Terms & Conditions for the portal Merkur24, run by the WHOW Games GmbH (hereinafter WHOW)
Table of Contents
- 1. Scope of Application
- 2. Conclusion of Contract for the Usage of the respective Portal
- 3. WITHDRAWAL POLICY
- 4. Availability
- 5. Access to these Terms & Conditions, Changes and Further Notifications, Contact by the User
- 6. Instructions, Rules of the Games, Conditions of Participation
- 7. Playing for Free, Fees, Payment Conditions, Late Payment
- 8. Term, Cancellation
- 9. Responsibilities and Other Obligations of the User; Liability for Information Uploaded by the User; Copyright
- 10. Claims Based on Defects
- 11. Liability and Limitation of Liability
- 12. Online Dispute Resolution
- 13. Data Protection Regulations
- 14. Final Clauses
1. Scope of Application
These General Terms & Conditions (“GTC”) serve to regulate the relationship between WHOW and people (to hereby be referred to as “Users”) who make use of online games (“Games”) or other related services (such as the opportunity to create a profile page, participate in blogs and forums, upload mediums such as photos, texts, and videos in the portal as well as the option of licensing virtual items such as i.e. virtual game currency, virtual goods, additional gaming levels, and content packages [in essence, all hereby indicated in the following as “virtual items”) or other services provided by WHOW either in the Internet (“Web”), on mobile applications (“Apps”) or via other platforms and/or devices. An integral part of making this portal, virtual items, and services (hereby collectively referred to as “Services”) available is, in addition to these Terms & Conditions, the Data Protection Regulations and our Imprint.
These Terms & Conditions do not address any questions possibly arising from the use of the website and games on hardware (i.e. a PC, Apple, mobile phones, tablets, etc.) or Third-Party software (i.e. operating systems, web browsers, access software, etc.) or the use of Third-Party app stores (i.e. Google Play, iTunes, Windows Store, etc.) or the User’s Internet connection to the provided Services, as all these services naturally are not provided by WHOW.
These Terms & Conditions apply exclusively to Users who are current or permanent residents of the European Union (EU)- and Non-EU countries, with the exception of the Federal Republic of Germany and the Republic of Austria (to hereby be referred to as the “Contract Territory”). We ask users from Germany and Austria to use our services via our country-specific web and/or app-based portals. The user is requested to only use the services if permitted by the legal situation of the country in which the user maintains residence or of which he/she is a permanent resident or in which he/she is located at the time of their use.
THE SERVICES DETAILED HERE ARE ADDRESSED EXCLUSIVELY FOR ADULT USERS WITHIN THE CONTRACT TERRITORY AND ARE FOR ENTERTAINMENT PURPOSES ONLY. USE THEREOF IS, IN PRINCIPLE AND BY NATURE, FREE OF CHARGE. THERE ARE NO GAMES OR SERVICES OFFERED ON THE PORTAL IN WHICH REAL MONEY IS MADE USE OF SO AS TO OBTAIN REAL MONEY, REAL MATERIAL PRIZES, OR OTHER INTANGIBLE AND/OR MATERIAL ASSETS. THIS IS ALSO THE CASE FOR INTANGIBLE AND/OR TANGIBLE ASSETS GENERATED BY PLAYING THE GAME OR BY ACQUIRING VIRTUAL ITEMS. THE CESSION AND ANY OTHER TRANSFER OF VIRUTAL ITEMS TO A THIRD PARTY ON BEHALF OF THE USER IS STRICTLY PROHIBITED.
1.1.1 WHOW offers its service exclusively to non-commercial Users in compliance with § 13 of the German Civil Code (BGB) of the Federal Republic of Germany. The use of WHOW Games and Services for pecuniary or any other commercial purposes is hereby prohibited.
1.1.2 Only those individuals who have at least reached the age of 18 - or the legal age at which gambling or gaming activities are permitted under the law or jurisdiction that apply in the place of the individual’s residency - are entitled to use the full scope of Games and Services provided by WHOW.
1.1.3 By registering to use and/or installing the Games or Services, the User expressly warrants and represents that he/she has reached the legal age.
1.1.4 Users residing in Cuba, Iran, North Korea, Sudan, and Syria are expressly prohibited from using the games.
1.2 Subject Matter of the Contract, Usage of and Changes to the Games and Services
1.2.1 WHOW offers its Users access to the portal and the possibility of using Games and Services that are offered by WHOW at its portal, subject to existing technical and commercial capabilities.
1.2.2 Participation in the Games is for entertainment purposes only.
1.2.3 WHOW, as part of its Services, stores certain information on the Portal and offers its Users the possibility of uploading information to the Internet and creating personal profiles, etc., which can be viewed by other Users of WHOW Services as well as by Third Parties. Furthermore, the User can or may also communicate with Third Parties via the Portal, upload and exchange photographs, videos, games, music and other media, publish blogs and comments, and rate games, other Users, Third Parties or transactions.
