GIANTS Software GmbH Terms of Use

§ 1 Scope

1.1 The business relationship between GIANTS Software GmbH, Rütistrasse 18, 8952 Zurich-Schlieren, Switzerland (hereinafter “GIANTS”) and the customer or user (“Customer”) in connection with GIANTS’ offers on the Internet pages “www.farming-simulator.com”, “www.landwirtschafts-simulator.de”, “www.demolitioncompany-thegame.com”, “www.skiregion-simulator.com”, “www.skiregion-simulator.de” and “www.giants-software.com” (all hereinafter “Website”) is based exclusively on the following Terms of Use in the version effective on the date of the purchase order.

1.2 Unless otherwise agreed in specific cases, these Terms of Use are an essential part of every contract concluded. They shall also apply to future business relations with the Customer, even if they are not expressly included therein.

1.3 Differing terms and conditions of business proffered by the Customer and amendments and additions to these Terms of Use are valid only if they are acknowledged by GIANTS in writing. This shall also apply even if the Customer’s terms and conditions of business have not been expressly disallowed.

1.4 GIANTS is entitled to amend these Terms of Use prospectively. GIANTS shall only make such amendments for good reason, particularly in response to new technical developments, any expansion of GIANTS’ services, changes in statutory or case law, or for other equivalent reasons. The new Terms of Use shall be published on the Website and accepted by the Customer when submitting his purchase order.

§ 2 Subject matter of this Agreement and contract terms

2.1 GIANTS provides games and mobile apps (hereinafter collectively “Games”).

2.2 GIANTS makes Games such as the Farming Simulator available on its Website for download by the Customer to the Customer’s Terminal Device (such as a computer, PlayStation, Nintendo, smartphone, etc., hereinafter “Terminal Device”) in exchange for payment.

2.3 In addition, mobile applications for the games (hereinafter “Mobile Apps”) are offered through various stores, such as the App Store, Google Play Store, Amazon, Windows Store, etc., for download in exchange for payment. In such cases, contracts are transacted through the store concerned according to that store’s own general terms and conditions of business. These Terms of Use also apply. The Customer’s contractual partner is GIANTS, not any of the various stores, even when purchasing a Mobile App.

2.4 The Customer may acquire the Games by purchase and download them to his Terminal Device. To do so, the Customer must select a Game for his Terminal Device along with his desired method of payment. The price of the selected Game will always appear immediately. Depending on the selected method of payment, the Customer must provide certain address and bank information, such as his full name, address, PayPal account, credit card number, or bank account number, which must be entered truthfully and in full. The information he provides, the selected Game, the method of payment, and the price of the Game will appear together in a summary. By clicking on the “Buy” dialog field, the Customer submits a legally binding purchase order. A purchase order can be submitted only if the Customer has already confirmed by a mouse click in the appropriate box that he has read GIANTS’ Terms of Use and agrees that they apply. The Customer’s purchase order is confirmed by means of an order confirmation.

2.5 Inadvertent input errors by the Customer or errors in the transmission of an order may occur occasionally, as when, for example, the purchase order is inadvertently sent twice because of a double mouse click or the Internet connection is interrupted, in which case the Customer may not receive the electronic order confirmation or may receive it twice. Should this happen, the Customer is obligated to report the error.

2.6 All offers made by GIANTS are non-binding. An order for Games constitutes a binding offer by the Customer to enter into a contract. A contract with the Customer does not take effect until GIANTS accepts the Customer’s purchase order. The immediate electronic confirmation that the Customer’s purchase order has been received does not constitute acceptance. Acceptance by GIANTS is subject to the sending of an order confirmation, which is normally sent by e-mail if the Customer has provided GIANTS with a valid e-mail address. The order confirmation contains all of the important content of the contract concluded between GIANTS and the Customer.

2.7 By providing GIANTS with a valid e-mail address, the Customer consents to the receipt and processing of his orders by e-mail. GIANTS expressly reminds the Customer that improper use of e-mail cannot be precluded. GIANTS is unable to examine e-mail to verify the identity of its sender or the correctness of its content. That notwithstanding, the Customer requests that GIANTS accept such electronic orders. GIANTS is exempted from all liability and all recourse claims arising from abusive use of the transmission system.

