THIS AGREEMENT IS A LEGALLY BINDING CONTRACT. PLEASE READ IT CAREFULLY. Mad Otter Games, Inc. (“Mad Otter”) is proud to provide you access to our online service for use with the Villagers & Heroes™ game software (together with any updates, the “Game Client”). After installing the Game Client on your computer, you may connect to the game servers (“Game Servers”) that Mad Otter and its affiliate partners operate. Together, the Game Client, the Game Servers, and the additional services in connection with them, make up the massively multiplayer online role-playing game Villagers & Heroes™ (hereinafter, the “Game”). These Terms of Service (“TOS” or “Agreement”) govern your use of the Game. By connecting to or using the Game Servers or running the Game Client, or accessing one of the websites associated with the Game (www.VillagersandHeroes.com) you agree to be bound by the terms of this Agreement.
§ 1 Area of application
1.1 Mad Otter provides Users with services furnished in connection with the Game solely on the basis of these Terms of Service (hereinafter “TOS”).
1.2 The Game rules and participation requirements of the Game are published on the website www.VillagersandHeroes.com. Upon participation, the User also acknowledges these Game rules and participation requirements as binding.
1.3 Users are not entitled to assign their rights arising from this contractual relationship to any third party.
1.4 These TOS do not concern questions that may arise in connection with the services of third parties – including access to the Internet.
§ 2 Subject matter and scope of services
2.1 Mad Otter facilitates the User’s participation in the Game, provided the User has the necessary equipment and services (e.g., a computer that meets the minimum requirements, an Internet connection, etc.).
2.2 For playing the Game, the User must be connected to the particular server of the Game by means of an authorized and unmodified Game Client. Mad Otter makes available client software for download by Users.
2.3 The User is responsible for maintaining his or her PC in a condition that permits the use of the Game. This means that the PC possesses an appropriate Internet connection and the minimum system requirements for the Game.
2.4 For the basic version of the game, the use is free. However, Users have the option, with payment, to acquire virtual currency for the Game, which may be exchanged for virtual objects and/or other additional functions. Virtual currency and virtual objects do not represent a real-world currency nor real-world items. Mad Otter does not assign to Users ownership of virtual currency nor ownership to virtual objects, but solely a usage right, where the duration and extent depend on the particular virtual object.
2.5 The Game is being constantly developed, updated, and modified. The authorization for participation exists only for the current version of the Game. Mad Otter reserves the right to at any time discontinue, limit or change the operation of the Game or individual features of the Game in whole or in part, without a statement of the reasons.
§ 3 Users
3.1 Those entitled to participate are only those persons who have completed their 18th birthday or whose legal representatives have consented to the use.
3.2 Upon registration for participation for the Game, the User warrants his or her age, legal capacity and/or, if he or she is a minor, the presence of the consent of his or her legal representative. Mad Otter is entitled to, at any time, request a written verification of the age of the User and/or the declaration of consent of his or her legal representative.
3.3 Participation in the Game is solely for the purpose of amusement. Users may not use the Game for commercial purposes.
§ 4 Registration process and entering into force of contracts
4.1 The User must fill out all fields marked as “required” in the registration form. All data in the registration form, regardless of whether voluntary or required, must be correct. Upon registration, the User must indicate his or her own e-mail address, under which he or she is able to be contacted.
4.2 Upon the submission of his or her registration, the User makes an offer for the conclusion of a use contract. However, a contract does not come into existence by filling out and submitting the registration form, but only upon the acceptance of the User’s offer by Mad Otter. Mad Otter shall confirm the receipt of the User offer in an electronic manner to the e-mail address indicated by the User. The confirmation of receipt does not constitute acceptance of the User’s offer. However, it may be connected with the notification of acceptance. The acceptance may take place expressly or through the first fulfillment action by Mad Otter. The User has no right to the conclusion of a contract, nor to the establishment of an Account, nor to participation in the Game.
4.3 Each User may open and use only one Account per Game. The opening of several Accounts for the same Game by the same User (so-called “multi-accounts”) is prohibited.
