- DATA PRIVACY STATEMENT
- General Terms and Conditions
(Use of the basic version of BIG CITY RACER is free!)
"I agree that the personal data I provided in the application to open an Account (application for registration for the services provided by Vanilla Live Games Softwareentwicklungs GmbH at www.bigcityracer.com) shall be processed for the following purpose:
for the provision and invoicing of the services of Vanilla Live Games Softwareentwicklungs GmbH;
in an anonymous form and/or using pseudonyms, for improving and customizing Vanilla Live Games Softwareentwicklungs GmbH's offer in line with demand;
to fulfil statutory requirements imposed on Vanilla Live Games Softwareentwicklungs GmbH, including but not limited to archiving requirements.
Moreover, Vanilla Live Games Softwareentwicklungs GmbH shall process your data to communication with you. Such communication includes, but is not limited to providing help and support as well as making available important information relating to your contract. Subject to your consent, we shall inform you on a continuous basis, e.g. by e-mail, of news, events and measures of Vanilla Live Games Softwareentwicklungs GmbH.
I may revoke my consent at any time by e-mail to cancellation@bigcityracer.com."
- II. General Terms and Conditions of
Vanilla Live Games Softwareentwicklungs GmbH
1. Scope of application
Vanilla Live Games Softwareentwicklungs GmbH offers an online car race on the internet at www.bigcityracer.com (hereinafter "BIG CITY RACER"). A 3D multiplayer online game and other services are offered on BIG CITY RACER. These services include, for example, creating a profile page, participating in blogs and forums, posting media contents, such as photos, text and games, acquisition of virtual items and/or other services. The participants in and the users of the BIG CITY RACER game are hereinafter referred to as "Users". Where these General Terms and Conditions (hereinafter "GTC") refer to "Games" or "Services", these indicate the games and services of Vanilla Live Games Softwareentwicklungs GmbH.
Vanilla Live Games Softwareentwicklungs GmbH provides Services to the Users of these Games and Services exclusively subject to these GTC. The User's GTC expressly do not become part of the contract, unless Vanilla Live Games Softwareentwicklungs GmbH expressly agrees with these in writing.
The following GTC govern the use of the BIG CITY RACER game, the online Games and the Services of Vanilla Live Games Softwareentwicklungs GmbH. These may be used primarily on the internet through a personal computer via ISDN, DSL or another equivalent connection. Moreover, these may be used, possibly with a restricted scope of functionality and/or representation, via different other internet-compatible terminals.
The subject-matter of these GTC does not include questions, if any, that may arise in the context of providing access and the connection of the websites and the online games and software (browser, access software) of third parties, since those services are not provided by Vanilla Live Games Softwareentwicklungs GmbH.
1.1 User
1.1.1 Vanilla Live Games Softwareentwicklungs GmbH offers its Games and Services exclusively to consumers pursuant to Section 1 of the Austrian Consumer Protection Act. The use of the Game and Services of Vanilla Live Games Softwareentwicklungs GmbH for gainful purposes or for other commercial purposes is excluded.
1.1.2 Persons who either have completed age 18 when applying for use, or whose legal representatives have approved such use, are allowed to use the Game and/or Services.
1.1.3 Upon application for use of the Game and/or Services, the User expressly confirms (i) that s/he is of age and has legal capacity; and (ii) in case of minors, that the consent of the legal representative is available.
1.2 Subject-matter of contract, use and change of the Game and Services
1.2.1 Vanilla Live Games Softwareentwicklungs GmbH enables the Users to use the Games and Services it offers on the internet within the scope of the existing technical and operational facilities.
1.2.2 Participation in the Games is solely intended for entertainment.
1.2.3 As regards the Services, Vanilla Live Games Softwareentwicklungs GmbH provides certain information on BIG CITY RACER and, among others, enables Users to post information on the web and create individual personal profiles, which may be viewed by Users of Games, Users of Services and third parties. Moreover, the User may communicate with third parties via BIG CITY RACER, exchange photographs, games and, to the extent possible, music and other media contents, publish blogs and comments and issue ratings of games, other Users, third parties or transactions.
1.2.4 Vanilla Live Games Softwareentwicklungs GmbH facilitates the use by providing online the necessary application at the relevant URLs of the Game and/or Services. Vanilla Live Games Softwareentwicklungs GmbH reserves the right to also offer the Games – as the case may be, with a different scope of functionality – on data carriers which may be purchased. The sale of Games is not subject to these GTC.
1.2.5 Only persons who have previously created a customer account (hereinafter "Account") by way of registration may participate in the Games and use the Services. An Account may be created either on the BIG CITY RACER website, or on partner websites or in the Game. An Account created on the BIG CITY RACER game portal entitles the User to use each Game subject to the conditions of Section 1.1 hereof.
1.2.6 The registration, i.e. the application to create an Account, is made by completing a form and entering various information. The use of the Game and/or Services is provided as of the point in time when Vanilla Live Games Softwareentwicklungs GmbH creates an Account for the User.
