Orbster ("Orbster") is a platform provided by Orbster GmbH ("Orbster GmbH")
offering location based entertainment such as mobile games and related
services (the "Services").
Some Services may be free, other Services and some features of Services
which are free in their basic version may require a subscription or a
one-time payment. However, you will never be charged by Orbster GmbH unless
you have explicitly purchased a Service which is clearly marked as being
payable.
You may have to make payments to third parties: In order to participate in
the Services, you will generally have to download software on your mobile
device and/or your computer, and data may be transferred between you and the
servers of Orbster GmbH or between you and other participants. All this
creates traffic for which you will generally have to pay your mobile carrier
and/or your internet service provider. Please contact your mobile carrier
and/or your internet service provider for any details on applicable tariffs.
Orbster GmbH does not offer any internet or mobile phone services and is not
liable for such services. You are solely responsible for ensuring the
internet/mobile phone access necessary to enjoy the Services (see Sect. 2 (5)).
Orbster GmbH may provide on its website an indicative list of some common
tariffs to give you a first impression about data costs.
The Services offered by Orbster GmbH are for entertainment only. Do not rely
on them for anything else. Any form of commercial use is strictly prohibited
unless otherwise agreed upon in written form.
Using the Services will generally require prior registration on the website
of the respective Service. Some Services may be available without prior
registration. Orbster GmbH may offer registration through the respective
mobile device for some of the Services. Any use of the Services offered by
Orbster GmbH is subject to these Terms of Service ("ToS"), whether you are
registered or not.
In case a Service offers you the option to submit Content, such as graphics,
videos, sounds, or texts, such Content must not be illegal, offensive,
infringing upon third parties' rights or of commercial nature. By submitting
Content, you grant Orbster GmbH a non-exclusive, royalty-free, perpetual,
world-wide license to use the Content in the Service. Orbster GmbH shall
have the right to modify and adapt the Content so that it suits for the
Service. Orbster GmbH shall have the right to use such Content for other
Services. Orbster GmbH shall have no obligation to make such Content
available on ---Orbster and other Orbster GmbH Websites and/or the Services.
When using the Services, please pay attention to your surroundings. You may
find it hard to concentrate on other things while being connected to the
Services. So please do especially not use the Services on or near roads,
when crossing streets, or driving vehicles.
One key element of most Services is that they are for connected location
based entertainment. This means that they allow you to see where other
participants currently are, especially other participants which are near
your current location. Likewise, other participants will see where you are
while you are connected to the Services. However, participants will only be
identified by their Nicknames. Orbster GmbH does not share your real name or
address, age or gender with other participants, or with any other third
party.
Orbster GmbH may offer you in-game Gold or a in-game Currency which you can
use to purchase Items from Orbster GmbH. Orbster GmbH may also offer you the
possibility to buy Items from other users or to trade things with other
users. Please be aware that in-game Gold or any other in-game Currency is not
a real currency. Orbster GmbH may sell in-game Gold or in-game Currency, but
is not obliged to redeem in-game Gold or in-game Currency for real money.
Please keep in mind that Items in the Services are not "goods" or "property"
as defined by law. In case you are "buying" in-game Gold, in-game Currency or
Items from Orbster GmbH, you do not become the owner of these, but the
"seller" grants you a limited license, subject especially to these Terms of
Service, irrespective of the terminology used. Notwithstanding any other
stipulations and rights of Orbster GmbH, such license ends when the contract
between you and Orbster GmbH ends, especially upon Termination (see
Section 8). Your Items forfeit, unless otherwise provided hereinafter.
Notwithstanding any other language or context to the contrary, as used in
these Terms of Service and throughout the Services, in the context of the
transfer of in-game Gold or in-game Currency, Items or other Content, the term
"sell" means "to transfer for consideration to Orbster GmbH or another user
the licensed right to use in-game Gold or in-game Currency, Items or other
Content in accordance with these Terms of Service", and the term "buy" means
"to receive for consideration from Orbster GmbH or another user the licensed
right to use in-game Gold or in-game Currency, Items, or other Content in
accordance with these Terms of Service". The terms "buyer", "seller", "sale"
and "purchase" and similar terms have corresponding meanings.
In detail
Sect. 1
Getting started: Registration and Right to withdraw the registration[top]
In order to become a Member, you have to register for a Membership. You can
do so on www.orbster.com. You may also have the possibility to register when
launching one of the Services on your computer or mobile device.
