGames is entitled to transmit User data and User content to third parties and/or delete these provided it is permitted under legal provisions or mandated by court or government order. The same applies to the disclosure of User information.
- The provisions of this § 4 do not limit the termination right of HandyGames – particularly the right to terminate effective immediately – in accordance with § 10. In addition, they do not limit the right of HandyGames to exercise the virtual domiciliary right.
§ 5. Virtual currency / Premium Features / payment transactions / data connections
- In general, the User can play the Games for free. In addition, in connection with the Games, the User can purchase virtual currency and Premium Features via In-App-Purchase. The User will generally be expressly notified if the service is not free. Neither this agreement nor the possession of a Game give the User the right to use any sequels of the Game or expansions, adventure packs or similar additional products without payment of applicable fees.
- In general, Users have the option to purchase virtual currency for the Games for a fee. In this context, the Users generally acquire virtual currency for one or several specific Games. This is dependent on the availability for the respective Game. Any virtual currency acquired by the User can be exchanged among others for items and/or other Premium Features. In addition to receiving virtual currency, HandyGames can offer Users depending on the Game the option to utilize Premium Features in exchange for paying a fee. HandyGames informs the User of the respective features, requirements and prices of the virtual currency or Premium Features prior to the User’s use in the respective Game.
- The Games may require different technical equipment (e.g. graphics card etc.) in order to be able to utilize them without any problems. HandyGames recommends to the User to try out the services prior to purchasing virtual currency and/or Premium Features. This way, the User can determine whether his/her Terminal Device meets the technical requirements for trouble-free use of services.
- Children under the age of 7 are excluded from the use of the paid services. If the User is older than 7 years, but below the age of 18, he/she needs the consent of his/her legal guardian to purchase virtual currency and/or Premium Features or he/she needs spending money provided by his/her legal guardian at his/her free disposal. For this reason, without prior proof of consent of his/her legal guardian, HandyGames allows this User only to purchase virtual currency and/or Premium Features for EUR 60.00/month.
- The prices as published on the App Stores and in the Games will apply.
- The User can only use the payment systems established at the respective App Store.
- The User shall pay all fees, if User is at fault or User’s account is insufficiently covered and consequently the App Store receives charge-backs and/or is charged for cancellations by the later cancellation of debits or credit card collections. HandyGames is entitled to request from User these expenses together with the original fee in case the App Store claims such amounts from HandyGames. If the User is responsible for any reverse charges (e.g. for insufficient funds in the User’s account), then the User is obliged to reimburse HandyGames for any proven, reasonable damage HandyGames sustained thereby. HandyGames’ claim for additional damages shall remain unaffected thereby.
- The User can only set-off any fees if the counterclaims against HandyGames are undisputed or legally determined by a court of law. The User may only exercise the right of retention, if the counterclaim is based on the same contractual relationship. The User’s assignment of claims against HandyGames to any third parties is excluded.
- HandyGames can offer the User alternative payment methods, by which the User uses Third Party Services and which may require considerations other than monetary payments. To the extent, the User utilizes Third Party Services the User concludes an additional agreement between the User and the corresponding third party. Such agreements may potentially include third party terms and conditions. The contents of these agreements and these terms and conditions are beyond the influence of HandyGames and HandyGames has generally no knowledge of these contents.
- Games can be played via landline connections and mobile data connections. HandyGames points out specifically that the Games require in part a high data volume and the User may incur costs payable to the operator of the data connection. The prices for the utilization of data are described in the corresponding provider’s description of services. HandyGames cannot provide any support in connection therewith.
- HandyGames is entitled to reduce and/or increase the prices for virtual currency and premiums features or it may offer new products, services, or invoicing modalities permanently or only for a limited time.
§ 6. Social Plugins
- The User’s primary duty is the payment of any fees that are potentially due and payable.
- HandyGames protects its systems against virus attacks. Despite all precautions, a virus attack can never be fully excluded. In addition, it may happen that unauthorized third parties send e-mails using the name of HandyGames without consent of HandyGames. These e-mails may for example contain viruses or so-called spyware or links to web contents that contain viruses or spyware. These acts are beyond the influence of HandyGames. Therefore, the User should scan all incoming e-mails sent under the name of HandyGames for viruses. The same applies to e-mails of other Users.