1.2.4 The Games and Services referred to here are Games and Services provided by WHOW that are required so as to provide the software necessary for use of the Portal for the duration of the agreement. The use of WHOW Games and Services online is made possible through the provision of the necessary applications at the respective URLs by WHOW.
1.2.5 The use of WHOW Games and Services is expressly limited to individuals who previously created a customer account (hereinafter referred to as Account) at the time of registration. The registration takes place either online by completely filling out the registration form on the Portal or via another website or landing page with a corresponding registration function and/or via the log-in function of a social network such as i.e. Facebook Connect. WHOW reserves the right to make the activation of an account dependent on the operation of a confirmation link, which is sent to the User’s provided email address. An Account can be created at the Portal or at the URL of the respective Game(s). An Account that has been created at the Portal enables the User access to any of the Services subject to the conditions set forth in Section 1.1 above.
1.2.6 Registration, i.e. an application to open an Account, can be accomplished by filling out a form electronically and providing the information requested therein. The use of WHOW Games and/or Services shall be permitted from the time an account is created for the User by WHOW.
1.2.7 A User is only authorized to register one account on the portal. For all additional Accounts WHOW retains the right to block these accounts as ‘not permitted’.
WHOW also retains the right to partially or entirely block or exclude any and all Users from the Services who cancel payments or submit incorrect payment data, deliberately provide incorrect data during registration, express him or herself in an offensive, defamatory, racist, or any other manner of discriminatory action against or about Users, WHOW employees or WHOW itself, be it via the chat, email, social media or in any other way or any other site. This also applies to all other violations of the Terms & Conditions and/or the rules of the games or Conditions of Participation. Any claims against WHOW to the games themselves, participation, virtual items, profits, prizes, accounts, deposits, successfully conducted payments, and all other claims on behalf of the User arising thereof shall expire and be of no legal relevance for the User in the cases listed above.
1.2.8 After creating an Account, the User may participate in or use the respective Game and/or Service by opening the Portal on mobile or the corresponding URL, and then logging in.
1.2.9 The use of programs which cause excessive server load are strictly forbidden. The application of software to systematically or automatically control games or individual game functions such as bots, macros, etc. or to reproduce or evaluate games, game components or content provided on the Portal is prohibited.
1.2.10 The use of programming bugs and/or errors to achieve personal gain is strictly prohibited. Recognized bugs should be reported as quickly as possible to our Customer Support. Any advantage proven to be gained through a bug or technical error is null and void for the user. Use of the Games and Services via anonymization of these Games and Services (e.g. via proxies) or other procedures that serve to disguise the User’s current or usual place of residence is also strictly prohibited.
1.2.11 The User is not entitled to open an account or to publish any information whatsoever on the Portal.
1.2.12 All respective, current technical and other Game and participation requirements for the Services offered are contained on the Portal (i.e. game descriptions, various conditions of participation, etc.) and/or the respective Game websites.
1.2.13 All Games and Services are updated, adapted, expanded and modified regularly. As such, the User’s eligibility to play is only granted, and thus limited to, the right to use the most current version of the respective Games and Services.
1.2.14 The use of the Games in their respective basic version (the Free2Play version) is free of charge. Some features are only available to paying customers (see Section 7 below). Use of the Services is free unless otherwise stipulated in the description of the respective Services.
1.2.15 The User has no right to retain the Service, particularly the Games or Services, of the version current at the time of the conclusion of the agreement. WHOW reserves the right to cease operation of the Service as a whole or individual WHOW Games or Services at any time and without prior notice or justification. At his or her own discretion, the User may request, in such an event, that i.e. fees paid in advance within the scope of continual obligations (e.g. for additional virtual items, subscriptions, etc.) to be reimbursed by WHOW should the quid pro quo not have been provided by WHOW . The right does not apply to fees for services, which have been fully rendered within the scope of individual obligations (e.g. individual orders). The User’s right to terminate the agreement with immediate effect remains unaffected. Further claims made by the User are hereby prohibited unless otherwise expressly described in these Terms & Conditions.
2. Conclusion of Contract for the Usage of the respective Portal
2.1 By filling in the registration form for the Account and the respective confirmation of the User that he/she has read through and taken notice of the Terms & Conditions, the User enters into a binding agreement (hereinafter referred to as Contract) with WHOW for usage of the service provided at the portal. An acceptance by WHOW can take place expressly or via an initial act of fulfillment, i.e. granting the User access to the portal, but most certainly in that the User is provided with the Games or Services. A (license) acquisition of game software and/or individual elements is excluded unless or until otherwise explicitly stipulated. The user confirms that he/she has read the Terms & Conditions via the Internet browser by checking the box and confirming the entry accordingly as part of the registration process. When using the Games and Services in an app, the User accepts the Term & Conditions by downloading the respective app.
