Terms of Use
neuroCare Group GmbH, Rindermarkt 7, 80331 Munich, Germany (hereinafter referred to as „neuroCare“), offers this app – (hereinafter referred to as „app„) for Apple Devices, Android Devices, and Windows/Windows Phone Devices (hereinafter referred to as „mobile devices„) through the Apple iTunes App Store, the Google Play Store, the Amazon App Store, the Windows/Windows Phone Store, or other App Stores (hereinafter jointly and severally referred to as „App Store(s)„). The users of the app shall be referred to below as „users.“
The app, as defined above, may also include existing supplemental services such as the purchase of virtual currency to unlock premium features (hereinafter collectively referred to as „premium features„) as well as additional services, such as the multiplayer gaming against other players simultaneously.
Table of contents:
§ 1 Scope
§ 2 Authorized Users
§ 3 Formation of contracts
§ 4 Limits to use / prohibited behaviors
§ 5 App purchase / premium features / data connections
§ 6 Duties and obligations of the user
§ 7 Further developments / condition / defects
§ 8 Limitation of liability / availability
§ 9 Third party contents / responsibility
§ 10 Commercial property rights and copyrights / user-generated content
§ 11 Term of the contract, ordinary termination of the contract / virtual domiciliary right / extraordinary termination of the contract
§ 12 Changes to the Terms of Use
§ 13 Final provisions
§ 1 Scope
1.1 neuroCare allows users to use the app within its existing technical and operational bounds. neuroCare provides all of its services in connection with the app based exclusively on the Terms of Use described here as well as other conditions, insofar as these additional conditions are referred to in these Terms of Use.
1.2 neuroCare does not recognize the validity of any general terms and conditions or any of the user’s other conditions. Any general terms and conditions or other conditions of the user shall only become an integral part of the contract if confirmed by neuroCare in writing.
1.3 neuroCare may utilize the services of independent third parties (hereinafter called „third party service(s)„), such as the App Store and social networks, for the app. Third party services are not services from third parties that provide the service under the direction of neuroCare. Third party services are not services of neuroCare. They shall be identified accordingly by neuroCare or the third party. Questions that may arise in connection with third party services are not affected by these Terms of Use. neuroCare is not responsible for third party services. Third party services may possibly be subject to the general terms and conditions of their provider.
§ 2 Authorized Users
2.1 The app that is provided by neuroCare is exclusively geared to consumers. Use of the app for commercial purposes is not permitted. Participation in the app is solely for the purpose of entertainment.
2.2 Only those users who are over the age of 18 or have the explicit permission of a parent or legal guardian are entitled to use our services.
2.3 By making use of the app, the user expressly acknowledges his/her full legal age and legal capacity. In the case of minors, the user expressly asserts the consent of his/her parent(s) or legal guardian. neuroCare is entitled, but not required, to request documentation at any time that the user has reached full legal age or has the consent of his/her parent(s) or legal guardian.
2.4 Once a minor uses the app after reaching the age of majority, all of the contracts and agreements in connection with this account that were concluded before reaching full legal age shall be deemed accepted, provided the user does not revoke his/her acceptance from neuroCare within two weeks of reaching full legal age.
§ 3 Formation of contracts
3.1 Downloading and installation of the app from the App Store is required to use the app. To do this, an existing account must be used or a new one created for the App Store. By downloading the app from the App Store, the user receives a personal, timely, non-exclusive, unrestricted, non-transferable license to install the app on a mobile device. The license applies to all of the mobile devices that are connected with the App Store account.
3.2 Furthermore, to use the app it may be necessary that the user be logged on to services for example from Apple, Google, Amazon or Microsoft as the manufacturer of the mobile device as well as the developer of the mobile device’s operating system.
3.3 The user can read these Terms of Use in the App Store and print them out or store them to a durable storage medium before downloading the app.
3.4 The formation and fulfillment of contracts, especially those regarding the purchase of the app and/or premium features for real money, shall also be subject to the terms and conditions of the App Store, see § 5.1 and § 5.3 of these Terms of Use.