You do not have to be of legal age to become a Member. However, if you are
not yet of legal age, it is important to first get your Legal
Representatives' Consent before you sign up for Orbster. If you do not have
your Legal Representatives' Consent, you are not allowed to become an
Orbster Member. By signing-up for Orbster, you expressly declare that you
either are of legal age or have your Legal Representatives' Consent. Orbster
GmbH may require you to prove your Legal Representatives have consented by
asking you to send a Written Note of this Consent to Orbster GmbH.
Registering, i.e. applying for a Membership, requires you to fill in a
Registration Form and to submit various information.
By filling in the Registration Form for your Membership, you submit a
binding offer to enter into a contract over the usage of Orbster
(the Membership Offer). All fields of the Registration Form which are marked
as being "required" have to be filled in. Any statement you submit through
the Registration Form must be complete and correct.
Orbster GmbH will promptly confirm the reception of the Membership Offer by
e-mail sent to the e-mail address submitted in the Registration Form. This
confirmation is not a binding acceptance of the Membership Offer. The
confirmation can, however, be sent together with such acceptance.
The contract between you and Orbster GmbH is concluded when Orbster GmbH
accepts the Membership Offer, either by declaring acceptance explicitly, or
otherwise by commencing to fulfill. You only become a Member once Orbster
GmbH has accepted your Membership Offer and created an Account for you.
Orbster GmbH can decide in its sole discretion whether or not to accept your
Membership Offer and to create a Membership Account for you. Once your
Account has been created, you may participate Orbster by launching the
Orbster Client and logging in.
Note on withdrawal
Instruction on your Right to Withdraw:
You can withdraw the User Offer or the purchase of Premium Services or Premium
Features in text form (e.g. letter, telefax, e-mail) within two weeks (Time
Limit). You do not have to give any explanation for this. The Time Limit starts
when you have received this instruction on your right to withdraw in written
form, but not before the conclusion of the contract and not before Orbster GmbH
has fulfilled its informational obligations under Sect. 312c (2) 1 BGB, Sect. 1
(1), (2), (4) BGB-InfoV as well as its obligations under Sect. 312e (1) 1 BGB,
Sect. (3) BGB-InfoV. It is sufficient to send the withdrawal within the Time
Limit.
When withdrawing via e-mail, your name as well as the words "withdrawal" or
"Widerruf" have to figure in the subject line.
In case of a valid withdrawal, both parties have to return the services they
have received and to restitute the benefits based on the use if applicable. If
you are not able to return completely the services or if you can only return
them in part or only in deteriorated condition, you are obliged to pay
compensation to this extent, as the case may be. This means that payments may
not be completely reimbursed if you have enjoyed benefits based on the use of
the services before the notice of withdrawal.
The right to withdraw ends premature if the contract has been completely
fulfilled by both parties upon your express demand before you have exercised your
right to withdraw. This is to be assumed if you have used Orbster, the Premium
Services and/or Premium Features and have fully paid.
End of instruction on your Right to Withdraw
Sect. 2
Details about Orbster and the Services: Access, System Requirements,
Availability, Changes to Orbster and the Services, Bugs, Malicious Code[top]
You may only access Orbster and use the Services through software provided
by Orbster GmbH which is installed locally on your computer and/or mobile
device (the "Clients") or with tools specifically approved by Orbster GmbH
("prohibition of non-authorized scripts"). It is strictly prohibited to
alter or modify the Clients, as any such action potentially interferes with
Orbster and the Services and may severely affect other users of the
services. You must not use programs which may cause an excessive load on
Orbster GmbH's servers. Software which systematically or automatically
performs commands or functions within Orbster or the Services (such as bots
or macros) as well as software which may be used to monitor, reproduce or
analyze Orbster or the Services or elements or Content thereof (save for the
respective Orbster user's own content), is prohibited.
You are not allowed to decompile or reverse engineer the Clients without
Orbster GmbH's prior consent. If you feel you have the right to decompile
the Clients in order to exercise your rights under statutory law or these
Terms of Service, please contact Orbster GmbH.
Unless otherwise provided for in these Terms of Service, Orbster and the
Services are offered to you on an "AS IS" and "AS AVAILBLE" basis.
Orbster GmbH offers the Members to participate in Orbster and the Services
over the Internet and/or mobile networks. However, please note there are a
few technical and commercial limitations as outlined below.