1.2.7 A User may create only one Account on BIG CITY RACER ("No Multiple Accounts Principle"). A violation of the No Multiple Accounts Principle may be punished by the User's immediate suspension. Vanilla Live Games reserves the right to take other steps.
An Account may not be used to provide advantages to another Account of a User.
1.2.8 After the Account has been created, the User may participate in the Game or Services by accessing and logging on to the BIG CITY RACER game or the relevant URL.
1.2.9 The use of the Game and Services is possible only via an internet browser or via special tools that are provided or expressly admitted by Vanilla Live Games Softwareentwicklungs GmbH ("Unauthorised Scripts Ban"). This means, among others that programmes creating an overload on the server may not be used. Software may not be applied to systematically or automatically control the Game or specific functions of the Game (bots, macros), to reproduce or score the Game, components of the Game or the contents provided on the BIG CITY RACER platform.
1.2.10 It is prohibited to use bugs and/or programming errors for personal purposes. Detected bugs shall be reported as soon as possible by posting in the bug forum, by IRC or by e-mail.
1.2.11 The User has no legal claim to create an Account or publish contents, if any, on BIG CITY RACER.
1.2.12 The current technical and other prerequisites for playing the Game and participating in the Services may be obtained from the BIG CITY RACER Game and/or the URL www.bigcityracerr.com.
1.2.13 The Games and Services are updated, adjusted, extended and modified on a continuous basis. The User is granted the right to use the relevant published Game and Services only in the relevant current versions thereof.
1.2.14 The use of the Game in its basic version is free. However, certain features are available only to paying Users (see Section 7 hereof). Unless [otherwise] agreed by virtue of separate descriptions of the relevant Services, the Services may be used free of charge.
1.2.15 The User has no claim to the Game and/or Services being maintained in the version existing when the contract is concluded. Vanilla Live Games Softwareentwicklungs GmbH reserves the right to discontinue the operation of a Game and/or Services at any time without stating any reason. In this event, the User may request at his/her choice that fees paid in advance (e.g. for Premium Features) be credited on his/her behalf to other Games and/or Services operated by Vanilla Live Games Softwareentwicklungs GmbH, or that Vanilla Live Games Softwareentwicklungs GmbH reimburse fees paid in advance. This shall not affect the User's right to terminate with immediate effect the contract relating to the Games and/or Services that cannot be used. Further claims of the User are excluded, unless otherwise provided by these GTC.
2 Offer and conclusion of contract
2.1 By completing the registration form, the User issues a binding offer to conclude a contract on the use of Games and Services (also referred to as "User Application"). To this end, all compulsory data fields of the registration form shall be accurately and fully completed.
2.2 The contract between Vanilla Live Games Softwareentwicklungs GmbH and the User is concluded when Vanilla Live Games Softwareentwicklungs GmbH accepts the User Application. Vanilla Live Games Softwareentwicklungs GmbH may expressly accept the User Application or do so by virtue of the first act of performance (Erfüllungshandlung).
2.3 Vanilla Live Games Softwareentwicklungs GmbH shall immediately confirm electronically receipt of the User Application by sending an e-mail to the e-mail address disclosed by the User. Such confirmation of receipt does not constitute a binding acceptance of the User Application. However, the confirmation of receipt may be combined with the statement of acceptance.
3 Right of rescission
The User may terminate by written notice (e.g. by letter, fax, e-mail) his/her contract declaration on the use of Games and Services and the order of Premium Features within a seven-day time limit, with Saturday not being deemed a working day, without stating any reason. The time limit starts on the contract execution date. If Vanilla Live Games Softwareentwicklungs GmbH fails to fulfil its obligation to provide information, the User may terminate the contract within a time limit of three months. If Vanilla Live Games Softwareentwicklungs GmbH fails to fulfil within this time limit its obligation to provide information, the seven-day time limit for exercising the right of termination shall commence as of the point in time when the information has been transmitted (Section 5e of the Austrian Consumer Protection Act). Timely sending of the letter of termination will preserve the rescission period.
The letter of termination shall be addressed to:
Vanilla Live Games Softwareentwicklungs GmbH
Hauptplatz 3
A-8940 Liezen
Telephone: +43 (0) 43 3612 21111
Fax: +43 (0)1 253 303 315 54
Email: office@vanillalivegames.com
If notice of termination is given by e-mail, the name of the Game and the Premium Features, if any, and/or the name of the Services as well as the User's name shall be stated in the reference.
