General Terms and Conditions (GTC)
➔ In the event of any discrepancy between the English and German versions, the German version shall prevail.
§ 1 Application of the General Terms and Conditions
(1) The General Terms and Conditions accepted by both contracting parties govern the business relationship between Viscan GmbH, represented by Nicolai Nolle and Sebastian Lazic, Am Wallgraben 144, 70565 Stuttgart, Germany, telephone: +49 (0)711 28 69 30 30, e-mail: info@viscan.de, hereinafter referred to as the “Contractor”, and the respective customer, hereinafter referred to as the “Client”. These GTC apply exclusively to business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law.
(2) The Contractor’s services are divided into the following categories:
- Software-as-a-Service (SaaS)
- Supply of goods (hardware and software)
- Services and consulting services
The statutory provisions applicable to the respective type of service shall apply, supplemented by these GTC. The nature and scope of the mutual services shall be determined primarily by the respective quotation, order confirmation, contract, statement of work, or other individual contractual agreements. The services may include, in particular, Software-as-a-Service, cloud services, software licensing, hardware and goods deliveries, consulting, support, training, maintenance, surveying services, BIM services, digitization services, and other technical services. The legal classification of the contract shall be determined by the primary focus of the respective agreed service; these GTC shall apply additionally to all services unless expressly agreed otherwise.
(3) Unless a specific success, acceptance, or result under a contract for work and services has been expressly agreed, the Contractor owes the professional and proper performance of the agreed services, but not a specific economic, technical, or any other result. SaaS, support, consulting, and service activities generally constitute service contracts or hybrid rental/service contracts; deliveries of goods shall additionally be governed by the provisions relating to the sale of goods.
(4) In the case of the provision of products, the services shall be deemed rendered upon the transfer of risk.
(5) These General Terms and Conditions apply exclusively to businesses within the meaning of Section 14 BGB.
(6) These General Terms and Conditions shall apply to all current and future business relationships between the Contractor and the Client.
(7) Any conflicting, deviating, or supplementary general terms and conditions shall not become part of the contract, even if known to the Contractor, unless their validity has been expressly accepted by the Contractor in writing or has been made publicly available by the Contractor.
(8) For products, software, cloud services, licenses, or other third-party services, the respective manufacturer’s licensing, warranty, service, usage, and support terms and conditions shall additionally apply to the extent that they are provided to the Client or are customarily accessible within the industry. The Client is obliged to independently comply with and observe such conditions.
§ 2 Conclusion of Contract
(1) The Client orders or commissions services from the Contractor, in particular by accepting a quotation, placing an order, issuing an order confirmation, concluding a contract by e-mail, through a contact form, via a website, or in any other text form. A contract shall only come into existence upon the Contractor’s express confirmation, commencement of performance, or provision of the service.
(2) Quotations issued by the Contractor are non-binding unless expressly designated as binding. The Client shall be bound by its order for a period of two weeks unless a different binding period is specified in the quotation. Any deviating provisions, supplements, amendments, modifications, or ancillary agreements shall require confirmation by the Contractor in text form.
(3) Service descriptions, technical specifications, illustrations, product information, manufacturer information, and information published on websites shall only be binding to the extent that they have expressly become part of the contract. Public statements made by manufacturers or third parties shall not constitute an agreement regarding the characteristics of a product or service by the Contractor unless the Contractor has expressly adopted such statements in text form.
(4) The Contractor shall be entitled to reject a contract without stating reasons, for example if, due to the Contractor’s specialization or for legal reasons, the Contractor is unable or not permitted to perform the service, or if circumstances exist that could give rise to a conflict of conscience. In such event, the Contractor’s entitlement to remuneration for services already rendered up to the time of rejection shall remain unaffected.
§ 3 Subject Matter of the Contract
(1) Within the scope of the contractual agreement, the Contractor shall provide the Client with software, SaaS services, cloud services, support services, consulting services, training services, delivery services, or other services. To the extent that software is provided, such software is not sold but is made available to the Client for use for the agreed term and within the agreed scope.
(2) For access to and use of the service, the Contractor shall provide the Client with the necessary access credentials required to access the service.
