§ 1 Scope of the GTC, Contractual Language, Code of Conduct
The following General Terms and Conditions in the version valid at the time the contract is concluded shall apply to contracts concluded by customers (hereinafter referred to as Customers) with the Provider (straightlabs GmbH & Co. KG, Tölzer Str. 12, 82031 Grünwald, Germany) for the use of the VR Speech Trainer (hereinafter referred to as VST) against payment. However, the agreements made in the service descriptions between the provider and the customer generally take precedence over the General Terms and Conditions.
Terms and conditions of the customers that deviate from or contradict these GTC are not recognized by the provider unless he has expressly agreed to them. The performance of the services cannot be considered as such consent.
The contract language is German.
The provider is not subject to any special codes of conduct.
§ 2 Conclusion of the contract, correction of input errors, storage of the text of the contract
A contract for the use of the VST is concluded exclusively when the Customer completes the order process in the online store of the Provider under VR Speech by clicking the button “order now” (binding offer) and the Provider expressly accepts the order after sending an order confirmation with another e-mail (binding acceptance). With this mail the customer receives the access to the registration for the VST.
You can correct input errors during the ordering process by using the forward and back buttons of the browser as well as by directly selecting certain stages of the ordering process (shopping cart/information/payment/verification).
The contract text is stored by us and can be retrieved from us by e-mail.
§ 3 Subject matter of the contract, scope of services
For the duration of the contractual relationship, the Provider shall provide the Customer with the VST in the respective current version within the functional scope of the equipment package ordered by the Customer in each case for use via the Internet. Access to and use of the VST by the Customer shall be exclusively through the use of a VR headset (see VR Speech website).
The VST is hosted and operated on servers of the third-party provider Hetzner, which is contractually affiliated with the provider.
The VST is a virtual reality application for personal training in speaking and presentation skills. In detail, the services that can be used by the customer result from the service description on the website VR Speech.
The provider neither guarantees a qualitative or academic minimum content of the teaching content on the VST platform nor its content accuracy or suitability for use for specific purposes of the customer. The customer bears sole responsibility for the suitability of the course content for achieving intended results. Changes, additions and updates to the course content are made by the provider at its own discretion. The customer has no claim to performance in this respect.
The performance obligations of the provider under this contract for the use of the VST do not include any further services of the provider, insofar as these go beyond the mere maintenance of the VST, its usability (e.g. rectification of defects) and other contractual ancillary obligations.
§ 4 Further services of the provider, service level
The Provider shall provide the Customer with the computing capacity required for unrestricted use in accordance with the contract as well as the necessary storage space for the data generated by the Customer and the Authorized Users through use of the VST and/or the data required for use of the software. The Provider shall have no custody or safekeeping obligations with respect to such Customer Data, unless such obligations have been agreed between the parties under other contracts.
The Provider shall only provide the version of the VST to be provided to the Customer in the respective current version if this already corresponds to the proven state of the art.
The transfer point for the VST and the application data is the router output of the data center of the provider. The provider cannot influence data traffic beyond its own communications network and is not obliged to forward information. The provider assumes no responsibility for the success of the respective access to the VST, unless the network operated by the provider including the interfaces to third party networks is used exclusively. The provider is not responsible for the quality of the hardware and software required for use on the part of the customer or for the telecommunications connection between the customer and the provider up to the transfer point.
The servers and thus access to the VST are operational 24 hours a day, seven days a week with a monthly average availability of 99%. Downtimes due to maintenance work and software updates as well as for disruptions in the availability of the servers via the Internet that are based on technical or other problems that are not within the sphere of influence of the provider (force majeure, network overload, fault of third parties, etc.) are to be deducted from this.
The minimum availability specified in Section 4 may change without any possibility for the provider to intervene on the part of the host provider and may fall below the minimum availability required in accordance with the prevailing legal opinion. The provider is objectively and technically prevented from guaranteeing the customer higher availability than the host provider. The customer acknowledges this circumstance and waives any claims and rights resulting from insufficient minimum availability against the provider, provided that this does not fall below the respective current minimum availability of the host provider. However, if the availability falls below 99% on a monthly average, the remuneration of the provider shall be reduced to the extent of the loss of services, but at least by 15%.
In order to carry out maintenance work and updates in accordance with Paragraph 3, the Provider is entitled to interrupt the availability of the server on Mondays and Fridays at 11 a.m. for a total of 10 hours per calendar month. If such interruptions are foreseeable to the extent of more than 4 hours at a time, the Provider shall notify the Customer thereof without undue delay.
The VST and application data are backed up regularly, at least every calendar day. The backups are kept for 30 days at a time and then overwritten by current backups. The customer is responsible for compliance with commercial and tax retention obligations.
The Customer may at any time request in writing from the Provider the surrender of a complete copy of the data generated by the Customer by means of the VST or placed therein, at the option of the Provider on customary data carriers or by remote data transmission. If the customer requests the data output more than once per year, he has to pay the provider an expense allowance of of 1,000 € plus VAT. VAT to be paid.