Consequences of termination:
In case of effective termination, the reciprocally received services shall be returned and benefits, if any, drawn shall be concurrently released. If the User is unable to return to Vanilla Live Games Softwareentwicklungs GmbH the received service in full or is able to return the received service only in part or only in a deteriorated condition, the User may have to pay a relevant compensation to Vanilla Live Games Softwareentwicklungs GmbH. This may result in the User being required to fulfil his/her contractual payment obligations for the period up to the termination. This shall not apply to the provision of virtual goods, if the deterioration of these virtual goods is based exclusively on examining these – as the User would have been able to do when purchasing an item in a store. The User is required to pay a compensation, if s/he uses the virtual goods in a manner that is incompatible with the principles of the Austrian Civil Code – such as the principles of good faith or unjustified enrichment. Moreover, the User may avoid his/her obligation to pay compensation by not using the virtual goods as if s/he were the owner of these and by refraining from doing anything that affects their value. Obligations to make payments shall be met within 30 days. For the User, this time limit shall commence upon sending off the letter of termination; for Vanilla Live Games Softwareentwicklungs GmbH it shall commence upon receipt thereof.
Premature expiry of the right of termination:
The User's right of termination shall prematurely expire if, upon the User's express request, both parties have fully performed the contract before the User executed his/her right of termination. This shall be assumed to be the case if the User has used and paid in full the Games and Services and/or Premium Features.
4 Availability
Vanilla Live Games Softwareentwicklungs GmbH warrants an annual average of 90 % (ninety per cent) availability of the Game and Services, to the exclusion of periods in which the servers of the BIG CITY RACER game cannot be accessed via the internet due to technical or other problems beyond Vanilla Live Games Softwareentwicklungs GmbH's control (force majeure, third-party fault etc.) as well as periods in which regular maintenance work is carried out. The liability of Vanilla Live Games Softwareentwicklungs GmbH for the unavailability of the Game and Services in case of intent and gross negligence shall not be affected. We disclaim any liability for slight negligence. Vanilla Live Games Softwareentwicklungs GmbH may restrict access to the lines, if the safety of the network operation, including but not limited to avoiding major failures of the network, the software or stored data, so requires.
5. Receipt and acknowledgement of the GTC, changes and further notifications, contact established by the User
5.1 The User shall acknowledge the GTC of Vanilla Live Games Softwareentwicklungs GmbH by accepting these prior to sending off the User Application. These GTC shall apply to each instance of logging on to the BIG CITY RACER portal, including but not limited to each instance of participating in the Games and/or use of the Services. The User may print out or save these GTC on a permanent data carrier prior to sending off the User Application; moreover, these GTC are available at the homepage of Vanilla Live Games Softwareentwicklungs GmbH.
5.2 Vanilla Live Games Softwareentwicklungs GmbH reserves the right to change or modify these GTC at any time with future effect, if this appears necessary and does not put the User at a disadvantage contrary to good faith.
5.3 Changes of these GTC shall be appropriately notified in text form. Notices are regularly published on the websites of the Games and/or Services operated by Vanilla Live Games Softwareentwicklungs GmbH or by e-mail. In any case, changes of these GTC shall be notified to the User by way of a highlighted notification upon the first log-in after the relevant change.
5.4 The User may object to changes of these GTC within 14 (fourteen) days of notification and opportunity to acknowledge. If the User does not object to the changed conditions by giving written notice to Vanilla Live Games Softwareentwicklungs GmbH within the 14-day time limit after notification and opportunity to acknowledge, or if the User continues to use the Games and/or Services, the changed or modified conditions shall become effective vis-à-vis the User. If the User timely objects, either party may terminate the contract by giving one month's notice, unless a right to terminate the contract at any time already exists pursuant to Section 8.1 hereof. The original GTC shall continue to apply until the contract is terminated. In this case, compensations, if any, paid in advance for periods after the termination shall be reimbursed to the User on a pro-rated basis. Further claims of the User are excluded.
5.5 In its instruction on the changes, Vanilla Live Games Softwareentwicklungs GmbH shall expressly point out the opportunity to object to changes and to terminate the contract, the time limit and the legal consequences, including but not limited to those relating to non-objection.
5.6 Unless otherwise prescribed by these GTC or agreed with the User, Vanilla Live Games Softwareentwicklungs GmbH shall regularly communicate with the User by e-mail. The User shall ensure that s/he receives e-mails Vanilla Live Games Softwareentwicklungs GmbH sends to the e-mail address s/he disclosed upon registration or at a later point in time. S/he shall do so, among others, by appropriately setting the spam filter and s/he shall regularly check the relevant e-mail address. Moreover, Vanilla Live Games Softwareentwicklungs GmbH shall choose the form of other correspondence at its own discretion.
5.7 Upon each incident of contacting Vanilla Live Games Softwareentwicklungs GmbH, the User shall indicate the Game Account and/or Service Account his/her enquiry is relating to.
6. Game manuals, game rules
6.1 The game manuals and the game rules of the relevant Games and Services shall be published on the BIG CITY RACER game portal or on the website of the relevant Game/Service.
6.2 The User is aware that s/he is playing in the Game worlds with numerous other Users and/or communicates on BIG CITY RACER with different service Users. The rules must be observed in order to enable successful interaction. By participating, the User acknowledges as binding the Game rules and the conditions for participating in the Services.
6.3 Moreover, the User shall refrain from doing anything that disturbs the operation of the Game and Services and successful interaction.
