1.1 These General Terms and Conditions ("GTC") shall apply to all contracts concluded between VisualMakers and the Customer ("Customer", Customer and VisualMakers together "Parties") with VisualMakers GmbH, with its registered office in Cologne, registered in the commercial register of the Local Court of Cologne under HRB 107227, business address Brabanter Str. 53, 50672 Cologne ("VisualMakers"), unless otherwise expressly agreed in writing between VisualMakers and the Customer.
These GTC shall also apply to all future contracts between VisualMakers and the Customer, even if they are not expressly included. These GTC shall only apply if the Customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law. An entrepreneur is any natural or legal person or partnership with legal capacity that is acting in the exercise of its commercial or independent professional activity when concluding the contract. Deviating or supplementary terms and conditions of the Customer or third parties shall not be recognized by VisualMakers and shall therefore not become part of the contract, even if VisualMakers does not object to them.
Even if VisualMakers refers to a letter that contains or refers to third-party terms and conditions, this shall not constitute any agreement with the validity of those terms and conditions. Only if VisualMakers expressly agrees in writing to the validity of other terms and conditions shall these apply. Assurances, collateral agreements or other contractual amendments requested by the Customer shall only apply if expressly confirmed in writing by VisualMakers. The contract shall be concluded in German. Communication in English within the framework of the business relationship shall only serve the purpose of simplification and shall not be binding under any circumstances - in the event of a conflict with the German language.
2.1 VisualMakers provides IT services including IT consulting services, analysis of existing IT systems as well as implementation and support of IT systems. The services are provided exclusively on a service contract basis.
2.2 In the performance of the services owed under the contract, VisualMakers shall not be subject to any instructions of the Customer with regard to the type of performance of its services, the place of performance of the services or the time of performance of the services. VisualMakers shall provide the service on its own responsibility and, in principle, on its own premises and with its own work equipment. The provision of the service may - depending on the order or project - require, for example, the use of a different location or the use of work equipment available there (e.g. hardware and software of the Customer). VisualMakers shall deploy qualified and reliable personnel for the provision of services. The Customer shall have no claim to a specific employee of VisualMakers.
2.3 Unless otherwise agreed in individual cases, VisualMakers shall provide its services remotely and using a ticket system.
3.1 The Customer shall be obliged to provide all cooperation required for the provision of services by VisualMakers in full and in good time. Status: September 2024
3.2 The Customer shall provide VisualMakers with all information, test data, access and services required for the provision of the services prior to the commencement of the services or, insofar as VisualMakers requests such at a later point in time, immediately upon VisualMakers' request. In particular, the Customer shall create, free of charge, all prerequisites within its sphere of operation which are necessary for the proper performance of the service. These prerequisites include, but are not limited to, that the Customer - provides the access data and access routes (e.g. VPN, hardware of the Customer) necessary for the provision of the service; - in the case of training courses at the Customer's premises, provides a suitable room for the training course, which in particular must meet all the agreed technical requirements; and - in the case of programming work, provides computer time (incl. operating), test data and data acquisition capacity in good time and to a sufficient extent.
3.3 Insofar as the Customer provides VisualMakers with Customer Information for use in the design of advertising measures, the Customer warrants that it is authorized to hand over and use this Customer Information.
3.4 The customer shall appoint a contact person and a deputy as permanent contact persons for all matters relating to the project or the agreed service. They shall be put in a position to either make all decisions concerning the project or the agreed services themselves or to bring about such decisions promptly. The customer shall also provide those employees whose special knowledge is required in each case.
3.5 If the Customer fails to comply with its obligations to cooperate and VisualMakers is therefore unable to complete its services in whole or in part within the agreed period, the agreed period shall be extended accordingly. In all other respects, a substantial breach of the obligations to cooperate shall entitle the Customer to immediate extraordinary termination, whereby the Customer shall immediately reimburse all costs incurred by VisualMakers.
3.6 If the Customer is in default with the agreed or customary cooperation, it shall be obliged to compensate VisualMakers for any damage incurred as a result thereof.
4.1 The services of VisualMakers shall be provided at the contractually agreed prices in accordance with VisualMakers' offer. All prices are subject to the applicable statutory value added tax, if applicable. The remuneration shall be calculated from the remuneration for the agreed services and the incidental costs incurred (travel/flight and accommodation costs as well as other travel costs) in the actual amount. Unless the parties have agreed otherwise, VisualMakers shall calculate in person-days (7 hours).
4.2 Remuneration and reimbursement of expenses are due for payment fourteen (14) days after receipt of an invoice.
4.3 In the event of default of payment: "In the event of default of payment, VisualMakers shall be entitled to demand default interest at the statutory rate. This currently amounts to 9% above the base interest rate of the European Central Bank (§ 288 BGB). A flat-rate reminder fee of € 5 shall be charged for each reminder, starting with the second reminder. From the third reminder onwards, default interest of 9% above the prime rate per year shall also be charged. The customer shall also bear the costs of legal dunning proceedings, should these become necessary."
4.4 Dunning procedure: "If the Customer continues to fail to pay after the third reminder, VisualMakers reserves the right to initiate legal dunning proceedings or to hand over the claim to a debt collection agency. The Customer shall bear all costs incurred for the dunning procedure and the debt collection service."
