§ 1 Scope of application
1.1 Bytro Labs GmbH, Zirkusweg 2, 20359 Hamburg, Germany – hereinafter referred to as “Bytro Labs” – provides the online game – hereinafter referred to as “the game” – as well as additional services on the Internet. These additional services include, but are not limited to, the creation of a user profile, participation in a forum and the purchase of virtual goods, as well as other services. Players of the game will hereinafter be referred to as “Participants”.
1.2 Bytro Labs offers its services to the Participants of the game– including all additional services – solely subject to these Terms of Service (hereinafter referred to as “ToS”). Bytro Labs hereby objects to any terms of service of the Participants. Such terms of service will only apply if Bytro Labs expressly accepts them in writing.
1.3 These ToS do not address any questions which may arise with regards to any services provided by third parties – including questions relating to Internet access.
1.4 The game rules of the game are available on the game’s Website. Upon participating in the game, the Participant accepts the rules of the game, and the conditions for participation, as binding.
§ 2 Subject Matter of Contract
2.1 Bytro Labs offers the participation in the game and the use of additional services related to the game, within the scope of the existing technical and operational possibilities. Bytro Labs provides the Participants of the game with certain information and enables the Participants to display certain data and information on the Internet and to create personalized profiles within the game, which may be visible to other Participants. Furthermore, the Participants will have the opportunity to take part in discussion forums. Bytro Labs will provide the Participants with the necessary applications for participating in the game online.
2.2 Use of the game in its basic version is free of charge. However, there is a charge for certain additional services and applications (see § 7). Any additional services and applications which must be paid for will be shown separately on the Website.
2.3 The game will be constantly enhanced, updated and modified in order to provide its Participants with an optimal gaming experience. Therefore, the Participant will only be granted the right to participate in the then current version of the game. Bytro Labs reserves its right to cease operation of the game, or certain features thereof, without giving reasons or prior notice. In such a case, the Participant can request a refund of any payments already made in respect of services provided by Bytro Labs, which have not been utilized. The Participant’s right to terminate the contract with immediate effect remains unaffected. Any other claims are excluded.
§ 3 Participants
3.1 The game is only offered to consumers as prescribed by § 13 BGB.
3.2 Eligibility is restricted to persons over the age of 18 or to persons under the age of 18 whose legal representatives have given their consent to participation in the game.
3.3 By applying to participate in the game, the Participant expressly declares that he is either of legal age or, if he is not yet of legal age, that he has obtained his legal representative’s consent.
3.4 Participation in the game is for entertainment purposes only.
§ 4 Conclusion of Contract / Registration
4.1 Participation in the game requires an application for registration of a user account – hereinafter referred to as “Account”. Registration of a Participant is effected online by filling in a registration form and accepting these ToS by clicking on a check box during the registration process. These ToS may be printed out or stored on a durable storage medium before sending the registration form.
4.2 All fields on the registration form labelled as “mandatory” must be filled in. All fields on the registration form, whether filled in mandatorily or voluntarily, must be filled in correctly. Upon registration, the Participant has to provide an email address at which he can effectively be reached.
4.3 Each Participant may register for and use one Account only. Registering for and using multiple accounts is strictly prohibited (so-called “multi-accounts”). Breach of this clause may lead to the immediate exclusion of the Participant from the game.
4.4 No legal claim exists for the creation of an Account and/or for participation in the game and the additional services.
4.5 During the registration process for the game, the Participant chooses a user name under which he will be registered as a Participant of the game. It is strictly prohibited to chose a name with content which is pornographic, racist, inciteful, glorifies war and/or violence, offensive or otherwise illegal. Breach of this clause entitles Bytro Labs to immediately exclude the Participant from the game.
4.6 The contract between Bytro Labs and the Participant regarding the use of the game the game is concluded when Bytro Labs accepts the Participant’s application for the registration of an Account. Bytro Labs may accept the offer expressly or by starting to set-up the Account. Bytro Labs will confirm receipt of the Participant’s application by sending an email to the email address submitted in the registration form. This confirmation is not a binding acceptance of the offer. However, the confirmation can be sent together with such acceptance.