7 Rate levels, payment terms, default
7.1 Online Games
7.1.1 Basic version
Vanilla Live Games Softwareentwicklungs GmbH regularly provides the Games to the Users after an Account was created (see Section 1.2, above). In this case, the User shall initially be provided with a basic version. An Account may be created and the basic version used free of charge. The basic version is not limited as to time and is fully playable. In the basic version, the Premium Features shall not be available to the User.
7.1.2 Premium Features
The User has the opportunity to receive against payment of a compensation features that are not available in the basic version (hereinafter "Premium Features"). Vanilla Live Games Softwareentwicklungs GmbH reserves the right to offer different Premium Features. Depending on the relevant Premium Feature and rate, these may be one-time payments, charges to buy credit to be used in the relevant Game for certain functionalities according to the rules governing these, or payments to be made for a certain period (e.g., day, week, month, quarter, semester, year).
The Game is developed further on a continuous basis. Hence, Vanilla Live Games Softwareentwicklungs GmbH reserves the right to offer new Premium Features at any time. In the course of adjusting and further developing the Game, Vanilla Live Games Softwareentwicklungs GmbH moreover reserves the right to no longer offer specific Premium Features and/or to offer these also in the basic version (see Section 7.1.1, above). Provided that the User already made payments for Premium Features for a future period and is unable to use these, because they are no longer offered and/or also available in the basic version, Vanilla Live Games Softwareentwicklungs GmbH shall, at the User's choice, offer other Premium Features instead as a replacement and/or repay to the User a pro-rated portion of the amount paid. In this case, the User may terminate the contract to use the Game and Services with immediate effect. Further claims of the User are excluded.
If the User is under age, s/he expressly confirms upon ordering Premium Features that the necessary funds to pay for these have been made available to him/her for this purpose or that s/he may freely dispose of these funds.
7.1.3 Subscription / automatic renewal
Provided that payments for Premium Features are due for a certain period, the User shall take out a subscription, which shall be automatically renewed in compliance, by analogy, with Section 5 hereunder (Vanilla Live Games Softwareentwicklungs GmbH shall notify the User of the renewal of the contract and separately notify the User by e-mail of the significance of his/her conduct at the beginning of the 14-day time limit, during which the opposition against the renewal of the contract may be expressly declared), unless the User terminates it upon expiry of the relevant period by giving notice within the time limits set forth in Section 8.2 hereunder. The subscription periods are described in the rules applicable to the relevant Game.
7.1.4 Terms of payment, maturity
Vanilla Live Games Softwareentwicklungs GmbH may charge in advance fees for the use of the Premium Features (see Section 7.1.2, above). These fees shall be payable upon conclusion of the contract and debited from the bank account or credit card stated by the User, unless the User selects another form of payment (e.g. premium SMS). The amount to be collected shall be stated as "WWW.BIGCITYRACER.COM" or Vanilla Live Games Softwareentwicklungs GmbH on the credit card invoice and/or the bank account statement.
7.1.5 Adjustment of fees
Vanilla Live Games Softwareentwicklungs GmbH may at any time reduce the prices permanently or for a limited period and offer new products, services or terms and conditions for invoicing permanently or for a limited period. Moreover, Vanilla Live Games Softwareentwicklungs GmbH may at any time change the prices after advance written notice or an advance notice by e-mail to the e-mail address disclosed by the User, observing a six-week time limit in either case. The changed price shall apply unless the User objects within six weeks of such notice. In this case, the contractual relationship shall continue at the changed terms and conditions / prices. In its change notice, Vanilla Live Games Softwareentwicklungs GmbH shall expressly point out the opportunity to object to changes and to terminate the contract, the time limit and the legal consequences, including but not limited to those relating to non-objection.
If the User timely objects, either party may terminate the contract by giving on month's notice, unless a right to terminate the contract at any time already exists pursuant to Section 8.1 hereof. The original rates shall apply until the contractual relationship has been terminated.
Fees, if any, paid (payments made) by the User to Vanilla Live Games Softwareentwicklungs GmbH shall be reimbursed to the User on a pro-rated basis. Further claims of the User are excluded.
7.2 Default
In case of default, Vanilla Live Games Softwareentwicklungs GmbH may charge interest at a rate of 5 %. In case of default, Vanilla Live Games Softwareentwicklungs GmbH may also discontinue the Services and/or suspend the Users' Accounts. During the suspension period, no fees are payable for subscriptions, if any. However, Vanilla Live Games Softwareentwicklungs GmbH may charge a processing fee for the suspension, the notification of the suspension and the discontinuation of the suspension and/or creation of a new Account in case payment is made in full. In all of these cases, the User may prove, at his/her discretion, that no or significantly lower losses have been incurred.
7.3 Reverse-debit, cancellation fee
The User shall bear all costs, if any, Vanilla Live Games Softwareentwicklungs GmbH may incur through the User's fault or through reverse-debits due to lack of funds on the User's bank account and/or cancellation fees charged to Vanilla Live Games Softwareentwicklungs GmbH due to debits being cancelled later on.
