Terms and Conditions

This is a convenience translation. The German version is legally binding.

General Terms and Conditions of VRtual X GmbH

I. Scope / subject matter of the contract

The terms and conditions of VRtual X GmbH (hereinafter referred to as VRtual X), Hegestraße 40, 20251 Hamburg, apply only to business dealings with entrepreneurs. They form the basis of all transactions, including future ones.
Terms and conditions of the contracting party or of third parties do not apply, even if VRtual X does not separately object to their validity in an individual case. Even if VRtual X refers to a letter that contains or refers to terms and conditions of the contracting party or of a third party, this does not constitute agreement to the validity of those terms and conditions. Deviations from these terms and conditions require written agreement. Deviating terms and conditions of the customer are hereby expressly rejected.
Amendments and additions to contractual agreements must be recorded in writing for purposes of proof. The authority to give guarantees and assurances is limited to managing directors, holders of statutory commercial power of attorney (Prokuristen) and holders of commercial authority (Handlungsbevollmächtigte).
These terms and conditions apply to services, work performed under contracts for work, performance and deliveries under purchase contracts, performance under rental, lease and loan agreements, and contracted services where services are awarded to third parties in writing, provided by us (hereinafter also referred to as the service).
VRtual X is entitled to amend or supplement these General Terms and Conditions of Business, Delivery and Payment.
Under contracts for standard software / standard computer programs / standard applications or for software / computer programs / applications to be created by us, we owe the ability to run and play back only for the browsers and transmission standards agreed or dominant in the market at the time the order is placed, in the version published at the time the order is placed.
Open-source and other third-party components are used in the state they are in at the time the service is performed. VRtual X is not obliged to adapt services performed and/or the components used to later changes or releases of the components used.
Insofar as we make recommendations on a hardware and/or software environment that we consider suitable, or on the concept and online strategy of a possible IT solution, that are not the subject of a paid order, these recommendations are non-binding.
Orders for additions to and/or reprogramming of or from standard software always refer to the release status of the relevant standard software at the time the order is placed.
We are entitled to render partial performance if this is reasonable for the customer.
We are not obliged to archive data and documents provided to us by the customer, or data and documents of the work completed and delivered and/or accepted by us, unless we are obliged to do so by law or by contract, for example on the basis of a data processing agreement (Auftragsdatenverarbeitungsvereinbarung).

II. Offers, conclusion of contract

All offers from VRtual X are subject to change. Cost estimates or budget plans prepared by us are non-binding. A contract is concluded only when the customer commissions the offer in text form or, in special cases, when we begin performing the services.
Ideas, concepts, strategies, design proposals, etc. that we present to the customer are non-binding and are subject to verification of their feasibility.
Offers addressed to us are accepted in writing; the acceptance period is agreed individually with our customers but is no more than 21 days.

III. Cooperation / customer’s duty to cooperate

The parties cooperate in a spirit of trust and inform each other without undue delay of any intended deviations from the agreed procedure.
Both parties undertake to act loyally toward each other. In particular, before the expiry of twelve months after the end of the cooperation, they will not hire or otherwise employ any employees who have worked within the scope of the cooperation.
The customer supports us in performing the contract. In particular, the customer provides the necessary information, data and hardware and software in good time, insofar as this is necessary for the performance of our services.
The customer bears legal responsibility for the commissioned service. If there is any doubt about the legal permissibility of the commissioned service, the customer must obtain legal advice at its own expense.
All objects, photos, drawings or data carriers provided to us are handled by us with the utmost care. However, we assume liability for safekeeping and transport only in the event of damage caused intentionally or through gross negligence, and only up to the material value.

IV. Deadlines, delays in delivery

We take our customers’ deadlines into account with the greatest possible flexibility and reliability. However, only those deadlines that we have designated in writing as binding are binding and, if not met, give rise to default within the meaning of Section 286(2) BGB (German Civil Code). In the event of subsequent changes to the contract that involve additional work, the agreed deadline ceases to be valid and a new delivery date must be agreed. If no new delivery date is agreed, the delivery date is postponed by a reasonable period.
We are not responsible for delays in performance due to force majeure, which also includes general disruptions of telecommunications, strikes, etc., or due to circumstances within the customer’s sphere of responsibility. They entitle us to extend the performance of the affected service by the duration of the hindrance. The same applies in the event of non-performance or poor performance of contracts concluded with third parties in good time. If, for the aforementioned reasons, a binding delivery date is exceeded by more than eight weeks, each party has a special right of termination.
If delays caused by the customer, for example through a breach of its duties to cooperate, result in the utilization of our material and human resources that we calculated not being achieved and not being achievable otherwise, or in standby costs not being covered, the resulting costs and damages shall be borne by the customer. The customer remains entitled to prove lower costs and damages.
We effect the performance of software services, at our discretion, by (a) either providing the customer with a program copy of the software on a machine-readable data carrier together with a copy of the user documentation, or (b) making the software and the user documentation available for download on a network and notifying the customer of this together with the access data.
For compliance with delivery dates and the transfer of risk, the decisive point in time in the case of physical shipment is the time at which we hand over the goods, the software or the user documentation to the carrier; otherwise, it is the time at which the software has been made available for download on the network and the customer has been notified of this.
The customer must ensure that the services can be delivered at the agreed time.