§ 4 Limits to use / prohibited behaviors
4.1 neuroCare provides the app only for use in accordance with these Terms of use.
4.2 The user is not entitled to use measures, mechanisms or software in connection with the app that may affect or interfere with the function or the operation of the app. The user shall not take measures that may cause an unreasonable or excessive burden on the technical capacity of neuroCare. In particular, the user shall not be permitted to block, overwrite or modify contents generated by neuroCare without the express written consent of neuroCare.
4.3 The user shall not be permitted to add elements to the app or change, delete or modify elements of the app in any other form without the explicit prior consent of neuroCare. In particular, the user shall not be permitted to copy, export or otherwise use graphic elements or try to decompile the app’s source code. This shall not apply if decompiling is permitted by law in accordance with § 69e of the German Copyright Act (Urhebergesetz, UrhG).
4.4 The user may under no circumstances use any aids that influence the operation of the app (such as „bots,“ „hacks“ etc.). The user shall also not offer or advertise any of these aids. The user shall, in particular, be prohibited from obtaining premium features or other advantages through the use of third party software or other applications that systematically or automatically control the app or specific functions of the app. This also applies to using program errors or bugs to the user’s own advantage („exploits“).
4.5 The user shall not insert or transmit any content with illegal or offensive contents into or within the app. This also applies to content of communications insofar as neuroCare enables the users to communicate with each other in the app. The same applies for the user generated display name. The user is not entitled to the allocation of a certain name. The chosen name must not infringe on the rights of third parties (in particular copyright, personal rights, trademark rights, company rights, etc.) and must not offend against good morals, e.g. hurt the religious feelings of third parties, be racist, discriminatory, pornographic, or sexist. neuroCare expressly disapproves of such behavior. neuroCare is entitled to change or delete the chosen name for technical, ethical or other reasons without the user’s approval.
4.6 The user shall not be allowed to advertise for products or programs of third parties in the app. The user shall also not make any mention of such advertising.
4.7. The user is not allowed to save, use, publish, transfer or distribute content which breaks the law or infringe any rights of third parties in the app or otherwise by using the app. The user is especially only allowed to upload content for which he own the copyright.
4.8 neuroCare shall be entitled to prevent non-compliance with § 4 of these Terms of Use. neuroCare shall also be entitled to delete the user’s content. This shall also apply if there is solid evidence of a violation of these Terms of Useor the contents are otherwise unlawful behavior. Users shall not have the right to request the recovery of deleted contents.
4.9 neuroCare shall be entitled to use appropriate measures and programs to uncover breaches of contractual obligations by the users, particularly to review individual actions for plausibility and compliance with § 4.1 to 4.8.
4.10 In the event of a culpable breach of his/her contractual obligations on the part of the user, particularly against § 4.1 to 4.8, neuroCare shall be entitled to block the user’s access to the app after a prior warning that it may block him/her. A warning is expandable, in case of a breach of his/her contractual obligations by the user in such a way, that an acceptance of the breach without further consequences than a warning would be unreasonable for neuroCare.
4.11 The conditions laid down in § 4 shall not limit neuroCare’s right to terminate a user’s access – in particular the right to terminate the contract with immediate effect – in accordance with § 11. They also shall not limit neuroCare’s right to enforce virtual house rules.
4.12 Settings, contacts or in-app purchases as defined in § 5.3 (collectively „user results„) are in most cases not bound to the installed app on the mobile device. neuroCare cannot ensure the same user experience when using the app over different mobile devices or mobile data connections. The app’s response time, in particular, may be worse than when using the app on land line data networks (like fixed lines via Wi-Fi).
§ 5 App purchase / premium features / data connections
5.1 The free or paid app may be downloaded and purchased in the App Store (hereinafter referred to as „app purchase„). App purchases are processed by the App Store. The formation and fulfillment of the contract and payment processing are determined by the App Store’s terms and conditions.
5.2 Users have the opportunity, in addition to the use of the basic version, to purchase premium features for the app from neuroCare for a fee. If the users purchase virtual currency, this currency can be exchanged for, among other things, various premium features. neuroCare shall expressly inform the users about the respective functions, requirements and prices of the premium features before they are acquired in the app.