Vanilla Live Games Softwareentwicklungs GmbH may charge these costs along with the original fees by virtue of renewed debit from the User's bank account. If the fees are paid by debit from the bank account or credit card, and if reverse-debits occur, Vanilla Live Games Softwareentwicklungs GmbH shall charge a processing fee of EUR 9.60 Euro per debit from the bank account / credit card plus the bank fees incurred by Vanilla Live Games Softwareentwicklungs GmbH. In all of these cases, the User may prove, at his/her discretion, that no or significantly lower losses have been incurred.
7.4 No prize guarantee
Vanilla Live Games Softwareentwicklungs GmbH does not guarantee any prizes to the Users. In particular, the Users shall have no claim to payment of the prize, unless such claim is expressly derived from these GTC.
A claim to payment of the prize may exist only if Vanilla Live Games Softwareentwicklungs GmbH expressly promised such prize.
A claim shall not exist, even if Vanilla Live Games Softwareentwicklungs GmbH determines that the potential claim to a prize may have been created through technical or legal manipulation and/or any manipulation punishable under criminal law. By participating in the Games of Vanilla Live Games Softwareentwicklungs GmbH, the User agrees that Vanilla Live Games Softwareentwicklungs GmbH may request at any time an extensive investigation of the legality of the claim to a prize and refuse in the meantime payment of the prize without the User's separate consent being required. The claim to a prize shall also forfeit if the User acts in breach of the Game rules. In case of doubt, the burden of proof shall rest upon the User; the User shall be required to prove that s/he acted in compliance with the rules of the Game. The User is aware of being subject to and expressly acknowledges this burden of proof, even if this may not be the lawful case.
7.5 No set-off, retention rights, no assignment
The User may set off claims of Vanilla Live Games Softwareentwicklungs GmbH only against claims that are legally relating to these and against non-litigious or finally determined counterclaims.
The User may exercise a retention right only if his/her counterclaim is based on the same contractual relationship. The User may not assign to a third party his/her claims against Vanilla Live Games Softwareentwicklungs GmbH.
7.6 Services
Unless otherwise agreed in the Service description, Services are provided free of charge. Moreover, Sections 7.1 through 7.5 hereunder shall apply by analogy to Services provided against a fee.
8 Term, termination
8.1 Indefinite term
The contracts between the User and Vanilla Live Games Softwareentwicklungs GmbH are concluded for an indefinite term, unless otherwise prescribed by the specific offer of Vanilla Live Games Softwareentwicklungs GmbH.
If a limited term has not been agreed for the contract to use the Game and/or Services, either Party may terminate the contract at any time without notice.
8.2 Limited term
If the contract on the use of the Game and/or Services and/or the contract on the use/provision of Premium Features (in this context, see also Sections 7.1.2 and 7.1.3, above) have been concluded for a limited term, the following regulations shall apply. The contract on the use of the Game and/or Services and/or the contract on the use/provision of Premium Features shall be automatically renewed for another term of the same length in compliance, by analogy, with Section 5 hereunder (Vanilla Live Games Softwareentwicklungs GmbH shall notify the User of the renewal of the contract and separately notify the User by e-mail of the significance of his/her conduct at the beginning of the 14-day time limit, during which the objection to the renewal of the contract may be expressly declared). This shall not apply if the User terminates the contract on the use of the Game and/or Services and/or the contract on the use/provision of Premium Features by giving 14-days' notice at the end of the term.
8.3 Statement of reasons, termination for good cause
Ordinary termination requires no statement of reasons.
The Parties' right to terminate the contract on the use of the Game and/or Services and/or the contract on the use/provision of Premium Features at any time for good cause shall not be affected by the above regulations.
If Vanilla Live Games Softwareentwicklungs GmbH is liable for the extraordinary termination of the contract on the use of the Game and/or Services and/or the contract on the use/provision of Premium Features, the User shall be reimbursed on a pro-rated basis for fees s/he paid in advance (including, but not limited to fees for Premium Features). Further claims of the User are excluded, unless otherwise provided by these GTC.
Good cause for Vanilla Live Games Softwareentwicklungs GmbH to give notice of termination shall include, but not be limited to:
- the User's default of payment of fees in the minimum amount of € 5.00 (euros) and failure to pay despite two reminders;
- the User's culpable violation of laws, Game rules and/or regulations for the use of the Services and failure discontinue such violation despite a warning; in case of serious violations, no warning is required, if Vanilla Live Games Softwareentwicklungs GmbH cannot reasonably be expected to maintain the contract.
BIG CITY RACER regularly cannot reasonably be expected to maintain the contract in the following cases:
- if a User violates criminal laws and/or a criminal investigation is initiated or a sentence against the User has become final;
- if the User violates the No Multiple Accounts Principle (see Section 1.2, above) set forth in the Game rules of the Games operated by Vanilla Live Games Softwareentwicklungs GmbH;
- if the User violates the pushing ban (see Section 1.2, above);
- if the User violates the Unauthorised Scripts Ban (see Section 1.2, above);
- if the User violates the ban on using programming errors (bugs) (see Section 1.2, above);
- if the User provides false data upon registration (registration form of the User Application, see Section 2, above) or upon payment for Premium Features (see Section 7.1, above).