Technical and other requirements for Orbster and the Services
("Specifications") are outlined on the respective websites. As several
hardware and software components which may affect the functioning of Orbster
and the Services, such as the setup and configuration of the operation
system or hardware drivers and the firmware of the mobile device, are
numerous and subject to change beyond Orbster GmbH's knowledge or control,
such Specifications cannot be accurate and complete at all times. You should
never rely on the Specifications as listed on the website when purchasing
new software or hardware or a mobile device. When in doubt you may seek
prior advice on compatibility in Orbster GmbH's forums, by asking Members
who are using the same component, or by contacting such component's
manufacturer or retailer. Orbster GmbH does not assume any liability for
such third party advice. Orbster GmbH will use commercially reasonable
efforts to answer specific questions with regard to compatibility. Orbster
GmbH only provides the Clients and supporting libraries. Orbster GmbH does
not provide or install any other software which may be required on your
local computer or mobile device, such as the operating system, or hardware
drivers, if applicable. It is your responsibility to maintain the computer
and mobile device in a state which enables the use of Orbster and the
Services (see also Section 4). Orbster GmbH therefore does not provide
technical support for the installation of software required on your local
computer or mobile device.
One of the main characteristics (see "At a Glance") is, that Orbster and the
Services may change at any time. Members may add, delete or modify Content.
Therefore, Orbster GmbH may update, adapt, extend and change Orbster and the
Services at any time, aiming to maintain a good time for a maximum of
Members. Please note that Orbster GmbH may do so in its sole discretion and
without prior notice. Remember that you are granted a right of use only for
the then current version. Content which you have purchased from Orbster
GmbH, such as in-game Gold, in-game Currency or Items, will not be deleted
(save for cases listed in Section 8.6).
Orbster GmbH reserves its right to cease operation of Orbster and the
Services at any time, without giving reasons or prior notice. This gives you
a right to terminate the contract for important reason pursuant Sect. 8.4
to 8.5; any claims not explicitly provided in Sect. 8.4 to 8.5 are excluded.
Orbster GmbH wants you to enjoy Orbster and the Services as much as
possible. Therefore, Orbster GmbH undertakes to assure an availability of
Orbster and the Services of 90 % (ninety percent) as a yearly average.
Periods during which Orbster GmbH's Servers are not available over the
internet or via GPS because of technical or other problems outside Orbster
GmbH's influence (such as force majeure or third party's fault) and periods
during which routine maintenance works are carried out are excluded from
this. The liability of Orbster GmbH for an unavailability of Orbster and the
Services due to intentional or gross negligent behavior remains unaffected.
Orbster GmbH may restrict access to Orbster and the Services if and
when required for network security, maintenance of network integrity,
especially the prevention of severe malfunction of the network, the software
or stored data.
The Clients may be updated from time to time. Some of these updates may
improve certain elements of Orbster or the Services and you are free whether
you will update or not. However, there may be compulsory updates which you
have to accept in order to continue to use Orbster and the Services - that's
because Orbster and the Services are a connected service and require that
some of the elements are the same for all Members or all Users of the
respective Service. Please note that you may be charged for the traffic by
your Internet Service Provider and/or mobile carrier when downloading the
new versions.
While Orbster GmbH protects its systems against viruses and other malicious
codes, as you might know from your own experiences, virus infections and
malicious code can never be completely ruled out. It is your own
responsibility to protect all data stored on your computer and mobile device
against unauthorized access, and against data loss. Measures such as
encoding of confidential information, using a different partition of the
hard disk or another hard disk for confidential information, and regularly
backing up valuable data can help you protect your data. You should never
rely on Orbster or the Services to store valuable data, but rather keep
local backups on any and all valuable information you may submit, upload or
store on Orbster or the Services.
It cannot be prevented that unauthorized third parties can send e-mails
under the name of Orbster GmbH, without Orbster GmbH's knowledge or consent,
and such e-mails may contain viruses, spy ware or links to websites which,
in turn, contain viruses, spy ware, or other malicious code. You are
therefore advised to check all incoming mail sent by or under the name of
Orbster GmbH, or other Members, for viruses and malicious code before
opening them.
Orbster grants you access to Orbster and the Services in the current
version only (Sect. 2.3). You cannot claim that a given state or functional
range of Orbster or the Services are maintained or achieved. You
acknowledge and agree that Orbster and the Services, as any other software,
can never be completely free of bugs. Therefore, Orbster and the Services
can only be considered to be defective if the usability is affected
severely and ongoing.
To help Orbster GmbH provide the best possible product, please document any
faults of Orbster and the Services which you become aware of, and report
them in written form along with a log of the error messages displayed.