(3) With respect to any work results, reports, analyses, documentation, training materials, software, data models, templates, or other materials provided, the Client shall receive only those simple, non-exclusive, non-transferable, and non-sublicensable rights of use expressly agreed upon, solely for the Client’s own business purposes. No further rights shall be granted.
(4) All documents and materials of the Contractor are protected by copyright. This applies both to content published on the Contractor’s website and to any other materials. The Client shall not be entitled to reproduce, distribute, or publicly make available such materials. Furthermore, the Client shall not be entitled to make photographic, video, or audio recordings of the methods used in the services without the Contractor’s express permission.
(5) To the extent that software is included in the scope of delivery, the Client shall be granted a non-exclusive and non-transferable right to use the delivered software, including its documentation. The software is provided exclusively for use with the designated delivered item for which it is intended. Any use, reproduction, modification, adaptation, translation of the software, or conversion of the object code into source code for other purposes is prohibited.
§ 4 Performance of the Services
(1) The provision of the services is based on cooperation. The Client is responsible for providing a correct e-mail address and for regularly checking its e-mails.
(2) The Contractor shall be entitled to postpone the performance of a service if the Contractor or a third-party service provider engaged by the Contractor is prevented from performing the service on the agreed date due to circumstances such as riots, strikes, lockouts, natural disasters, severe weather conditions, traffic disruptions, or illness, without any fault on the part of the Contractor. In such cases, the Client shall have no claim for damages.
(3) The illustrations and descriptions of the services on the Contractor’s website are provided solely for illustrative purposes and constitute approximate information only. No guarantee is given that such descriptions will be fully adhered to.
(4) The Contractor shall be entitled to make adjustments to the content or procedure of the service for professional or technical reasons, for example where updates or further development of the service content are required, provided that such adjustments do not result in a material change to the content of the service and are reasonable for the Client.
(5) The Contractor shall provide the Client with the agreed software in its current version and shall ensure the maintenance and servicing of the software. The Contractor shall be entitled, at any time, to update and enhance the software in order to improve its performance or adapt it to market requirements.
(6) The Client shall use the software exclusively for its own business purposes and shall comply with the contractual provisions. The Client shall not be entitled to modify, alter, or decompile the software. The Client further undertakes not to use any data or content that violates applicable law or infringes the rights of third parties.
(7) The Contractor shall not be obliged to perform the services personally. The Contractor may, at its sole discretion, delegate the performance of the services to third parties, such as subcontractors.
(8) The Client shall take appropriate measures to protect the software from access by unauthorized third parties, including, in particular, storing all copies of the software in a secure location.
(9) The Client shall provide all cooperation required for the performance of the services in a timely, complete, and free-of-charge manner. This includes, in particular, the provision of accurate information, data, access rights, contact persons, approvals, system environments, interfaces, test data, decisions, and any other prerequisites necessary for performance. Any delays or additional expenses resulting from missing, delayed, or incorrect cooperation by the Client shall be borne by the Client.
(10) The Contractor shall be entitled to temporarily suspend or restrict SaaS, cloud, and software services for good cause, including but not limited to payment default, security risks, misuse, violations of law, breaches of license or usage terms, threats to system integrity, or legitimate requirements imposed by manufacturers, hosting providers, or cloud service providers. The Contractor shall inform the Client of such measures to the extent reasonable and legally permissible.
(11) A specific level of availability of SaaS, cloud, or online services shall only be owed if expressly agreed. Maintenance work, updates, security measures, disruptions of public networks, outages of third-party providers, and other circumstances beyond the Contractor’s control may result in temporary restrictions and shall not constitute a breach of duty, provided that the Contractor is not responsible for such circumstances.
§ 4.1 Delivery Times
(1) Delivery periods or delivery dates stated in a quotation or contract are non-binding indications based on the customary delivery times for comparable goods. Such information shall not constitute so-called fixed-date transactions.