In case Vanilla Live Games Softwareentwicklungs GmbH lawfully gives notice of termination for good cause, Vanilla Live Games Softwareentwicklungs GmbH may claim an amount equivalent to 75 % of the sum total of all fees the User would have had to pay during the term of the contract (including, but not limited to fees for Premium Features already ordered) in case of termination giving appropriate notice at the same time. The User's right to prove that no or significantly lower losses have been suffered shall not be affected.
8.4 Written form of notice of termination
Notice of termination must be given in writing; notice of termination given by e-mail shall be deemed in compliance with this form requirement. Extraordinary notice of termination shall be given in writing and must include a statement of reasons.
9. Duties and other obligations of the User, and User's liability for information provided by him/her, copyright
9.1 Obligations
The User's main obligation is to pay the prescribed fees, unless s/he uses the free basic version of the Game and/or the Services (see Section 7, above). Moreover, the User's main obligation is to provide correct and complete data, which Vanilla Live Games Softwareentwicklungs GmbH requests upon conclusion of the contract or in the course of the contractual relationship with the User. The User therefore confirms that the information relating to his/her person and other contract-relevant circumstances (including, but not limited to bank details and credit card number) s/he provided in the context of the offer to conclude a contract, or upon conclusion of a contract, or in the course of the contractual relations, is complete and correct. The User undertakes to immediately notify any changes in his data to Vanilla Live Games Softwareentwicklungs GmbH; upon Vanilla Live Games Softwareentwicklungs GmbH's relevant request, the User shall confirm the data. The User is required to comply with the Game rules. In case of repeated violations despite reminder or in case of a serious violation pursuant to Section 8.3 hereunder, Vanilla Live Games Softwareentwicklungs GmbH may immediately suspend the contractual services and deliveries without granting a grace period and terminate the contract.
9.2 Software installation
Vanilla Live Games Softwareentwicklungs GmbH is not liable for losses suffered or data lost on the User's computer due to the installation of software that does not originate from Vanilla Live Games Softwareentwicklungs GmbH.
9.3 Further obligations of the User
9.3.1 Vanilla Live Games Softwareentwicklungs GmbH provides online the Game and/or Services for use by virtue of a download client. The software locally required on the User's computer (including, but not limited to the operating system and web browser, as the case may be, plug-ins, such as Flash or Java, as well) will neither be provided nor installed by Vanilla Live Games Softwareentwicklungs GmbH. Vanilla Live Games Softwareentwicklungs GmbH does not provide support for these either. It is up to the User to keep his/her computer in a condition that facilitates the use of the Game of Vanilla Live Games Softwareentwicklungs GmbH. Vanilla Live Games Softwareentwicklungs GmbH accordingly does not provide technical support for installing the locally required software.
9.3.2 The User undertakes to keep strictly confidential the access data (log-in data, passwords, etc.) s/he receives from Vanilla Live Games Softwareentwicklungs GmbH for the purpose of accessing its Game and/or Services. The User undertakes to access the portal exclusively from private computers in order to prevent spying, if any, by third parties. The User shall immediately notify Vanilla Live Games Softwareentwicklungs GmbH as soon as s/he becomes aware or suspects that unauthorised third parties know the access data. For reasons of preserving evidence, it is recommended that the User do so in writing (e.g. by e-mail). If a third party uses an Account after having gained access to the access data because the User did not sufficiently safeguard these against third-party access, the User is required to tolerate being treated as if s/he himself/herself had acted, because of the risk created by the User that it may be unclear who acted under the affected Account and against whom claims may thus be asserted in case of a violation of the contract or other violation of any law. Vanilla Live Games Softwareentwicklungs GmbH may deem any access by virtue of the User's data as access by the User himself/herself. Vanilla Live Games Softwareentwicklungs GmbH points out that, for reasons of security, passwords should be changed at regular intervals. The User is solely liable for the use of his/her Account.
9.3.3 If it is reasonably suspected that unauthorised third parties have become aware of the access data, Vanilla Live Games Softwareentwicklungs GmbH may, for reasons of security, but is not required to independently change at its own discretion the access data and/or suspend the use of the Account without prior notification. It will notify the authorised User without delay of such circumstance and, upon request, disclose the new access data to him/her within an appropriate time limit. The User has no claim to the original access data being restored.
9.3.4 The User may not sell or otherwise assign his/her Account to a third party.
9.3.5 Vanilla Live Games Softwareentwicklungs GmbH protects its system against virus attacks. Nevertheless, a virus attack can never be completely excluded. Moreover, unauthorised third parties may send e-mails using the name of Vanilla Live Games Softwareentwicklungs GmbH without its consent; such e-mails possibly contain viruses or so-called spyware or links to web contents that contain viruses or spyware. Such incidents are beyond Vanilla Live Games Softwareentwicklungs GmbH's control. Hence, the User shall perform virus checks on all incoming e-mails sent or allegedly sent in Vanilla Live Games Softwareentwicklungs GmbH's name. The same shall apply to e-mails of other Users of the Game or Services.