Before reporting a potential bug, you will consult the instruction and
other troubleshooting tools provided by Orbster GmbH (especially frequently
asked question lists, forums and boards for troubleshooting). You will use
your best efforts to support Orbster GmbH in any attempts to debug.
You will notify Orbster GmbH of any faults without undue delay upon
discovery in written form. Apparent faults of goods - including virtual
goods - have to be reported to Orbster GmbH in written form within two
weeks upon receipt. To comply with this deadline, it is sufficient that the
report is sent in time. If no notice has been given within this deadline,
all claims based on such defects shall forfeit. You are advised to submit
such reports in written form (facsimile, letter or e-mail) to Orbster GmbH.
Orbster GmbH is not liable for defects caused by external influence, faulty
handling, force majeure or changes or manipulations which are not carried
out by Orbster GmbH.
Orbster GmbH does not assume any warranties.
Sect. 3
Basic Rules; Content on Orbster and the Services[top]
Orbster and the Services may offer you the possibility to modify, create and
upload Content. Such Content may include the name and other characteristics
of the Characters you are playing, items, pictures, mission designs,
descriptions, reviews and ratings of other Members or their content, or
media content made available by the Members. Please note that Orbster GmbH
and other Members may have rights in their respective Content under
copyright and other legal provisions. Please note that you are solely
responsible and liable for your use of any Content in violation of any such
rights. So do not use, or copy Content of other Members without having their
prior permission. Orbster GmbH does neither endorse nor approve of Content
made available by the Members. Orbster GmbH does not generally control the
Content or actions in Orbster or the Services, especially not before they go
live (see Sect. 2.3 above). In case Orbster GmbH learns that Content is
illegal, it will be deleted promptly. Orbster GmbH disclaims of any
liability or warranty with respect to Content uploaded by Members,
especially their accuracy, completeness, and reliability.
For all Content you upload on Orbster or the Services, you will respect the
guidelines (see Sect. 3.1 above). When uploading Content on Orbster or the
Services, you will not do this expecting any form of compensation from
Orbster GmbH.
You will be solely responsible to obtain all permits and licenses you may
require from third parties to upload Content on Orbster or the Services, for
example to use copyright protected material.
Comments, especially descriptions, reviews and ratings of other Orbster
Members and their Content and actions have to be fair and objective.
In case of doubt, you shall promptly remove any Content and discontinue any
action, to which Orbster GmbH has objected.
Orbster GmbH may also remove such Content on its own. Orbster GmbH may
especially delete any Content and prevent actions, in whole or in part,
which give reason to assume a breach of these Terms of Service or of the
Rules or of applicable law, or which is not suitable for the respective
Service, for example Content with falls in one of the following categories:
Intrusion into the privacy or property of third parties.
Infringement of third party rights (for example by using trademarks,
names, pictures, videos, music, games, computer programs, or other
protected material).
Infringement of any other applicable laws and other legal rules (for
example with regard to youth protection, data protection, protection of
personality rights and protection against insults, false or misleading
information, promotion of or instructions for illegal activities).
Sending unsolicited e-mails, spam-mails or chain-mails to other Orbster
Members.
Content or actions of racist, threatening, obscene, defaming, political
extremist, religious, violent, sexist nature or which are otherwise
harmful to underage persons.
Content which has received negative feedback from other Orbster Members.
Content deleted according to Sect. 8.6 and 8.7 will not be restored by
Orbster GmbH.
Orbster GmbH may also exclude you from the possibility to upload Content
and, in case of repeated infringements of the aforementioned prohibitions
despite warning notice, terminate your Membership with immediate effect.
Orbster GmbH reserves to exercise its further rights, especially to claim
damages.
You will inform Orbster GmbH in case you learn about an abuse of Orbster or
the Services by other Members or third persons, such as making accessible or
sending Content or performing actions violating Sect. 8.6 and 8.7. To ensure
effective measures, Orbster GmbH requests such information in written form
(e.g. e-mail). If at all possible, please use the notification system
provided within Orbster or the Services.
Your Membership is only a license to use Orbster, regardless of
intellectual property rights you may have in Content you create or
otherwise own and which may be stored on your Account. This means that
while you hold all intellectual property in your Content and can use it
outside Orbster at your sole discretion, you do not own your Account.
Your principal obligation is to pay the fees, in case you have purchased a
service which is payable (see below Section 7). Another principal obligation
of you is to correctly and completely submit all data which Orbster GmbH
rightfully requests upon entering into the contract, or in the course of the
contractual relation with you. Therefore, when signing up, you declare that
the information relating to you or other facts relevant for the contract
(especially payment details) and which you provide in the Membership Offer
or upon conclusion or during the course of the contractual relation are
accurate, complete and correct. You will inform Orbster GmbH about any
changes to these information without undue delay. Upon request, you shall
confirm the data to Orbster GmbH.