- HandyGames is not responsible for damages or the loss of data, which can occur on the User’s Terminal Device by installing software that is not from HandyGames.
- The User agrees that he/she will under no circumstances use unauthorized the Terminal Device or Game installation of any other User. If a third party uses a Terminal Device or Game installation after gaining access because the User did not sufficiently secure these from third party access, then the User must allow being treated as if he/she has acted on his/her own. If the User does not play Games with his/her own Terminal Device or his/her own data connection then the User must obtain consent from the respective owner. For this event, the User guarantees HandyGames that such consent was provided.
- HandyGames points out expressly that customer service representatives and personnel ordered to monitor compliance with Game Rules are not authorized to agree on any changes to the use agreement.
- The User is obliged to maintain his/her Terminal Device in a condition that allows using the Games. HandyGames provides system requirements and compatibility information to the best of its knowledge. To use the Games, the User’s Terminal Device must comply at least with the minimum system requirements and he/she must have an Internet connection for the use of certain functions; both is not provided by HandyGames. Due to the multitude of Terminal Devices, system configurations, network operators and operating systems, it is impossible for HandyGames to check and ensure the Games’ ability to work in all constellations. HandyGames recommends to the User to consult in addition to the system requirements and compatibility information published by HandyGames in accordance with the best of its knowledge also discussion forums and lists with frequently asked questions (FAQ) about the respective Games. It can happen that Games cannot be used with all hardware, Mobile Devices or Connected Devices or Games may be subject to limitations even if this is not specifically stated in the system requirements and the compatibility information.
§ 7. Advancements / quality / roll-back/ beta tests / deficiencies
- It is in the nature of the offered Games that these are continuously advanced and updated. Changes can be the result of loading updates, which ensure and improve playability. By changing and advancing Games, HandyGames intends to provide Users fun with the Games for as long as possible. Therefore, HandyGames grants the User access to Games in their available form or version. Changes and advancements can affect system requirements and compatibility requirements. The User has no claim for maintaining or reconstruction of a specific condition of scope of services of the Game. Any of the User’s claims for deficiency, which refer to the technical playability of the Game itself, shall remain unaffected thereby. Due to the continuous advancement of the Games, HandyGames reserves itself the right to offer new virtual currencies and Premium Features and/or to remove them from the offer, to change them or to provide them in the free base version. The User consents for HandyGames to change the Games and virtual currencies continuously and to add, delete, re-introduce and change Premium Features. In addition, the User consents for HandyGames to be able and to change properties, functions, or capacities of every game element or the virtual currencies and Premium Features at their own discretion (which can improve or reduce the effectiveness and function of Premium Features significantly, which can change their distribution or which can remove them entirely). In case the User wishes not to use an updated version as aforementioned, it is at her/his discretion to not update the Game installed on her/his Terminal Device.
- HandyGames points out that the Games are in accordance with the state of the art but any absence of defects in the Games cannot be guaranteed. For this reasons, the User must take into consideration that games do not work flawlessly in each function. HandyGames tries its best to provide games without glitches, to ensure complete playability of games. However, any minor software glitches in the Games – as with any software – cannot be completely excluded. The User can only claim any damages for deficient Games if playability or use is seriously and lastingly impaired.
- The User knows that Games can be subject to technical limitations. This applies specifically to the maximum memory capacity or maximum size of data.
- The User will always document in a meaningful manner any defects occurring in the Games and the User will specifically report these in writing logging the displayed error messages. Prior to reporting any error, the User should consult the game or service instructions and perhaps any other support for troubleshooting provided by HandyGames (particularly lists with frequently asked questions, discussion forums about problems). In any possible rectification of defects, the User will support HandyGames to the best of his/her abilities.
- Excluded from warranty are generally such errors, which occur through external influences such as operating errors by the User, force majeure or any modifications, not carried out by HandyGames or any other manipulations.
- HandyGames does not assume any guarantees in a legal sense.