V. Changes to services

Requests by the customer for changes or additions to the contractually defined scope of the services to be performed by us must be made in writing. If it is foreseeable that the requests for changes or additions will postpone the completion date or increase the costs, in particular our claim to remuneration, we will inform the customer of this. The customer then has the choice of declaring its general agreement to the postponement of the performance times and the increase in remuneration, or withdrawing the change request.
If the customer maintains its change requests, we examine their feasibility and inform the customer of the specific effects of the change request on the agreements made (deadlines and remuneration). The statement contains either a detailed proposal for implementing the change request or information on why the change request cannot be implemented.
A written supplementary agreement is concluded on the implementation of the customer’s requests for changes or additions. If no agreement is reached, the original scope of services remains in place.
Deadlines and time limits affected by the change procedure are postponed as necessary, taking into account the duration of the review of and consultation on the change proposal and, if applicable, the duration of implementation plus a reasonable lead time.
The customer bears the effort resulting from the change request, in particular the review of the change request, the preparation of a change proposal and any downtime, even if no agreement within the meaning of paragraph 3 is reached.
If no written supplementary/change agreement is concluded, but we nevertheless perform additional services at the customer’s request, Section VIII, 6 applies.

VI. Customer’s duty to inspect, acceptance, quantity deviations

The customer is obliged to examine and check the service we have performed without undue delay after notification of completion and/or provision or delivery. This also applies to concepts, texts, final artwork, applications, software solutions, photos, lithographs, digital data sets and other documents submitted to the customer for review for approval before the start of printing or production. Software provided by us must be checked for functionality in the agreed or assumed runtime environment. Hardware supplied by us must be put into operation, configured in accordance with the manufacturer’s guidelines and checked for functionality.
Obvious defects must be reported without undue delay, but no later than 5 working days after provision. Defects that could not be discovered despite careful inspection must be reported without undue delay after they appear.
Defects must be reported to us in writing, stating the information suitable for remedying the defect.
The customer is obliged to accept programming and other work performed by us under contracts for work by sending an acceptance report, at least in text form, and may not refuse acceptance on the basis of insignificant defects. If the customer allows a reasonable period set by us for acceptance to expire, the service is deemed accepted upon expiry of this period. The service is also deemed accepted without a period being set if the customer uses the service without having complained of significant defects.
We are entitled to demand partial acceptances where self-contained partial services are concerned.

VII. Rights

VRtual X reserves the right to require all parties involved, at any time during the cooperation, to provide a written declaration regarding information on trade and business secrets and compliance with all data protection provisions applicable at the time of the cooperation within the scope of the joint activities.
Our services generally constitute personal intellectual creations and are subject in particular to the UrhG (German Copyright Act). Regardless of the type of order, we are the author and holder of all property rights, rights of use and exploitation rights.
The rights of use to our services are transferred only to the extent expressly set out in the underlying contract. In the absence of any provision, the customer receives, revocable until full payment of all claims arising from the business relationship, a non-exclusive, non-transferable right to use software products in object code to the extent necessary to achieve the purpose pursued by the respective contract. Any further use, in particular imitation, reproduction other than for backup purposes, rental and sublicensing, is not permitted, and rights to do so are excluded from the transfer. There is no claim to the transfer of the source code.
Unless we have a more extensive agreement with the customer, rights are granted with territorial restriction to the Federal Republic of Germany and for the duration of the contract. If standard software is sold, the rights are granted for an unlimited period.
If VRtual X supplies the customer with software created by third parties, the customer is in principle granted rights of use of the type and to the extent that correspond to the license and usage terms of the third parties.
Clauses 1 to 3 also apply to IT solutions and software produced individually for the customer.
Until the remuneration has been paid in full, the customer is permitted to use the service performed only on a revocable basis.
We are entitled to use the customer’s name as a reference customer and the customer-related project for demonstration and advertising purposes and for the press, unless there are important reasons against this or the customer explicitly objects.
Ideas, concepts, strategies, slogans and texts, graphics and other visual design elements that we develop for a customer and present to the customer, and that are not subject to copyright or any other property right, are presented to the customer in confidence and may be used by the customer only if we receive the order and/or the services are remunerated. The rights of use are then governed by paragraphs 2 and 3. If our services are used in breach of this provision, the customer is obliged to pay an appropriate contractual penalty, which we determine at our reasonable discretion and which can be reviewed by a court in the event of a dispute.
The rights to system components provided (hardware and software) are governed by the manufacturer’s specifications.