2.2 The User’s own Terms & Conditions are expressly not considered a part of the Contract agreement unless WHOW should, for its own reasons and of its own accord, expressly agree to them in written form.
2.3 In as much as the establishment of an account is necessary in order to make use of Games or Services, WHOW shall promptly send a confirmation email acknowledging receipt of the User Application to the email address provided by the User at the time of registration. This acknowledgment of receipt does not represent a binding approval of the User Application. The acceptance of the User Application and the confirmation for accessing WHOW Games and Services can, however, be sent together with the acknowledgment email.
3.3 Withdrawal Form Template
Should you wish to revoke this agreement for any reason, please fill out this form completely and send it to the following address.
Whow Games GmbH
Bleichenbrücke 10 (Kaufmannshaus)
Fax: +49 (0) 40 – 609 4372-31
- I/We (*) hereby revoke the agreement that I/we (*) concluded for the purchase of the following goods (*)/the provision of the following service(s) (*)
- Established on (*)/received on (*)
- The consumer’s name
- The consumer’s address
- The consumer’s signature (only in the case of communications made on paper)
(*) Delete as applicable.
The withdrawal form template can also be made use of here.
WHOW guarantees that its Games and Services shall be available 90% (ninety percent) of the time on a yearly average. Excluded from this percentage are time periods in which WHOW portal servers, individual Games and/or Services are not available online due to technical or other problems which are outside the control of WHOW (such as force majeure, Third Party fault, etc.) as well as periods in which routine maintenance work is carried out. The liability of WHOW with regard to the inaccessibility of the Games and/or Services by intent and gross negligence remains unaffected. WHOW can restrict access to its Games and Services if required for network security and preservation of network integrity, especially with regards to the prevention of severe breakdowns or interruptions of the network, software, or stored data.
5. Access to these Terms & Conditions, Changes and Further Notifications, Contact by the User
5.1 These Terms & Conditions apply for each login to the Portal, especially when any of the WHOW Games and/or Services are used. The Terms & Conditions can be printed out or saved by the User on digital media.
5.2 WHOW reserves the right to change or amend these Terms & Conditions with regard to future arrangements at any given time, provided this is deemed necessary and if the User is not put at a disadvantage in a breach of good faith. An amendment may prove to be necessary so as to (a) make adjustments to alterations in a given legal situation, for (b) changes in European or supreme court case law, due to (c) technical requirements, as to (d) maintain and ensure operations, to (e) take altering market conditions into consideration, (f) due to an expansion of the Services, and (g) for the benefit of the User.
5.3 An amendment or supplement to these Terms and Conditions shall be announced no less than six weeks prior to the entry into force of such an amendment or supplement. This announcement shall be made in written form and in an appropriate manner. In general, information on such an amendment or supplement to the Terms & Conditions shall be sent as a notification per email to the email address most recently supplied by the User or placed on the website featuring the Games and Service or right in the Games and Services themselves, but no later than in the form of a presented, highlighted announcement the next time the User logs in to his/her account (“Announcement”).
5.4 The user has the right to object to an amendment or supplement to these Terms and Conditions vis-à-vis WHOW within six weeks after publication/announcement and the reasonable possibility of having noticed it. In the case of an objection made on time, both parties are entitled to terminate the agreement according to the provisions of termination in this agreement. Any and all other withdrawal/termination rights remain unaffected. Any payment made in advance of the withdrawal for virtual items or subscriptions that have not yet been credited or booked to the User’s account, much less already made use of by the User, which extend beyond the termination date, shall be reimbursed to the User on a pro rata basis. Further claims by the User are considered to hereby be invalid. Altered Terms & Conditions take effect immediately as soon as the User has accepted these alterations. If the User does not object within the six-week deadline period after publication or access to the announcement about the alterations to these Terms & Conditions in written or text form (i.e. per email or fax) or if he/she continues to make use of the Services thereafter, the alteration and/or amendment is deemed as having been accepted and becomes part of the agreement. The provisions in Section 5.1 apply mutatis mutandis.
5.5 In the course of informing the User about such amendments or supplements, WHOW shall especially inform the User about the possibility of objecting to the changes and/or cancellation of Services as well as the deadline for doing so and the legal consequences, especially with regards to an objection that has failed to materialize.
5.6 Unless otherwise stipulated in these Terms & Conditions or in other agreements with the User, WHOW shall generally communicate with the User by email. The User shall ensure that he/she can receive all emails sent by WHOW to the address he/she submitted to WHOW at the time of registration and at subsequent times. He/she is responsible for settings and maintenance of the spam filter and for regularly checking all incoming email sent to this address. WHOW reserves the right to correspond with Users in whichever form of communication the company deems necessary.
5.7 Upon contacting WHOW, the User shall indicate which Games and/or Services and which Game and/or Service Account his/her correspondence pertains to.
