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General Terms and Conditions of Funanga Ltd for users of the digital platform 'CashtoCode'
Funanga Ltd, 36 Old Jewry Becket House, London, EC2R 8DD, United Kingdom (hereinafter referred to as 'Funanga') is the technical service provider of the digital platform 'CashtoCode' which enables end customers to purchase digital vouchers for the provision of goods (i.e. for online games) or the provision of services (hereinafter referred to as 'End Customer-App'). The purchase of the digital vouchers takes place via distribution partners and/or payment partners of Funanga or via Funanga itself (hereinafter referred to as 'POS'). The respective issuer of the digital vouchers (hereinafter referred to as 'Issuer') is also the operator of the respective digital platform for which Funanga acts as technical service provider. The relationship between the purchaser of the respective voucher and the issuer is governed by the issuer's general terms and conditions which are separately indicated to the user.
1. Scope of Application
1.1 The use of the End Customer-App shall be exclusively subject to this General Terms and Conditions (hereinafter referred to as 'General Terms and Conditions'). The use of the End Customer-App is only permitted for users above the age of 18 and entrepreneurs (users and entrepreneur together referred to as 'User'). User is an individual person who enters into a business transaction for a purpose which is not attributable to any independent professional or commercial activity of such person. An entrepreneur is an individual person or a legal partnership, which at the time the agreement is concluded is exercising its commercial or independent professional activity.
1.2 In addition the user must have a user account at Funanga AG (inter alia https://www.cashtocode.com) and must have accepted and/or met the respective prerequisites for the use of Funanga AG. Only then, the use of the End Customer-App in connection with the platform CashtoCode is possible and admitted.
1.3 General Terms and Conditions of the user shall not apply. Funanga reserves the right to offer additional services. In this case Funanga will inform the user separately and will, if necessary, communicate additional Terms and Conditions.
1.4 This General Terms and Conditions are made available on http://www.funanga.com/agb/ in order to enable the user to read, download and save them.
2. Subject Matter of Contract
2.2 The only subject matter of this contract is the object code of the End Customer-App for the available operating systems. Information regarding the operating systems which are currently supported by the End Customer-App can be found on https://www.cashtocode.com. The source code is not subject matter of the contract.
2.3 Funanga shall be entitled to provide or arrange the provision of free updates for the End Customer App in the respective store for mobile Apps, or otherwise, which may change the scope of functions of the End Customer-App. The exact system requirements and the complete scope of functions owed regarding such updates and the End Customer-App in its current version are provided for in the product and update description for the respective mobile application.
2.4 The End Customer-App is available for use 24 hours per day, 365 days per year ('system uptime') with an annual average availability of 95 % (hereinafter referred to as 'SLA'). If maintenance works are necessary which may cause the End Customer-App to be unavailable, Funanga will, as far as possible, inform the end customer in good time by e-mail (or equivalent, such on the internet or on the app). Failures of the App caused by maintenance works are not taken into account regarding the SLA. Funanga shall not be responsible for failures caused by the internet/network and shall in particular not be responsible for failure times during which the End Customer-App is not available on the internet due to technical or other problems which are beyond the influence of Funanga (such as force majeure, fault of third parties, reasons within the influence of the user (such as hardware failure).
3. User's rights and obligations
3.1 Downloading the End Customer-App; registration
3.1.1 The End Customer-App can be downloaded in stores for mobile apps for free and/or is provided as mobile website. The contract comes into force as soon as the user clicks on the 'Install'-Button and, where applicable, enters his/her password or visits the website.
3.1.2 The user also needs to be registered at the issuer for the use of the services. This is either possible via the respective function of the End Customer-App or directly (OPTIONAL: at the respective issuer) via Funanga AG. If the user chooses a registration, the required information must be true and correct and immediately updated in the case of changes, in order to ensure a trouble-free use. Users shall not be entitled to the execution of a contract of use.
3.1.3 Keeping the registration date confidential is in the sole responsibility of the user. The user shall keep user name and password for the access confidential and may not pass them to third parties or tolerate or allow the disclosure to third parties. Furthermore the user shall take the necessary steps to ensure the confidentiality and inform us by e-mail via email@example.com about any misuse or loss and/or any suspicion of such misuse or loss of such data.
3.1.4 The user of the End Customer-App is free of charge but only possible upon entering the user name and password. The use of any extended functions that may be made available in the future may be subject to a charge. In such case Funanga will separately inform the user and, where applicable, transmit additional Terms and Conditions.
