1.1 The business relationship between Native-Byte and the customer or user (“Customer”) in connection with Native-Byte’ offers on the Internet page “https://www.native-byte.com/“ or via Native-Byte apps and services are based exclusively on the following Terms of Use in the version effective on the date when the app was
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 Native-Byte in writing. This shall also apply even if the Customer’s terms and conditions of business have not been expressly disallowed.
1.4 Native-Byte is entitled to amend these Terms of Use prospectively. Native-Byte shall only make such amendments for good reason, particularly in response to new technical developments, any expansion of Native-Byte’ 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 using Native-Byte apps and services.
§ 2 Subject matter of this Agreement and contract terms
2.1 Native-Byte provides games and mobile apps (hereinafter collectively “Games”).
2.2 Native-Byte makes Games such as CubeRun available for e.g. on the Google Play Store download by the Customer to the Customer’s Terminal Device (such as a computer, 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 etc., for download. 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 Native-Byte, 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, if the game isn’t free 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 Native-Byte’ 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 Native-Byte 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 Native-Byte 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 Native-Byte is subject to the sending of an order confirmation, which is normally sent by e-mail if the Customer has provided Native-Byte with a valid e-mail address. The order confirmation contains all of the important content of the contract concluded between Native-Byte and the Customer.
2.7 By providing Native-Byte with a valid e-mail address, the Customer consents to the receipt and processing of his orders by e-mail. Native-Byte expressly reminds the Customer that improper use of e-mail cannot be precluded. Native-Byte 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 Native-Byte accept such electronic orders. Native-Byte 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 Native-Byte; the Customer’s license rights
3.1 The Games that are offered 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 Native-Byte in exchange for a fee for use on a stationary device or on Terminal Devices. For this purpose, Native-Byte provides the Customer a basic, non-transferable license to the Games for private use on his Terminal Device.
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 Native-Byte 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. Native-Byte has no control over them.
4.5 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 Native-Byte 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. Native-Byte 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 send us an e-mail to Native-Byte@gmx.net to revoke this Agreement.
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, 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.
§ 6 User Generated Content; user rights to the multimedia program; obligations of the Customer
6.1 Native-Byte shall provide Customers with the Native-Byte 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 Native-Byte Editor and the tools included therein may only be used if the Customer has legally acquired a game from Native-Byte beforehand, and has downloaded this to his end device (e.g. computer, 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 Native-Byte 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 Customers may not use Mods 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 Native-Byte 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, 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 Native-Byte the usage rights described below, without the need for Native-Byte 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 Native-Byte 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. Native-Byte 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 Native-Byte a free-of-charge user license for all online User Generated Content which he creates or shares during his use of a Native-Byte app or 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 Blog
8.1 Registered Customers have the option of commenting articles created by Native-Byte via the website. The Website is hosted by Wix, and is therefore not responsible for the Blog content permitted or prohibited by Native-Byte.
8.2 Although Native-Byte makes every endeavour to remove User Content which is offensive and which may infringe the rights of third parties, Native-Byte is not able to review all User Content. The Customer bears sole responsibility for the User Content he publishes, and shall indemnify Native-Byte from any third-party claims. Native-Byte shall not be responsible for the User Content.
8.3 The Customer shall be obliged to comply with the following Blog rules when registering on the Website:
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, Native-Byte shall be entitled to delete and terminate the user account with immediate effect. A Customer may only register for the Blog if the Customer is at least 13 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. Native-Byte 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 Native-Byte 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. Native-Byte 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 Blog 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 Native-Byte for the losses incurred as a result thereof, and in particular to indemnify Native-Byte against any third-party claim. Section 10 of these General Terms and Conditions of Use shall apply in this respect.
8.5 Native-Byte 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 Time of performance
9.1 Agreements as to dates or time limits are binding only if they have been confirmed by Native-Byte in writing. Otherwise they are non-binding.
9.2 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.
§ 10 The Customer’s set-off and retention rights, deterioration of the Customer’s financial situation
10.1 The Customer is only entitled to offset against claims by Native-Byte insofar as his counterclaims have been acknowledged by Native-Byte, are not in dispute, or are final and absolute.
10.2 The Customer is entitled to assert a right of retention only if the claims are based on the same contractual relationship.
§ 11 Service disruptions and warranties
11.1 If the Game downloaded through 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, Native-Byte 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.
11.2 Native-Byte 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 Native-Byte’ control. No promise is made that the requested Games will reach the Customer at a particular time.
11.3 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. Native-Byte 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. Native-Byte may refuse the chosen manner of remedial performance if it is feasible only at a disproportionate cost.
11.4 If rectification on the part of Native-Byte fails twice, Native-Byte refuses both manners of remedial performance, or Native-Byte 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.
11.5 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.
§ 12 Liability, damages
12.1 Native-Byte 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. Native-Byte 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 Native-Byte has been informed of the possibility of such damage.
12.2 In particular, Native-Byte 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.
12.3 Native-Byte 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.
12.4 In particular, Native-Byte 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 Native-Byte or from Native-Byte to the Customer.
12.5 Native-Byte’ liability, should such be present notwithstanding the foregoing provisions, is limited in all cases to damage caused by Native-Byte, 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 Native-Byte. Liability for blameworthy injury to life, body, or health remains unaffected. This also applies to mandatory liability under the German Product Liability Act [Produkthaftungsgesetz].
12.6 All other liability for damages on the part of Native-Byte, on whatever legal grounds, is excluded.
§ 13 Other duties and responsibility of the Customer
13.1 If a third party uses Native-Byte 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 Native-Byte for any costs or claims for damages arising therefrom. The Customer is subject to this obligation towards other rights holders as well.
13.2 The Customer may not impair the performance or security of Native-Byte’ 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 Native-Byte’ Website, technology, software, or other components; (c) circumvention and/or removal of Native-Byte’ copy protections. Native-Byte reserves the right to pursue civil or criminal actions for every infringement of this type.
§ 14 Data protection
Information on the manner in which, the extent to which, the purpose for which, and the location from which the personal data Native-Byte 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 Privacy Policy.
Issued: April 2020