(2) In cases of force majeure and the occurrence of unforeseen obstacles beyond the Contractor’s control (e.g. caused by war, terrorism, natural disasters, epidemics, pandemics, labor disputes, strikes, governmental measures, inadequate procurement or delayed or restricted supply of raw materials and auxiliary materials, power, water and/or gas outages, failure of information systems, shortage of transportation facilities, etc.), the agreed delivery period shall be extended appropriately. This shall also apply if such obstacles arise during an already existing delay. The Contractor shall inform the Customer of the beginning and end of such circumstances as soon as possible.
(3) If the Customer suffers damage as a result of a delay for which the Contractor is responsible, particularly in the case of a delivery date expressly agreed upon with the Contractor, the Customer shall be entitled to claim compensation. In cases of slight negligence, such compensation shall amount to 0.5% for each full week of delay, but shall in total not exceed 5% of the net remuneration for the delivery that could not be made on time as a result of the delay. Any further claims for damages due to delay resulting from slight negligence shall be excluded.
(4) If shipment is delayed due to circumstances for which the Customer is responsible, the Contractor shall be entitled to charge the Customer for the costs incurred as a result of the delay, including any storage costs incurred with third parties.
(5) The Contractor shall be entitled, after granting a reasonable grace period that expires without result, to otherwise dispose of the delivery item and to supply the Customer within a reasonably extended delivery period.
(6) Compliance with the delivery period is subject to the Customer fulfilling its obligations under the purchase agreement.
(7) If the Contractor is not supplied by its own suppliers or by the manufacturer despite having placed corresponding orders with such suppliers or manufacturer, the delivery period shall be extended appropriately. In such case, the Contractor shall promptly inform the Customer of the unavailability of the delivery.
§ 4.2 Transfer of Risk and Acceptance of the Delivery Item, Retention of Title
(1) Risk shall pass to the Customer upon handover of the delivery item to the freight forwarder, carrier, or collector, and no later than when the delivery item leaves the Contractor’s warehouse or the manufacturer’s premises. Upon the Customer’s express written request, the Contractor shall insure the shipment against breakage, transport damage, fire, and water damage at the Customer’s expense.
(2) If shipment is delayed due to circumstances for which the Contractor is not responsible, risk shall pass to the Customer from the date on which the delivery item is ready for dispatch or from the date on which the Customer is notified that the item is available for collection. Upon the Customer’s express written request, the Contractor shall insure the delivery item against damage. The related costs shall be borne by the Customer. A transport insurance policy in the amount of EUR 500.00 shall apply to each delivery.
(3) Delivered items shall be accepted by the Customer without prejudice, provided that they do not exhibit any material defects.
(4) Partial deliveries shall be permissible to the extent reasonable.
(5) The Contractor shall retain title to all delivered goods until full payment of all claims arising from the business relationship with the Customer has been received. In the case of a current account relationship, all goods subject to retention of title shall serve as security for the outstanding balance (extended retention of title).
(6) The Client may resell goods subject to retention of title in the ordinary course of business, provided that the Client is not in default of payment. The Client hereby assigns to the Contractor, and the Contractor hereby accepts, all claims against third parties arising from such resale up to the amount of the secured claims.
(7) Any pledge, transfer by way of security, or other disposition of goods subject to retention of title outside the ordinary course of business shall be prohibited. Any third-party access to goods subject to retention of title or to assigned claims, in particular attachments or seizures, as well as the filing of insolvency proceedings against the Client’s assets, must be communicated to the Contractor immediately in text form.
(8) In the event of conduct by the Client in breach of contract, in particular in the event of default of payment, the Contractor shall be entitled, in accordance with the applicable statutory provisions, to withdraw from the contract, demand the return of the goods subject to retention of title, or enforce its security rights. A demand for return of the goods shall not simultaneously constitute a declaration of withdrawal from the contract unless the Contractor expressly declares such withdrawal.
§ 5 Payment
(1) The use of the SaaS solution is subject to a monthly fee or a flat-rate fee for a specified quantity, the amount of which is determined by the Contractor’s current price list. The Client authorizes the Contractor to collect the fee on a monthly basis using the payment method specified by the Client or, alternatively, to pay by invoice. Additional service fees may apply to services in general.