You are responsible for all your actions in or related to Orbster and the
Services. You always have to respect all applicable legal rules, including
statutory law and these Terms of Service. You must not violate any third
person's privacy, property, or other rights. Please consult the list in
Sect. 3 to get an idea about what is forbidden in Orbster and the Services.
You also have to follow the Rules communicated by Orbster GmbH. You have to
refrain from any other activity which is an obstacle to Orbster or the
Services or which may prevent other users from having fun with the Services.
Therefore, you agree to follow the instructions of Orbster GmbH, its
employees, assistants and vicarious agents, including administrators and
moderators of Orbster and the Services. In case of continued breach of the
aforementioned obligations despite a reminder or severe breach (cf. Sect.
8.7), Orbster GmbH may cease all services and deliveries immediately and
without granting a deadline, and terminate the contract with immediate
effect.
You shall keep all Access Data for Orbster and the services (login,
passwords etc.) strictly confidential. You will promptly inform Orbster GmbH
if you find out or suspect that an unauthorized third person is in
possession of your Access Data. Please inform Orbster GmbH in written form,
e.g. via e-mail. Passwords should regularly be changed for security reasons.
In case Orbster GmbH has reason to believe that an unauthorized third party
is in possession of Access Data, Orbster GmbH may, without assuming any
responsibility to do so, and always acting at its sole discretion, change
the Access Data or block the respective Account. Orbster GmbH will use
reasonable efforts to inform you first. However, it is not excluded that the
change of Access Data, respectively the blocking of the Account is effected
without prior notice in case of urgency or to minimize the damage. In any
event, Orbster GmbH will promptly inform the rightful Member and will, upon
request, communicate the new Access Data to him or her without undue delay.
You cannot claim to have your initial Access Data restored.
If a third party uses your Account after he has come into possession of your
Access Data because you have not sufficiently protected your Access Data from
third party access, such third party access shall be considered as an access
by yourself due to the risk of lack of clarity which you have caused with
regards to who has acted under your account and therefore may be held liable
for any contractual or other legal claims.
You must not use the Account or Access Data of another user.
Orbster GmbH will never ask you for your password. You should never disclose
your password to any third person.
Sect. 5
Orbster GmbH's obligations and their limitations[top]
Orbster GmbH has created Orbster and the Services.
Orbster GmbH is not a party to your agreement with any third party that
provides software, products or services to you in connection with Orbster or
the Services.
Orbster GmbH does not generally control, regulate or pre-screen Content made
available by Members or the actions performed by Members. Therefore, you may
be exposed to Content or actions you may find unacceptable, disgusting or
despicable. Orbster GmbH has only very limited control over Content which is
created or uploaded by its Members, so Orbster GmbH cannot vouch for the
quality, accuracy, morality and legality of various aspect of Orbster and
the Services. However, Orbster GmbH may take appropriate actions against any
Members who disturb Orbster and the Services, especially by not respecting
their obligations (see Section 4).
Orbster GmbH may, without prior notice, change aspects of Orbster to the
extent determined in Section 2. Please be aware that in certain cases
Orbster GmbH may have to delete Content inserted by the Members, especially
Content which is contrary to Section 3. This is for your benefit only and
serves to make Orbster and the Services a fun experience.
Sect. 6
About these Terms of Service and Communication[top]
By submitting the Membership Offer and using Orbster or the Services, you
accept these Terms of Service as binding. Each log-in on Orbster or the
Services is subject to these Terms of Service. The Terms of Service can be
printed or saved on storage media before sending the Membership Offer.
Please be aware that any Terms and Conditions by you or any other Member of
Orbster do not become part of the contract between you and Orbster GmbH
unless Orbster GmbH has accepted them in a written form.
Sometimes Orbster GmbH may make Changes of these Terms of Service (including
amendments) for the future, if this should prove necessary (especially in
order to reflect changes in Orbster or the Services which are beyond Orbster
GmbH's control or changes in the legal framework for Orbster or the
Services, such as new legislation or case-law) and if you are not
disadvantaged contrary to good faith. Orbster GmbH may also make Changes to
these Terms of Service (including amendments) in case new features or
Services introduced to Orbster require to adapt the legal framework.