5.1 Unless the Parties expressly agree on a different contractual term, the contract shall end upon the provision of the last service owed by VisualMakers, irrespective of any disruptions in performance.
5.2 Unless the parties have agreed otherwise, an existing continuing obligation may be terminated by the Customer for the first time after the expiry of six months by giving one month's notice to the end of the month. Ordinary termination by VisualMakers is possible at any time with a notice period of 14 days.
5.3 If the service provided by VisualMakers is a service of a higher nature, the right of termination shall be governed by the statutory provisions. Other rights of termination of other services are excluded.
5.4 If VisualMakers terminates the contract for good cause, the Customer shall be obliged to pay VisualMakers the costs and fees that have demonstrably been incurred up to the time of termination.
5.5 Any notice of termination must be in writing.
6.1 VisualMakers undertakes to carry out the work assigned to it to the best of its knowledge and with professional and commercial diligence.
6.2 A guarantee only exists if this has been expressly agreed.
7.1 In addition to the IT Services including IT Consulting Services (cf. Section 2.1), VisualMakers also offers trainings (Trainings). These trainings can either be booked bindingly by anyone via the Website ("Products") or closed (individual) trainings. Open training courses are offered via the website and can be booked there on a binding basis. The service content of the Training Courses is described in the context of the booking, but may be changed by VisualMakers at any time. The Customer has no claim to the specific Trainer or to the Training content. VisualMakers expressly reserves the right to make any changes. Trainings are payable in advance. An invoice will be issued as part of the binding booking. Cancellation of the Training Course by the Customer free of charge is only possible up to 48 hours before the start of the scheduled Training Course. Unless one of the points mentioned in 7.8 or 7.9 occurs. If the customer cancels within 48 hours before the start of the training course, only 20% of the agreed fee will be refunded. A rebooking of the customer to another training participant is possible at any time free of charge. Up to 48 hours before the start of the planned training course, a rebooking to another day can be made free of charge. The rebooking shall only be effective if this is confirmed by VisualMakers in text form. There is no entitlement to a preferred date for the rebooked training course. Status: September 2024
7.2 If VisualMakers conducts the Training on the Customer's premises and any travel costs can no longer be canceled despite effective rebooking/cancellation by the Customer, VisualMakers shall nevertheless invoice these.
7.3 VisualMakers reserves the right to rebook or cancel Training Courses at short notice for good cause (e.g. illness of the Trainer, force majeure, strike, sanctions, technical problems). In the event of cancellation, the amount paid will be refunded. If VisualMakers does not offer an alternative date within 3 months of the rebooked date, the Customer shall be refunded the amount paid. Further compensation of the participant is excluded.
7.4 Open Training Courses may be rebooked by VisualMakers - without refund - if fewer than four participants have registered one week before the start of the Training Course. If VisualMakers does not offer an alternative date within 3 months of the rebooked date, the Participant will be refunded the amount paid.
7.5 The participant must ensure that he/she has the licensing and technical requirements to carry out the training at the start of the training so that the training can begin immediately.
7.6 The participant is prohibited from using the training content or documents for third parties or making them available to third parties. The participant is only granted a one-off, non-transferable, simple right to use the content and documents provided.
7.7 The provision of digital content takes place exclusively via the provision of an online video stream using appropriate technical means.
7.8 Unless otherwise stated in the content descriptions on the provider's website, the provider grants the customer the non-exclusive right to use the digital content provided exclusively for private purposes, without restriction in terms of location or time.
7.9 The granting of rights shall only become effective once the customer has paid the contractually owed remuneration in full. The Provider may provisionally permit the use of the contractual content even before this point in time. Such provisional permission does not constitute a transfer of rights.
8.1 VisualMakers shall be liable for damages, irrespective of the legal grounds, which are based on a breach of duty by VisualMakers, a legal representative or vicarious agent of VisualMakers, in the event of intent and gross negligence or - then limited to the damage foreseeable and typical for the contract at the time of the conclusion of the contract - in the event of a breach of material contractual obligations. Material contractual obligations (also referred to as cardinal obligations) are those whose fulfillment is essential for the proper execution of the contract, whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the customer regularly relies and may rely. These limitations of liability do not apply to claims for compensation for damages due to injury to life, limb or health or due to other mandatory statutory liability (e.g. from the Product Liability Act).
8.2 In the event of a loss of data for which VisualMakers is responsible, VisualMakers shall only be liable - except in the case of intent - for the expenditure required to restore the data if the Customer had properly backed up the data. If the Customer has not made a proper data backup, VisualMakers shall only be liable to the extent of the costs that would have been incurred for the restoration of the data if the Customer had made proper backup copies. In the event of slight negligence on the part of VisualMakers, this liability shall only apply if VisualMakers has simultaneously breached a material contractual obligation with the action leading to the loss of data. Status: September 2024
9.1 All rights to the Work Products existing or incorporated therein, be they property rights, rights of use and/or exploitation rights, shall remain exclusively with VisualMakers, insofar as this does not conflict with any mandatory statutory provisions. This shall apply equally to the right to apply for industrial property rights thereto.