5.3 Premium features and/or their temporary use may be purchased directly in the app (hereinafter referred to as „in-app purchase„). In-app purchases are processed by the App Store. The formation and fulfillment of the contract and payment processing are determined by the App Store’s terms and conditions.
5.4 Paid apps and/or premium features and/or their temporary use may be purchased using real money. The purchase of premium features and/or their temporary use using real money is only possible as an in-app purchase. The App Store terms and conditions shall apply.
5.5 The app and the premium features are not goods as defined in § 90 of the German Civil Code (Bundesgesetzbuch, BGB). neuroCare therefore does not transfer ownership to the premium features, but merely grants a right of use within the app. Even though the term „sell“ is used in connection with the purchase of the app and/or the premium features, it means the granting of the right of use. The terms „buyer,“ „seller,“ „sale,“ „purchase“ and similar terms have corresponding meanings. The scope and duration of the granted right of use depend on the respective app or premium feature. The right of use for the app and/or premium features shall expire at the latest when the contract between the user and neuroCare for the use of the app expires.
5.6 The purchase of the premium features and/or their temporary use includes the possibility to acquire these in two ways, either through one-time purchase or in different time-limited periods. In the case of conclusion a temporary use of the premium features neuroCare is entitled to charge the credit card or the bank account of the user with the usage fee plus any applicable sales tax. Content and prices for the temporary use resulting at the time the contract goes into effect. The contract schedule of prices and services are provided in the game at any time. The temporary use contract has the specific period which can be found in the schedule of prices and services. The period of the temporary use automatically ends with the end of the temporary use contract. If the user fails to pay its payment obligations, the temporary use ends automatically and the access to the premium features will be set back to the basic functionality.
5.7 If neuroCare incurs charges for return debits and/or cancellation fees due to the late cancellation of direct debits due to the fault of the user or a lack of funds to cover the charges, the user shall be responsible for the costs incurred as a result of these actions. If neuroCare incurs charges for return debits (for example, due to insufficient funds) due to the fault of the user, the user agrees to reimburse neuroCare for the incurred, proven and reasonable losses.
5.8 The user may only offset counterclaims against neuroCare that are undisputed or legally binding. The user may only exercise a right of retention if his/her counterclaim is based on the same contractual relationship. The assignment of the user’s claims against neuroCare to third parties is hereby excluded.
5.9 For the using of the app a mobile data connection is required. neuroCare would like to point out that using the app can sometimes, depends on the use of the app, require a high volume of data and the user may incur charges that must be paid to the provider of the mobile data connection. The prices for use of the mobile data services arise from the service descriptions of the respective mobile service provider. neuroCare cannot offer any assistance in this context.
§ 6 Duties and obligations of the user
6.1 The user’s main obligation is the payment of any possible fees.
6.2 neuroCare protects its systems from computer viruses. Nevertheless, infections with computer viruses can never be completely excluded. In addition, it is possible that unauthorized third parties may send e-mails using the name of neuroCare without neuroCare’s consent, and that these e-mails may contain computer viruses, spyware or links to web content which, in turn, may contain viruses or spyware. neuroCare does not have any influence on this. The user should therefore be cautious when opening all incoming messages that are sent using the name of neuroCare. This also applies to messages from other users.
6.3 neuroCare shall not be liable for damages or loss of data on the user’s mobile devices that is caused by the installation of software that does not originate from neuroCare.
6.4 The user undertakes to never under any circumstances use another user’s mobile device or App store account or app account, user name or password without their permission. If a third party uses one of these accounts after having gained access to the login data because the user did not sufficiently safeguard these against third party access, the user shall allow himself/herself to be treated as if he/she had accessed the account. The same applies to the use of a mobile device by a third party. If the user is not using his/her own mobile device or his/her own mobile data connection to use the app, he/she must obtain the consent of the respective owner. In this case, the user shall assure neuroCare that the consent has been given. neuroCare disclaims any liability of any unauthorized access of personal information of users by third parties (e.g. as a result of unauthorized access by “hackers”), unless such access is due to a fault on the part of neuroCare, e.g. by omitting protection measures.
