General Terms and Conditions of Business of XYRALITY GmbH (“T&Cs”)
§ 1 Scope of application, essential features of the services offered
- SHPlay GmbH (hereinafter also referred to as “SHPlay”) offers various games to play, in particular online games, as well as other games that can be played on mobile terminals (“Games”). The games and their content, as well as the software required for running the games on the user’s terminal, are not supplied on a physical data carrier, but provided digitally, over the Internet. The foregoing also applies if virtual items are offered, purchased and provided in the Games. SHPlay GmbH exclusively provides these services to the users of the Games (“Users”) based on these T&Cs.
- Said use may be achieved by way of computers or smartphones (“Terminals”) that are connected to the Internet. Solely the User shall be responsible for maintaining the Internet connection and for ensuring the functionality and compatibility of the terminals and their software (browsers, access software) with the Games.
§ 2 Consumers
- SHPlay GmbH exclusively offers its Games and other services to consumers, i.e. only to natural persons who act privately, and not by way of exercising their commercial or independent professional activity. The use of games and services of SHPlay for commercial purposes or any other industrial purposes is therefore excluded.
- Persons who have either reached the age of 18 years as at the date of registering to use the Games or whose legal representatives have consented to such use are entitled to use the Games.
§ 3 Subject of the agreement, use and changes to the Games and services.
- The reason for taking part in the Games is for purposes of entertainment.
- Use is enabled by SHPlay making the Games available at the respective URLs, or, alternatively, providing Games as software for download for various different terminals on various different portals (“App Stores”), either for a fee or free of charge. The Games, as well as virtual items, are kept at hand by the operators of the App Stores (“Third-Party Providers”) or offered for purchase, either for a fee or free of charge. To that extent, the terms and conditions of use of the Third-Party Providers apply.
- Only those persons who have previously created a customer account by way of a registration may use the Games and services. It is, however, possible to use them without registering. The player’s access facility for the Game is the “Account”.
- SHPlay’s Games include elements of interaction of players with one another. In order to enable fair competition among the players, the following activities are not permitted:
- Use of multiple Accounts: A Game may contain multiple game worlds, that are separate from one another. Users are prohibited from setting up multiple Accounts in the same game world.
- Use of tools, scripts, bots or other computer programs: Users are prohibited from using tools, scripts, bots or other computer programs that are suitable for carrying out activities in a Game automatically.
- The use of errors to the player’s own advantage: It is forbidden to exploit bugs and/or other errors in the programming for the User’s own purposes.
SHPlay’s Games must be used by the player personally.
§ 4 Game and Service Use Contract – Contractual Offer and Conclusion of the ContractInterested parties may register for an Account by entering various pieces of information. Alternatively, the User may also request access to the Game anonymously. By registering or inquiring to gain access to the Game, the User submits a binding offer to conclude a Game and Service Use Contract. SHPlay’s acceptance is indicated by the User being activated, or through the first action taken by SHPlay by way of performance of the contract. Use of the Games is enabled as from the date on which SHPlay has set up an Account for the User. The User has no claim to an Account being opened. The Game Use Contract is not associated with any costs. What is subject to a fee is the purchase of Premium Features.
§ 5 Premium Features – Contractual Offer and Conclusion of the Contract
- The User is given the opportunity to purchase Premium Items or functions (“Premium Features”) in return for paying a fee. Said Premium Features are likewise exclusively digital products that are not stored on a physical data carrier. Various different Premium Features may be offered in or along with the individual Games. Which Premium Features are offered at what price, what functions they have, and what prerequisites they necessitate is to be inferred from the respective Game. The fee to be paid may, depending upon the specific Premium Feature, concern one-off payments, the topping up of credit that can be used in the respective Game for certain functions, in accordance with its rules, or payments that are to be made for a certain period of time (for example, a day, week, month, calendar quarter, six-month period or year). SHPlay may make use of the services of third parties for carrying out the payment processing.
- It is hereby once again clarified that said Premium Features do not concern deliverable or delivered physical items, but digital products, which enable the User to continue the respective Game, modified in a way determined by him or her.
- Separate respective contracts are concluded between SHPlay and the User or between third parties (e.g. the App Store) and the User concerning each purchase of Premium Features. Should the User conclude contracts with third parties concerning the purchase of Premium Features, SHPlay only warrants the functionalities defined in the game rules of the respective Game for the respective Premium Features if the purchase of such Premium Features is offered via the respective third party in the respective game of SHPlay.
- The contract concerning the purchase of a Premium Feature in the form of digital content is fulfilled vis-à-vis the User by SHPlay or the third party at the moment at which the User can access the digital content in the way provided for in the respective Game.