§ 8. Limited liability / availability
- If HandyGames requires payment of a fee for the services, then HandyGames shall only have an unlimited liability for damages if it acted wilfully and with gross negligence. In the event of any violation of significant contractual duties, HandyGames shall also be liable in the event of slight negligence. Significant contractual duties or so-called cardinal duties in accordance with the law are such duties, which only allow proper execution of the agreement and on the fulfilment of which the User can depend.
- To the extent HandyGames provides free services, HandyGames shall only be liable for damage compensation if it caused the damage by gross negligence or wilfully.
- The liability of HandyGames to pay damages is always limited to the foreseeable damage in case of a violation of significant contractual duties.
- The typical foreseeable damage in accordance with the above-referenced § 8.3 shall be no more than EUR 50.00 per User.
- The above-referenced liability limitations do not apply to the liability in the event of injury to life, body and health or in case HandyGames assumed a guarantee or in case of liability in accordance with the Product Liability Act. HandyGames’ liability in accordance with Section § 44a of the German Telecommunication Act (TKG) shall remain unaffected thereby.
- HandyGames shall be liable for advice only if the advice given concerns a problem with its Games.
- A change of the burden of proof to the disadvantage of the Customer is not connected with the above-referenced regulations.
- On an annual average, HandyGames guarantees availability of 95% for each Game and related service that requires server services. Exempt therefrom are periods, during which the server for the individual Games cannot be reached because of technical or other problems beyond the influence of HandyGames (e.g. force majeure, culpability of third parties, etc.). The periods during which regular maintenance takes place are also exempt therefrom. HandyGames can limit access to Games, if required for the security of the network operation, the maintenance of the network integrity, particularly to avoid any serious malfunctions of the network, software or stored data; these periods are not considered in the calculation of availability. HandyGames’ liability for non-availability of the server shall remain unaffected in the case of intent and gross negligence. The Games of HandyGames may not be retrievable worldwide. Whether the Games can be retrieved fully or in a limited manner may depend on legal regulations and licensing requirements in particular
- The above-referenced indemnifications or limitations to liability apply also to the liability of employees, workers, staff members, representatives and agents of HandyGames, in particular to the benefit of shareholders, employees, representatives, company bodies and their members with regard to their personal liability.
§ 9. Intellectual property rights and copyrights / user-generated contents
- HandyGames is the exclusive owner or exclusive owner of the rights of all contents of the respective Games. The content is protected by national and international law and particularly by copyright. The unauthorized dissemination, copying, deletion or any other violation of intellectual property rights and copyrights of HandyGames are prosecuted under both civil and criminal law.
- Within the framework of the use of the Games, HandyGames provides software to the User. HandyGames grants the User the non-exclusive right limited to the period of use of the Games for this software within the framework of a non-commercial use on the User’s respective Terminal Device. The User may only copy this software for the purpose of backup and archiving for personal purposes, unless HandyGames permits the User explicitly the passing on of the software. The User agrees to retain the information about the intellectual property, which is marked on the software, also on copies of the software or in this software and to comply with all laws applicable to the use of the software.
- The User is not permitted to copy the Game or the software in whole or in part (with the exception of any necessary backup copy) or to disseminate, to sell, auction, rent, lease, modify, or develop derived works, to edit, translate, execute, exhibit, sub-license or generally transfer the Game or the software. The User is not permitted to copy the Game or the software for a fee or make it accessible to third parties for a fee and to lease or rent the Game or the software or the rights thereof to third parties against payment of a fee or to transfer it in any other form to third parties for a fee or modify, translate, apply reverse engineering, to decompile or disassemble or to develop any other works derived on the basis of the Game or software.
- HandyGames and/or its suppliers retain the rights on the intellectual property of all contents of the Games as well as any other intellectual property rights on the game or software.
- Any remaining agreements on further licensing provisions for the Game or software, which the User potentially accepts prior to using the Games, shall remain unaffected by the above-referenced provisions.