6.5 In the event that neuroCare has a justifiable reason to believe that an unauthorized third party is in possession of access data, neuroCare may, but is not required to, at its own discretion, change the account access data without prior notice or suspend the respective account. neuroCare will promptly inform the user and will, upon request, communicate the new access data to them without undue delay. The user has no right to demand that the original access data be restored.
6.6 The user shall immediately notify neuroCare as soon as he/she becomes aware that unauthorized third parties know the login data for his/her App Store account or unauthorized third parties have used his/her mobile device. neuroCare would especially like to point out that login data should be changed at regular intervals for security reasons.
6.7 Users can contact neuroCare through the communication media and addresses listed below:
neuroCare Group GmbH
Rindermarkt 7
80331 Munich
Germany
E-Mail: info@neurocaregroup.com
tel: +49 89 215 417 299-0
For evidentiary reasons, neuroCare recommends that the user submits any important declarations (such as terminations, complaints, etc.) in writing (e.g., by e-mail), unless these Terms of Use allow for another form.
6.8 neuroCare would like to expressly point out that the persons responsible for customer service are not authorized to agree to changes to these Terms of Use.
6.9 The user is responsible for ensuring that his/her mobile device is maintained in a condition that allows use of the app. neuroCare provides system requirements and compatibility information to the best of its knowledge. Due to the large number of network operators, mobile devices and operating system versions, it is not possible for neuroCare to test and ensure the operability of the app in all the various constellations. neuroCare recommends that, in addition to the prerequisites and compatibility information published by neuroCare to the best of its knowledge, the user carefully read the description of the app in the App Store.
§ 7 Further developments / condition / defects
7.1 It is in the nature of the provided app that it should continuously be developed and updated. Changes may also arise from the installation of updates that ensure and improve the app’s usability. Changes and ongoing developments should offer the user the best possible entertainment fun. neuroCare therefore provides the user access to the app in its latest existing version. Changes and ongoing developments may affect the system requirements and compatibility requirements. The user therefore has no right to maintain or achieve a certain state (version) or functional scope of the app. Any of the user’s claims for defects that affect the usability of the app itself shall remain unaffected. Because of the continual development of the app, neuroCare reserves the right to offer new app and/or premium features and/or to withdraw, modify or offer them as part of the free basic version. If the user has already made advance payments for premium features and cannot use them for the above reasons or because they are also offered in the free basic version, neuroCare shall, depending on what the user chooses, offer other premium features for the app. In these cases, the user is free to terminate the contract with immediate effect. Any further claims by the user to this regard shall be excluded.
7.2 neuroCare would like to point out that the app is state of the art, but that it cannot guarantee that the app is bug-free. For this reason, the user shall expect that apps like this one do not function perfectly. neuroCare shall make every effort to provide an app that is as bug-free as possible to ensure complete usability. However, as with any software, minor software errors in an app cannot be entirely prevented. The app can be considered to be defective enough that the user would be entitled to assert claims based on defects if the usability of the app is seriously and constantly interrupted.
7.3 The user shall always document any possible defects in the app, especially any displayed error messages, and shall report them in writing. Before reporting an error, the user should consult help documentation provided by neuroCare to eliminate problems. The user shall help neuroCare as much as possible to correct the problems.
7.4 Errors caused by external influences, operating errors by the user, force majeure or modifications or other manipulations that were not carried out by neuroCare are excluded from any claims based on a defect.
7.5 neuroCare does not grant guarantees within the meaning of the law.
§ 8 Limitation of liability / availability
8.1 Insofar as neuroCare charges a fee for its services, neuroCare shall be liable without limitation only in the case of intentional or gross negligence. In the event of a breach of essential contractual obligations, neuroCare shall also be liable for minor negligence. Essential contractual obligations (also referred to as cardinal obligations within the meaning of case law) are understood to be those obligations that allow for the proper execution of the contract and rely on the fulfillment of its users.
