cosmigoWelcome to www.cosmigo.com and our mobile site at the same address (collectively, the “Site”). The Site is owned and operated by cosmigo GmbH (”cosmigo”). YOUR USE OF AND/OR REGISTRATION AT THE SITE CONSTITUTES YOUR CONSENT TO BE BOUND BY THESE TERMS OF USE (”Terms”). THE TERMS MAY BE AMENDED FROM TIME TO TIME, AND ALSO INCLUDE OUR PRIVACY POLICY, AND THE LEGAL NOTICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE SITE OR THE SERVICES AVAILABLE VIA THE SITE.
Under the Terms, cosmigo offers users the ability to (i) use the Site; (ii) download and/or purchase content; (iii) participate in forums and chats; and (iv) provide feedback to cosmigo. By using the Site, you agree to be bound by these Terms, including but not limited to your agreement to limit/exclude damages and remedies, and accept german law and german jurisdiction over any disputes arising between you and cosmigo. You may scroll down to review all of the Terms, or you may print these Terms as enabled by your browser. If you do not agree to the Terms, do not use the Site.
1. Ownership The Site and Applications (as defined below) are the exclusive property of cosmigo and/or its suppliers. All rights not granted herein are reserved by cosmigo.
2. Grant of License and Restrictions. In accordance with these Terms, we grant you a non-exclusive, non-transferable, terminable license to view and use the Site only for the purposes of downloading and/or purchasing content, accessing information and Applications, and posting, uploading and distributing content to and through the Site in accordance with these Terms. We reserve the right to suspend or deny, in our sole discretion, your access to all or any portion of the Site. You may not (a) use any robot, spider, other automatic device or manual process to monitor or copy our web pages or the content contained therein without our prior written permission; (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or Applications; (c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (d) copy, reproduce, alter, modify, create derivative works, or publicly display any Application or content from the Site without prior written permission from cosmigo or the appropriate third party; (e) alter or modify the copyright notices and any other proprietary legends that appear on the Site; or (f) access the Site by any means other than through the interface that is provided by us.
3. Applications. From time to time we may offer you the ability to use certain creative applications. For example, we may provide forums, chat areas, bulletin boards, or e-mail functions (”Applications”). cosmigo grants you a limited license to use the Applications subject to the following conditions:
(a) You understand that all information, text, data, software, sounds, photographs, audiovisual material, artwork, graphics, messages and other materials that are transmitted to or via the Site (”Materials”) are the sole responsibility of the person from whom the Materials originated. This means you, and not cosmigo, are entirely responsible for the Materials you transmit to or through the Site. Further, you understand that by using the Site you may be exposed to Materials that are offensive, objectionable or indecent.
(b) You will not create a user name, screen name or label, or upload to, distribute through or otherwise publish through the Site, any Materials which are indecent, libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, harassing, or otherwise objectionable, or that would constitute or encourage a criminal offense, violate the rights of any party or violate any law.
(c) Your Materials, user name, screen name and labeling of Materials shall not contain expressions of hatred, bigotry, racism or pornography.
(d) Your Materials, user name, screen name and labeling of Materials shall not disparage in any manner cosmigo, its products or services, or the Site.
(e) Your Materials shall not infringe the copyrights, trademarks or other intellectual property rights of cosmigo or any third party.
(f) Your Materials shall not be directly or indirectly commercial in nature or contain any solicitation of funds, promotion, advertising or solicitation for goods or services. You specifically acknowledge that soliciting other users to join or become members of any commercial online web site or other commercial organization is expressly prohibited.
(g) Your Materials shall not contain viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Site or disrupt any software, hardware, telecommunications, networks, servers or other equipment.
4. Use and Monitoring; No Endorsement. You may use the Site only for its intended purposes. While cosmigo has no obligation to monitor the Site and is not responsible for the content of any Materials or other messages, information or files transmitted on the Site, cosmigo reserves the right to delete, move, edit, refuse to post or take other appropriate action with respect to such Materials or other messages, information or files which cosmigo, in its sole discretion, deems objectionable or otherwise in violation of these Terms, including denying access to the Site to anyone at anytime. You are hereby notified that use of the Site constitutes consent to such actions, monitoring and auditing. cosmigo does not endorse any communications made through the Applications or any other communications on the Site.
5. Copyrights and Trademarks. The Site is protected by intellectual property laws and you agree to respect them. Please see our Copyright and Trademark Notice for more information about our trademarks and copyrights.
6. Submitting Materials and Feedback. By submitting any Materials, or any feedback, data, questions, comments, suggestions or the like (”Feedback”) to the Site (collectively “User Content”), you automatically grant (or warrant that the owner of such rights has expressly granted) cosmigo a perpetual, fully-paid, royalty-free, irrevocable, world-wide, non-exclusive right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, sell, transmit, transfer, distribute, publicly display and publicly perform such User Content or incorporate such User Content into any form, media or technology now known or later developed throughout the world. cosmigo shall have the right to further sublicense these rights to third parties. You warrant that all so-called “moral rights” in the User Content have been waived.