4.4 The User selects a member name during his or her registration, under which he or she is known to the Game, to Mad Otter, and to other Users. A User may also have the opportunity to name his or her characters, guild, village, pets, animals, and create a guild and village slogan. Any of the preceding that are defamatory, obscene, racially or ethnically offensive, libelous, inciting, a mockery or imitation of a Villagers & Heroes™ player or NPC, a misspelled variation or homonym of any of the preceding, or any name that is contrary to the law is prohibited. Any violation entitles Mad Otter to immediately rename and/or block the User. Mad Otter has the final say over what constitutes a violation of the naming policy.
4.5 The User may not transfer his or her Account to a third party without prior written consent from Mad Otter.
§ 5 Assignment
5.1 Mad Otter may assign this Agreement, in whole or in part, to any person or entity at any time with or without the User’s consent. A User may not assign these TOS without Mad Otter’s prior written consent, and any unauthorized assignment by a User shall be null and void.
§ 6 Terms and conditions of use
6.1 The Game is made available to Users only within the framework of use as set forth in this Agreement. Registered Users may be connected to a server through the Game Client under their member name and their personal password. The automated opening of Game Accounts is not permitted. The connection to the server is only permitted via the official, authorized, unmodified Game Client made available by Mad Otter.
6.2 The User is not entitled to apply measures, mechanisms or software to the website, to the Client, nor to other software made available by Mad Otter, which could disrupt the function or process of the Game. The User may not engage in measures that could have the consequence of an unreasonable or excessive burden on the technical capacities of Mad Otter. In particular, the User is prohibited from blocking, overwriting or modifying contents generated by Mad Otter.
6.3 The User is not permitted to add elements to the Game software, nor to change, nor delete or modify in any other form elements of the Game software unless Mad Otter has previously issued its express written consent to this. In particular, the User is not permitted to copy, extract or otherwise use graphic elements, or to attempt to decode the source code of the software.
6.4 The User is not authorized to use the Game for commercial or illegal purposes.
6.5 The User may not implement (nor have implemented for him or her), use or apply any software-supported or hardware-supported application of a third party that makes it possible for him or her to influence the Game status or the Game process or receive services that he or she could otherwise acquire only at a fee. Therefore, the User is specifically prohibited from creating services that are subject to costs or other benefits (for example, the systematic or automatic control of the Game or individual Game functions) through the use of software of a third party or other applications (in particular, so-called “bots”, “hacks” or “cheats”).
6.6 The User is expressly prohibited from selling, purchasing, leasing, renting, offering, acquiring, distributing or duplicating for a third party virtual objects or virtual currency – regardless of the form – within and/or outside of the Game, to the extent that no consideration, or consideration solely in the form of other virtual objects or virtual currency for the same Game, is required. If virtual currency or virtual objects in the Game are transacted or exchanged in the same extent, without a comparable equivalent value being paid within the Game, a violation of this section 6.6 is assumed.
6.7 Furthermore, the User is obligated to comply with all statutory provisions upon all uses of the Game. In particular, they are prohibited from disseminating any content of any type and form that is defamatory, pornographic, obscene, racially or ethnically offensive, sexist, libelous, or any other reference that is contrary to the law, along with content that is likely to violate the rights of any third party. Users are likewise prohibited from disseminating through the Game commercial advertising for products and/or programs of any third party; and works of any third party that are protected by copyright or other rights without that third party’s consent and authorization.
§ 7 Handling of payments
7.1 Users are granted the option of receiving, in exchange for a payment of a fee, virtual currency, which may be exchanged for virtual objects and/or additional functions that are not available in the Game in the free basic version and/or must be paid for. The offered virtual objects and additional functions that are subject to costs make it possible to use certain additional functions during certain periods in conformity with the rules of the particular Game.
7.2 Since the Game is continually subject to ongoing development, Mad Otter reserves the right to offer new additional functions and/or virtual objects, and/or to remove them from the offer, to modify them, or to make them available in the free basic version. If the User has already furnished payments for virtual objects and/or additional functions for a future period, and can no longer use these for the preceding reasons, Mad Otter shall, at the option of the User, offer as a substitute different virtual objects and/or additional functions for the Game and/or provide proportional reimbursement to the User for the amount that was paid. In such cases, the User is free to terminate this Agreement with immediate effect. Additional claims of the User are barred.
