General Terms and Conditions
Effective as of April 1, 2013
- SilentFuture UG (haftungsbeschränkt) is a company registered under German law with the local court of Wuppertal under HRB 24252 (“SilentFuture”) and is based in Triebelsheide 37b, 42111 Wuppertal. SilentFuture can be contacted via e-mail at email@example.com. SilentFuture is the sole owner of and is operating the massive multiplayer online game “Earthrise” (“the Game”) which is distributed without a charge as a download via the www.play-earthrise.com and in SilentFuture’s discretion via other channels.
- The use of the Game is exclusively subject to the following general terms and conditions. The user’s general terms and conditions will not form part of this contract unless expressly agreed in writing by SilentFuture and are hereby expressly excluded.
- These general terms and conditions may be accessed, downloaded, stored and printed at any time by clicking on link “Terms & Conditions” on the bottom any of the Game’s websites.
2. Game Service
- SilentFuture offers to consumers who register on the official website www.play-earthrise.com (“Official Website”) and who accept these general terms and conditions the opportunity to access and play the Game using the official client software which is offered for free download on the Offical Website.
- The Game is “free to play” and the user may play the game without charges, with the exception of Premium Features and Services as detailed below, which may only be available for a fee. The Game can only be played online via the internet, which may cause additional costs for the data transfer.
- The client software is provided to you under a limited license which may be revoked at any time subject to the termination provisons detailed herein. The user may not reproduce, copy, distribute, modify or publish the client software without SilentFuture’s prior approval.
- SilentFuture’s services are only available to individual consumers as defined in section 13 of the German Civil Code (BGB) who are 18 years old or older. Companies, legal entities or other non-individuals are excluded from the Game and all other services provided by SilentFuture. Using the Game for commercial purposes is prohibited with the exception of journalistic reviews. Minors are only entitled to use the Game and the other services of SilentFuture with the consent of a parent or legal guardian. SilentFuture may at any time request a written approval from parents or legal guardians or documents proving the personal information provided by the user.
- When registering for the Game the user establishes an “Account” for the Game. During the registration certain personal information such as (i) date of birth (ii) and country of residence; (iii) full name; (iv) e-mail address; (v) password will be requested. Additional information, e.g. to increase the security of the Account may be requested in SilentFuture’s reasonable discretion. The user will ge granted the choice of a display name which will be visable for all other users when playing the game. Such name may not be identical or similar to any living or dead person, with the exception of the user’s own name, and may not be sexual, sexist, xenophobic, hateful or in SilentFuture’s reasonable discretion inappropriate. SilentFuture may change any inappropriate name in is own discretion.
- SilentFuture may provide in its own discretion a web-based forum (“Community Forums”) that allows registered users to communicate about the Game and to publish content. SilentFuture may extend or limit or totally discontinue access to the forums at any time and SilentFuture is not obliged to provide such forums.
- All users are solely responsible to acquire, install and operate any software required for using the Game. SilentFuture does not provide technical support for any such installations.
- SilentFuture reserves the right to discontinue the Game and/or any features at any time in its sole discretion giving a 14 days notice to the user. Should SilentFuture discontinue the Game any unused ingame currency or other payments made in advance shall be refunded. Payments for any service with an express term shall be refunded pro rate for the remaining term.
- The user is entitled to terminate his/her account for the Game at any time in his/her sole discretion but the user will not receive any refund for unused virtual currency, Premium Features or services with a remaining term. Termination of the contract is governed by section 10. Provided that the storage of data is not required by law, any data stored about the user is deleted upon termination and cannot be restored. If the storage of data is required by law, the data will be blocked and deleted upon end of the legal storage period.
- SilentFuture endeavours to keep the Game as constantly available as possible, however SilentFuture does not warrant any specific availability for the Game. Availability is subject to many factors outside of SilentFuture control but SilentFuture will try to perform maintenance work outside of the statistical peek times. Unannounced maintenance may be necessary, e.g. due to hacking attempts, viruses, critical errors in the software etc, so that SilentFuture can not warrant availability at certain times.
3. Premium features and services
- Using the Game is free-of-charge for registered users, however certain virtual items, features, services and functions may be subject to payments (“Premium Features”). SilentFuture may make Premium Features only available for a certain limited period of time. The necessary details on the respective Premium Features, the pricing, functions and possible additional requirements are available on the shopping website or the ingame shop of the Game.
- Premium Features may only be used by adults. Minors require the consent of a parent or guardian. Confirmation of this will be requested at the time of placing an order.