4.7 No legal claim exists for the creation of an Account or for acceptance of the Participant’s application for the creation of an Account as the case may be. The Participant must not transfer his account to third parties.
5. Right to Retract
Instruction on the Right to Withdraw:
The Participant may retract his submission for the conclusion of a contract (regarding participation in the game ) as well as any order for chargeable functions and applications, in text form (e.g. by letter, telefax, email) within two weeks. The Participant does not have to give any explanation for this. This two-week time limit starts when the Participant has received this instruction on his right to retract in written form, but not before the conclusion of the contract and not before Bytro Labs has fulfilled its informational obligations under Sect. 312c (2) 1 BGB, Sect. 1 (1), (2), (4) BGB-InfoV as well as its obligations under Sect. 312e (1) 1 BGB, Sect. (3) BGB-InfoV. It is sufficient to send the retraction within the Time Limit.
The retraction must be addressed to:
Bytro Labs GmbH
Consequences of Retraction:
In the event of a valid retraction, both parties must give back the services they have received and refund the benefits based on the use if applicable. If the Participant is not able to give back completely the services or if the Participant can only give them back in part or only in deteriorated condition, the Participant is obliged to pay compensation to this extent, as the case may be. Any obligations regarding the payment of compensation must be fulfilled within 30 days. This time limit starts for the Participant with the sending of the retraction notice, for Bytro Labs with its receipt.
End of Right to Retraction:
The right to retract ends prematurely in the event that the contract is fulfilled completely with the Participant’s explicit consent, before the Participant used his right to retract.
End of instruction on the Right to Retract
§ 6 Access to the game / Illegal Interferences
6.1 Registered Participants of the game may log-in to the game on the game platform, using their user name, after having retrieved the respective URL on the Internet. The automated opening of gaming accounts is prohibited. Log-in into the Account is only allowed using the homepage of the game. The Participant may only use ordinary browsers plus software provided by Bytro Labs. The Participant must not take any measures or use mechanisms or software in conjunction with the Website, which may interfere with the function or the course of the game. The Participant must not take any measures which might cause an unacceptable or excessive load on Bytro Lab’s technical capacities. In particular, the Participant is not allowed to block, overwrite or modify any content generated by Bytro Lab, unless Bytro Lab has given its express written consent.
6.2 Further, the Participants are obliged to adhere to all laws and regulations when using the game in any way. In particular, the Participant is not allowed to publish any content which is pornographic, racist, glorifies war and/or violence, or is otherwise of an illegal nature or content which is capable of infringing third party’s rights.
6.3 Bytro Labs undertakes to ensure an availability of the game of 80% taken as a yearly average. Excluded from this are periods during which the the game servers are not accessible due to circumstances which do not fall within the responsibility of Bytro Labs (e.g. force majeure). Also excluded are periods of maintenance during which accessing the the game servers is not possible.
6.4 Bytro Labs offers the game online via a Web-browser. Bytro Labs does not provide any software which the Participant may need on his local computer in order to participate in the game and Bytro Labs does not offer support regarding the configuration or the installation of software on the Participant’s local computer which may be necessary to participate in the game. It is the Participant’s sole responsibility to maintain his computer in a state which enables the use of the game . If the game is played on other systems, e.g. internet-ready mobile phones, the scope of usage may be restricted.
§ 7 Prices and Payment Conditions; Payment dates
7.1 Upon payment of a fee, the Participant will be granted the opportunity to obtain additional services which are not available in the basic version of the game. Type, function and price of such additional services are displayed on the the game Website. Depending on their function, such additional services may be purchased either by a one-off payment or by paying a subscription fee. These additional services with costs allow the Participant to use certain additional functions for a specified time and in accordance with the game ’s game rules. Since the game will be developed and enhanced from time to time, Bytro Labs reserves its rights to offer new additional services or to stop offering certain additional services or to offer certain additional services in the basic version of the game. In the event that the Participant has made payments for additional services for a period of time in the future, and cannot make use of these, because they are no longer offered and/or are offered in the free basic version of the game as well, Bytro Labs will at the choice of the Participant offer other additional services as a substitute or refund the Participant on a pro rata basis. In the aforementioned cases, the Participant has the right to terminate the contract with immediate effect. Any other claims of the Participant are excluded.