(2) Payment shall be made by the Client directly to the Contractor upon receipt of the invoice. Payment shall become due upon receipt of the invoice by e-mail. The payment term shall be seven (7) days from the invoice date. Payment may be made using the payment methods specified in the invoice.
(3) The monthly fee shall be payable in advance. In the event of an unsuccessful payment, the Contractor shall be entitled to suspend access to the software. Prior to suspending access, the Contractor shall notify the Client in writing or by e-mail and grant the Client a reasonable grace period for payment.
(4) All prices displayed on the Contractor’s website are net prices. Prices stated in quotations may differ.
(5) If the Client defaults on payment, the Contractor shall be entitled to charge default interest at a rate of nine (9) percentage points above the applicable base interest rate of the European Central Bank. The Contractor reserves the right to assert further claims.
(6) In the event of payment default, the Client shall reimburse the Contractor for all necessary and reasonable costs incurred through the engagement of a debt collection agency or legal counsel.
(7) The Client shall only be entitled to set-off if its counterclaims have been finally adjudicated, are undisputed, or have been acknowledged by the Contractor. The Client may exercise a right of retention only insofar as its counterclaim arises from the same contractual relationship.
(8) In the case of continuing obligations, in particular SaaS, cloud, support, maintenance, and service agreements, the Contractor shall be entitled to adjust prices with effect for the future if costs for personnel, subcontracted services, hosting, cloud infrastructure, manufacturer licenses, energy, support, security, compliance, or other cost components increase. The Contractor shall notify the Client of such adjustment in text form at least six (6) weeks before it becomes effective. If the increase exceeds ten percent (10%) within a contractual year, the Client may terminate the affected service component within four (4) weeks of receipt of the notice, effective as of the date on which the increase takes effect.
§ 6 Intellectual Property Rights of the Contractor and Third Parties
(1) All rights to pre-existing know-how, software, source code, object code, libraries, interfaces, methods, concepts, templates, tools, workflows, documentation, trademarks, logos, designs, and other intellectual property rights of the Contractor shall remain exclusively with the Contractor. This shall also apply where such rights are adapted, expanded, or further developed in the course of providing the services.
(2) With respect to work results individually created for the Client, the Client shall, upon full payment of the agreed remuneration, receive a simple, non-exclusive, non-transferable, and non-sublicensable right of use for its own business purposes, unless otherwise agreed in the quotation or contract. The transfer of exclusive rights, source code, or rights to modify and further develop the work results shall only take place if expressly agreed in text form.
(3) The Contractor shall permanently retain all rights to its logo and trademark. The Client shall not be entitled to use the Contractor’s trademark or logo without the Contractor’s prior consent.
(4) If the contractual use of work results created by the Contractor infringes the intellectual property rights of third parties, the Client shall indemnify the Contractor against any claims of third parties that have been finally and legally established by a court and arise from existing intellectual property rights of such third parties, to the extent that the work results are based on specifications, instructions, or materials provided by the Client. The Client shall promptly notify the Contractor in writing of any such claims asserted against it.
(5) Any content, data, plans, models, logos, trademarks, materials, specifications, and other items provided by the Client shall remain the property of, or subject to the intellectual property rights of, the Client. The Client grants the Contractor those rights of use necessary for the performance of the contract and warrants that it is authorized to grant such rights.
§ 7 Confidentiality
(1) The Parties shall treat as confidential all trade secrets and any other information designated as confidential by the other Party (hereinafter referred to as “Confidential Information”). The receiving Party (“Recipient”) shall protect the Confidential Information with the same degree of care as it uses to protect its own confidential information of a similar nature, but in no event with less than the care of a prudent businessperson.
(2) The use of Confidential Information shall be limited to purposes connected with this Agreement. The disclosure of Confidential Information to third parties shall not be permitted without the prior consent of the disclosing Party. Such consent must be given in writing. For the purposes of this provision, affiliated companies of the Parties and advisors who are legally bound by confidentiality obligations shall not be deemed third parties.
(3) To the extent required by applicable law, the Recipient shall also be entitled to disclose and provide Confidential Information. Where legally permissible, the Recipient shall inform the disclosing Party prior to the disclosure of Confidential Information.