- The Games are continuously being enhanced. SHPlay reserves the right to offer new Premium Features at any time. In the course of the adaptation and enhancement of the Games, SHPlay likewise reserves the right to cease to offer individual Premium Features, and/or to also offer them in the free version. Should the User already have made payment for Premium Features in the form of digital services for a period of time that lies in the future, and not be able to use them, because they are no longer offered and/or are also available as a freeware version, SHPlay shall, instead, at the User’s option, either reimburse the amount paid pro rata or offer other Premium Features for this amount, as a substitute.
- Should payments require to be made for certain Premium Features for a certain period of time, the User shall conclude a contract for digital services. If the User does not terminate the contract in good time, the subscription shall be extended for an indefinite period of time. In so far as the User does not terminate in good time, the new deadline for termination shall then be one month.
- SHPlay GmbH shall be entitled to require service fees for the use of the Premium Features to be paid in advance.
- In the event of the User being in default with payment, SHPlay GmbH shall be entitled to charge default interest in the amount of 5% above the respective Bundesbank base rate. In the event of the User defaulting on payment, SHPlay GmbH shall be entitled to stop providing the services, as well as block the User’s Accounts immediately.
- In the event of cancellation fees being incurred to SHPlay GmbH due to fault on the part of the User or the purchase not being covered by funds in the bank account or credit card account due to fault on the part of the User, the User shall bear the costs incurred thereby.
- The User may only exercise a right of retention if his or her counterclaim is based on the same contractual relationship. The assignment of claims on the part of the User against SHPlay GmbH to third parties is excluded.
§ 6 Information on revocationRight of revocation
You are entitled to revoke this agreement within fourteen days without giving reasons. The revocation period amounts to fourteen days as from the day on which the contract is concluded. In order to exercise your right of revocation, you need to inform us,
Phone: +49 (0)(40) – 75 66 64 88
about your decision to revoke this contract by means of a clear statement (e.g. a letter sent through the mail, telefax or email). You may use the attached sample revocation form for that purpose. It is not, however, mandatory to do so.
The revocation deadline shall be deemed to have been met if you dispatch the notification on your exercising your right of revocation prior to expiry of the revocation deadline.
Consequences of revocation
Should you revoke this agreement, we are obliged to refund you any payments that we have received from you, including the delivery charges (with the exception of any additional costs arising from your having selected an alternative type of delivery to the most cost-effective standard delivery offered by us), without delay and at the latest within fourteen days as from the day on which we receive the notification about your revocation of this agreement. We shall use the same method of payment for said refund that you used for the original sales transaction, unless anything to the contrary has expressly been agreed with you. We will never charge you any fees for making such a refund.
Should you have requested that the services ordered by you should begin during the revocation period, you need to pay us an appropriate amount, which corresponds to the proportion of the services already provided up to the date on which you notify us that you are exercising your right of revocation in regard to this contract, compared to the overall extent of the services provided for in the contract.
Special note on the premature expiry of the right of revocation
In the case of a contract on the delivery of digital content that is not to be found on a physical data carrier, your right of revocation also lapses once we have begun to execute the contract after you have explicitly consented to us commencing with the execution of the contract prior to the expiry of the revocation period and you have confirmed that you are aware that you will lose your right of revocation by giving such consent for us to begin executing the contract.
The right of revocation will also lapse, in the case of a contract for the provision of services if we have fully provided the service and have only begun to provide the service once you have given your explicit consent to it and have simultaneously confirmed that you are aware that by consenting to this you lose your right of revocation upon our fulfilling the contract in its entirety.
End of the information on revocation
Sample -revocation form
(Should you wish to revoke the agreement, please fill in this form and return it to us.)
Phone: +49 (0) 40 – 75 66 64 88
I/We (*) hereby revoke the contract concluded by me/us (*) on the provision of the following service (*):
Ordered on (*)/Received on (*):
Name of the Consumer(s):
Address of the Consumer(s):
Signature of the consumer(s) (only in the case of a notification submitted in paper form)
(*) Please delete where inapplicable.
§ 7 Term, Condition Subsequent, Termination
- Unless anything to the contrary is specified in the specific offer, the Game and Service Use Contracts are concluded between the User and SHPlay for an indefinite period of time. Should no limitation of time have been agreed in regard to a specific offer, both parties shall, at any time, have a regular right of termination of one month. This in particular also applies, in favor of SHPlay, in the event of a Game no longer being available.
- In the event of the User not using his or her Account set up for a Game offered by SHPlay to take part in said Game for an ongoing period of 48 months, the Service Use Contract shall end upon the expiry of the last day of the 48th month, without any termination being required. In the case of subscriptions for Premium Features, the contractual relationship shall automatically be extended for an indefinite period of time following the expiry of the contractual period. This shall not apply if the User terminates the contract by giving 14 days’ notice to the end of the period. Following an extension, the period of notice shall be one month.