- HandyGames permits the User to use the contents of the Games of HandyGames to produce templates for user-generated contents and to disseminate these in a limited manner provided the Games and HandyGames depreciated thereby. This permission expressly does not refer to the source code or any other public elements of the game and particularly not the logic of the program. Templates refer to game contents, game scenes, characters, texts, places, maps, graphic images, animation, sounds, movies, and works of music and images. Such user-generated contents are for example videos commented by the User during his/her own game session (“Let’s-Play-Videos”) or the parts of images from the game in social networks or the accessibility granted on fan sites or fan forums. HandyGames permits the use of templates strictly for personal but not business or commercial purposes. This permission is non-transferable. In this context, any advertising the operator places on a platform independent of the User – e.g. introductory ads on video portals – are not deemed commercial use, if it is beyond the User’s realm of influence. HandyGames has the right to revoke this permission at any time. Any further and specifically commercial use is only permitted upon prior written consent of HandyGames.
§ 10. Contractual term / termination with notice / virtual domiciliary right / extraordinary termination
- The agreements between the User and HandyGames (e.g. use agreement for individual Games) are concluded for an unspecified time unless otherwise agreed in writing.
- Both Parties have the right to terminate the agreements by giving an advance notice of seven workdays unless otherwise agreed in writing.
- The User can delete Games at any time. If the User deletes a Game, the User terminates simultaneously the use agreement for such Game without complying with the termination period. Any virtual currency acquired up to this time will be forfeited without the claim for reimbursement if the User terminates in this manner.
- HandyGames reserves itself the right to exercise its virtual domiciliary right at any time.
b. during the use of any of the Games, the User realizes the termination reason of § 10.6 letter a.
- Termination for cause is permissible in case of serious violations without the need for any advance warning letter.
- A serious violation is any violation, which makes it unreasonable for HandyGames to maintain the agreement.
- In the following cases, it is unreasonable for HandyGames to maintain the agreement:a. if the User violates the criminal code;
b. if the User uses a Game in an impermissible manner (cf. above § 4);
c. if during the use of any of the Games, the User realizes one of the termination reasons of § 10.9 letters a. or b.
- If the User is responsible for the extraordinary termination, then the User shall have no claim for reimbursement to the extent the User has already received the services to be provided by HandyGames. In particular, any virtual currencies or Premium Features the User has already ordered or received from HandyGames are not paid back.
- If the User is responsible for the extraordinary termination, then the User is not permitted to further play Games of HandyGames, unless he/she has the express prior written permission of HandyGames. If HandyGames finds that this ban was violated, then HandyGames has the right to block the User’s access to the Game(s) permanently, where applicable, and terminate the agreement with the User for cause, without prior announcement.
- HandyGames has the right to a extraordinary termination with regard to specific Games, provided HandyGames loses authorization to distribute the respective Game, e.g. because of the termination of a respective licensing agreement between HandyGames and a respective licensor. In this case, HandyGames can terminate effective at the time of termination of its licensing agreement all agreements in reference to the use of the Game (e.g. use agreement, agreement on the provision and use of virtual currency or Premium Features). Other rights to terminate shall remain unaffected thereby. § 10.6 applies accordingly.
- Every termination must be in written form, whereby the written form is maintained by e-mail. Upon request, the reasons for extraordinary termination must be disclosed immediately in writing if the termination notice did not specify them already. Any standard termination notice does not require specification of the termination reasons.
- The User has the right to object to any change or amendment within six weeks after the date of publication and possibility of acknowledgment. In case of a timely objection, both Parties are entitled to an extraordinary right to terminate the agreement in accordance with the termination provisions specified in this Agreement. Other rights to terminate shall remain unaffected thereby. If the User does not object within the objection period or if the User continues to use the Games respectively services, then the change or amendment is deemed accepted and becomes an integral element of the agreement.
§ 12. Miscellaneous
- The User is not entitled to assign to third parties his/her rights under this contractual relationship. Something else applies only if HandyGames provides its prior consent in writing. HandyGames is entitled to transfer to a third party any rights and duties under this contractual relationship. The User can terminate the use of the Games effective immediately upon such transfer. Any virtual currency at the time in the User’s Games will be reimbursed.
- In the event, the User takes legal action, suit must be filed before a German court or before the court of the User’s domicile.
Giebelstadt, 12. Oktober 2014
An offer of:
Amtsgericht Würzburg, HRB 8667
Person in charge: Markus Kassulke
CEOs: Markus Kassulke, Christopher Kassulke