3.2 Cash Payment
3.2 1 Prior to the cash purchase of a voucher the users may be required to identify themselves at the POS by means of a legally accepted photo identification document (such as an ID card) in connection with the data contained in the End Customer App. This is only necessary if required by the legislator.
4. Funanga's Rights and obligations
4.1 Funanga and/or the POS offer the vouchers issued by the issuer in the End Customer-App for sale and informs by means of maps about the nearest POS, where the selected voucher can be purchased. The POS sells the voucher on behalf of the issuer as a commercial agent of Funanga and/or Funanga sells the vouchers on behalf of the issuer as its commercial agent.
4.2 Furthermore Funanga publishes the product codes prior to the purchase. The product codes do not entitle the user to purchase a service but only enable the user to specify a certain voucher at the POS in order to enter into a contract for the purchase of this voucher with the issuer.
4.3 Upon the transmission of the product code by the POS to Funanga and then to the issuer, the issuer sells the voucher to the end customer. A contract for the purchase of the voucher is entered into between the user and the respective issuer.
4.4 Upon the receipt of the information regarding the cash receipt at the POS Funanga transfers the voucher to the user on behalf of Your Brand by sending the purchase conformation of the voucher immediately or as quickly as possible upon receipt of the information regarding the cash receipt via the End Customer-App to the end customer whereupon Funanga records the voucher on the Funanga AG-user account of the customer.
5. Granting of rights
5.1 Funanga grants the user a non-exclusive, non-transferable, non-sublicenceable right which is limited to the place of habitual residence of the user, to use the End User-App including any documentation and usage instructions contained in the End User App for the duration of this contract and for the purpose of this contract. The user may only download and use the End User App on mobile phones linked to the ID used for the purchase in the App Store.
5.2 The User may only reproduce the End User App as far as this is necessary for the contractual use of the End User App. The user may not make available, rent or permit the temporary use of the End User App to third parties. Any rights not explicitly granted shall be reserved.
6.1 Funanga's liability for the free use of the End User App shall be limited to intent and gross negligence. In case of intent Funanga is liable in full and in case of gross negligence Funanga's liability shall be limited to the typical and foreseeable damage. Any further liability is excluded.
6.2 Additional functions subject to payment – The use of extended functions made available in the future may be subject to a charge. Funanga's liability for additional services subject to a charge shall be as follows:
6.2.1 Claims of the user for damages are excluded. Excluded from this are user's claims for damages arising from injuries to life, limb or health or from the breach of significant contractual obligations (cardinal obligations) as well as the liability for other damages based on intentional or gross negligent breach of duties on the side of Funanga, its statutory representatives or vicarious agents. Cardinal obligations within the meaning of this General Terms and Conditions are obligations the fulfillment of which enables the proper performance of the contact and the fulfillment of its purpose and on the observance of which the user may regularly rely.
6.2.2. In case of a breach of significant contractual obligations Funanga shall only be liable for the typical foreseeable damage, if it was caused by simple negligence, unless the user's claims for damages arise from an injury to life, limb or health.
6.3 This shall not affect any claims under the product liability law.
7.1 Download and use of the basic functions of the End User App are free of charge. The use of any extended functions made available in the future may be subject to a charge. In such case Funanga will separately inform the user and, where applicable, transmit additional Terms and Conditions.
8. Term of the contract and termination
8.1 The contract for the use of the End User App is concluded for an indefinite period.
8.2 The user may terminate the contract at any time by uninstalling the End User App or by closing the website. Any data not exported are then lost.
8.3 Funanga my terminate the contract for use with a notice period of seven days (per e-mail shall be sufficient).
8.4 This is without prejudice to the right to terminate the contract without notice for important reasons. An important reason is deemed to exist if there are facts on account of which the terminating party under consideration of all circumstances of an individual case and by weighing the interests of both parties thereto, cannot be expected to continue the contract. An important reason which entitles Funanga to terminate extraordinary and without notice shall in particular (but not exclusive) be deemed to exist if one of the events listed below occurs:
9. Change of the General Terms and Conditions and of the services
9.1 The General Terms and Conditions may be changed to the extent that such changes are necessary for the adaption to developments which at the time of the conclusion of the contract were not foreseeable and which were not caused by and Funanga and are beyond the influence of Funanga and the failure to include them would noticeable impair the equity of the contract and to the extent that this is without prejudice to essential provisions of the contractual relationship. Essential provisions are, in particular, those that deal with the type and scope of the contractually agreed services and the term of the contract including provisions regarding termination. The General Terms and Conditions may be furthermore adjusted to the extent that such adjustments are necessary in order to eliminate material issues regarding the performance of the contract arising from contractual gaps that arise following the conclusion of the contract. This may particularly be the case when the laws regarding the effectiveness of provisions of this General Terms and conditions are modified or a legislative change leads to the ineffectiveness of one or more provisions of this General Terms and Conditions.