8.2 When neuroCare provides services free of charge, neuroCare shall only be liable for damages caused intentionally or as a result of gross negligence.
8.3 The above limitations of liability shall not apply to liability for injury to life, limb and health or in the event that a guarantee has been issued by neuroCare or liability under the Product Liability Act. neuroCare’s liability within the coverage of § 44a of the Telecommunications Act (Telekommunikationsgesetz, TKG) shall remain unaffected by this.
8.4 neuroCare shall be liable for consulting services only insofar as the questions were related to the app.
8.5 A change in the burden of proof to the disadvantage of the user is not part of the previous provisions.
8.6 neuroCare warrants an annual average of 90% availability of components of the app that are not available offline. This does not include periods in which the servers for the app cannot be accessed via the Internet due to technical or other problems beyond neuroCare’s control (e.g., force majeure, the fault of third parties, etc.). This also does not include periods in which regular maintenance work is carried out. neuroCare may restrict or block access to the app to the extent that the security of network operation, maintenance of network integrity, in particular avoidance of severe disturbances of the networks, the software, or the stored data so demands; these periods shall also not be taken into consideration when calculating availability. neuroCare’s liability for non-availability of the server due to intentional and gross negligence shall remain unaffected. § 9 will contain more information on the liability of neuroCare.
§ 9 Third party contents / responsibility
neuroCare may provide users with a function or platform through which they can communicate with one another. The users shall be responsible for the content of these communications as well as all other contents that are published by the users. This content is considered by neuroCare to be third party content as defined in § 8(1) of the German Telemedia Act (Telemediengesetz, TMG). neuroCare does not consider the content to be its own nor does it necessarily agree with these contents. If links are published to other external web pages operated by third parties, neuroCare shall not be responsible for the content of the linked pages. neuroCare does not control these pages and expressly distances itself from their contents. If illegal contents are reported to neuroCare, neuroCare shall exercise its right to delete the content and shall immediately remove it.
§ 10 Commercial property rights and copyrights / user-generated content
10.1 The contents of the app and any websites of neuroCare are the sole property of neuroCare or the relevant licensor. The contents are protected under national and international law, and especially copyright law. The unauthorized dissemination, copying, reuse or other breach of neuroCare’s intellectual property rights or copyrights shall be prosecuted under civil and/or criminal law.
10.2 The user shall retain all rights to the information posted by him/her. By introducing contents into the app, the user grants neuroCare a non-exclusive license, at no charge and freely revocable at any time, to make these contents publicly available to third parties worldwide in the context of the app. neuroCare does not have any further rights of use to the information provided by the user. The license shall be terminated when the user deletes his/her content. neuroCare is not obligated to provide a facility for the content to be deleted.
§ 11 Term of the contract, ordinary termination of the contract / virtual domiciliary right / extraordinary termination of the contract
11.1 The contracts between the user and neuroCare have been concluded for an indefinite period, unless otherwise agreed in writing.
11.2 Both parties have the right to terminate the contract(s) at any time with a notice period of two weeks, unless otherwise agreed in writing.
11.3 neuroCare reserves the right to exercise its virtual domiciliary right at any time.
11.4 The parties‘ right to terminate the contract with immediate effect at any time shall remain unaffected by the above provisions. neuroCare, in particular, has the right to terminate the contract for cause if the user culpably violates laws, these Terms of Use or rules for the use of premium features and repeatedly misbehaves in the same or similar manner despite receiving warnings against such actions.
11.5 In the event of serious violations, termination with immediate effect is permitted without the need for any prior warning.
11.6 A serious violation is a violation that is so severe that neuroCare cannot reasonably be expected to adhere to the contract.
11.7 As a rule, neuroCare cannot reasonably be expected to adhere to the contract in the following cases:
- When the user violates criminal laws;
- When the user uses the app in an unauthorized manner (see § 4 above);
- When the user provides false data when paying for premium services (see § 5).