7. Use Charges. Neither cosmigo nor any of its affiliates shall have any liability to you for use charges related to any device that you use to access the Site or use cosmigo’s games or other services, including, without limitation, usage charges for mobile telephones, Palm OS devices, Windows CE devices, car navigation systems, pagers, smart phones and other devices, whether wireless, wireline, requiring cradle synchronization or otherwise.
8. Agreement to Conduct Transactions Electronically. You agree that all of your transactions with or through the Site may, at our option, be conducted electronically. You also agree that we may provide all agreements, disclosures and notices electronically, including any that we are otherwise required to provide in “writing.”
9. Privacy Policy. Our Privacy Policy is part of and incorporated into these Terms. Please take a moment to review it.
10. Suspension, Termination or Cancellation. cosmigo may suspend, cancel or terminate your registration, block your use of the Site, or direct you to cease using the Site, if we believe in good faith that you or a related person has breached or may breach these Terms.
11. Your Representations and Warranties. You represent and warrant for the benefit of cosmigo, its affiliates and any third parties mentioned on the Site that: (a) you possess the legal right and ability to enter into and make the representations and warranties contained in these Terms; (b) all information submitted by you to the Site is true and accurate; (c) you will not use the Site for any purpose that is unlawful or prohibited by these Terms; (d) you will make and maintain back-up copies of any Materials which you upload or otherwise distribute through the Site; and (e) you possess all legal rights in and to the Materials which you post, upload or distribute through the Site.
12. No Warranties; “As Is.” THE SITE, CONTENT AND PRODUCTS OFFERED AT THE SITE, AND THE APPLICATIONS ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. cosmigo HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; AVAILABILITY OF THE SITE; LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY INFORMATION ON THE SITE; AND ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE, CONTENT AND MATERIALS ON THE SITE, AND APPLICATIONS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN CONNECTION WITH THE SITE, CONTENT, MATERIALS AND APPLICATIONS IS BORNE BY YOU. cosmigo SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA OR OTHER MATERIAL.
13. Dangerous Activities. cosmigo DOES NOT RECOMMEND USE OF ITS GAMES OR OTHER SERVICES DURING CERTAIN ACTIVITIES, SUCH AS DRIVING, WHERE THERE EXISTS A SIGNIFICANT RISK OF ACCIDENT. YOU AGREE NOT TO USE cosmigo’S GAMES OR OTHER SERVICES DURING SUCH ACTIVITIES AND ACKNOWLEDGE THAT ANY SUCH USE WOULD BE A VIOLATION OF THESE TERMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT SUCH USE IS AT YOUR SOLE RISK AND cosmigo WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OF ANY NATURE RESULTING FROM SUCH USE.
14. Assumption of Risk. YOU ASSUME ALL RISKS THAT THE SITE AND APPLICATIONS ARE SUITABLE OR ACCURATE FOR YOUR NEEDS AND WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. YOUR USE OF THE SITE, MATERIALS AND APPLICATIONS IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA RESULTING THERE FROM. SIMILARLY, YOU AGREE THAT BY PARTICIPATING IN FORUMS, VISITING CHAT ROOMS OR USING OTHER APPLICATIONS, YOU MAY BE EXPOSED TO RUDE, CRUDE, INDECENT OR OTHER OFFENSIVE LANGUAGE OR REFERENCES.
15. Limitation of Liability and Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER WE, NOR ANY OF OUR AFFILIATES OR AGENTS, WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF PRIVACY OR FOR FAILURE TO MEET ANY DUTY INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, LACK OF NEGLIGENCE OR OF WORKMANLIKE EFFORT) OR ANY OTHER INDIRECT, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO THE SITE, ITS CONTENT, OR APPLICATIONS, OR TO ANY BREACH OF THESE TERMS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY. OUR TOTAL LIABILITY HEREUNDER IS LIMITED TO THE AMOUNT, IF ANY, ACTUALLY PAID BY YOU FOR ACCESS AND USE OF THE SITE. YOU HEREBY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
16. Exclusive Remedies. You agree that your exclusive remedy for any breach of these Terms by us or any of our affiliates or agents shall be, at our option: (a) substitution or replacement of all or part of the Site, content or Application that gives rise to damages incurred by you in reasonable reliance on us; or (b) refund of any monies you have paid to cosmigo. You agree that the damage exclusions in the Agreement and this limitation of liability shall apply even if any remedy fails of its essential purpose.
17. Linked Sites. Links may appear on the Site that may be used to link to other web sites. These links are provided as a courtesy to our Site visitors. cosmigo has no control over the linked web sites or the materials, information, goods or services available or contained on these linked web sites. cosmigo is not responsible for and does not endorse or warrant in any way any privacy or other practices of such web sites or any materials, information, goods or services available through such linked web sites. If you decide to access any of the linked web sites, you do so entirely at your own risk. cosmigo reserves the right to terminate any link at any time.