§ 5 Commencement, term and end of the usage relationship
The usage relationship begins on the day of setting up access to the VST for the customer and its authorized users.
The minimum contract period is 1 month. The customer is entitled to purchase a contract extension via the web store. The right to extraordinary termination for good cause or any special termination rights existing under this Agreement or by law shall remain unaffected.
If the customer continues to use the VST after the expiry of the rental period, the rental relationship shall not be deemed to have been extended. § Section 545 BGB shall not apply.
§ 6 Remuneration
The monthly usage fee is to be paid in advance.
The customer shall be deemed to be in default without the requirement of an additional reminder upon the expiry of 4 weeks from receipt of the invoice in accordance with § 286 para.2 BGB in default of payment. In this case, the provider is entitled to withhold the contractual services until the invoice has been settled. The right to block access also exists as a mitigating measure if the provider has a right of extraordinary termination. The provision of § 320 para. 2 BGB (German Civil Code) as well as the assertion of further default-related claims shall remain unaffected.
The customer shall only be permitted to set off counterclaims that are undisputed or have been legally established. The preceding sentence shall not apply if a claim based on a defective performance of the Provider s is set off against this claim for remuneration. He may only assert a right of retention if it is based on the same contractual relationship.
§ 7 Duties and obligations of the customer
The provider enables the customer to access the VST via a suitable authentication method (e.g. user name and password.). The access data provided to the customer and the authorized users must be changed immediately to names and passwords known only to the customer, kept secret and protected from unauthorized access by third parties. Access to the VST may only be provided by the customer. If it is feared that unauthorized third parties have gained or will gain knowledge of the access data, the provider must be informed immediately. The customer shall be liable for third-party use within the scope of the statutory provisions.
The customer is entirely responsible for the content of the data posted by him in the VST or generated by it. In this respect, the provider does not carry out any checks on this data. The customer shall be liable for ensuring that the software is not used for purposes that are racist, discriminatory, pornographic, endanger the protection of minors, politically extreme, violate the rights of third parties or otherwise unlawful or violate official regulations or requirements, or that corresponding data, in particular application data, are created and/or stored on the server(s).
The customer will not retrieve or allow to be retrieved any information or data without authorization or interfere or allow interference with programs operated by the provider or host provider or penetrate data networks of the provider or host provider without authorization or promote such penetration.
Before feeding data and information into the VST, the customer shall check them for viruses and use state-of-the-art virus protection programs.
The customer shall indemnify the provider against claims by third parties based on the customer’s unlawful use of the VST within the meaning of § 7.1-7.4 or arising from other disputes caused by the customer that are connected with the use of the VST. This also includes the indemnification or reimbursement of the costs of a necessary legal defense of the provider against the claims of third parties.
If the customer violates duties according to § 5.1-5.3. the provider may block the customer’s access to the VST or the application data if the violation can be demonstrably remedied by doing so.
The custome r shall immediately notify of any defects in the services owed by the provider under this contract. As far as the provider could not provide remedy due to the omission or delay of the notification, the customer is not entitled to reduce the rental fees in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily due to the defect without notice. The customer must prove that he is not responsible for the failure to notify.
If the customer unlawfully violates § 7.2, the provider is entitled to delete the data or application data affected thereby. In the event of an unlawful violation by other users, the customer shall, upon request, immediately provide the provider with information regarding the assertion of claims against the user, in particular the user’s name and address.
The right to extraordinary termination due to possible breaches of duty by the customer remains unaffected by the above.
The customer is prohibited from making the VST made available to him for use available to other users against payment or free of charge.
The customer is not entitled to an assignment of claims and/or the transfer of rights from this contract, unless the provider has expressly agreed to the assignment or transfer in writing.
§ 8 Rights of Use to the VST, Rights to Application Data and Media Content
The customer receives a simple (non-sublicensable and non-transferable) right of use to the VST limited to the term of this contract in accordance with the following provisions. A physical transfer of the VST does not take place.
The customer may use the VST only within the scope of the application purpose resulting from its functions for his further education. The customer shall not be entitled to any rights not expressly granted to the customer herein. In particular, the customer is not entitled to use the VST beyond the agreed use or to have it used by third parties or to make the VST or its contents accessible to third parties. In particular, the VST may not be reproduced, sold, imitated or made available for a limited period of time, and in particular may not be rented or loaned.
For each case in which the customer culpably enables the use of the VST by unauthorized third parties, the customer shall in each case pay an immediately due contractual penalty in the amount of the monthly usage fee for each commenced month of third-party use. We reserve the right to claim damages; in this case, the contractual penalty shall be offset against the claim for damages.
The Customer grants the Provider the right to reproduce the data to be stored for the Customer to the extent necessary to provide the services owed under this Agreement. He is also entitled to keep the data in a backup data center. In order to eliminate disruptions, the provider is also entitled to make changes to the structure of the data or the data format.