6. Instructions, Rules of the Games, Conditions of Participation
6.2 The User is consciously aware that he/she might play together with numerous other Users and that he/she communicates with other Users via the Portal. In order to ensure successful interaction between the Users in the Games, it is imperative that the rules are observed by all Users.
6.3 The User shall, with regards to Section 6.2, also refrain from undertaking any other activity which could interfere with the normal operation of Games, the provision of the Services or which is disruptive to the successful interaction between Users.
7. Playing for Free, Fees, Payment Conditions, Late Payment
7.1 Online Games
By receiving virtual objects, the User acquires a limited, non-transferable, revocable license to use these virtual items in the context of the online Games located on the portal.
7.1.1 Use of Services (Free2Play model) free of charge
In principle, WHOW provides Users with free Services in accordance to the Free2Play model as of the creation of a User Account (see Section 1.2 above). The Free2Play model enables the use of the portal and the availability of Games and Services, which are generally unlimited in terms of time and content. To make this possible, the User is provided with free virtual items right at the portal that can be obtained in regular intervals. However, in this Free2Play version, the User certainly may not find himself/herself with access to all features or in-game levels or Services right from the start.
7.1.2 Additional virtual items
The User has the option of receiving additional virtual items against payment of a fee. User who use the services exclusively free of charge (Free2Play model) that are not available in the basic version either immediately or certainly when, to a lesser extent. Additional virtual items can either promote or accelerate the individual game progress of the User or enable more individual game variations. Which or just how many virtual items are offered at which price or tariff, which functions they specifically have, and which exact uses they offer, can be found right in the portal or in the descriptions of the respective Games and/or game rules or respective conditions of participation. WHOW therefore reserves the right to offer new virtual items at any time. In the course of adapting and further developing our Games, WHOW also reserves the right to no longer offer individual virtual items. All prices for additional virtual items are gross prices, i.e. including any applicable taxes. The fee for ordering virtual objects is due immediately and must be paid in advance (see Section 7.1.4 below). Games are constantly being developed and while adapting and further developing our Games, WHOW also reserves the right to no longer offer individual Games or Services. Any service fees paid in advance over the termination period for virtual objects or subscriptions that have not yet been credited or booked to the User’s account or used by the User shall be reimbursed to the User on a pro-rata basis and thus, in this case, all further claims are excluded. In the case of permanent suspension of a Service or individual Games, Section 1.2.15 shall apply.
7.1.3 Subscription/Automatic Renewal
If payments for additional virtual items are to be made at regular intervals (i.e. daily, weekly, monthly, quarter yearly, half yearly, yearly, etc.), the User effectively enters into a subscription for these Premium Features that shall automatically be renewed if it is not cancelled in a timely manner by the User before the end of the set time limit as stipulated in Section 8.2 below. The subscription terms are described in the game rules and/or Conditions of Participation for the respective Games.
7.1.4 Payment Conditions and Due Date of Payment
WHOW is authorized to ask the User for advance payment for the use of additional virtual items (see Section 7.1.2 above). Such payment shall be due upon conclusion of the agreement and shall, by choice of the User, be debited from the provided bank account or charged to the credit card account provided by the User, inasmuch as the User has not opted for another form of payment, for example, the payment methods offered in the portal. The amount to be collected shall be displayed on bills from payment providers or bank account statements with as booking text such as " WWW.WHOW.COM " or "WHOW ", "Jackpot", "MyJackpot", etc. The name or title may deviate when making use of alternative payment methods. If a payment should be made via a mobile telephony-supported payment method (i.e. Premium-SMS, Premium Call, Short Cods, etc.), the order and payment made by the owner of the mobile phone connection making use of the mobile phone application is deemed to be approved and having been initiated on behalf of the User, provided of course that the User and connection owners are different.
7.1.5 Adjustment of Fees for virtual Items
WHOW reserves the right to reduce or raise prices for all Services that do not represent a subscription (a continuing obligation) permanently or for a limited period of time or to offer new products, services or methods of payment at any time, either on a temporary or permanent basis. Until termination of the agreement, the original Terms & Conditions shall remain in effect without prejudice to the rights of the User as per Section 8.2 and Section 8.3.
7.1.6 Adjustments to Charges for Subscriptions
WHOW is entitled to adjust the fees for the contractually agreed to services for continuing obligations as per the following conditions: A price alteration for subscriptions shall be announced to the User at least six weeks before its entry into force. As a rule, reference is made to the alterations/amendments to the fees for subscriptions in text form per email or per highlighted announcement right in the User account at the portal or on the website featuring the Games or in the Games themselves the next time the User logs in. The User has an extraordinary six-week right to object to the announced price change or terminate the agreement as of the date of the announcement of the price change. Any service fees possibly paid for virtual objects in advance (going beyond the time of the price change) that have not yet been credited or booked to the User’s account due to the subscription or used by the User shall be reimbursed to the User on a pro-rata basis. All further claims are then prohibited. WHOW shall indicate these rights in its announcement. If the User does not exercise this right within the respective time period, the price change is considered as being approved. Price reductions generally apply in principle as of the announced date for the next invoicing period.