7.2 The fees for additional services are payable in advance and become due upon activation of the services by the Participant. The fees will be collected from the bank account or credit card account provided by the Participant or effected via appropriate payment methods.
7.3 Bytro Labs is entitled to lower its prices permanently or temporarily and to permanently or temporarily offer new products, services or invoicing methods. Bytro Labs is further entitled to change the prices at any time with six weeks prior written notice or by informing the Participant via email to the email address provided by the Participant. If the Participant does not object to the price changes within six weeks of being informed of the price change, the new price will become effective. The contractual relationship will then continue with the new conditions / prices. Bytro Labs will inform the Participant about the potential to object and the legal consequences, especially the legal consequences arising from a failure to object, when notifying the Participant about the changes. If the Participant objects in time, each party may terminate the contract with one month’s prior notice. Until termination, the former tariffs and prices will remain in effect. Any payments for services in respect of the period after the termination takes effect, will be reimbursed on a pro rata basis. Any other claims of the Participant against Bytro Labs are excluded.
7.4 In the event of late payment, Bytro Labs is entitled to request an interest rate of 5 % above the then current base rate. Bytro Labs is further entitled to immediately cease performance and to disable and to deactivate the respective Account.
7.5 In case the Participant causes reversal debits and / or cancellation fees for the cancellation of debits through the Participant’s fault, or a lack of backing of the Participant’s bank account, the Participant shall reimburse Bytro Labs for any such cancellation fees and costs. Bytro Labs shall have the right to debit these cancellation fees and costs, along with the original fees, from the Participant’s account. If payment of the fees is made through debit or through credit cards and reversal debits occur, Bytro Labs charges a service fee of EUR 9,00 per debit / credit card transaction plus banking fees, unless the Participant proves that no damage or only a substantially lower damage has been caused.
7.6 The Participant may only offset if he has a claim against Bytro Labs which Bytro Labs has not disputed or which has been declared legally binding by a court decision. The Participant may only withhold payment if he has a claim against Bytro Labs which has its origin in the same contractual relation. The Participant is not entitled to assign his claims against Bytro Labs to a third party.
§ 8 Term and Termination
8.1 Any contracts between the Participant and Bytro Labs are entered into for an unlimited period of time, unless otherwise agreed. Where the contract has been entered into for an unlimited period of time, both Parties may terminate the contract with immediate effect at any time.
8.2 In the event that the contract regarding the use or the provision of additional services has been agreed upon by means of a subscription, the subscription automatically renews for the same period of time, unless the subscription has been terminated with a period of 15 working days, effective upon the end of the term.
8.3 The right of both Parties to terminate the contract for cause remains unaffected by the aforementioned provisions. In the event that Bytro Labs is responsible for the extraordinary termination of the contract, the Participant will be reimbursed for any payments he may have made in respect of the period after the termination takes effect, on a pro rata basis. The Participant does not have any other claims, unless otherwise provided in these ToS.
8.4 Bytro Labs may in particular terminate the contract for cause if:
The Participant is late in paying fees of at least EUR 10,00 despite two reminders
The Participant culpably breaches any legal rule, these ToS and/or specific rules for the use of additional services, and such breach remains uncured in identical or similar form, despite written notice
8.5 In case of severe breaches, the contract may be terminated without prior written notice. A severe breach is a breach which makes it unreasonable for Bytro Labs to remain bound by the contract and includes, but is not limited to:
a The Participant breaches criminal law
b The Participant breaches the prohibition of multi-accounts (see above §4, para 4.3)
c The Participant breaches the prohibition of non-authorized scripts (see above §6, para 6.1)
d The Participant provides incorrect information upon registration (see §4) or upon payment for functions and applications with costs (see §7).
8.6. Each termination has to be in writing in order to be effective; email is sufficient to comply with the written form requirement. Extraordinary termination of the contract must state the reasons for termination.