9.3.6 The User shall follow instructions issued by Vanilla Live Games Softwareentwicklungs GmbH, its employees, its servants and vicarious agents, including but not limited to instructions issued by the administrators and moderators of a forum, if any, that is part of the relevant Game and/or Service.
9.3.7 The User undertakes not to use under any circumstance the Account, user name or password of another User.
9.4 User's obligations relating to information, if any, posted by the User
9.4.1 The User shall diligently select the information s/he publishes and makes available to other Users on BIG CITY RACER.
9.4.2 The User undertakes not to disseminate in connection with the Services any contents (such as images, videos, links, names, words) containing advertisement, political, religious, offensive, harassing, violent, sexist, pornographic or otherwise unethical or unsavoury contents, persons or illustrations, including but not limited to racist and right or left extremist contents, persons or illustrations. Moreover, the User undertakes not to use any legally protected terms, names, images, videos, music clips, games or other materials. In case of doubt, the User shall immediately remove contents criticized by Vanilla Live Games Softwareentwicklungs GmbH. Vanilla Live Games Softwareentwicklungs GmbH may also remove these itself. The User shall always observe any pertinent laws and regulations, including but not limited to those intended to protect minors, ensure data protection, protection of personal privacy, protection from insult, copyright, trademark rights etc.
9.4.3 The User may not use the Services for illegal or unauthorised purposes. In particular, the User may not use other Users' user names and/or e-mail addresses without their prior consent for sending unsolicited e-mails, if any, advertising messages or for other commercial purposes.
9.4.4 A culpable breach of the above obligations shall entitle Vanilla Live Games Softwareentwicklungs GmbH to delete the contents posted by the User.
9.4.5 In particular, Vanilla Live Games Softwareentwicklungs GmbH may delete in full or in part Information Posted, if specific evidence exists that these GTC and the instructions and rules for the relevant Services have been violated or if such information is otherwise unlawful. This applies, for example, to information that:
- is obviously unsavoury, racist, fanatic, or glorifies violence;
- is harassing or offensive, threatening, obscene, or defaming or slandering another person;
- is sexist, pornographic or otherwise of a nature putting minors at risk or includes a link to an X-rated website;
- includes false or misleading information; supports illegal conduct;
- represents an illegal or unauthorised copy or dissemination of a copyrighted work, e.g. by providing illegal computer programmes or links to illegal computer programmes, information to avoid copy protection mechanisms and illegal copies of music clips or links to illegal copies of music clips or otherwise infringes copyrights;
- includes the transmission of "junk mails," "chain letters" or unsolicited mass mailings, instant messages, "spimming" or "spamming";
- includes restricted sites that are accessible only by a password or contain hidden sites or images;
- supports criminal activities or intentions or contains instructions for illegal activities or instigates criminal activities or includes, among others, but not exclusively, information on the production or purchase of weapons. child pornography, fraud, drug trafficking, gambling, stalking, spamming, spimming, dissemination of computer viruses and other harmful documents, copyright violations, patent infringements or theft of business secrets;
- prompts other Users to provide personal data for commercial or illegal purposes or to disclose log-in data;
- contains commercial activities and/or sales, such as competitions, sweepstakes, barter deals, advertisements, pyramid schemes;
- contains an image of another person without that person's consent being available.
9.4.6 A claim to the restoration of deleted information does not exist.
Moreover, Vanilla Live Games Softwareentwicklungs GmbH may exclude the User from further participating in the relevant Services and terminate without notice the User's Account in case of repeated non-compliance with the above provisions despite reminder (e.g. by e-mail). Vanilla Live Games Softwareentwicklungs GmbH expressly reserves the right to assert further claims, including but not limited to claims for damages.
9.4.7 The User shall notify Vanilla Live Games Softwareentwicklungs GmbH in case s/he becomes aware of an instance of abusive use of the Services by a third party or another User (e.g. dissemination and transmission of contents banned pursuant to Section 9.4.5 hereunder). In order to ensure a more effective intervention, the User is requested to do so in writing (e.g. by e-mail).
9.5 User's liability for information, if any, posted by him/her
9.5.1 The User shall be liable himself/herself for text, documents, images, photos, videos, sounds, music clips, copyrighted work or other materials, information etc. (hereinafter referred to as "Information Posted"), which s/he makes available or exchanges with other Users on the BIG CITY RACER platform. Vanilla Live Games Softwareentwicklungs GmbH does neither appropriate nor consent to such information.
9.5.2 Vanilla Live Games Softwareentwicklungs GmbH has no control over Information Posted by Users on BIG CITY RACER. Vanilla Live Games Softwareentwicklungs GmbH does not inspect Information Posted prior to publication thereof. However, if Vanilla Live Games Softwareentwicklungs GmbH is or becomes aware of illegal Information Posted, it will delete such information without delay.