7.2 Late Payment
In case of late payment, WHOW is authorized to charge interest set to the applicable legal lending rate in the EU. WHOW is also entitled to discontinue Services and to suspend the User’s Account(s) if payment is overdue. For the period of a suspension, no performance fee is payable for any closed subscriptions.
7.3 Direct Debit Reversals, Cancellation Fees
If WHOW incurs costs and/or losses or if WHOW is charged a cancellation fee due to a cancelled direct debit payment as a result of User fault or circumstances leading back to the User (for example, if the User does not have an adequate or sufficient account balance), the User shall bear all cancellation fees generated for WHOW as a result of these actions. WHOW is entitled to demand payment of the costs incurred from repeated attempts to debit the charges from the User’s account together with the original fees. The User is entitled to prove that no damage occurred or that a substantially lower level of damage was caused due to late payment.
7.4 No Guarantee of Prizes
Playing or purchasing virtual objects on or at the portal certainly does not constitute any intangible or tangible assets. As such, WHOW does not also guarantee any form of profits to Users. The portal is solely intended for entertainment purposes only. No prizes (cash prizes, etc.) shall be awarded.
7.5 No Set-off; No Right of Retention; No Cession
The User may only set off a claim by WHOW for outstanding accounts if his/her counterclaims cannot be disputed or have been declared legally binding. The User can only withhold payment if his/her counterclaim is related to the same Terms & Conditions. The right of the User to assign his/her claims to a Third Party is invalid.
Unless otherwise stipulated in the Service description, Services can be used free of charge. Furthermore, Sections 7.1 through 7.5 apply to fee-based Services.
8. Term, Cancellation
All agreements entered into between the User and WHOW are for an indeterminate period of time should nothing to the contrary be determined in the concrete offer provided by WHOW.
8.2 Orderly Cancellation
8.2.1 Subject to the condition that the period of termination is respected, each party is legally entitled to terminate the contractual agreement without provision of any reasons, provided that the following is fulfilled:
8.2.2 If no limited period of time has been agreed upon for an agreement, both parties may terminate the contractual agreement in a due and orderly manner with immediate effect.
8.2.3 If an agreement for using/providing additional virtual features (see Sections 7.1.2 and 7.1.3) has been agreed upon for a set period of time (subscription), said agreement shall be automatically renewed for the same contractual period, until the User cancels the subscription by the end of the respective contractual period.
8.3 Just grounds for cancellation
8.3.1 The parties may also terminate the contractual agreement for important reasons at any time without prejudice to the above regulations.
8.3.2 In the event that WHOW is responsible for a premature termination of the contractual agreement for important reasons, the User shall receive a pro rata refund for any payments made by them in advance beyond the termination date for virtual items or subscriptions that have not yet been credited or booked to the user's account or used by the User which apply to the period after the termination becomes effective. All other claims of the User are considered invalid unless otherwise specified in these Terms & Conditions.
WHOW has the right to terminate the contractual agreement especially for, but not limited to, the following reasons:
a. The User culpably violates the law, these Terms and Conditions, the rules of the game(s) and/or the Conditions of Participation, and – despite having been warned accordingly – repeatedly fails to behave in a proper manner according to the rules and regulations.
b. The User defaults on the payment of the fees amounting to at least 10.00 EUR and does not pay them despite having been reminded of due fees twice.
c. Third Parties (i.e. social network operators), whose login functions are used by the User to gain access to his/her account with the provider, then request the User to delete User data and/or take comparable measures; if an alternative form of access would be unreasonable for the provider.
d. Third Parties (i.e. operators or social networks), whose login functions are used by the User to gain access to his/her account with the provider, then limit the access of the provider to the User data, as long as an alternative form of access would be unreasonable for the provider.
8.3.3 In the event of serious violations, an immediate cancellation is permitted without the need for any prior warning. A serious violation is an infringement making it impossible for WHOW to continue upholding the agreement, thus making it null and void. This is usually the case
a. if the User violates penal laws
b. if the User improperly uses the account, games, or service.
c. if the User provides incorrect information when registering or paying for services that must be paid for.
8.3.4 In cases of cancellations justified by WHOW based on just grounds, WHOW is entitled to demand compensation from the User for any resulting damage.
8.3.5 Should WHOW be responsible for the extraordinary cancellation and the User’s player account still feature virtual items, WHOW shall accredit any service fees paid in advance beyond the point in time of the cancellation for any virtual items that have not yet been credited or booked to the User’s account or used by the User or reimburse a subscription pro rata. Any further claims on behalf of the User are excluded unless otherwise determined by these Terms and Conditions.