Orbster GmbH will notify you of these Changes of the Terms of Service in
appropriate text form (possibly via E-Mail). For example, Orbster GmbH will
notify you on the website of Orbster or the Services, when launching the
Clients or via e-mail. Changes of the Terms of Service will always be
highlighted upon your first login after the changes or amendments have been
made.
If you do not agree to the Changes of the Terms of Service made by Orbster
GmbH, you can contradict the Changes of the Terms of Service after the
information relating to the notification of the changes and the possibility
to take notice of such information within a time period of two weeks
following receipt of the information. It is recommended to you to submit
your contradiction in writing (for example via E-Mail) to Orbster GmbH for
evidence reasons.
The Changes of the Terms of Service become binding on you in the event that
(i) you do not contradict within the above-mentioned time period or
(ii) if you continue to use Orbster without having contradicted to the
Changes of the Terms of Services.
Orbster GmbH will inform you about the possibility to contradict and the
legal consequences, especially the legal consequences of a lack of
contradiction when notifying you about the Changes of the Terms of Service.
If you contradict in time, each party (i.e. you and Orbster GmbH) may
terminate the contract with one month prior notice unless termination is
possible at any time according to Section 8. Until termination, the Terms of
Service in their former version will govern your relationship with Orbster
GmbH. In this event, payment for services which may already have been made
for periods of time after the termination having effect are reimbursed pro
rata temporis. You do not have any other claims against Orbster GmbH.
Unless otherwise provided in these Terms of Services or other agreements
with you, Orbster GmbH will usually communicate with you via E-Mail. You
shall make sure that you receive all E-Mails sent by Orbster GmbH to the
address you have submitted to Orbster GmbH in the Membership Offer, or at a
later date. You will especially configure the spam filter accordingly and
regularly check all incoming mail under this address. Orbster GmbH may
choose any other appropriate means of communication.
Some Services may be free, other Services and some feature of Services which
are free in their basic version may require a subscription or a one-time
payment ("Premium Services" and "Premium Features"). However, you will never
be charged by Orbster GmbH unless you have explicitly purchased a Service
which is clearly marked as being payable.
You may have to pay a periodical fee for some Premium Services or Premium
Features (Subscription), other Premium Services and Premium Features may
require a one-time payment only; details are communicated where you can
purchase these Premium Services and Premium Features. In case you are not
yet of legal age, but want to acquire Premium Services and Premium Features,
you expressly declare that you dispose over the necessary monetary means or
that the necessary means were disposed to you for use at your own
discretion. Details on which Premium Features are offered (e.g. at which
tariff, which functions and requirements they have) can be found on the
Orbster website or within the Service. Any Subscription will renew
automatically if you do not cancel it according to Sect. 8.3.
One of the main characteristics is that Orbster and the Services are always
changing. Premium Features may therefore be added or removed or offered for
free at any time, or features which used to be free may become Premium
Features without prior notice..
In case you have made payments for Premium Features for a period of time in
the future, and cannot make use of these, because they are no longer offered
and/or are offered for free, you may terminate the subscription for this
Premium Features. This gives you a right to terminate the contract for
important reason pursuant Sect. 8.4 to 8.5; any other claims are excluded.
Orbster GmbH can ask you for advance payment for the fees of the Premium
Services or Premium Features (see Sect. 7.2). These fees are due upon
conclusion of the contract on the Premium Services or Premium Features and
will be collected from the bank account / debit card / credit card / mobile
telephone account ("Payment Account") submitted by you, if you are of legal
age, and if you do not choose another form of payment. If you are not yet of
legal age and do not own an appropriate Payment Account, you will have to
consult your legal representatives so that the fees will be collected from
one of their Payment Account, if they do not choose another form of payment.
Orbster GmbH may make Price Changes at any given time. Price Changes to
Subscriptions will be communicated with a notice period of 14 days and apply
once the Subscription renews.
If you pay too late, Orbster GmbH is entitled to ask an interest rate of 5%
above the then current base rate. Additionally, Orbster GmbH is entitled to
disable your Premium Features and to deactivate your Premium Services for
the duration of the delay. For the period Premium Services or Premium
Features are deactivated, you do not have to pay the respective subscription
fees. However, you have to pay Orbster GmbH a processing fee for
deactivating the Premium Services or Premium Features, informing you about
the deactivation and for re-activating the Premium Services and Premium
Features or creating a new Account upon full payment. The processing fees
are listed on the Orbster website. You may prove that no damage or only a
substantially lower damage has been caused.