VIII. Remuneration, default in payment, set-off

Our services, in particular also conceptual, consulting or development work, are always provided in return for a fee.
Our invoices are due for payment without deduction immediately after a software application has been made available or after any other service has been delivered. In the case of longer-term orders or delays in work caused by the customer, we reserve the right to issue interim invoices. We are entitled to demand reasonable installment payments on the total remuneration when the order is placed and according to the progress of the project. The same applies to invoicing partial services, insofar as we are entitled to perform them.
The customer is in default of payment, even without a reminder, upon expiry of 14 days after receipt of the invoice. Deviating payment terms require the written form and can be seen in the concluded contract as well as on the invoice.
Third-party services handled by us as part of our agency business may be invoiced separately. These services are also payable without deduction immediately after provision or delivery.
VRtual X is entitled to invoice the customer in advance for third-party services to be procured for the customer and to make procurement dependent on receipt of payment.
If we have not reached an agreement with the customer on the remuneration for our service, the customer must pay the remuneration customary for this service. In case of doubt, our general remuneration rates valid at the time the service is performed are deemed customary.
Remuneration rates stated by us are net prices plus statutory VAT and, if applicable, packaging and transport.
For services outside the bidding/offer process that are performed as part of an order placed with VRtual X at a location other than its headquarters (Hamburg), travel expenses, in particular travel time, travel costs, per diem expenses and, if applicable, accommodation costs, are invoiced separately. Travel expenses are all additional expenses directly caused by a business trip. These include travel costs, additional meal expenses, accommodation costs and incidental expenses that are proven or substantiated (e.g. transport and storage of luggage, airport fees and phone calls). Travel expenses are invoiced as follows: flights economy class; rail 2nd class; mileage allowance €0.30/km; hotel at cost, max. 4 stars; public transport: at cost; taxi and parking fees: at cost; daily allowances in accordance with the applicable tax guidelines.
In the event of default in payment, we are entitled under Section 288 BGB to charge interest on our claim at the default interest rate specified there above the base interest rate. VRtual X reserves the right to claim higher interest damages upon proof. Furthermore, in the event of default by the debtor, provided that the debtor is not a consumer, VRtual X is entitled to payment of a lump sum of €40. We are also entitled to take back the services and revoke granted rights of use, whereby the exercise of these rights does not constitute withdrawal from the contract.
In the event of default in payment by the contracting party, VRtual X is entitled to refuse to perform all ongoing transactions and to conclude new ones, and to declare outstanding amounts immediately due.
VRtual X is entitled to carry out outstanding services or deliveries only against advance payment or the provision of security if, after conclusion of the contract, VRtual X becomes aware of circumstances that are likely to substantially reduce the creditworthiness of the contracting party and that jeopardize payment by the contracting party of VRtual X’s outstanding claims arising from the respective contractual relationship.
The customer may set off against our claims only with undisputed or legally established counterclaims.
For handling orders with third parties whose costs are passed on directly to the customer, we may charge a handling fee of 15%.

IX. Retention of title, right of retention

The goods delivered and the services performed, including software, remain our property until all claims arising from the business relationship with the customer have been satisfied. Pledging or transfer by way of security is not permitted.
If the value of all securities provided to us from the business relationship permanently exceeds our total claims by more than 20%, we are obliged, at the customer’s request, to release securities of our choice to that extent.
In the event of a breach of duty by the customer, in particular default in payment, we are entitled, even without setting a deadline, to demand the return of the delivered item and/or to withdraw from the contract. A demand for the return of the delivered item does not in itself constitute a declaration of withdrawal.
The customer is not entitled to assert rights of retention or rights to refuse performance within the meaning of Sections 273 and 320 BGB.