- The user may purchase Premium Features either by using the virtual currency of the Game or directly in return for payment and SilentFuture is entitled to change such payment options in its sole discretion as long as the user remains entitled to use any prepurchased unused virtual currency. Virtual currency is available for purchase on the shopping website of the Game in SilentFuture sole discretion. Virtual currency can only be used exclusively for payment for Premium Features as a part of the Game and SilentFuture will not pay out any balance to any user unless stated otherwise herein.
- SilentFuture may from time to time and in its sole discretion provide users with free virtual currency or free Premium Features, for example as a reward for achieving certain goals as part of the Game or for promotion. Such free virtual currency will take priority over purchased in-game currency when buying premium features. Purchased in-game currency will only be used once all free virtual currency has been used.
- Whenever SilentFuture provides Premium Features or any other features free of charge, SilentFuture shall have no legal obligation to continuously provide such Premium Features or other features and may remove those at any time in its sole discretion.
- The user is not permitted to sell, rent, assign or transfer his/her Account, virtual currency or Premium Features as well as any virtual items (non-premium) available in the game to any third Party. This shall not limit any trading options that are available in the game which do not include any real currency transaction. As a result, the parties agree that no rights and claims resulting from this agreement may be assigned to any third party (§ 399 German Civil Code / BGB). This shall also include any service offered to users to acquire certain achievements, virtual items or other advantages in the Game for a real currency payment.
Right of withdrawal
The user can revoke his/her declaration of entering into a contract with SilentFuture – including but not limited to registering for the Game and/or to purchasing Premium Features and/or virtual currency - without stating any reason within two weeks in text form (e.g. by letter, fax, e-mail). This period of notice commences upon receipt of this information in text form, but not prior to the conclusion of the contract nor before SilentFuture has fulfilled its obligations to provide information as per article 246 section 2 in conjunction with section 1 paragraph 1 and paragraph 2 of the Introductory Act to the Civil Code (EGBGB) and its obligations as per section 312g paragraph 1 sentence 1 German Civil Code (BGB) in conjunction with article 246 section 3 EGBGB. To meet the deadline, it is sufficient to send the withdrawal notice before the period expires. The timely dispatch of a revocation notice will be deemed sufficient to comply with the revocation deadline.
The withdrawal notice should be addressed to:
SilentFuture UG (haftungsbeschränkt), Triebelsheide 37b, 42111 Wuppertal;
Fax: +49 (0)202 393 536 7
Consequences of withdrawal
In the event of a valid withdrawal, any performances received by each party has to be returned and any associated benefits (e.g. interest) have to be surrendered. If the user is unable to return the payments or benefits (e.g. benefits from use) either in full or in part or only in a deteriorated condition, you may be liable to provide compensation. This can result in the user being required to fulfil the contractual payment responsibilities for the period of time up until the revocation. Obligations to return payments must be fulfilled within 30 days. This period commences for the user with the dispatch of a revocation notice and for SilentFuture, at the time of receipt.
The user’s right of withdrawal will expire prematurely if the contractual obligations are fully met by both parties at the express request of the user before the user has exercised his/her right of revocation.
End of instructions.
5. Duties and obligations of the user
- SilentFuture may publish rules of conduct from time to time which reflect the standards of behaviour for users playing the Game. The rules of play/conduct are updated periodically and the user will be notified of changes by e-mail with reasonable advance notice, unless the provisions concerning changes to the T&C specified below apply.
- The user will keep all access information for the Game strictly confidential and is not allowed to grant any other person, not living in the same household, access to his Account. If a user suspects or learns that a third party is in possession of access data, he/she must notify SilentFuture immediately. SilentFuture is entitled but not obliged to disable the user’s account and/or change the access data, if it learns or suspects access by any third party. An account may be disabled for as long as is necessary to protect the user from unauthorised access, to determine its source and provide for the security of SilentFuture technology and websites. SilentFuture will notify the user of any disabled account. If the user enables any third party to access the Game or other services of SilentFuture as a result of intent or negligence on the part of the user, the user shall be fully liable towards SilentFuture for any damages or purchases caused by such third party.
- The user is not permitted use any software directly or indirectly effecting the Game, its operation (e.g. so called “Bots”) or the data transfer between the user or SilentFuture or to use mechanisms, software,scripts or other similar means which will gain advantage over other users not using such additional mechanisms, software, scripts or other means. The use of equipment, software, scripts and any other mechanisms which allow automated game play and/or game control is strictly prohibited. The user also agrees not to exploit programming errors for personal gain where identifiable as such.