In case you cause reversal debits and / or cancellation fees for the
cancellation of debits through your fault, or a lack of backing of your or
your legal representatives' Payment Account, you shall reimburse Orbster
GmbH for any such cancellation fees and costs.
Orbster GmbH shall have the right to debit these cancellation fees and
costs, along with the original fees, from your or your legal
representatives' Payment Account. If payment of the fees is made through
debit or through credit cards and reversal debits occur, Orbster GmbH
charges a service fee of EUR 20,00 per debit / credit card transaction plus
banking fees. You may prove that no damage or only a substantially lower
damage has been caused.
You may only offset if you have a claim against Orbster GmbH which Orbster
GmbH has not disputed or which has been declared legally binding by Court
decision. You may only withhold payment if you have a claim against Orbster
GmbH which has its origin in the same contractual relation. You are not
entitled to assign your claims against Orbster GmbH to a third party.
Any contracts between you and Orbster GmbH (including Subscriptions) are
entered into for an unlimited period of time, unless otherwise provided for
in the offer.
Each party has the right to terminate the contract at any time with
immediate effect, if no limitation of the period of the contract has been
agreed upon.
In case the contract has been agreed upon for a limited period of time
(cf. Sect. 7.2 for Subscriptions), the contract automatically renews for the
same period of time unless the Subscription or the contract has been
terminated in time with a period of 14 days, effective upon the end of the
term. No reasons have to be given for such termination.
Both you and Orbster GmbH remain free to terminate the contract for
important reasons at any time.
In case you terminate the contract for an important reason Orbster GmbH is
responsible for, you will be refunded for any payments you have made
(especially for Premium Services and Premium Features) for the period after
the termination becomes effective. You do not have any other claims, unless
otherwise provided in these Terms of Service. In the event you have been
notified about a right to terminate the contract for important reason and
had the possibility to read this notification, and you did not terminate the
contract, latest with effect on the date of implementation of the changes
granting you the right to terminate for important reason, but continue to
use Orbster or the Services, you may no longer terminate the subscription
with immediate effect. Any other termination rights provided in these Terms
of Services remain unaffected.
Orbster GmbH may terminate the contract especially for, but not limited to,
the following reasons:
You are late in paying fees of at least EUR 5.00, despite two reminders
You culpably breach any legal rule, these Terms of Service, or the Rules,
and such breach remains uncured despite written notice; a written notice
is not required in case of a severe contravention, i.e. when it would be
unreasonable that Orbster GmbH remains bound by the contract
You have not used your Account for six months despite a reminder
Cases in which it would be unreasonable that Orbster GmbH remains bound by
the contract generally include:
You violate criminal law
You violate the Prohibition of Non-Authorized Scripts (see Sect. 2.1 above)
You provide incorrect information upon registration (in the form of the
Membership Offer, see Sect. 1.4) or when purchasing or paying for Premium
Services or Premium Features (see Sect. 7)
You violate Sect. 3.6
You violate Sect. 4.1
Your further participation is likely to cause harm to Orbster, Orbster
GmbH, another Member or any third person.
In case Orbster GmbH rightfully declares the termination for important
reason, Orbster GmbH is entitled to claim 75 % percent of all fees which you
would have had to pay for the remainder of the term. You remain free to
prove that no or only substantially lower damages were suffered.
If there is no option to terminate the contract within Orbster, the
termination has to be declared in written form. E-mail is sufficient. A
termination for important reason can only be declared in written form.
By uploading Content on Orbster or the Services, you grant Orbster GmbH free
of charge a non-exclusive license to publicly display, reproduce and make
publicly available such Content in Orbster or the Service to which you have
uploaded the Content.
The license pursuant para. 1 of this Sect. 10 also extends to other services
offered by Orbster GmbH.
Please note that all Content you make available in Orbster can be accessed
globally.
Orbster and the Services are for entertainment only, i.e. Orbster and the
Services are not intended for commercial purposes, and not as a data storage
possibility. Orbster GmbH is, therefore, never responsible for lost data,
lost profit or consequential damages. You acknowledge and agree that losing
the possibility to continue using Orbster cannot be regarded as a financial
loss.
Orbster GmbH is not liable for any damages which are caused by you as a
consequence of an infringement of these Terms of Service or the Rules.
Orbster GmbH is not responsible for damages unless they are caused
intentionally or by gross negligence.
The aforementioned limitations of liability also apply for the personal
liability of staff, employees, assistants, vicarious agents, contributors,
representatives, organs, shareholders of Orbster GmbH and their members.