X. Liability for defects, reduction, withdrawal, compensation for use

We consider notices of defects only if they are made in writing. In the event of a defect reported in good time, we provide subsequent performance at our discretion either by remedying the defect, by a workaround or by a new delivery. Replaced parts become our property.
There are no claims for defects in the case of only an insignificant deviation from the agreed quality, only an insignificant impairment of usability, or if the defect cannot be reproduced or determined.
Functional errors in additions to and/or reprogramming of or from standard software that relate to the release status of this standard software current at the time of completion do not constitute a defect if they are caused by the customer installing, or having installed, a different release status, an update or an upgrade of the software and interoperability no longer being given.
The customer has no warranty claims if the customer itself or third parties have made changes to our product or if the software is not used in the agreed system environment, unless the customer proves that this use is not the cause of the reported defect.
Claims for defects do not extend to system components provided (hardware or software) or to system components that the customer or a third party modifies without the consent of VRtual X.
If VRtual X performs programming services on third-party products in accordance with the customer’s requirements and specifications, and if VRtual X, at the customer’s request, itself integrates computer programs or other components of third parties or of the customer into the hardware or software, or adapts its own developments to such specified components, VRtual X does not assume any warranty for the technical and legal properties of these third-party components. In particular, the customer indemnifies VRtual X against claims for damages asserted by third parties against VRtual X for infringement of third-party patents, copyrights, trademarks or other industrial property rights.
We are not liable for defects caused by faulty concepts, texts, final artwork, photos, lithographs, digital data sets, applications, software solutions or other documents that have been approved by the customer before the start of printing or production.
The assignment of warranty claims is excluded.
If subsequent improvement fails after the 3rd attempt, the customer is entitled, at its option, to demand a reduction in price or, in the case of significant defects, to withdraw from the contract.
In the event of justified withdrawal by the customer, we are entitled to demand appropriate compensation for the benefits derived by the customer from using the services until the contract is unwound. This compensation is calculated on the basis of a total useful life of the services of four years.
The warranty period is 12 months from handover in the case of purchase contracts or from acceptance in the case of contracts for work, unless otherwise agreed.

XI. Liability

In case of doubt, statements on the quality of our service constitute a guarantee only if we have expressly designated them as such.
For damage that has not occurred to the delivered item itself, we are liable, regardless of the legal grounds, only in the case of intent, gross negligence on our part or on the part of our legal representatives and vicarious agents, culpable injury to life, body or health, fraudulent concealment of defects or other circumstances, and within the scope of a guarantee.
In the event of a culpable breach of material contractual obligations, we are also liable for slight negligence, but limited to the damage typical for the contract and reasonably foreseeable.
Further claims, in particular strict liability regardless of fault, are excluded.
The customer is responsible for backing up its data. We accept no liability for the loss of data if the loss occurred due to insufficient backup by the customer.
Liability under the ProdHaftG (German Product Liability Act) remains unaffected.
Technical data and descriptions of third-party products contained in brochures, offer texts or order confirmations are based on the manufacturers’ information. We ourselves generally cannot guarantee these properties to the customer.
Liability for third-party components, in particular open-source components, is limited to fault in selection and breach of duties of inspection.
Section XII applies to the limitation period, with the proviso that the statutory limitation period applies to claims under Section XI, paragraphs 2 and 6. The limitation period under sentence 1 begins at the time specified in Section 199(1) BGB. It ends no later than upon expiry of the maximum periods specified in Section 199(3) and (4) BGB.

XII. Limitation period

The limitation period for all warranty claims is one year and begins with the delivery or provision (and notification of the customer thereof) of the subject matter of the contract; the same period applies to other claims of any kind against VRtual X. In the case of intent or gross negligence on the part of VRtual X, fraudulent concealment of the defect, personal injury or defects of title within the meaning of Section 438(1) no. 1(a) BGB, and in the case of guarantees (Section 444 BGB), the statutory limitation periods apply, as they do for claims under the ProdHaftG.

XIV. Packaging

When purchasing or being provided with hardware, the customer assumes responsibility for disposing of the packaging and, at the end of its useful life, for disposing of the hardware supplied, insofar as ownership of it has passed to the customer.

XV. Final provisions

The place of performance for all claims arising from the contracts concluded with us, including the customer’s payment obligations, is exclusively Hamburg.
The law of the Federal Republic of Germany applies.
The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contract is Hamburg.
Should any provision of these General Terms and Conditions be or become invalid, this does not affect the validity of the rest of the contract. In its place, what the parties intended applies, and otherwise the statutory provision. In the event of a gap in the contract, the provision to be agreed is the one that corresponds to what would have been agreed in accordance with the meaning and purpose of the contract between VRtual X and the customer had the parties recognized and considered the gap when concluding the contract. Under no circumstances will the provision in question in these General Terms and Conditions of Purchase be replaced by the customer’s terms and conditions.