7.3 The fees for virtual currency are due in advance for payment upon the conclusive confirmation of the order by the User. The payments that are due are typically deducted from the bank account and/or through a credit card indicated by the User, or furnished by means of suitable payment systems.
7.4 Mad Otter is entitled to lower the prices for virtual currency, virtual objects and/or additional functions permanently or for a limited time, and to offer new products, services or accounting options permanently or for a limited time.
7.5 In the event of default, Mad Otter is entitled to require interest in the statutory amount. Furthermore, Mad Otter is entitled in the event of default to discontinue the services and to immediately block the Account of the User.
7.6 If, through any fault of the User or through a lack of account coverage that is attributable to the User, reversal debits and/or cancellation fees arise for Mad Otter through the subsequent cancellation of direct debits, the User has to bear the costs arising from this. Mad Otter is entitled to demand such costs together with the original fee from the account of the User through repeated deductions. If the payment of the fees takes place through direct debit or credit card collection and if return direct debits arise, Mad Otter shall charge a processing fee in the amount of $15 U.S. Dollars for each direct debit / credit card collection, plus the bank fees that have accrued for Mad Otter, if the User does not prove that the losses that arose were smaller.
7.7 Users may engage in a set-off against Mad Otter only with undisputed or legally established counterclaims. They may exercise a right of retention only if their counterclaim is based on the same contractual relationship. The assignment of their claims against Mad Otter to a third party is barred.
§ 8 Contractual term and termination
8.1 This Agreement between the User and Mad Otter is entered into for an indefinite period of time.
8.2 Both parties are entitled to the right of ordinary termination at any time, with immediate effect.
8.3 The preceding provisions do not affect the right of the parties to terminate at any time for good cause. Mad Otter is particularly, but not exclusively, entitled to termination for good cause if any of the following are true: a. the User is in delay with the payment of fees b. the User culpably violates these TOS, the law, the Game rules and/or the rules of use for additional services c. the User has not used his or her Account for three months, regardless of whether or not Mad Otter has issued a warning.
8.4 Upon any grave violation, immediate termination is possible, without a prior warning being required. A grave violation is any violation upon which it cannot be expected for Mad Otter to stay bound to the Agreement. As a rule, Mad Otter cannot be expected to stay bound to the Agreement in the any of the following cases: a. if the User violates criminal law b. if the User violates the prohibition against multi-accounts (see above § 4, number 4.4) c. if the User uses the Game in an impermissible manner (see above § 6) d. if upon registration, (see above § 4) or upon the payment of services that are subject to costs (see § 7), the User supplies incorrect information.
8.5 If Mad Otter is responsible for an extraordinary termination, the User will be reimbursed for the fees that he or she has paid in advance for the use of virtual objects and/or additional functions beyond the termination period, proportionately for the period of time between the point in time of termination and the next ordinary termination option, along with the virtual currency still existing in his or her Account. Additional claims of the User are barred, to the extent not otherwise provided in these TOS.
8.6 Mad Otter is entitled to a Game-related special termination right in the event that Mad Otter loses the authorization to operate the Game; e.g., based on the termination of the relevant license agreement between Mad Otter and the particular licensor. In such an event, Mad Otter may, with a period of four weeks, terminate the contracts related to the operation and use of the Game (e.g., use contract, contract regarding the availability and use of virtual currency, virtual objects and/or the additional functions). Fees already paid by the User for a longer period of time or for services not yet used upon the end of the contract will be proportionately reimbursed accordingly. In place of a reimbursement, the parties may agree that corresponding use rights are granted to the User for other Game in the corresponding value.
8.7 Any termination must be in writing; whereby, e-mail is also sufficient for written form. An extraordinary termination must always include a statement for the reasons of termination.