9.5.3 Vanilla Live Games Softwareentwicklungs GmbH disclaims any liability for posted contents, including but not limited to the correctness, completeness or reliability of contents, materials or information.
9.6 Copyrights
9.6.1 The User shall retain all rights to the Information Posted by him/her. By posting information on the BIG CITY RACER platform and/or its Games and/or Services, the User grants Vanilla Live Games Softwareentwicklungs GmbH a non-exclusive licence, at no charge and freely revocable at any time, to publicly display, publicly notify, reproduce and disseminate such contents on the BIG CITY RACER platform and/or the gaming sites.
9.6.3 Information Posted by the User on BIG CITY RACER may be viewed on the internet by third parties worldwide. By providing this information the User declares his/her consent.
9.6.4 This licence shall become invalid if the User deletes the contents from the BIG CITY RACER platform and its Services.
10 Claims based on defects
10.1 Vanilla Live Games Softwareentwicklungs GmbH provides to the User access to the Games and Services, in the relevant current versions thereof (Section 1.2 hereunder). The User has no claim to a certain quality/scope of functionality of the Game and/or Services being maintained or created. The User is aware that – as any software – the Game and Services offered by Vanilla Live Games Softwareentwicklungs GmbH can never be completely flawless. Thus, the Game and/or Services shall be deemed defect only if the playability or use thereof is significantly and sustainably disrupted.
The User shall always document in a meaningful manner defects, if any, occurring in the Games, Services or other services or deliveries of Vanilla Live Games Softwareentwicklungs GmbH and report these in writing, including, in particular, a log of the error reports displayed. Before reporting an error, if any, the User shall consult the game and service instructions and, if necessary, other help provided by Vanilla Live Games Softwareentwicklungs GmbH for eliminating problems (including, but not limited to lists of frequently asked questions, discussion forums on problems). The User shall support Vanilla Live Games Softwareentwicklungs GmbH to the best of his/her ability in the repair, if any, of defects.
10.2 The User shall report defects to Vanilla Live Games Softwareentwicklungs GmbH in writing immediately upon detection thereof. For purposes of securing evidence, the User is advised to address all written reports of defects (by fax, letter or e-mail) to Vanilla Live Games Softwareentwicklungs GmbH.
10.3 Errors caused by external causes, operation errors of the User, force majeure or changes that were not carried out by Vanilla Live Games Softwareentwicklungs GmbH or by other manipulation shall be excluded from warranty.
10.4 Vanilla Live Games Softwareentwicklungs GmbH does not issue any guarantees in the legal sense.
11. Disclaimer
11.1 Vanilla Live Games Softwareentwicklungs GmbH is not liable for other losses incurred due to slight negligence. However, this shall not apply to the liability in case of injury to life, body and health or in case a guarantee has been issued by Vanilla Live Games Softwareentwicklungs GmbH.
11.5 The above exclusions and/or restrictions of liability shall also apply as regards the liability of the employees, workers, co-workers, representatives and vicarious agents of Vanilla Live Games Softwareentwicklungs GmbH, particularly for the personal liability of the shareholders, co-workers, corporate bodies and members thereof.
11.6 Vanilla Live Games Softwareentwicklungs GmbH shall be liable for consulting services only as far as the questions were relating to the scope of the offer.
11.7 Vanilla Live Games Softwareentwicklungs GmbH expressly distances itself from the contents of all sites containing direct or indirect references (so-called "links") from the offer of Vanilla Live Games Softwareentwicklungs GmbH. Vanilla Live Games Softwareentwicklungs GmbH assumes no liability for such contents or sites. The owners of these sites are themselves responsible for the contents thereof.
12. Final provisions
12.1 Notifications and statements to be issued by the User to Vanilla Live Games Softwareentwicklungs GmbH shall be made in writing (e.g. by e-mail). The same applies to a change or waiver of this written form requirement.
12.2 Place of jurisdiction shall be Liezen, if the User transfers his/her residence or ordinary place of abode from Austria after conclusion of the contract. This shall apply, even if the consumer's residence or ordinary place of abode is unknown when the complaint is filed.
12.3 Contracts concluded by Vanilla Live Games Softwareentwicklungs GmbH on the basis of these GTC shall be governed by and construed exclusively in accordance with Austrian law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the conflict of law rules of International Private Law; the same applies to claims of any kind whatsoever arising from such contracts.
Should any term hereof be or become invalid, this shall not affect the remaining terms hereof.
Liezen, 10 June 2010
Vanilla Live Games Softwareentwicklungs GmbH
Hauptplatz 3
8940 Liezen
Austria
Telephone: +43 (0) 3612 21111
Fax: +43 (0) 125330331554
Email: office@vanillalivegames.com
Managing Directors: Andreas Tobler & Ralf Helmel
Companies register: FN286171s of the Leoben Regional Court