2.8 The contract is valid irrespective of whether the Customer’s equipment fulfills the necessary technical requirements.

§ 3 Services by GIANTS; the Customer’s license rights

3.1 The Games that are offered on the Website or through the stores as Mobile Apps are protected by copyright and trademark law. To download the Games or Mobile Apps, software must be installed on the Customer’s Terminal Device. The Customer is entitled to use the Games and Mobile Apps solely within the scope of use herein described.

3.2 Once a purchase order has been successfully made, the Customer may obtain Games through GIANT in exchange for a fee for use on a stationary device or on Terminal Devices. For this purpose, GIANTS shall send the Customer a basic, non-transferable license to the Games for private use on his Terminal Device.

3.3 The Customer is authorized to burn the Games to a CD once for individual private use and to make them usable on Terminal Devices that are in his possession and controlled by him.

3.4 Beyond that, the Customer may not duplicate the downloaded Games or store them on data media. In particular, the Customer is not permitted to pass the Games on, to offer them to third parties via the Internet, to pass them on to other networks free of charge or for payment, to alter them, to make them available, or to trade them and/or use or exploit them commercially. In addition, editing, decompiling, disassembling, and reverse engineering are prohibited. Inciting third parties to or aiding and abetting such acts is also prohibited.

3.5 GIANTS reserves the right to remove Games from the products it offers in the event of rights expiring or for other reasons.

§ 4 Service fee, when due

4.1 Unless otherwise agreed, the service fees are due and payable in advance with acquisition of the Games and the Mobile App.

4.2 The applicable prices are those in effect at the time of the purchase order, as displayed in the shopping cart and provided in the confirmation of the purchase order. Any differing prices displayed on pages loaded from data buffers are not valid.

4.3 All prices include the applicable statutory value added tax.

4.4 The costs of Internet access are billed to the Customer separately by the Customer’s Internet service provider. GIANTS has no control over them.

4.5 In some cases, the prices do not include fees or costs charged by various payment providers. The Customer is expressly advised of this fact in the event of him incurring additional fees or costs through the payment provider he has chosen. The Customer may change payment providers before the payment process is completed. GIANTS has no control over the fees or costs charged by the payment provider. Only the payment providers can provide reliable information on accruing fees or costs.

4.6 The Customer is responsible for ensuring that his billing information (credit card or direct debiting information) is current and complete. The Customer is liable to GIANTS for cancellations or reverse debits for which the Customer is culpable, such as those attributable to an inadequate account balance. The Customer shall bear the normal costs (e.g. the payment provider’s fees, return debit costs) and processing fee incurred. GIANTS is entitled to collect these amounts from the Customer’s account together with the original fee. The Customer has the right to prove that a loss has not occurred or is less than the amount demanded.

§ 5 Right of revocation; notice of right of revocation

If the Customer is a consumer (i.e., a natural person who enters into a legal transaction for a purpose that can be ascribed neither to his commercial nor occupational activities), he has, by law, a right of revocation of whose existence/non-existence he is advised during the ordering process and herein in the text following.

Notice of the right of revocation

Right of revocation

You have the right to revoke this Agreement within fourteen days without stating reasons.

The time limit for revocation is fourteen days from the date on which the Agreement is entered into.

To exercise your right of revocation, you must inform us (GIANTS Software GmbH, Rütistrasse 18, 8952 Zurich-Schlieren, Switzerland, Fax: +41 (0)43 495 07 10; e-mail: customer-support@giants-software.com) by means of a definite statement (e.g. a letter sent by mail, a fax, or an e-mail) of your decision to revoke this Agreement. You may use this specimen revocation form for this purpose; however, this is optional.

To meet the time limit for revocation, you need only mail the notification of your intent to exercise your right of revocation before the time limit for revocation expires.

Consequences of revocation

If you revoke this Agreement, we must refund all payments that we have received from you, including the delivery costs (with the exception of the additional costs incurred if you have chosen a delivery option other than the reasonably-priced standard delivery offered by us), promptly and no later than within fourteen days from the day on which we receive the notification of your revocation of this Agreement. For this refund we will use, unless otherwise expressly agreed with you, the same means of payment as the one you used for the original transaction; in no case will you be charged fees for this refund.