§ 9 Commercial property rights and copyrights
9.1 The Game and contents of the respective websites are in the exclusive possession and the exclusive legal ownership of Mad Otter and its respective licensors. Any impermissible utilization, dissemination, duplication or other violation of the commercial property rights or copyrights of Mad Otter are pursued under civil law and/or criminal law.
§ 11 Responsibility for third party content
11.1 For communication between Users, Mad Otter makes available a platform over which they may communicate with each other. Each User is responsible for the contents of all of his or her communications and all contents that are published by the User on the Internet site. Mad Otter does not treat such content as its own, nor does it consent to it. The same applies to any content that violates the rights of third parties in any manner. Violations may lead to the immediate deletion and/or blocking of content and/or the Account and to the termination of the User. To the extent that, on the platform, links are made available to other sites that are operated by third parties, Mad Otter is not responsible for the contents of the linked sites. Mad Otter does not control these sites, and expressly disassociates itself from their contents.
§ 12 DISCLAIMER OF WARRANTIES
12.1 DISCLAIMER OF WARRANTIES. THE GAME IS MADE AVAILABLE ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND AVAILABILITY.
12.2 If Users become aware of defects or bugs in the Game, Users may inform Mad Otter of these through various means (e.g., the in-game “Bug Report”, the Game forums, etc.). In most cases, Mad Otter will attempt to correct these defects in a timely manner. However, Mad Otter will have final say on what constitutes a defect or bug. Further, as stated in 12.1, Mad Otter does not warrant that it will fix any specific defect or bug.
§ 13 Liability
13.1 To the extent that Mad Otter furnishes services without any fee, in no event is Mad Otter liable for damages other than those caused by gross negligence or an intentional act.
13.2 To the extent that Mad Otter demands a fee for services, Mad Otter is liable without limitation for intentional acts and gross negligence. For simple negligence, Mad Otter is liable only in the event of the violation of material contractual obligations or the violation of a warranty. Material contractual obligations, in addition to so-called “cardinal obligations” within the meaning of jurisprudence, are understood to be those obligations that are absolutely necessary for the orderly conducting of the Agreement and the fulfillment of which Users may rely on.
13.3 The preceding liability limitations do not apply to liability upon any injury to life, body or health, or in the event of Mad Otter’s assumption of a warranty.
13.4 Upon the violation of any material contractual obligation, the obligation to pay damages is limited to foreseeable damages. This amounts to USD $50 per Account.
13.5 The preceding liability exclusions and/or limitations also apply in respect of the liability of employees, workers, representatives and vicarious agents of Mad Otter, particularly in favor of shareholders, employees, representatives, governing bodies and their members, which concerns their personal liability.
13.6 For consultation, Mad Otter is liable only to the extent that the question concerns one of its Games.
§ 14 Conduct obligations and duties of Users
14.1 The primary obligation of the User is the payment of a fee that possibly accrues. An additional primary obligation of the User is the obligation to provide the correct and full disclosure of information that Mad Otter asks for from the User upon the conclusion of a contract or in the continuation of the contractual relationship. The User warrants that the information regarding his or her identity or other circumstances relevant to the Agreement (particularly bank account and credit card number) that is provided within the framework of the contractual offer or the conclusion of the contract or in the continuation of the contractual relationship is complete and correct.
14.2 Users are aware that they are playing the Game together with numerous other Users, and/or that they are communicating with various Users over the additional services. In order to facilitate vigorous interaction, observance of the rules is necessary. Users acknowledge the Game rules and the participation requirements of the Game as binding. Users shall comply with the instructions of Mad Otter or one of its designate representatives. In all other respects, Users shall refrain from any action that disturbs the Game and the additional services and the vigorous interaction. The User is particularly obligated to not bring in and/or transmit into the Game any content that is against the law or public policy. This particularly includes content that spurs racial hatred, is likely to endanger the moral welfare of children or teenagers or impairs them in their well-being, or could damage the reputation of Mad Otter.
14.3 Upon any contravention of the User of number 14.2, Mad Otter itself is entitled to delete the information uploaded by the User. In particular, Mad Otter is entitled to delete uploaded information if there is specific evidence for a violation of these TOS, the Game rules or the participation requirements, or if the uploaded information is otherwise illegal.