- No reasons need to be given for regular termination.
- The parties’ right to terminate the contract at any time, with immediate effect, for a significant reason shall not be affected thereby.
- if multiple Accounts are used in a game world (see § 3.5);
- if automated tools and scripts are used (see § 3.5);
- if the User exploits errors to his or her own advantage (see § 3.5);
- if false details have been given when registering or during the course of making payment;
- if the User has fallen into arrears with the payment of the fees and fails to pay despite two reminders;
- if the User culpably violates laws, the game rules and/or the rules of use for the Games or services, and, in spite of being warned, does not cease said violation. Should serious violations have occurred, a warning letter can be dispensed with if it is to be deemed unreasonable to continue the contract;
- if the User violates criminal law;
- if the User makes use of the Game or the services for commercial purposes;
- if the User uses the Account of another player, against said player’s will.
- Terminations are possible in text form (e.g. by email).
SHPlay GmbH shall in particular, but not exclusively, be entitled to terminate the contract for a significant reason with immediate effect:
§ 8 Special Terms and Conditions regarding the Use of the Communication Facilities (in particular discussion forums, text chats, any comment functions) on SHPlay’s web pages and within the scope of the Games offered by SHPlay
- SHPlay may provide the User with various different communication facilities (in particular discussion forums, text chats, blogs, online guest books, comment functions, etc.) for his or her own content and posts on SHPlay’s web pages, which the User may make use of within the scope of the actual availability. To that extent, SHPlay solely provides the technical options for the exchange of information. No claim to the provision of such communication facilities exists, however.
- The User accepts sole responsibility for the content and posts placed there by him or her, and undertakes to indemnify SHPlay in full against any claims filed by third parties. SHPlay explicitly does not adopt the content placed there by Users. The User does, however, grant SHPlay the permanent, irrevocable and non-exclusive right to use the content and posts placed there by him or her. SHPlay points out that SHPlay does not conduct any active monitoring of the content placed there. Sample checks do, however, take place. Every User does, moreover, have the opportunity to notify SHPlay about any content presumed to be unlawful. SHPlay will then respond as soon as possible, and edit or delete the content complained about if necessary.
- The User is prohibited from publishing or disseminating any content on SHPlay’s web pages, and in particular within the scope of the communication facilities provided there, which
- violate applicable law or are contrary to regulations or immoral;
- infringe trademarks, patents, utility or design models, copyrights, business secrets or any other rights of third parties;
- have an obscene, racist, violence-glorifying, pornographic, youth-endangering nature, or are otherwise of such a nature as to endanger or impair the development of children and young people;
- are of an insulting, harassing or defamatory nature;
- contain chain letters or pyramid schemes;
- wrongly evoke the impression that they have been provided or supported by SHPlay;
- involve personal data of third parties, without the explicit consent of said third parties;
- are of a commercial nature, in particular involving advertising.
- Mentioning websites, companies or product names is only legitimate in so far as the latter is not done primarily for the purpose of promoting them.
- All users of the communication facilities provided on SHPlay’s web pages and in the Games are obliged to choose their words in an acceptable manner. Users are to abstain from engaging in any abusive criticism or attacks made on people in a condescending manner.
- Notwithstanding any other rights that may exist under these terms and conditions of use, SHPlay is entitled to change or entirely or partially remove any content or posts that infringe these rules. SHPlay is, moreover, entitled to exclude Users who violate these rules from continuing to use the online Games, SHPlay’s web pages and any other services offered and provided, either permanently or temporarily.
§ 9 Consequences of a breach of duty
- SHPlay shall not be liable for any losses which may arise from a breach of duty that is the User’s fault.
- Notwithstanding any other statutory or contractual rights, if a User culpably violates any statutory provisions, rights of third parties, these terms and conditions of use or the respective applicable supplementary terms and conditions and game rules SHPlay may, at its own discretion, take the following steps:
- change or delete content;
- admonish a user;
- publish the misconduct in the online game concerned, naming the User by name;
- temporarily or permanently block a user in regard to individual Games or all online Games and content on SHPlay’s web pages;
- exclude a user;
- pronounce a temporary or permanent virtual barring of the User in cases of violation of the Use Contract; or
- terminate the Use Contract without notice.
- Should a User have been blocked or excluded, he or she may not re-register without SHPlay’s prior consent. No claim to revocation of blocking, exclusion, virtual barring or any other step taken exists.
§ 10 Limitation of liability
- The User shall be liable, in the event of an infringement of rights of third parties for which he or she is at fault, vis-à-vis such third parties and directly. The User undertakes to compensate SHPlay for any losses arising from failing to comply with the obligations arising from these terms and conditions of use. The User shall indemnify SHPlay against any claims asserted against SHPlay by other users or any other third parties due to their rights being infringed by content posted by the User or due to infringement of any other obligations. In this respect, the User also accepts the costs of the necessary legal defense of SHPlay, including any court costs and attorneys’ fees. This shall not apply if the infringement of rights is not the User’s fault.