8.3.6 WHOW has a special right to cancel the User’s registration for Games or Services in the event that WHOW should lose the right to operate these Games or Services, e.g. for regulatory reasons or due to a termination of the relevant license agreement between WHOW and the respective licensor. In this case, WHOW may conduct an extraordinary termination of all agreements relating to the operation and use of the Game or Service (for example, the License Agreement, Agreement on the Provision and Use of virtual Currency or Premium Features, etc.) at the time game-play is established. The provision in Section 8.3.5 shall then apply. Any other termination rights remain unaffected.
8.3.7 Virtual currency that is granted free of charge or Premium Features are generally excluded from any form of reimbursement.
8.4 Termination in Written Form
Any and all terminations require the written form in order to become effective (i.e. email)
9. Responsibilities and Other Obligations of the User; Liability for Information Uploaded by the User; Copyright
9.1 User Responsibilities
It shall be the primary responsibility of the User to pay any and all applicable fees unless he/she uses the basic version of the Games and/or Services (see Paragraph 7 above). Furthermore, the User shall comply with all applicable game rules and provide accurate and complete information to WHOW upon entering into this agreement and through the duration thereof. Therefore, the User declares that all information relating to his/her person or other facts relevant to the agreement (especially bank or credit card details) and which he/she provides on the User application or during the course of the contractual agreement are complete and correct to the best of his/her knowledge. The User is obligated to inform WHOW about any changes to this information without undue delay. The User is obliged to follow the game rules. In the case of repeated violation of the rules despite warnings to this effect, or in the case of a severe breach of the rules (see Section 8.3), WHOW reserves the right to suspend all services immediately and without warning, and to cancel the agreement.
9.2 Installation of Software
WHOW is not liable for damages or a loss of data experienced by the User on his/her computer, mobile phone or other User (mobile) terminal devices (hereby referred to as “terminal device”) used for the Games and Services which may be caused by the installation of software that does not originate from WHOW.
9.3 Further Obligations of the User
9.3.1 WHOW provides the available Games and Services online. WHOW neither provides nor installs any of the software required by the User on his/her terminal device, especially, but not limited to, the operating system, web browser(s) or plugins such as Flash or Java, if applicable. WHOW also does not provide any support services for such software installations. It is solely the User’s responsibility to maintain the terminal device in a state which enables the use of WHOW Games or Services. Therefore, WHOW does not provide any kind of technical support for the installation of locally required software.
9.3.2 The User is obligated to treat all data provided by WHOW for the purpose of accessing the Games and Services (login, passwords etc.) in a strictly confidential manner. The User shall inform WHOW without delay if he or she learns or suspects that an unauthorized Third Party has gained possession of said access data. WHOW advises the User to do this in written or text form, e.g. via email. In the event that a Third Party gains access to WHOW’ Games or Services with the User’s access data because the User neglected to sufficiently protect the account from unauthorized access, the User must, due to the danger of an uncertainty caused by him/her regarding who misused the account or was responsible for a contractual or legal infringement of said account, assume the responsibility for said actions as if he/she had performed these actions himself/herself. WHOW is entitled to evaluate all entries into an account with the User's data as the entry of the User into the account. WHOW advises that passwords should be regularly changed for security reasons. The User is solely responsible for the access to and use of his/her Account.
9.3.3 In the event that WHOW has a justifiable reason to believe that an unauthorized Third Party is wrongly in possession of access data, WHOW may, but is not required to, at its own discretion, change the account access data without prior notice or suspend the respective Account. WHOW shall promptly inform the rightful User and shall, upon request, communicate the new access data to him or her without undue delay. The User has no right to demand that the original access data be restored.
9.3.4 The User is not entitled to sell his or her account or virtual items to a Third Party or in any other way, shape or manner lend or transfer it. The User does not acquire ownership or any rights to the content of any virtual items possibly obtained on the portal for a fee, much less free of charge. Virtual items may not be transferred or resold in any manner or commercial purposes, including (but not limited to) direct sales or auctions. Virtual items may not be bought or sold by any individual or any other company through cash, money transfer, or any other form of transaction. Virtual items have no monetary value and cannot be used to purchase or use any product or service outside of the platform. Virtual items cannot be refunded or exchanged for cash or any other tangible asset.
9.3.5 WHOW protects its systems against viruses. Even so, virus infections can never be completely ruled out. In addition, it is possible that unauthorized Third Parties may send emails using the name of WHOW without WHOW's consent, and that such emails may contain viruses, spyware or links to web content which, in turn, may contain viruses or spyware. WHOW has no influence over such occurrences. The User agrees to check all incoming mail sent or supposedly sent by or in the name of WHOW for potential viruses. The same applies to mails from other Users of the Games or Services.
9.3.6 The User agrees to abide by the instructions of WHOW, its employees, assignees, and vicarious agents, especially including but not limited to administrators and moderators of forums for a specific game and/or service.