14.4 Upon any contravention of the User, Mad Otter is also entitled to, after previous warning and the threat of blocking, temporarily block the access of the User to his or her Account. A warning with the threat of blocking is unnecessary if there are special circumstances that justify the immediate blocking of access under consideration of mutual interests. Mad Otter is to inform the User of the reason for the blocking. The same applies in the event of any abusive use of a credit card, use of incorrect credit card information and the indication of incorrect data in the event of participating in the direct debit procedure. The blocking of access includes Mad Otter immediately removing from the database and from the websites all contents and information that originate from the blocked User.
14.5 If the access is blocked, Mad Otter shall reimburse (proportionately) the User for the use fees that were already paid. Upon a justified blocking of access, Mad Otter may charge a processing fee of USD $15. The User is free to prove that losses did not arise or were substantially lower.
14.6 There is no right to the restoration of the deleted information.
14.7 Users are obligated to keep strictly confidential and not disclose to any third party the access data (login data, passwords, etc.) received for the access to the Game, unless Mad Otter has previously consented in writing to the assignment of the Account. Users may not under any circumstances use the Account, the registration name, nor the password of another User without authorization. If a third party uses an Account after he received the access data because the User did not sufficiently secure this against external access, the User must allow himself or herself to be treated as if he or she himself or herself had acted in such a way.
14.8 Users are obligated to immediately inform Mad Otter as soon as they gain knowledge of the fact that any unauthorized third party is aware of their access data. Mad Otter points out that, for security reasons, passwords should be changed regularly.
14.9 In the event of a justified suspicion that access data has become known to an unauthorized party, for security reasons, Mad Otter is entitled, but is not obligated, to independently change the access data at its sole discretion without previous notification and/or block the use of the Account. Mad Otter shall inform the entitled User of this, and upon request shall communicate the new access data within a reasonable period. The User does not have a right to have the original access data restored.
14.10 Mad Otter secures its systems against virus attacks. Nevertheless, a virus attack can never be completely ruled out. In addition, it may occur that unauthorized third party e-mails are sent using the name of Mad Otter without the consent of Mad Otter, which contain (for example) viruses or so-called “spyware” or link to Web contents that contain viruses or spyware. Mad Otter has no influence on this. As such, Users should examine for viruses all received e-mails that are sent under the name of Mad Otter. This also applies to e-mails of other Users.
14.11 Mad Otter is not responsible for damages or data losses that may arise on the computers of Users from the installation of software that did not originate from Mad Otter.
14.12 Occasionally, Mad Otter may need to communicate with Users via email. Therefore, each User must ensure that he or she is able to be reached by e-mails that are sent by Mad Otter to the e-mail address indicated by the User upon registration or subsequently communicated to Mad Otter. Among other things, he or she shall provide for corresponding adjustments to spam filters and regularly check this e-mail address. In all other respects, Mad Otter reserves the right to select another form of correspondence.
§ 15 Amendments to the TOS
15.1 Mad Otter reserves the right to amend these TOS at any time.
15.2 Any amendment or supplement will be announced. Typically, a notice of an amendment to the TOS takes place through publication by e-mail or on the website of the Game.
15.3 If the User does not wish to consent to amended or supplemented TOS, he or she should terminate this Agreement by ceasing to use the Game.
§ 16 Concluding provisions
16.1 If a party delays, waives or refrains from the enforcement of its rights within the framework of these TOS, or grants grace periods to the other party, this does not impair the existence of the particular right.
16.2 If an individual provision of these TOS and Conditions of Business is or becomes ineffective, this does not affect the effectiveness of the remaining provisions.
§ 17 Governing Law
17.1 These TOS shall be governed by and construed under the laws of the United States of America and the law of the State of Oregon, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
17.2 Those who choose to access the Game from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable. Should a court of competent jurisdiction determine that other laws apply, these TOS shall be enforced to the fullest extent permitted by the laws of the applicable jurisdiction and be interpreted to give maximum effect to the terms and conditions hereof.
Mad Otter Games, Inc.