§ 9 Copyright
The Participant remains the owner of all rights he may have in the content he makes available in the game. By making content available on the the game platform, the Participant grants Bytro Lab free of charge a non-exclusive license to publicly display, reproduce and make publicly available, worldwide, such content on the the game platform. Bytro Lab is not granted any further rights to use the content which is made available by the Participant. The license is terminated if the Participant deletes the content he generated from the the game platform.
§ 10 Data Protection
Bytro Labs is entitled to store personal data electronically in order to monitor compliance with the game rules, these ToS and applicable law. Further, personal data may be collected, processed and used for the purposes of the implementation of the contract, including billing. Also IP addresses and data regarding the time and type of use of the Website, the email address which the Participant has provided in the registration form and further data which the Participant has provided in his profile, will be stored. Furthermore, Bytro Labs is entitled to use personal data of Participants within the scope of what is permissible by law without further consent of the Participant, in order to provide the Participant with product information regarding products of Bytro Labs, if the Participant has not objected to such use of his data. The Participant may object at any time.
§ 11 Liability for Content
Regarding communication between Participants, the game serves as a platform via which the Participants may communicate with each other. The Participants are solely responsible for the content of such communication and for further content which is made available on the Internet site by the Participants. Bytro Labs is not responsible for any content which is pornographic, racist, offensive or otherwise of an illegal nature, which has been made available on the platform or otherwise on the Internet site of the game by Participants. The same applies to content which infringes third party rights in any other way. Any breach may lead to the immediate deletion and/or blocking of the relevant content and/or the Account of the Participant and to the exclusion of the Participant from the game by termination of the contract with the Participant. Bytro Labs is not responsible for the content of other third-party sites which can be accessed via links from the game ’s site. Bytro Labs does not control any of these sites and expressly dissociates itself from their content.
§ 12 Claims based on defects; Limitation of Liability
12.1 Bytro Labs only offers and provides the game in its then current version. The Participant cannot claim that a certain condition or functional status of the game and/or additional services are maintained or achieved. The Participant is aware that the game and/or the additional services – like any other software – can never be completely free of errors. Therefore, the game and/or the additional services can only be considered to be defective if usability is affected severely and for a prolonged period.
12.2 The Participant shall document any significant defect in the game or other services or deliveries of Bytro Labs; he shall report them in writing, along with a log of the error messages displayed. Before reporting a potential error, the Participant shall consult the instructions and other troubleshooting tools provided by Bytro Labs (especially frequently asked questions lists or forums for troubleshooting). The Participants shall use their best efforts to support Bytro Labs in any attempts to eliminate errors.
12.3 The Participants will notify Bytro Labs of any defects in writing, without undue delay, upon discovery. Apparent defects of goods – including virtual goods – must be reported to Bytro Labs in writing within two weeks of receipt of the goods. The time limit will be met if the report is sent within this period. Any defects must be reported without undue delay upon discovery. If no notice has been given within the time limit, all claims based on such defects shall forfeit. For the Participant’s own protection and for evidence reasons, the Participant is advised to send such reports in writing (e.g. by telefax, letter or Email) to Bytro Labs.
12.4 Bytro Labs is not liable for any defects which are caused by external events, handling errors by the Participant, force majeure or by manipulations which are not carried out by Bytro Labs or which cannot be attributed to Bytro Labs.
12.5 Bytro Labs does not assume any warranties, unless otherwise agreed upon in writing.
12.6 Bytro Labs is not liable for damages unless they are caused intentionally or by gross negligence. Bytro Labs are liable for advice given only as far as the advice concerned the game directly.
12.7 The aforementioned limitations in 12.6 do not apply to the liability for personal injury of life, body and health. They do not apply in the event that the damage is the result of a breach of a guarantee. They do not apply in respect of the breach of a primary obligation (i.e. a contractual duty, the adherence to which is of special importance to the fulfilment of the contractual objective and on which the client, as a party to this contract, may legitimately rely) or an essential obligation. Bytro Labs’ liability according to the product liability laws and Sect. 44 a TKG remain unaffected.
12.8 Liability for breach of an essential obligation is limited to the damage which could reasonably have been foreseen. The damage which could have been foreseen is limited to EUR 20,00 per Account.
12.9 The aforementioned limitations of liability also apply for the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of Bytro Labs and their members.