End of notice of the right of revocation

Special note concerning premature expiration of the right of revocation:

Your right of revocation will expire prematurely if execution of the Agreement begins, after you have expressly consented thereto, before the time limit for revocation expires and you are cognizant of the fact that, as a consequence thereof, you shall lose your right of revocation upon commencement of contractual performance.


Specimen revocation form

(If you wish to revoke the Agreement, please fill in this form and return it to us.)


To

Fax:

E-mail:


I/we (*) hereby revoke the contract entered into by me/us (*) for purchase of the following goods (*) / performance of the following services (*):


Ordered on (*) / received on (*):


Consumer’s name:


Consumer’s address:



Consumer’s signature (only if notification is made on paper)



Date



(*) Cross out whichever does not apply.


§ 6 User Generated Content; user rights to the multimedia program; obligations of the Customer

6.1 GIANTS shall provide Customers with the GIANTS Editor, either via the website or bundled with the games, as a free download for the creation of the Customer’s own User Generated Content, and the use thereof within the scope of games and/or online services. The Customer shall therefore receive access to various tools. The Customer can use these to create and share its own content (“User Generated Content”). The GIANTS Editor and the tools included therein may only be used if the Customer has legally acquired a game from GIANTS beforehand, and has downloaded this to his end device (e.g. computer, console, smartphone etc., hereinafter known as “End Device”). Use by the Customer of the multimedia program and the User Generated Content, and the transfer of the corresponding usage rights to GIANTS are governed in the Special Terms and Conditions of Use, the validity of which has been agreed by the Customer. By way of precaution, the key provisions are incorporated into these General Terms and Conditions below. In the case of valuation conflicts, the Special Terms and Conditions of Use shall take precedence.

6.2 GIANTS grants the Customer usage rights to the GIANTS Editor free-of-charge and for the Customer's purely personal use.

6.3 Mods created and uploaded by the Customer may only be made available to third parties free-of-charge and not for gain. Commercial use or use in return for payment is not permitted. It is prohibited to sell or otherwise exploit Mods commercially without the consent of GIANTS (including the placement of ads in Mods or within the context of the distribution of Mods), including the sale or distribution of apps which contain Mods, as well as the sale of physical data carriers or downloading of Mods.

6.4 It is prohibited to supply Mods within the scope of apps, either via the Apple App Store or Google Play Store.

6.5 Customers must include the note “Mod for Farming Simulator 17” in the Mod text, and display this text in relation to the distribution of the Mods.

6.6 It is prohibited to distribute Mods in such a manner which could give rise to the assumption that GIANTS is the creator of the Mod, or that the Mod is a standalone game or app, in particular that the Mod is a part of the Farming Simulator series.

6.7 The Customer himself is responsible for the content and distribution of the Mods. Consequently, GIANTS shall be in no respect responsible or liable in relation to changes in the quality of the multimedia program, or changes to or loss of User Generated Content, or breaches of the intellectual property rights of third parties, at the time of the creation, use or distribution of the Mod.

6.8 Customers may not use Mods within the scope of programs other than the games, and irrespective of how the Mods are created, extracted or isolated. Furthermore, the Customer shall be obliged not to take parts from the games.

§ 7 Transfer of usage rights to the Customer’s User Generated Content

7.1 If the Customer creates User Generated Content for the games, he retains the rights to the content that he has generated. The Customer grants GIANTS the right to use the User Generated Content created by the Customer.

7.2 The Customer warrants that, at the time of the creation, use or distribution of the Mods, he is the holder of the usage rights to the User Generated Content created by the Customer. Furthermore, the Customer warrants that the User Generated Content created by the Customer does not infringe any copyright or other third-party rights.