The customer grants the provider the rights of use necessary for the fulfillment of the contract to other content and media posted on the VST or connected to it, insofar as these are subject to a statutory property right. In this respect, the customer assures that he is authorized to grant the right of use on the basis of his own rights. If claims are asserted against the provider by third parties due to alleged infringements of property rights in this content, the customer shall indemnify the provider against these claims, including the necessary legal costs.
If and to the extent that during the term of this Agreement, in particular by compilation of application data, Customer’s activities permitted under this Agreement create a database, databases, database work or database values on Manufacturer’s server(s), Customer shall be entitled to all rights thereto. The customer remains the owner of the databases or database works even after the end of the contract.
§ 9 Liability for defects, liability for contents of the customer
The Provider shall provide the VST to the Lessee in a condition suitable for use in accordance with the contract and shall maintain it in such condition during the rental period. The elimination of defects is carried out by free rectification of the provider.
The customer has to notify the provider in defects immediately, see § 7 (7). The claims for defects are subject to a limitation period of one year.
The strict liability of the provider according to § 536a Abs.1 1.Alt. BGB due to defects already existing at the time of conclusion of the contract is excluded. This also applies to defects in subsequent patches, upgrades and updates of the VST if these were already present at the time of installation.
Termination by the customer pursuant to § 543 para.2 S.1 No.1 BGB (German Civil Code) due to failure to provide use in accordance with the contract is only permissible after the provider has been given sufficient opportunity to remedy the defect and this has failed. The rectification of defects shall only be deemed to have failed if the Provider refuses to rectify the defect or unreasonably delays rectification, if there are reasonable doubts as to the prospects of success or if the Customer cannot reasonably be expected to do so for other reasons.
The provider is not responsible for the content and data posted by the customer or other third parties authorized to use the VST or generated by it. In particular, the provider is not obligated to check the content for possible violations of the law on an ongoing basis.
§ 10 Limitations of liability
The provider is liable in accordance with the statutory provisions without limitation for damages, from injury to life, limb or health, which is based on an intentional or negligent breach of duty or an intentional or negligent breach of duty of its agents.
In addition, the provider is liable without limitation in accordance with the statutory provisions for other damages if these are based on the breach of a material contractual obligation. This shall be the case if the breach of duty relates to a duty the fulfillment of which is a prerequisite for the proper performance of the contract, the breach of which jeopardizes the attainment of the purpose of the contract and on the observance of which the customer could usually rely. In the event of a breach of a material contractual obligation, however, liability shall be limited to the foreseeable, typically occurring damage.
The provider is also liable to a limited extent for the absence or omission of a warranted characteristic or for non-compliance with a guarantee, as well as for claims under the Product Liability Act.
For all other breaches of duty, the provider is liable only in case of intent and gross negligence. This applies without exception to all claims for damages, regardless of their legal nature, as well as to claims for reimbursement of expenses which are asserted instead of a claim for damages.
The Provider shall not be liable for the loss of data and/or programs to the extent that the damage is due to the Customer’s failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
Insofar as liability for damages is excluded or limited in accordance with the above provisions, this shall also apply with regard to the personal liability for damages of the employees, representatives and vicarious agents of the Provider.
§ 11 Data security, data protection, order data processing, confidentiality
The parties shall comply with the applicable data protection provisions, in particular those applicable in Germany. If the customer wants to transfer personal data of third parties to the VST ,he is obliged to inform the provider in advance and to conclude a contract on commissioned processing with him according to Art. 28 DS-GVO. If it fails to do so in breach of its duties, it shall be liable to pay damages to the provider if claims are asserted against it by data subjects or the data protection authorities.
The contracting parties shall maintain secrecy about all information to be treated confidentially which has come to their knowledge within the scope of this contractual relationship and shall only use such information vis-à-vis third parties – irrespective of the purpose – with the prior written consent of the respective other party. Information to be treated as confidential includes, in addition to information expressly designated as confidential, information the confidentiality of which is apparent from the circumstances. Confidential in this sense are in particular the application data entered by the customer.
§ 12 Online Dispute Resolution, Consumer Arbitration Proceedings under the VSBG
Information on online dispute resolution: The EU Commission has created an internet platform for the online settlement of disputes (so-called “OS platform”). The OS platform serves as a contact point for the out-of-court settlement of disputes concerning contractual obligations arising from online purchase contracts. The customer can access the OS platform at the following link: http://ec.europa.eu/consumers/odr/
Notwithstanding our obligation to provide information pursuant to para.1, we are not obliged or willing to participate in dispute resolution proceedings before a consumer arbitration board.
§ 13 Other agreements
It is agreed that the law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The exclusive place of jurisdiction and performance is the registered office of the provider in Grünwald.
There are no ancillary provisions outside this contract and its annexes. Amendments or supplements to this contract, the assurance of properties and guarantees must always be made in writing in order to be effective. This also applies to the waiver of the written form requirement.
Should any provision of these GTC be or become invalid in whole or in part or should the contract contain a loophole, the legal invalidity of the remaining contractual provisions shall remain unaffected.