- SHPlay’s liability, irrespective of on what legal grounds, whether based on a contractual breach of duty or tort, shall be conclusively determined in accordance with the following provisions:
- If SHPlay provides the respective service triggering liability free of charge, SHPlay shall only be liable for willful intent and gross negligence.
- In the case of paid services, SHPlay shall be liable for willful intent and gross negligence, as well as to an unlimited extent in the case of injury to persons, however, for slight negligence, only in the case of cardinal obligations being infringed. The liability in the event of such a cardinal obligation shall be limited to the contractually typical damage, that SHPlay would have had to reckon with, upon concluding the contract, based on the circumstances known as at that date. “Cardinal obligations” in the above sense are those obligations which make it possible to duly execute the contract and achieve its aim in the first place, and adherence to which the User may therefore trust.
- SHPlay does not accept liability for any network interruptions which are not SHPlay’s fault.
- SHPlay shall only be liable for the loss of data, in accordance with the above paragraphs, if such loss could not have been avoided through appropriate data backup measures on the part of the User.
- The above limitations of liability shall not apply in the event of explicit warranties being provided by SHPlay, in the case of fraudulent intent, or in regard to any losses arising from injury to life, the body or the health, or in the event of any mandatory statutory provisions to the contrary existing.
§ 11 Data privacy
- Personal data of the User is only gathered, processed or used if the latter is permitted under data privacy law.
- With the effective inclusion of SHPlay’s General Terms and Conditions of Business in the Game and Service Use Contract, the User acknowledges that Apple is involved in the corresponding agreement (concerning the purchase of software and data of Apple) as a third party, in the case designated above, and is therefore also entitled to assert the agreements entered into in this paragraph against the User in its own name.
- The license to use the software or data purchased from Apple is not transferable, and only permits the use of said software or data on an iOS product (e.g. an iPhone, iPod Touch or iPad) that is to be found in the User’s possession or under the control of the User. The license to use the software or data purchased from Apple moreover only permits the User to use said software or data in the scope in which the latter is permitted for the User based on the terms and conditions of use of Apple acknowledged by him or her.
- Any claims in regard to the provision or maintenance of assured properties or functionalities in the individual case can only be asserted against SHPlay. In addition, the provisions of Art. 6(1) of these General Terms and Conditions of Business also apply in the relationship between the User and SHPlay in regard to the software or data purchased from Apple.
- Should the User be directly entitled to file claims against Apple in the individual case, such claims shall be limited to the reimbursement of the purchase price.
- Apple has no obligation vis-à-vis the User to provide maintenance or support services in connection with the software or data purchased. Apple shall also not be liable vis-à-vis the User for any claims based on statutory provisions in regard to product liability, consumer protection or any similar statutory provisions, nor in the case of infringement of intellectual property.
- Apple shall also not be liable in cases where the software or data purchased from Apple or the use of it infringes the copyright or any other rights of third parties.
- The User shall, upon request, to the best of his or her knowledge, confirm that he or she is not resident in a country for which the United States of America has imposed an embargo or which is considered by the United States of America to be a country that supports terrorism; ii) he or she is not subject to any restrictions imposed by the Government of the USA.
§ 13 Final provisions
- Any notices and statements that are to be submitted by the User vis-à-vis SHPlay GmbH shall require to be made in writing, as shall be the amendment or revocation of the requirement for the written form. Anything to the contrary shall only apply if another form (e.g. text form) has been established or agreed in the individual case.
- The place of performance shall be the Free and Hanseatic City of Hamburg (Germany). In the event of the User relocating his or her domicile or usual place of residence from the Federal Republic of Germany to another country after concluding the contract, the Free and Hanseatic City of Hamburg (Germany) shall be the place of jurisdiction. The latter shall also apply if the domicile or usual place of residence of the consumer is not known as at the date of an action being filed.
- In regard to the contracts concluded by SHPlay GmbH based on these General Terms and Conditions of Business and in regard to any subsequent claims of any kind arising from them, exclusively the law of the Federal Republic of Germany shall apply, subject to exclusion of the provisions on the uniform United Nations Convention on Contracts for the International Sale of Goods concerning the purchase of movables and subject to exclusion of German international private law.
- Should any provisions of these General Terms and Conditions of Business and/or the contract be or become invalid, this shall not affect the validity of the remaining provisions.
Tel: +49 40 – 75 66 64 88
Directors: Sven Ossenbrüggen, Torben-Lennart Böge
Bielefeld Commercial Register, B40681
VAT Identification Number: DE 283086253