Terms of Service

Table of Contents

• At a Glance
• Getting started: Registration and Right to withdraw the registration
• Details about Orbster and the Services: Access, System Requirements, Availability, Changes to Orbster and the Services, Bugs, Malicious Code
• Basic Rules; Content on Orbster and the Services
• Your obligations
• Orbster GmbH's obligations and their limitations
• About these Terms of Service and Communication
• Payable Features and Payment Conditions
• Term and Termination
• Copyright in the Content
• Orbster's Liability
• Advertising and Data Protection
• Misc.
• Contact

At a Glance[top]

1. Orbster ("Orbster") is a platform provided by Orbster GmbH ("Orbster GmbH") offering location based entertainment such as mobile games and related services (the "Services").
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. Orbster GmbH may offer you Ingame Gold or a Ingame 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 Ingame Gold or any other Ingame Currency is not a real currency. Orbster GmbH may sell Ingame Gold or Ingame Currency, but is not obliged to redeem Ingame Gold or Ingame 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" Ingame Gold, Ingame 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 Ingame Gold or Ingame Currency, Items or other Content, the term "sell" means "to transfer for consideration to Orbster GmbH or another user the licensed right to use Ingame Gold or Ingame 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 Ingame Gold or Ingame 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]

1. In order to become an 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.
2. 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.
3. Registering, i.e. applying for a Membership, requires you to fill in a Registration Form and to submit various information.
4. 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.
5. 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.
6. 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.

The withdrawal has to be addressed to:

Orbster GmbH
Fritz-Erler-Straße 1-3
D-76137 Karlsruhe
Germany
Phone: +49-721 201 802 14
Fax: +49-721 151 381 404
Email: info@orbster.com

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 in case Orbster has started to deliver the service with your explicit consent before the expiration of the Time Limit, or if you have initiated yourself the delivery of the service. This is to be assumed if you have used Orbster.

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]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 Ingame Gold, Ingame Currency or Items, will not be deleted (save for cases listed in Section 8.6).
7. 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.
8. 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. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. Orbster GmbH does not assume any warranties.

Sect. 3

Basic Rules; Content on Orbster and the Services[top]

1. 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.
2. 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.
3. 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.
4. Comments, especially descriptions, reviews and ratings of other Orbster Members and their Content and actions have to be fair and objective.
5. In case of doubt, you shall promptly remove any Content and discontinue any action, to which Orbster GmbH has objected.
6. 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.
7. Content deleted according to Sect. 8.6 and 8.7 will not be restored by Orbster GmbH.
8. 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.
9. 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.
10. 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.

Sect. 4

Your obligations[top]

1. 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.
2. 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.
3. 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.
4. 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.
5. You are solely responsible for the use of your Account. In case a third party uses, through your fault, Orbster or the services with your Access Data, you are liable for the fees and for damages. All access through your Access Data shall be considered as an access by yourself.
6. You must not use the Account or Access Data of another user.
7. 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]

1. Orbster GmbH has created Orbster and the Services.
2. 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.
3. 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).
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]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Sect. 7

Payable Features and Payment Conditions[top]

1. 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.
2. 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.
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..
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.

Sect. 8

Term and Termination[top]

1. 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.
2. 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.
3. 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.
4. Both you and Orbster GmbH remain free to terminate the contract for important reasons at any time.
5. 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.
6. 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
7. 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.
8. 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.
9. 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.

Sect. 9

Copyright in the Content[top]

1. 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.
2. The license pursuant para. 1 of this Sect. 10 also extends to other services offered by Orbster GmbH.
3. Please note that all Content you make available in Orbster can be accessed globally.

Sect. 10

Orbster's Liability[top]

1. 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.
2. 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.
3. Orbster GmbH is not responsible for damages unless they are caused intentionally or by gross negligence.
4. 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.
5. 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.
6. Liability for breach of a cardinal obligation or an essential obligation is limited to the damage which could have been foreseen. The damage which can be foreseen is limited to EUR 20,00 per Member.
7. 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.

Sect. 11

Advertising and Data Protection[top]

1. 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.
2. 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.
3. Orbster GmbH will only send third party advertising to your e-mail address upon your prior consent.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Sect. 12

Misc.[top]

1. 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.
2. 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.
3. 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.
4. Section headings used in these Terms of Service are for convenience only and shall not affect the interpretation of these Terms of Service.
5. 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.
6. 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.
7. 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.
8. 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.
9. The German version of these Terms of Service is decisive.

Contact[top]

Status: May 6, 2008

Orbster GmbH
Fritz-Erler-Straße 1-3
D-76137 Karlsruhe
Germany
Phone: +49-721 201 802 14
Fax: +49-721 151 381 404
Email: info@orbster.com
HR-No. and Commercial Register: HRB 703311, Amtsgericht Mannheim
Managing Directors (Geschäftsführer): Georg Broxtermann, Jörn Rehse