6. User generated or uploaded content
- SilentFuture may, at its sole discretion, provide users with a functionality to upload and making available to the public their own content, data or information (hereinafter collectively “User Content”) dedicated to be used by the uploading user itself and/or any other user of the Game, however, limited to the use within the Game or the Community Forums. SilentFuture reserves the right to limit the storage capacity of User Content that is uploaded by users.
- SilentFuture does not claim any ownership rights in the User Content. Users continue to retain any such rights that they may have in the User Content, subject to the limited license granted to SilentFuture as described hereinafter. By uploading User Content on, through or in connection with the Game and/or the Community Forums, users hereby grant to SilentFuture a limited non-exclusive license to use, modify, delete from, add to, publicly perform, publicly display, making available to the public, reproduce, and distribute such User Content (including, but not limited to underlying musical works) solely on, through or in connection with the Game and/or the Community Forums. and via other channels operated by SilentFuture or by third parties on behalf of SilentFuture. This entitles SilentFuture to use User Content only in connection with the Game and its mechanics and the Community Forums. By this limited license users does not grant SilentFuture the right to sell the User Content. After a user has removed User Content from the Game, SilentFuture will cease distribution as soon as technically possible, and at such time when distribution ceases, the license will terminate automatically. Notwithstanding the foregoing, users that upload or publish User Content understand and agree that once its uploaded or published User Content is used by another user in the Game or on social networks, SilentFuture shall be under no obligation to delete or request users to delete that User Content, and therefore this User Content may continue to appear and be used indefinitely.
- The license you grant to SilentFuture, as described above, is non-exclusive, royalty-free, sub-licensable to the extent described above, and worldwide.
- With respect to the User Content the publishing user represents and warrants that: (i) he owns the User Content or otherwise has the right to grant the license set forth above, and (ii) the posting of the User Content on, through or in connection with the Game does not violate the privacy rights, publicity rights, copyrights, contractual rights or any other rights of any third person or entity. The uploading user agrees to pay for all royalties, fees, penalties and any other monies owing any third person or entity by reason of the use of User Content published on or through the Game and/or the Community Forums.
- The user will indemnify SilentFuture against all costs (including reasonable legal fees) and claims (including claims for damages) made against SilentFuture by third parties due to the violation of their rights by SilentFuture’s contractual user of User Content. Such indemnification shall not be applicable if the user did not caused the infringement of third party rights at least by negligence.
- The user shall be fully responsible for User Content published on or exchanged via the Game or any other SilentFuture services, e.g. Community Forums. SilentFuture will not preapprove User Content. However, SilentFuture may refuse to post any User Content for any or no reason. Should SilentFuture becomes aware of any content that is in violation of any laws or infringing any third party’s rights, SilentFuture is entitled to disable or delete any such User Content at its own discretion. SilentFuture may at any time remove the option to publish, store or otherwise use User Content.
- The user may not publish, store or transmit any User Content that is in violation of any law or agreement. This includes in particular abusive, sexist, pornographic or racist content or any other content that SilentFuture may reasonably consider immoral or inappropriate. The user may not (a) disturb other users, for example with spam messages, chain mails or unsolicited advertising, (b) infringe any third party’s (intellectual) property rights, (c) engaging in or promoting unfair competitive practices, and (d) use the Game or the Community Forums for commercial communication or advertising.
- Except as provided within this Agreement or by express permission of SilentFuture, users may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any third-party User Content.
- The user shall be entitled to use footage of the Game to produce fan videos and to distribute such videos. Such right shall be subject to withdrawl by SilentFuture in its sole discretion. No video should reflect negatively on the Game, SilentFuture or other users or should be deemed inappropriate for the USK/ESRB age rating of the Game.
- If such video is published on YouTube and the user intends to take part in YouTube’s revenue sharing program by placing advertisements alongside videos the right shall be subject to the following limitations:
Prevent advertisements related to the following categories from appearing on the YouTube Channel, including, without limitation, by implementing the following Google® AdSense filters: (i) advertisements related to SilentFuture’s competitors, including but not limited to other massive multiplayer online games; (ii) advertisements related to gold-farming, account selling or other activities prohibited by SilentFuture’s terms and conditions; and (iii) advertisements that would conflict with the Game’s USK or ESRB or similar rating.
- SilentFuture has the right to monitor all YouTube Channel content, and to require the removal of any advertisements that violate this Agreement.