18. Amendments; Complete Agreement. You agree that we may from time to time amend or add to these Terms (”Amendments”), including without limitation, Amendments that add registration fees or change payment methods or requirements. Notice of such Amendments will be posted on the Site and will be effective ten (10) days after notice unless an earlier time is specified by us. Your use of the Site after the effective date of any Amendments shall be your consent to those Amendments and to these Terms as amended. If you do not want to be bound by an Amendment, you will need to terminate your registration, if any, and refrain from using the Site or cosmigo’s products, services or Applications after that date. These Terms and any Amendments, your registration and any consents provided by you, the disclosures provided by us on the Site and in conjunction with content delivered or accessible via a mobile device, constitute the entire agreement between you and us and supersede any prior written or oral agreements between the parties. No changes proposed by you or us will be effective unless and until they appear in these Terms or in the Amendments as posted by us on the Site. No other amendments will be valid unless they are in a paper writing signed by us and by you.
19. No Waiver of Contractual Rights. The failure of either party to enforce any provision of these Terms shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of these Terms.
20. Severability. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of these Terms is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
21. Applicable Laws. cosmigo operates the Site from its offices in San Mateo County, California and makes no representations that materials in the Site are appropriate or available for use in other locations. Access to the Site or use of cosmigo content or services from any territory where the content is illegal is prohibited. If you choose to access the Site from other locations, you do so at your own risk and are solely responsible for compliance with any and all applicable laws, rules and regulations. The display of the Site alone does not subject cosmigo to any specific jurisdiction. You may not use or export any of the Site content or Applications in violation of german export laws and regulations. Any claim related to the use of the Site or to the Site content or Applications shall be governed by, construed and enforced in accordance with the laws of Germany as applied to agreements made and to be performed entirely therein. Any action brought in connection with the Site, Site content or Applications or any other cosmigo content or services shall be brought in either the state or federal courts with jurisdiction in Chemnitz, Germany. The parties hereby waive any claim or defense that such forum is not convenient or proper and consent to service of process by any means authorized by german law.
22. General Notices. All notices required by or allowed under these Terms, including notices of problems and/or inaccuracies in the Site, Site content, or Applications should be addressed to cosmigo GmbH, Luthereichenhöhe 11, 09116 Chemnitz, Germany. Communications made through the Site’s e-mail and messaging system shall in no way be deemed to constitute legal notice to cosmigo or any of its officers, employees, agents or representatives, with respect to any existing or potential claim or cause of action against cosmigo or any of its affiliates, officers, employees, agents or representatives, where notice to cosmigo is required by contract, or any federal, state or local laws, rules or regulations. If, but only if, applicable law requires that we accept e-mail notices, then you may send us e-mail notice at info@cosmigo.com. With respect to our notices to you, we may provide notice of Amendments by posting them on the Site and you agree to check for changes. Instead, or in addition, we may give notice by sending e-mail to the e-mail address you provide during registration or otherwise. Notice shall be deemed given twenty-four (24) hours after it is posted or an e-mail is sent, unless (as to e-mail) the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided during registration. In such case, notice shall be deemed given three (3) days after the date of mailing.
23. Notice of Copyright Infringement. cosmigo respects the intellectual property rights of others and requests that you do the same. Anyone who believes that his, her or its work has been reproduced on the Site in a way that constitutes copyright infringement may provide a notice to the designated Copyright Agent for the Site containing the following:
(a) an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest;
(b) identification of the copyrighted work claimed to have been infringed;
(c) identification of the material that is claimed to be infringing and information reasonably sufficient to permit cosmigo to locate the material;
(d) the address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
(e) a representation that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a representation that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Copyright infringement claims and notices (but not other notices) should be sent to the attention of Legal department, by any of the following means:
by mail: cosmigo GmbH, Luthereichenhöhe 11, 09116 Chemnitz, Germany
by phone: +1(858) 876-4263
by fax: +1(815)366-7912
by e-mail: info@cosmigo.com
If cosmigo receives proper notification of infringement pursuant to the procedure set forth above, it will remove or disable access to the challenged material and will take reasonable steps to notify the party who originally posted it (the “posting party”) that the material has been removed. The posting party may then submit a counter-notification by sending an e-mail message to the Copyright Agent designated above explaining why the posting party believes that material is not infringing. To be effective, the counter notification should include:
(a) a physical or electronic signature of the posting party;
(b) identification of the material that has been removed and the location where the material was located before it was removed;
(c) a statement under penalty of perjury that the posting party has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(d) the posting party’s contact information, such as the address, telephone number and email address; and
(e) a statement that the posting party will consent to jurisdiction of the federal court for the district in which that address is located and that the posting party will accept service of process from the person who provided the notification described above or that person’s agent.
Upon receipt of a counter-notification complying with these requirements, cosmigo will promptly provide the person who submitted the original notification with a copy of the counter-notification and will replace the removed material or cease disabling access to it in not less than 10, nor more than 14, business days unless that person provides to the Copyright Agent designated above notification that the person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity related to the material posted to the Site.
24. WE MAKE NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEB SITE LINKED TO THE SITE. We will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on our equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Site.