9.2 Funanga shall be at any time entitled to make changes to the IT-Systems, which are made available for the provision of the End Customer App as well as to any other services provided by Funanga if and to the extent to which this is necessary for a good cause that was not foreseeable at the time of the conclusion of the contract and the changes are acceptable for the user. A good cause shall be deemed to exist if the changes are necessary in order to adapt to the current stage of technology or serve to optimize and, in particular, to maintain and improve the IT-Systems or the services of Funanga or if new or amended legal provisions or other sovereign measures require a change of the services.
9.3 The user agrees to be informed about changes of the General Terms and Conditions or the services provided by Funanga per e-mail to the last known address. The user shall be informed about the proposed changes in writing at least four weeks before the planned entering into force of the changes. In case of changes that are not exclusively to the benefit of the user, the user shall be entitled to terminate the agreement without notice at the time of entering into force of the changes in writing (i.e. letter or e-mail). The user will be specifically informed about this in the notification of change. The General Terms and Conditions, as amended, shall be deemed to be accepted if the user does not object in writing or by e-mail within one month upon receipt.
10. Revocation instruction
10.1. User's right of revocation
10.1.1 Due to its nature the End Customer App is not suited for a return, so that there is no right of revocation according to § 312d (4) No. 1 BGB.
10.1.2 Regarding the contract for the use of the services the user registered in the End User App shall have, if a consumer, a statutory right of revocation according to the following instruction.
10.2 The following right of revocation shall not apply for entrepreneurs.
Right of revocation You have the right to withdraw from the contract within a period of 14 days without giving a reason in text form (i.e. letter, fax, e-mail). The withdrawal period starts when this information is received in writing, but not, however, before conclusion of the agreement and not before the fulfillment of our information obligations according to Article 246, Para.2 in connection with Para. 1(1) and (2) EGBGB and not before the fulfillment of our obligations according to Para. 312g, Para. 1, Sentence 1 BGB in connection with Article 246, Para. 3 RGBGB. The timely dispatch of the revocation shall be deemed sufficient for compliance with the revocation deadline. The revocation is to be sent to: Funanga Ltd 36 Old Jewry Becket House, London, EC2R 8DD, United Kingdom E-Mail: firstname.lastname@example.org You may also use the standard revocation form at the bottom of the revocation instruction. Consequences of revocation: In the case of an effective revocation the mutually received benefits are to be returned and any derived profits (such as interests) are to be returned. If you are unable to return the received benefits in their entirety or partially or only in diminished conditions you are obliged to make restitution to us. This may involve your continued performance of your contractual payment obligations for the time leading up to the cancellation. Obligations to refund payment must be fulfilled within 30 days. For you the period begins upon dispatch of your notice of revocation and for us with its receipt. Special instructions Your right of revocation shall expire prematurely, if the agreement, at your express request, has been executed in full by both parties prior to your exercising your right of cancellation. End of the revocation instruction
Standard revocation form (if you want to revoke the contract, please complete this form and send it back to) Funanga Ltd 36 Old Jewry Becket House, London, EC2R 8DD, United Kingdom E-Mail: email@example.com Hereby I/we (*) revoke the contract concluded with me/us (*) for the use of the Funanga-Service. Name of the user/s: User's Address: User's Customer-ID: (**) User's signature (only in case of notices on paper): Date: (*) Delete as applicable (**) The Customer-ID is to be found under the menu item 'settings' in the app.
11. Final Provision
11.1. The law of the Federal Republic of Germany.
11.2 Place of Jurisdiction
11.2.2 Place of jurisdiction for entrepreneurs – Place of jurisdiction for entrepreneurs for any disputes arising out of or in connection with this contract shall be Berlin.
As of October 30th, 2017