9.3.7 The User agrees that he or she shall not, under any circumstances, use the Account, login name or password of another User.
9.4 User’s Obligations Regarding Information for uploading information.
9.4.1 The User shall exercise due care in the selection of the information that he or she makes available to other Users by uploading it to the Portal.
9.4.2 The User shall not use the Service(s) to distribute content (including, but not limited to, pictures, videos, links, names or words) that contain political, religious, insulting, offensive, violent, sexist, pornographic or other objectionable matter, especially including racist, right extremist or left extremist content, persons or depictions. In addition, the User agrees not to use any copyrighted or otherwise legally protected terms, names, pictures, videos, music, games, or other material. In case of doubt, the User shall promptly remove any content contested by WHOW. WHOW is also entitled to remove questionable content of this nature on its own. The User shall always respect any applicable laws and regulations, especially with regard to youth protection, data privacy, protection of personal rights, protection against slander and defamation, copyright laws, and trademarks.
9.4.3 The User may not misuse the Service(s) for illegal or unauthorized purposes. It is strictly prohibited to use the account names or email addresses of other Users without their express prior consent for the purpose of sending unsolicited emails, promotional messages or for any other commercial purposes.
9.4.4 WHOW is entitled to delete any content submitted by the User in culpable violation of the above-mentioned rules and regulations.
9.4.5 WHOW is especially entitled to delete any information in whole or in part which has been submitted by the User and which gives firm reasons to indicate a breach of these Terms and Conditions, or if the instructions and rules of the respective Service(s) are otherwise in violation of applicable law. This, for example, includes but is not limited to:
a. information which is obviously offensive, racist, fanatical, or glorifies violence.
b. information which is of a molesting, insulting, threatening, obscene, defaming nature or is libelous to other persons.
c. information which is sexist, pornographic or otherwise harmful to underage persons, or which contains links to websites unsuitable for underage persons.
d. information which is false or misleading and/or which is intended to promote illegal activities.
e. illegal or unauthorized copies or distributions of a work protected by copyright, for example, by providing illegal computer programs or links to illegal computer programs, information on how to bypass copy protection measures, illegal copies of music, links to illegal copies of music or other copyright infringements.
f. the sending of junk mails, chain mails and/or unsolicited mass mails, instant messages, spimming and spamming.
g. limited-access pages or pictures which are hidden or password-protected; promoting or endorsing criminal activities or providing instructions for committing criminal activities, including but not limited to information on the production or purchase of arms, child pornography, fraud, drug trafficking, gambling, stalking, spamming, spimming, distribution of computer viruses and other harmful files, copyright infringement, patent infringement and/or theft of trade secrets.
h. soliciting other Users to disclose personal information for commercial or illegal purposes, or inducing them to disclose login data.
i. promoting commercial or sales activities, such as contests, raffles, swapping offers, classified ads and/or pyramid schemes.
j. providing picture(s) of another person without that person’s express consent.
9.4.6 The User is not entitled to demand that such deleted information be restored. Furthermore, WHOW is also entitled to exclude the offending User from continued use of the respective Service(s) and, in case of repeated infringements of the aforementioned prohibitions despite written notice, to terminate the User’s Account without prior warning. WHOW reserves the right to make any further necessary and additional claims, particularly the entitlement to damages.
9.4.7 The User shall inform WHOW in case he/she becomes aware of an abuse of the Service(s) by other Users or Third Parties, such as making accessible or sending information that violates this Section 9.4. To ensure that effective measures can be taken, WHOW requests that such information be provided in writing (e.g. email).
9.5 User’s Liability Regarding Uploaded Information
9.5.1 The User is solely responsible for any texts, files, pictures, photographs, videos, sounds, music, copyrighted or other material, information, etc. (hereinafter “Uploaded Information”) which they upload to the Portal or share with other Users. WHOW neither condones nor approves of such information.
9.5.2 WHOW does not have control over the Uploaded Information on the Portal. WHOW does not evaluate the Uploaded Information before it is made public. If WHOW learns that specific Uploaded Information is illegal, it shall be deleted promptly.
9.5.3 WHOW disclaims any liability or warranty with respect to the Uploaded Information, especially regarding accuracy, completeness, and reliability.
9.6.1 The User maintains all rights to the Uploaded Information. By submitting information to the Portal, the Games or Service(s), the User grants WHOW a non-exclusive, revocable license, free of charge, to publicly offer, display, reproduce, and distribute such information.
9.6.2 The User does not grant WHOW any further rights to the uploaded information. WHOW is not authorized to use or distribute uploaded information outside of the Portal, Games or Service(s).
9.6.3 By submitting his/her information, the User acknowledges and accepts that the information uploaded to the Portal can be accessed globally through the Internet. With the uploading of such information, the User agrees to these conditions.
9.6.4 The aforementioned license ends at that time when the uploaded content has been deleted from the Portal and the Services by the User.