11.8 In the event that neuroCare lawfully issues notice of termination for cause, neuroCare shall be entitled to charge 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 services not yet provided by neuroCare, especially for virtual currency that have already been ordered) had the user terminated the contract within the set time limit. The user’s right to furnish proof that neuroCare has suffered no damage or considerably less damage remains unaffected. Insofar as the user has already received the service to be provided by neuroCare, there is no right to any refund. In particular, there shall be no refunds for virtual currency that the user has already ordered and received from neuroCare. Differing contract provisions belonging to the App Store shall take precedence.
11.9 neuroCare shall be granted an exceptional right of termination in the event that neuroCare loses the authority to operate the app. In this case, neuroCare may terminate all of the contracts relating to the operation and use of the app (such as the contract on the use of the app and/or the contract on the provision and use of premium features) with immediate effect. Other rights of termination shall remain unaffected. § 11.4 shall apply accordingly.
11.10. neuroCare shall be granted an exceptional right of termination in the event that neuroCare stops running the app. neuroCare may terminate all of the contracts relating to the operation and use of the app (such as the contract on the use of the app and/or the contract on the provision and use of premium features) with immediate effect. neuroCare will announce the date of the suspension of operations and the date up to which premium features can still be purchased 6 months in advance. Other rights of termination shall remain unaffected § 11.4 shall apply accordingly.
11.11 Notice of termination must be made in writing, whereas any message in text form shall be considered to be in compliance with the requirement of written form. The user must be informed of the reasons for the termination of the contract with immediate effect in writing at his/her request, provided they were not already stated in the notice of termination. No reasons for termination are required for ordinary termination of the contract. From the moment of deletion of user’s account further usage of the app will not be possible anymore until a new account is created.
§ 12 Changes to the Terms of Use
12.1 neuroCare reserves the right to change or expand on these Terms of Use with effect for the future at any time if it appears to be necessary and provided that it does not adversely affect the user under the principle of equity and good faith. A change may be especially necessary in order to make adjustments due to a change in the legal situation. New court decisions are also considered to be a change in the legal situation. Changes and further development of the app may also necessitate a change or addition to the Terms of Use.
12.2 Any changes or additions shall be announced in an appropriate manner in text form at least one month prior to the effective date of the change or addition.
12.3 The user shall have the right to object to the change or addition with neuroCare within one month from the publication of this notice. In the event of an objection in good time, both parties have the right to terminate the contract with immediate effect in accordance with this contract’s provisions on termination. Other rights of termination shall remain unaffected. If the user does not object to the change or addition within the stipulated period or he/she continues to use the services, the change or addition shall be deemed accepted and become part of the contract.
12.4 In its notice regarding the changes to the Terms of Use, neuroCare 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.
§ 13 Final provisions
13.1 If one party hesitates to enforce, delays or sets aside his or her rights under these Terms of Use or grants the other party time, these rights shall remain unaffected.
13.2 The users shall not be entitled to transfer their rights under this contractual relationship to third parties. This shall not apply if neuroCare has approved it in writing beforehand.
13.3 neuroCare will, failing an agreement to the contrary in the Terms of Use or any other agreement, usually get in contact with the user by e-mail. The user will ensure that e-mail messages from neuroCare reach him at the e-mail address he has specified during registration or subsequently submitted (changed) to neuroCare. The user is responsible for choosing and maintaining spam filter settings and for regularly checking all incoming e-mail sent to this address. Apart from that, neuroCare reserves the right to use another form of communication.
13.4 The contracts concluded based on these Terms of Use and all related claims shall be exclusively governed by the laws of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
13.5 Should individual provisions of these Terms of Use be or become invalid, this shall not affect the validity of the remaining provisions.
13.6 Any amendments and additions to this usage contract as well as supplementary agreements must be in writing in order to be legally valid. This also applies to any changes to the requirement for written form. The requirement for written form does not apply to changes to these Terms of Use.
Munich, 1st of January 2020
neuroCare Group GmbH
Rindermarkt 7
80331 Munich
E-Mail: info@neurocaregroup.com
Tel: +49 89 215 417 299-0