- Payment will be due immediately upon the purchase of Premium Features or virtual currency. All prices are including value added tax. The user may pay using any of the accepted payment methods which are detailed prior to the purchase. Payment options may vary depending on the amount of the payment and SilentFuture may offer or remove certain payment methods in its sole discretion. If a payment cannot be collected and SilentFuture is not at fault, the resulting costs shall be borne by the user.
- The user shall only be entitled to set off or exercise rights of retention with undisputed claims or such claims that have been finally found valid by a court of law.
- SilentFuture shall only be fully liable for damages resulting from injury to life, limb or health or for intentional or grossly negligent conduct and fraud. SilentFuture’s liability under the Product Liability Act (Produkthaftungsgesetz) and the Telecommunications Act (Telekommunikationsgesetz) remains unaffected.
- In cases of slight negligence, SilentFuture will only be liable if an obligation has been breached, the fulfilment of which facilitates the proper performance of the contract in the first place, the violation of which compromises the achievement of the contract’s purpose, and the compliance with which the customer frequently relies on. In this instance, claims for compensation will be limited to foreseeable damages.
- This limitation of liability shall also apply for SilentFuture’s directors, officers and employees.
- The unconditional liability irrespective of fault of SilentFuture under rental law and comparable provisions for faults and errors existing at the time of the closure of the contract is expressly excluded.
9. Term and Termination
- Contracts between SilentFuture and the user are entered into for an indefinite period of time unless otherwise expressly stipulated at the time of conclusion.
- The parties may terminate the contract at any time without any notice period.
- The user may terminate the contract by sending an e-mail to firstname.lastname@example.org including details of his/her user name and e-mail address registered with SilentFuture, or by using the account management options available in the Game or on the Official Website.
- The right of both parties to terminate without notice period for good cause remains unaffected.
- In the event of termination by the user without good cause or termination for good cause by SilentFuture for which the user is at fault, SilentFuture will not be required to refund Premium Features, virtual currency or other services paid for in advance.
- In particular, SilentFuture has the right to terminate for good cause in the following cases:
- If the user is late in paying a sum of at least € 5.00 by more than 30 days or is late in paying an equivalent amount on more than one occasion over a period of six months;
- If, despite having received a reminder, the user knowingly violates any rules of conduct within these T&C or the rules of play or without any warning in a case that is so severe, that it would be unreasonable for SilentFuture to remain bound to this Agreement. This shall always be the case for violations of criminal law or for the commercial use of the Game.
- Instead of a termination, SilentFuture reserves the right to temporarily disable a user’s account and access to the Game and/or the Community Forums up to one month, with no payment obligations for the user while his/her account is disabled.
- In the event of termination, SilentFuture will reserve the right to delete the user’s data related to the Game.
10. Data protection
- To provide users with the full functionality of the Game, SilentFuture needs to request certain information from its users and automatically collects information about user’s use of the Game. In addition, SilentFuture will automatically request certain personal information from social network services (e.g., but not limited to, Facebook) when a user uses certain features, like cross-postings between the Community Forums and social network services (hereinafter “Social Network”). Hereafter SilentFuture describes what personal information SilentFuture may collect from its users and what SilentFuture will do with that information. Furthermore, SilentFuture informs users on their rights with respect to their personal data.
- In compliance with the applicable data protection laws of Germany, SilentFuture collects, processes, and stores information about its users and other visitors of the Game, the Official Website and the Community Forums on servers located in Germany. SilentFuture will not transfer users’ or visitors personal information to third parties unless a transfer is permitted by law or the user or visitor has agreed to this transfer. This may be the case for the processing of user payments. SilentFuture takes all reasonable and appropriate steps to ensure that personal information are secure and treated in accordance with this data protection provisions and applicable German law.
- Provided that users register for or use the Game or the Community Forums via a Social Network, or if users intend to publish content from the Game or the Community Forums on Social Networks, users need to grant to Newtrack permission to access, store and process necessary information from the user’s profile that the user has agreed the respective Social Network may provide to SilentFuture automatically via an AP-Interface. The scope of such information is affected by the privacy settings of the user at the respective social network service.
- SilentFuture may access and process the following user information automatically generated from users’ Social Network profiles and/or collected directly by SilentFuture while users use the Game:
- Profile name and/or first and family name of the user
- Avatar and/or picture of the user
- User ID number and/or user-URL of the Social Network and/or of the Game
- Email-address the user has provided to SilentFuture and/or to the Social Network
- User’s gender, age, and birthday
- IP address
- User Content
- Certain information (Users’ Game-names and/or real names, pictures, age, gender and Game-information, such as, but not limited to, songs plaid, points collected, virtual merchandising purchased etc.) will be visible to other users of the Game and/or other users of Social Networks the user is a member of. This information may also be indexed by search engines. Users have the option to use a pseudonym while playing the Game.