7.3 If the Customer creates, disseminates, exchanges, sends, transfers, publishes or uploads any User Generated Content for the games, it shall automatically grant to GIANTS the usage rights described below, without the need for GIANTS to obtain permission or pay for the User Generated Content:

  • Through the dissemination, exchange, sending, transfer, publication, uploading or public disclosure of the User Generated Content online, the Customer shall grant GIANTS the global, free-of-charge, non-time-limited, irrevocable, non-exclusive and fully sub-licensable right to copy, distribute, publish, modify, translate, archive and store the User Generated Content generated by the user and to create edits of it in any form and format and in currently available and hereafter developed media. The Customer shall waive any moral rights which it holds to the User Generated Content generated by the Customer.
  • Through the distribution, exchange, sending, transfer, publication and uploading of the User Generated Content generated by the Customer, the Customer shall otherwise acknowledge that other users may use the generated User Generated Content. GIANTS shall not be liable for the actions of other users which may infringe rights to the generated User Generated Content. In the case of disputes with other users, the Customer himself shall be responsible for contacting the affected users asserting any claims.
  • The Customer shall grant GIANTS a free-of-charge user license for all online User Generated Content which he creates or shares during his use of GIANTS Editor and/or the online service, on an open-ended basis, in perpetuity, irrevocably, without restriction or limitation, for all currently available or hereafter designed devices, formats or forms, which can be granted, transferred, leased, published, or publicly and globally displayed for all objects or devices in the form of a license. This license shall primarily cover the rights to copy, alter, reproduce in part or in full, modify, develop, translate, use for any User Generated Content, incorporate into other works, exclude in part or in full from elements and/or the addition of elements, and the deletion, publication, distribution, sale or commercialization thereof.

§ 8 Obligations of participation in the forum

8.1 Registered Customers have the option of publishing and viewing questions, posts and User Generated Content (hereinafter collectively “User Content”) in the forum (hereinafter “Forum”) via the website. The Forum is based on phpBB, a piece of forum software from the phpBB Group made available under the rules of the General Public License (GPL), which can be downloaded at www.phpbb.com; a German-speaking point of contact can be found at www.phpbb.de. phpBB supports internet-based discussions. However, the phpBB Group has no influence on the content and objectives which GIANTS pursues with this software, and is therefore not responsible for the Forum content permitted or prohibited by GIANTS.

8.2 Although GIANTS makes every endeavor to remove from the Forum User Content which is offensive and which may infringe the rights of third parties, GIANTS is not able to review all User Content. The Customer bears sole responsibility for the User Content he publishes, and shall indemnify GIANTS from any third-party claims. GIANTS shall not be responsible for the User Content.

8.3 The Customer shall be obliged to comply with the following Forum rules when registering on the Forum:

  • The Customer warrants that the information disclosed by the Customer during registration is true and complete. In the case that the Customer discloses incorrect or incomplete information, GIANTS shall be entitled to delete and terminate the user account with immediate effect.
  • A Customer may only register for the Forum if the Customer is at least 16 years of age.
  • As a rule, only one user account may be set up per Customer. A Customer is therefore not entitled to register for the Forum on the website several times. GIANTS may allow exceptions in individual cases on request.
  • The Customer is not authorized to disclose his access data and access password to third parties. Should, third parties obtain access to the user account of the user in spite of this, or should the user have other reasons to suspect abuse of his account, the user must inform GIANTS thereof without delay and change his access data.
  • The Customer shall refrain from any act which may disrupt or put at risk the operation and function of the Forum, and the mutually beneficial interaction between Customers. The user is prohibited in particular from
    • selecting a user name which infringes on the rights of third parties (in particular copyrights, personality rights, trademark rights, rights to company names, etc.) or breaches public morality, e.g. offends the religious beliefs of third parties, or is racist or discriminatory. GIANTS expressly distances itself from such conduct.
    • using, uploading or publishing offensive or defamatory content, or linking to corresponding material on a third-party website, irrespective of whether this content relates to other customers, or other persons or enterprises.
    • using, uploading or publishing content that is political, unethical, pornographic, morally objectionable, offensive, violent or designed to glorify violence, sexist, extreme right-wing or left-wing or illegal, in particular content in breach of laws for the protection of minors and the Interstate Treaty on the Protection of Minors in the Media, or linking to corresponding material on a third-party website, or advertising, offering or selling pornographic products or products that breach laws for the protection of minors.
    • breaching the applicable laws or inciting illegal acts, or linking to posts which do so.
    • publishing, reproducing, disclosing in a public forum or distributing content that is protected by law (e.g. by copyright, trademark right, patent right, utility model and design right), without entitlement thereto.
    • advertising, offering or selling goods or services.
    • organizing or advertising (including via links) commercial activities and/or sales for third parties, e.g. advertisements, competitions, sweepstakes, prize draws, swaps or pyramid schemes.
    • reproducing or publishing an image of another person without the written consent of the affected party.