9.2 Insofar as the Customer is to be provided with ownership of VisualMakers' work products as part of the contractual services, these shall remain the property of VisualMakers until full payment has been made.
9.3 Upon settlement of all invoices relating to the agreed services, VisualMakers shall transfer to the Customer all rights of use required for the use of its work and services to the extent agreed for the agreed services. In case of doubt, VisualMakers shall fulfill its obligation by granting non-exclusive, non-transferable and non-sublicensable rights of use in the territory of the Federal Republic of Germany for a limited period of time for the duration of use, unless expressly agreed otherwise. Any use beyond this, in particular editing and modification, requires the prior written consent of VisualMakers.
9.4 If the Customer fails to pay the outstanding remuneration within one week despite the due date, the Customer shall delete all Work Products received from VisualMakers upon request by VisualMakers, immediately cease using the Work Products and immediately confirm the deletion and termination of use in writing. The request for deletion and termination of use shall not constitute a withdrawal from the contract. The right of VisualMakers to claim damages for non-performance shall remain unaffected, as shall all other rights of VisualMakers.
9.5 The customer may only use a work result for the individual case in accordance with the contract and the intended purpose and may only disclose it to third parties to the extent necessary for this purpose. In particular, the Customer shall not be entitled to reproduce, translate, edit, rework, distribute, transfer, redesign and/or commercially exploit the work results in any form whatsoever, unless VisualMakers has given its express written consent.
9.6 The Customer undertakes to notify VisualMakers immediately in writing of any claim asserted against it in connection with the agreed services. The Customer authorizes VisualMakers to take over the defense against the claims for him both in and out of court and to settle the dispute at its own discretion. In order to exercise these powers, the Customer shall provide VisualMakers with the necessary information and grant it reasonable support. The Customer shall not influence VisualMakers' defense against claims by actions or omissions that are not coordinated with VisualMakers and shall not acknowledge the claim without VisualMakers' prior written consent.
9.7 The Customer undertakes to refrain from doing anything that is likely to impair VisualMakers' intellectual property rights.
9.8 The Customer shall be liable for infringements of rights by third parties to whom it grants access to VisualMakers' services. If the Customer violates the provisions set out in this Section 8, VisualMakers shall be entitled to terminate the relevant services without notice. Status: September 2024
10.1 Subcontractors VisualMakers shall be entitled to engage third parties as subcontractors for the provision of the services.
11.1 The Customer undertakes to maintain confidentiality regarding Confidential Information even after the end of the contractual relationship. "Confidential Information" shall mean all information and documents of VisualMakers which are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about operational processes, business relationships and know-how as well as all work results and work products and offers and calculations as well as the existence and content of the contract concluded between the parties.
11.2 Confidential Information is excluded from this confidentiality obligation,
11.2.1 which were demonstrably already known to the customer when the contract was concluded or which subsequently become known to the customer from a third party without violating a confidentiality agreement, statutory provisions or official orders;
11.2.2 which are publicly known at the time of conclusion of the contract or are made publicly known thereafter, insofar as this is not based on a breach of this contract; or
11.2.3 which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the Customer shall inform VisualMakers in advance and give VisualMakers the opportunity to take action against the disclosure.
11.3 The parties shall observe the relevant data protection regulations. Personal data shall only be collected, processed or used to the extent that this is necessary for the performance of the contract and is permitted under the relevant statutory provisions. Any further collection, processing and use of personal data shall only take place to the extent permitted by law or with the consent of the data subject.
12.1 Subject to data protection and confidentiality, VisualMakers shall be entitled to name the service provision on which the contract is based as a reference project, naming the Customer by name. Furthermore, VisualMakers shall have the right to use the brand names, trademarks, names, logos and slogans of the Customer at trade fairs, conferences and other events as well as in press releases, advertisements in print, electronic and other media and on its website.
13.1 The Customer requires the prior written consent of VisualMakers for any assignment of its rights under this contract. § Section 354a HGB shall remain unaffected.
13.2 The place of performance for all obligations arising from these GTC and the contractual relationship between the parties is Cologne.
13.3 The exclusive place of jurisdiction for all disputes arising from contractual relationships between VisualMakers and the Customer shall be Cologne. To the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG), this contract and the individual call-offs shall be governed exclusively by German law as it applies to nationals. Status: September 2024
13.4 Amendments and supplements to these GTC must be made in writing. This also applies to the amendment or revocation of this clause.
13.5 If these GTC require the written form, an electronic form in accordance with Section 126a BGB with a qualified electronic signature (e.g. via DocSign) is sufficient.
13.6 Should one or more provisions of these GTC be or become invalid or void or contain a loophole, this shall not affect the validity of the remainder of the contract. In the event that dispositive law is not available or the application of dispositive law would lead to an unacceptable result, the invalid or void provision shall be replaced by a valid provision whose effects come as close as possible to the economic objective pursued by the parties with the invalid or void provision. Insofar as one or more provisions of this contract contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the parties would have agreed in accordance with the economic objectives of this contract and the purpose of this contract if they had been aware of the loophole.
Status: September 2024