- SilentFuture also collects, stores, and processes certain information about the computer hard- and software its users use to access the Game (for example, but not limited to, computer system, mobile device, browser software etc.)
- SilentFuture also collects, stores, and processes information related to the purchase of in-Game virtual items (Premium Features or virtual currency) to the extend necessary for the billing, which may include users credit-card- and/or bank-details, postal and e-mail addresses. SilentFuture may also receive billing and payment information of its users that they provide to a third party (e.g. Paypal or credit card providers).
- SilentFuture may, at its sole discretion, provide users with a functionality to upload User Content and making it available to the public. If requested by law and/or a public authority, SilentFuture may record and store archives of User Content as well as the IP address used when uploading such User Content on its servers.
- SilentFuture may collect information about its users as follows:
- Directly provided by its users;
- Provided by a Social Network (e.g. via Facebook Connect);
- By using Cookies and other automated information collection methods; SilentFuture uses own and third parties Log Files and tracking technologies (e.g. Google Analytics) in order to collect and analyse certain types of information about its users, including IP addresses, device type, device identifiers, browser type and language, the number of clicks in the Game, Game-pages viewed, the amount of time spent on the Game-pages, Game state and the date and time of activity on the Game. SilentFuture may also make use of web beacons, which provide SilentFuture with the information whether a certain Game-page was visited; tracking pixels, which allow SilentFuture to advertise more efficiently and to measure the traffic on the Game; and flash cookies, which help SilentFuture to improve load times and convenience of the Game.
- SilentFuture collects, stores, and processes the above listed information about its users for the following purposes:
- Creating Game accounts and allowing users to play the Game;
- Notifying users of Game updates
- Enabling user-to-user communications;
- Providing technical support;
- Delivering and targeting advertising;
- Providing leader boards and promoting users achievements.
- SilentFuture may share users’ information with third party service providers as required for the operation of the Game (for example, but not limited to, payment providers and hosting services). Apart from the aforementioned, SilentFuture will not pass users’ information to third parties without explicit consent of its users.
- Under German data protection laws, users have the right to access personal data stored about themselves by SilentFuture. Users can execute their right of access by submitting a request for access to its personal data per e-mail, directed to (email@example.com), or in writing addressed to (SilentFuture UG (haftungsbeschränkt), Triebelsheide 37b, 42111 Wuppertal, Germany). In addition, on user’s request, personal data will be rectified, disabled or deleted by SilentFuture as long as such data is not necessary for execution of the Agreement or storage is required by law. Users can execute such rights by submitting a request per e-mail, directed to (firstname.lastname@example.org), or in writing addressed to SilentFuture UG (haftungsbeschränkt), Triebelsheide 37b, 42111 Wuppertal, Germany;. However, SilentFuture reserves the right to verify the identity of the requesting user.
- SilentFuture reserves the right to change these general terms and conditions without justification, provided doing so such changes are not unreasonable for the User taking both parties interests into account. Changes will be published when entering the Game and on SilentFuture’s website and will be sent to users via e-mail. If the user does not object to such changes within two weeks following their publication and receipt, or continues to use the Game or other services after this period, the new general terms and conditions will be deemed accepted. When notifying users of such changes, SilentFuture will indicate the options available to object to such changes and the legal repercussions, in particular of failing to raise objections and in case of such objections the agreement shall continue subject to the old terms and conditions until terminated.
- These general terms and conditions are subject to the law of the Federal Republic of Germany under exclusion of the conflict of laws provisions, which refer to the application of other legal systems, and the UN Convention on Contracts for the International Sale of Goods (CISG).
- Mandatory consumer protection provisions of a memberstate of the European Union or the EEC shall be applicable in addition to German law at the choice of the consumer, if the Game is actively marketed in the respective member state.
- If the user’s permanent address or usual place of residence is outside Germany, or if the user’s permanent address moves outside of Germany during the contract period, the Parties will agree on Berlin-Mitte as the place of jurisdiction. SilentFuture also reserves the right to take legal action at the users general place of jurisdiction.
- If a provision contained in these general terms and conditions is or becomes ineffective, this will not affect the validity of the remaining provisions.