(4) The Parties shall impose upon their employees and any third parties to whom they disclose Confidential Information an obligation to treat such information confidentially within the framework of the respective subcontracting and employment relationships, with the requirement that such confidentiality obligation shall continue beyond the termination of the relevant subcontracting or employment relationship, unless a corresponding general confidentiality obligation already exists.
(5) The obligation of confidentiality shall not apply to information that:
a) was already publicly known at the time this Agreement was concluded or subsequently becomes publicly known without any breach of the confidentiality obligations contained herein;
b) was independently developed by the Recipient without reference to this Agreement; or
c) was received by the Recipient from a third party or from the disclosing Party outside the scope of this Agreement without any obligation of confidentiality.
The Party relying on any of the foregoing exceptions shall bear the burden of proving that the relevant exception applies.
(6) Upon termination of this Agreement, each Party shall, upon request of the other Party, return or delete all Confidential Information of the other Party in its possession. This shall not apply to Confidential Information that is subject to a longer statutory retention period or to backup copies maintained as part of customary backup procedures.
(7) The Contractor shall be entitled to use residual knowledge and experience, including ideas, concepts, methods, and know-how developed or disclosed in connection with the performance of this Agreement and retained in the memory of persons involved in providing the services. This shall not apply to the extent that such use infringes the Client’s intellectual property rights or copyrights. The obligation to maintain confidentiality shall remain unaffected.
§ 8 Term and Termination
(1) The Agreement shall be concluded for the term specified in the respective contract. Where the Agreement relates to the one-time provision of a service, this shall be stated in the contract, and the following provisions of this § 8 shall not apply.
(2) Unless otherwise agreed between the Contractor and the Client, the contractual term shall automatically renew for an additional period of one (1) year and may be terminated with one (1) month’s notice prior to the end of the respective term.
(3) If the contractual relationship is not terminated within the applicable notice period, it shall automatically renew for the term originally agreed, but in no event for more than one additional year, unless otherwise agreed.
(4) Any notice of termination must be given in text form. Compliance with the notice period shall be determined by the date on which the notice of termination is received by the respective contractual party.
(5) The right of either Party to terminate the Agreement for good cause without notice shall remain unaffected. Good cause for termination by the Contractor shall exist in particular in the event of payment default, a material or repeated breach of these GTC, misuse of the services, violations of law, impairment of IT or system security, violations of manufacturer or licensing terms, failure to cooperate despite being granted a grace period, insolvency risks, or a lasting disruption of the relationship of trust.
(6) In the event of early termination, any remuneration claims already accrued by the Contractor shall remain unaffected. If the Client terminates the contractual relationship prematurely without good cause or for a reason attributable to the Client, the Contractor’s entitlement to the agreed remuneration for the remaining contractual term shall remain in effect, subject to deduction of any expenses saved. The Client shall retain the right to prove that no damage, or substantially less damage, has been incurred.
§ 9 Liability and Warranty
(1) The Contractor shall be liable without limitation only for damages resulting from injury to life, body, or health, in cases of intent or gross negligence, pursuant to the German Product Liability Act (Produkthaftungsgesetz), and to the extent of any expressly assumed guarantee.
(2) In the event of a slightly negligent breach of essential contractual obligations, the Contractor shall be liable only for compensation of the foreseeable damage typical for the contract. Essential contractual obligations are those obligations whose fulfillment is a prerequisite for the proper performance of the contract and on whose compliance the Client may regularly rely. In such cases, liability shall be limited to the net contract value of the affected service during the twelve (12) months preceding the occurrence of the damage, but in no case exceeding EUR 20,000 per individual claim and EUR 50,000 per contractual year in total.
(3) Any further liability of the Contractor is excluded. This applies in particular to indirect damages, consequential damages, loss of profits, lost savings, business interruption, production downtime, loss of use, reputational damage, and damages arising from third-party claims, unless such claims fall within the scope of paragraph (1).
(4) The Contractor shall be liable for data loss only to the extent that such loss would have occurred even if the Client had performed proper, regular, and risk-appropriate data backups. The Client is responsible for adequately securing its own data, access credentials, systems, and interfaces and for maintaining up-to-date backup copies.