10. Claims Based on Defects
10.1 WHOW grants the User access to the Games and Services in their current version only (Section 1.2). The User has no right to demand the maintenance or restoring of a particular version or range of functions of the Games and Services. The User acknowledges and agrees that the Games and Services provided by WHOW, as with any other software, can never be completely free of errors. Therefore, the Games and Services can only be considered to be defective if their playability or usability is affected severely and over a sustained period of time. Any faults in the Games and Services and/or other deliveries of WHOW need to be documented by the User in writing along with a protocol of the error messages displayed for the purpose of securing evidence in a suitable form (i.e. in text form via an email) and then sent to WHOW. Before reporting a potential bug, the User shall consult the instructions for the Games and Services and any other troubleshooting tools provided by WHOW (especially frequently asked question lists and boards for troubleshooting). The User shall use his/her best efforts to support WHOW in any attempts to debug the Game or Service in question.
10.2 The User shall notify WHOW in writing of the faults discovered and documented in accordance with Section 10.1 within 14 days upon discovering them or provide WHOW of notification of defects.
10.3 WHOW is not liable for defects caused by external influences, faulty handling by the User, force majeure or changes or manipulations which are not performed by WHOW.
10.4 WHOW does not assume any guarantees or warranties.
11. Liability and Limitation of Liability
11.2 Provided that WHOW offers its services free of charge, WHOW shall only be liable for intentionally caused damage or damage caused by gross negligence. This, however, does not apply to liability regarding loss of life, bodily injury or damage to health, or the assumption of a guarantee offered by WHOW.
11.3 Insofar as WHOW demands payment for its Services, WHOW shall assume liability for damage caused by intent and gross negligence without limitation. In the event of simple negligence, WHOW shall only be liable for breaches to substantial agreement stipulations or breaches of a guarantee. Substantial contractual stipulations include those that enable the agreement to be properly executed and on which fulfillment the User may rely. The above limitations of liability do not apply to liability regarding loss of life, bodily injury or damage to health, or the assumption of a guarantee offered by WHOW. WHOW's liability regarding the Product Liability Act or within the scope of § 44a of the German Telecommunications Act remains unaffected.
11.4 The obligation to pay damages or compensation is limited to a slightly negligent breach of material contractual obligations as understood in Section 12.3, Sentence 3, for the foreseeable and contractually typical damage or loss at the time the agreement is concluded.
11.5 The above exclusions or restrictions shall also apply with regard to the liability of staff, employees, representatives and/or agents of WHOW, especially for the benefit of shareholders, employees, representatives, company bodies, and their members with regard to their personal liability.
11.6 WHOW is liable for consultation only, as far as the question has concerned the contents of the offer.
11.7 WHOW expressly distances itself from the content of all pages to which direct or indirect reference (also known as \"links\") is made from within the Services offered by WHOW. WHOW is in no way whatsoever liable for such content or pages. The providers of the respective sites are responsible for their content.
12. Online Dispute Resolution
12.1. The European Commission provides a platform for out-of-court online dispute resolution (OS platform), which is available at http://www.ec.europa.eu/consumers/odr.
12.2. The WHOW email address is provided in the company’s IMPRINT section. We are neither obligated nor willing to participate in the dispute resolution process.
13. Data Protection Regulations
Information on the type, scope, location, and purpose of the collection, processing, and use of personal information and details by WHOW (in the context of the contractual relationship as well as the User’s rights to information, respective correction thereof, the blocking and deletion of his/her personal information) can be viewed in the portal’s Data Protection Regulations.
14. Final Clauses
14.1 Users are not entitled to transfer their rights under this contractual relationship to Third Parties. Anything else can only apply if WHOW gives its prior expressed written consent in text form. WHOW is entitled to transfer the rights and obligations resulting from this contractual relationship to a Third Party. The User shall be informed of any such transfer at least four weeks in advance per announcement at the Portal and/or email notification. The User then has the option to withdraw from use of the Services without having to uphold any deadlines - Section 8.3.5 applies mutatis mutandis.
14.2 For any agreements concluded on the basis of these Terms & Conditions, and thus for any related claims, the law practiced by the Federal Republic of Germany shall exclusively apply to the exclusion of the UN Sales Convention. Should the user have concluded this agreement as a consumer, then the mandatory consumer protection provisions applicable in the Federal State in which the user maintains his/her habitual residency shall apply, provided they actually provide a higher or further level of protection.
14.3 Should individual provisions and/or conditions of these Terms and Conditions be or become ineffective, this shall not affect the validity of the remaining provisions and/or conditions.
Hamburg, October 1st, 2020
WHOW Games GmbH
Tel.: +49 (0) 40 – 609 4372-30
Fax: +49 (0) 40 – 609 4372-31
Commercial registry: District Court of Hamburg, HRB 126 959
VAT No.: DE 2940 3134 6
CEO: Heiko Hubertz, Philip Reisberger