8.4 In the case of a breach of these obligations, the Customer shall be obliged to compensate GIANTS for the losses incurred as a result thereof, and in particular to indemnify GIANTS against any third-party claim. Section 10 of these General Terms and Conditions of Use shall apply in this respect.

8.5 GIANTS shall reserve the right to remove or edit any user content without stating reasons. No justification for this shall be provided to the Customer.

§ 9 Transfer of user rights to the User Content in the Forum

9.1 The Customer shall transfer to GIANTS a non-exclusive, free-of-charge, perpetual and comprehensive right of use to the User Content made available in the Forum (texts, illustrations, images, videos, User Generated Content or Mods and other content) in particular with regard to the reproduction, distribution, editing and publication thereof via the Forum. This includes the right to publish this content in print media, online, on CD-ROM, etc. This shall also apply to use for commercial purposes. Section 7 of these General Terms and Conditions of Use shall apply with regard to the transfer of usage rights to the User Generated Content or Mods of the Customer.

9.2 GIANTS shall be entitled to delete User Content. This shall apply in particular to content which breaches these General Terms and Conditions of Use, and the rules governing participation in the Forum pursuant to section 8.

§ 10 Liability of the user for User Generated Content or Mods and User Content in the Forum; indemnity

10.1 Each Customer shall himself be directly liable to the third party in respect of any breach of third-party rights for which the Customer is responsible.Each Customer shall be obliged to compensate GIANTS for all losses incurred that are due to the culpable disregard of the obligations arising from these Terms and Conditions of Use.

10.2 The Customer shall be solely responsible for comments, opinions or remarks which are expressed in the User Content in the Forum; such opinions do not in any way represent the opinion of GIANTS. In particular and without limiting the scope of the foregoing, GIANTS cannot be held responsible for comments, opinions or remarks which are made in the User Content in the Forum. Any liability on the part of GIANTS is excluded in this regard.

10.3 GIANTS shall not be liable for the accuracy, currency or validity of the information or elements in the User Content or in the online service, and cannot be held responsible for losses or damage which are caused by the use of these elements.

10.4 The Customer warrants that, at the time of the creation, use or distribution of the Mods, he is the holder of the usage rights to the User Content created by the Customer. Furthermore, the Customer warrants that the User Content created by the Customer in the Forum does not infringe any copyright or other third-party rights.

10.5 The Customer indemnifies GIANTS from all claims which are asserted by other Customers or other third parties with regard to GIANTS on grounds of an infringement of its rights due to content or User Content uploaded by the Customer, or due to the breach of other obligations. The Customer shall also bear the costs of any necessary legal defense by GIANTS, including all court costs and lawyers’ fees. This shall not apply if the Customer is not responsible for the infringement.

§ 11 Time of performance

11.1 Agreements as to dates or time limits are binding only if they have been confirmed by GIANTS in writing. Otherwise they are non-binding.

11.2 Events of force majeure that considerably hamper or prevent a party from performance of a service or duty shall entitle the affected party to defer performance of the obligation or duty for the duration of the impediment and a reasonable start-up period. Labor disputes in the parties’ workplaces, or in third-party workplaces, and similar circumstances affecting the parties directly or indirectly are deemed equivalent to force majeure.

§ 12 The Customer’s set-off and retention rights, deterioration of the Customer’s financial situation

12.1 The Customer is only entitled to offset against claims by GIANTS insofar as his counterclaims have been acknowledged by GIANTS, are not in dispute, or are final and absolute.

12.2 The Customer is entitled to assert a right of retention only if the claims are based on the same contractual relationship.

§ 13 Service disruptions and warranties

13.1 If the Game downloaded through the Website or stores for the Mobile App is defective, the Customer shall be entitled to the warranty rights provided by law. Unless otherwise agreed in these Terms of Use, further claims by the Customer, on whatever legal grounds, are excluded. In particular, GIANTS is not liable for damage that did not occur in the downloaded game itself as delivered, for lost profits, or for other economic loss suffered by the Customer.

13.2 GIANTS does not guarantee that the Games shall be retrievable at all times; in particular, it assumes no warranty for delays of a technical nature that are beyond GIANTS’ control. No promise is made that the requested Games will reach the Customer at a particular time.