(5) The Contractor shall be liable for damages resulting from cyberattacks, malware, unauthorized access, manipulation by third parties, failures of public networks, cloud services, or telecommunications services only to the extent that such damage is attributable to a culpable breach of duty by the Contractor. Liability shall be excluded to the extent that the damage was caused or contributed to by insufficient cooperation, security measures, updates, rights management, or data backups on the part of the Client.
(6) With respect to goods, hardware, software, cloud services, or other third-party products, the Contractor shall not be liable for manufacturer statements, manufacturer specifications, product modifications, updates, availability, compatibility, performance characteristics, warranties, or any other representations made by the manufacturer or upstream supplier, unless the Contractor has expressly assumed such representations as its own guarantee in writing. Manufacturer warranties shall exist exclusively between the Client and the respective manufacturer in accordance with the manufacturer’s warranty terms.
(7) The Client’s warranty rights shall be conditional upon the Client duly and timely fulfilling its statutory obligations to inspect and notify defects, in particular pursuant to Section 377 of the German Commercial Code (HGB). Obvious defects shall be reported immediately after delivery or provision of the service, and hidden defects immediately after discovery, in text form and with a comprehensible description of the defect. Failure to provide timely notice shall result in the service being deemed accepted to the extent permitted by law.
(8) In the event of a warranty claim, the Contractor shall be entitled, at its sole discretion, initially to provide subsequent performance by means of repair, replacement delivery, renewed performance of the service, or provision of a reasonable workaround solution. If subsequent performance fails or is unreasonable, the Client’s further rights shall be governed by the applicable statutory provisions, provided that these GTC do not contain a valid limitation.
(9) Claims by the Client arising from material defects or defects in title shall become time-barred, to the extent permitted by law, within twelve (12) months from the delivery, provision, or acceptance of the respective service. This shall not apply to claims under paragraph (1), to defects fraudulently concealed, or to statutory limitation periods that are mandatorily longer.
§ 10 Data Protection
(1) The Parties shall process personal data exclusively in accordance with the applicable data protection laws, in particular the General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). Personal data shall be processed in particular for the purposes of contract performance, service provision, communication, invoicing, support processing, and compliance with legal obligations.
(2) To the extent that the Contractor processes personal data on behalf of the Client in connection with SaaS, cloud, hosting, support, or other services, the Parties shall enter into a separate Data Processing Agreement pursuant to Article 28 GDPR. In such case, the Client shall remain the controller within the meaning of the GDPR and shall be responsible, in particular, for the lawfulness of the data processing, the instructions given, and the safeguarding of the rights of data subjects.
(3) The Contractor shall be entitled to engage suitable subcontractors, hosting providers, cloud providers, software providers, support providers, and other service providers to perform the services, provided that this is necessary for the performance of the contract and that data protection requirements are complied with. Where required by law, such subcontractors shall be appropriately integrated into the data processing arrangements.
(4) In addition, the Contractor’s current Privacy Information shall apply. Such information shall explain, in particular, the nature, scope, purposes, and legal bases of the data processing, as well as the rights of data subjects.
§ 11 Final Provisions
(1) Should any provision of these General Terms and Conditions or of the respective contract be or become wholly or partially invalid, unenforceable, or incomplete, the validity of the remaining provisions shall remain unaffected. The statutory provisions shall replace any invalid, unenforceable, or incomplete provision.
(2) The laws of the Federal Republic of Germany shall apply.
(3) Amendments and supplements to the contract must be made in text form unless a stricter form is required by law or the Parties expressly agree otherwise. Individual agreements, quotations, order confirmations, and service descriptions shall take precedence.
(4) To the extent permitted by law, the place of jurisdiction for all disputes arising out of or in connection with the contractual relationship shall be the registered office of the Contractor. Otherwise, the applicable statutory provisions shall apply.
(5) The Client shall comply with all applicable export control, sanctions, embargo, and foreign trade regulations. The Contractor shall be entitled to refuse, restrict, or terminate services to the extent that their provision would violate such regulations or where required authorizations are not available.