The aforementioned limitations of liability determined in Sect. 10.3 to 10.4
do not apply to the liability for personal injury of life, body, and health.
They do not apply in case the damage is the result of a breach of a cardinal
obligation, an essential obligation or a guarantee. Orbster GmbH remains
responsible for product liability and according to Sect. 44 a TKG.
Liability for breach of a primary obligation or an essential obligation is
limited to the damage which could have been foreseen.- A primary obligation is
a contractual duty, the adherence to which is of special importance to the
fulfilment of the contractual objective and on which you, as a party to this
contract, may legitimately rely. The damage which can be foreseen is limited
to EUR 20,00 per Member.
Orbster GmbH distances itself explicitly from the contents of any sites to
which there are direct or indirect links from Orbster GmbH's sites. Orbster
GmbH does not assume any responsibility for these contents and sites. The
providers of the respective sites are responsible for their content.
Orbster GmbH will only collect, process or use any data referring to you as
a person for the purpose of this contract (including billing) unless Orbster
GmbH is required by law to disclose such data, unless you have consented to
any other use. Collection, usage and processing of the data are carried out
in electronic form.
Orbster and the Services may be partly financed through advertising.
Advertising messages may therefore appear throughout Orbster and the
Services. Advertising messages may depend on your current location. Orbster
GmbH may display advertising tailored to the actions you perform and Content
you upload when using Orbster and the Services unless you contradict.
Orbster GmbH will only send third party advertising to your e-mail address
upon your prior consent.
Orbster GmbH may inform you about other related products offered by Orbster
GmbH, also in electronic form, without your explicit consent, as far as
legally permissible, as long as you do not contradict. You may contradict at
any time, and no costs other than costs for the transmission (at base
tariffs) of the message by which you contradict.
For advertising and market research and for tailoring Orbster GmbH and
potential new products according to the needs of Members, Orbster GmbH may
create aggregated data which will be made anonymous.
Upon request, Orbster GmbH will promptly inform you about all data logged
with regards to you free of charge. This information will generally be
provided in electronic form, usually via E-Mail.
Orbster GmbH may pass on payment data to service providers or third parties
insofar as this is required for billing. Orbster GmbH will disclose the
names of these third parties. Otherwise, Orbster GmbH will not pass on user
data, or the content of private messages in Orbster or the Services, to any
third party unless required by law.
Orbster GmbH would like to point out that data protection and data security
cannot be guaranteed for data transmission through open nets such as the
internet or the mobile network you are using at the current stage of
technical development. You are aware that your internet provider or mobile
carrier, or unauthorized third parties may have access to the data stored on
the servers or transmitted through Orbster and the services, and might
therefore be able to have access to your data.
Any disputes between Members shall be settled in their own responsibility.
Orbster GmbH reserves the right to intervene in any disputes between
Members. Orbster GmbH shall, however, be under no obligation to do so.
Orbster GmbH's failure to act with respect to a breach by you or other
Members does not waive Orbster GmbH's right to act with respect to that
breach or subsequent or similar breaches. No consent or waiver by Orbster
GmbH under these Terms of Service shall be deemed effective unless delivered
in writing and signed by a duly appointed representative of Orbster GmbH.
You may not assign or transfer the agreement with Orbster GmbH regarding the
use of Orbster or the Services, or any or all of your rights hereunder
without the prior written consent of Orbster GmbH.
Section headings used in these Terms of Service are for convenience only and
shall not affect the interpretation of these Terms of Service.
Should any provision of these Terms of Service be held to be unlawful, void,
or for any reason unenforceable, then that provision shall be deemed
severable from these terms and shall not affect the validity and
enforceability of the remaining provisions.
Any changes, amendments or the abrogation of the contract between you and
Orbster GmbH require written form; the requirement of written form can only
be waived in written form.
The sole place of jurisdiction is Karlsruhe, Germany in case you transfer
your legal domicile or regular residence to a place outside the Federal
Republic of Germany after conclusion of the contract with Orbster GmbH.
The laws of the Federal Republic of Germany apply for all contracts
concluded by Orbster GmbH on the basis of these Terms of Service and any
claims arising thereof, and for all claims related to your use of Orbster
and the Services. The application of the agreement of the United Nations on
contracts for international sale of goods and German International Private
Law are excluded.
Some of the services and applications of Orbster use data from the
OpenStreetMap-project (openstreetmap.org). This data is distributed
under the Creative Commons Attribution-ShareAlike 2.0 license.
The service or application as a whole is considered to be a collective
work in terms of this license.