§ 13 Further Duties and Obligations of Participants
13.1 The Participant is aware that he uses the game together with many other Participants and communicates with different Participants when using the additional services. In order to achieve an enjoyable gaming experience, it is necessary to adhere to the rules of the game. The Participants accept the rules of the game and the ToS as binding. The Participants will follow Bytro Lab’s instructions which will be provided by the game supervisor. Additionally, the Participants will refrain from any conduct which may interfere with the operation of the game and/or the additional services and which may disturb an enjoyable gaming experience.
13.2 The Participants must not use the game for commercial or illegal purposes.
13.3 Bytro Labs is not responsible for any damage or loss of data on the local computer of the Participant which results from the installation of software which was not provided by Bytro Labs.
13.4 The Participant is obliged to keep all access data for the game (login, passwords etc.) strictly confidential. He will promptly inform Bytro Labs if he finds out or suspects that an unauthorised third person is in possession of his access data. The Participant must not use the Account or access data of another Participant. The Participant is aware that in the event that a third party uses the game with his access data, through his own fault, the Participant is liable for the fees and for damages. All access through a Participant’s access data shall be considered as an access by that particular Participant himself. Bytro Labs points out that passwords should regularly be changed for security reasons.
13.5 In the event that Bytro Labs has reason to believe that an unauthorised third party is in possession of access data, Bytro Labs may, without assuming any responsibility to do so, and always acting at its sole discretion, change the access data without prior notice or block the respective Account. Bytro Labs will promptly inform the rightful Participant and will, upon request, communicate the new access data to him without undue delay. The Participant cannot claim to have his initial access data restored.
13.6 Bytro Labs protects its systems against viruses. However, the Participant acknowledges that virus can never be completely ruled out. The Participant is aware that unauthorised third parties may send emails under the name of Bytro Labs, without Bytro Lab’s knowledge or consent, and such emails may contain viruses, so-called spyware or links to websites which, in turn, contain viruses or spyware. Bytro Lab cannot prevent such behaviour. The Participant will, therefore, check all incoming mail sent by or under the name of Bytro Labs, for viruses before opening them. This also applies to emails sent by other Participants.
13.7 Bytro Labs will usually, unless otherwise provided in these ToS or other agreements between the Participant and Bytro Labs, communicate with the Participant via email. The Participant shall make sure that he receives all emails sent by Bytro Labs to the address submitted to Bytro Labs in the registration form or at a later date. In particular, he will configure the spam filter accordingly and regularly check this address for incoming mail. Bytro Labs may choose any other appropriate means of communication.
§ 14 Changes to these ToS
14.1 Bytro Labs reserves the right to make changes to these ToS for the future, if this should prove necessary and if the Participant is not disadvantaged contrary to good faith.
14.2 The Participant will be notified of the changes to the ToS at least two weeks before the changes become effective, in appropriate written form. Notification will usually take place upon the next log-in of the Participant.
14.3 The Participant can object to a change or amendment of the ToS within one month of being notified thereof. If the Participant objects in time, each party may terminate the contract by giving one month’s notice. Further termination rights remain unaffected. Payment made for services after the termination takes effect will be reimbursed on a pro rata basis. If the Participant fails to object to the changes to the ToS within one month of being notified, the change or amendment made to the ToS will become effective regarding the respective Participant.
§ 15 Place of Jurisdiction / Applicable Law / Written Form
15.1 The laws of the Federal Republic of Germany apply to these ToS and any and all contracts concluded subject to these ToS, as well as any claims arising therefrom. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
15.2 Should any provision of these ToS be held to be unlawful, void, or for any reason unenforceable, then this shall not affect the validity and enforceability of the remaining provisions.
15.3 Any changes and amendments to the contract between Bytro Labs and the Participant and to any additional agreements, must be in writing. Any change to the written form requirement must also be in writing.
Hamburg, 17 August 2012
Bytro Labs GmbH
Managing Director: Felix Faber, Tobias Kringe, Christopher Lörken
Registered Office: Hamburg
HR-No. and Commercial Register: HRB 118884, Amtsgericht HamburgVAT ID No.: DE263701383