13.3 If a Game proves to be defective, the Customer may demand, as remedial performance, that the defect be eliminated or that a Game free of defects be provided. GIANTS may make such remedial performance conditional upon payment by the Customer of a portion of the payment owed as deemed reasonable in view of the defect. GIANTS may refuse the chosen manner of remedial performance if it is feasible only at a disproportionate cost.

13.4 If rectification on the part of GIANTS fails twice, GIANTS refuses both manners of remedial performance, or GIANTS fails to make remedial performance within the reasonable time limit set by the Customer, the Customer shall be entitled to exercise the warranty rights provided by law (reduction, withdrawal, reimbursement of expenses or damages in lieu of performance). The Customer’s rights to withdrawal and damages in lieu of performance are excluded if the defect in the game is negligible.

13.5 The Customer is entitled to no rights for defects occurring because the Customer has acquired a Game that is not suitable for his Terminal Device and he therefore lacks the proper hardware or software with which to use the game.

§ 14 Liability, damages

14.1 GIANTS and the providers of telecommunications and network services affiliated with it are not liable for any damages arising from the use or non-use of the Website; in particular, they are not liable for failure of the Website to function flawlessly or without disconnecting. This includes, but is not limited to, warranty for defects of title, integrity, marketability, or suitability for a particular purpose as they relate to the availability, accuracy, reliability, or content of the pages. GIANTS is not liable for direct, indirect, or accidental damage or for consequential losses, for lost profits, or for business disruptions arising from the use of, or inability to use, the Website and the services it contains. This applies even if GIANTS has been informed of the possibility of such damage.

14.2 In particular, GIANTS assumes no responsibility for the content, performance, errors, or lawfulness of third-party websites referred to by means of links from the Website. Linking to such sites does not imply that they have been inspected beforehand.

14.3 GIANTS is only liable for the loss or destruction of data suffered by the Customer up to the amount of the typical restoration costs arising despite regular data back-up using state-of-the art technology.

14.4 In particular, GIANTS assumes no responsibility or liability for any damage to the Customer’s system arising from extraneous causes or during the process of data transfer from the Customer to GIANTS or from GIANTS to the Customer.

14.5 GIANTS’ liability, should such be present notwithstanding the foregoing provisions, is limited in all cases to damage caused by GIANTS, its legal representatives, or its performing agents through willful misconduct or gross negligence or arising from any breach of a primary duty that is essential to the contractual relationship. Liability for damages is limited to foreseeable, typically occurring damage if no willful or grossly negligent breach of contract is attributed to GIANTS. Liability for blameworthy injury to life, body, or health remains unaffected. This also applies to mandatory liability under the German Product Liability Act [Produkthaftungsgesetz].

14.6 All other liability for damages on the part of GIANTS, on whatever legal grounds, is excluded.

§ 15 Other duties and responsibility of the Customer

15.1 If a third party uses GIANTS’ games without authorization, or without authority to obtain and use the games, for reasons for which the Customer is accountable, the Customer is obligated to reimburse GIANTS for any costs or claims for damages arising therefrom. The Customer is subject to this obligation towards other rights holders as well.

15.2 The Customer may not impair the performance or security of GIANTS’ services in any way. This includes inter alia: (a) access to data that is not intended for the Customer; (b) attempts to circumvent or impair the performance or security of GIANTS’ Website, technology, software, or other components; (c) circumvention and/or removal of GIANTS’ copy protections. GIANTS reserves the right to pursue civil or criminal actions for every infringement of this type.

§ 16 Data protection

Information on the manner in which, the extent to which, the purpose for which, and the location from which the personal data GIANTS needs in order to fulfill purchase orders is collected, processed, and used; on the Customer’s right to information; and on the Customer’s right to correct, block, or delete such personal data may be found in the Data Protection Statement.

§ 17 Legally mandatory disclosures concerning the provider’s company

GIANTS Software GmbH, represented by the [Managing Directors Christian Ammann, Stefan Geiger, Thomas Frey, and Renzo Thönen], Meierhofweg 5, 8454 Buchberg, Switzerland, registry court and register number: CHE-114.343.530, value-added tax identification number: [CH 699 603]

Issued: October 2016

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