Status: December 2022
1 Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply between us, Ghostthinker GmbH, Hunoldsberg 5, 86150 Augsburg, Germany (“We”), and you as a customer (“You”) for services related to the use of our Interactive Video Suite (“IVS”). The General Terms and Conditions shall apply in the version valid at the time of the conclusion of the respective contract.
1.2 Our services are directed exclusively to entrepreneurs within the meaning of § 14, paragraph 1 of the German Civil Code (BGB) (this includes educational institutions such as universities). We do not conclude contracts with consumers (§ 13 BGB).
1.3 The content of the contract shall always be based on the offer and/or booking documents prepared / published by us and accepted by you (hereinafter jointly referred to as “offer”). In the event of contradictions between the offer and the GTC, the shall take precedence.
1.4 We shall be entitled to change these GTC at any time with a notice period of six (6) weeks by notifying you in text form (e.g. by e-mail). You may object to such a change within four (4) weeks of receipt of the notification of change in text form, otherwise the change shall be deemed to have been approved by you. We will refer to the effect of approval in our notification of change.
2 Our services
2.1 IVS is a service provided by us online which can be used for existing web-based learning systems (“LMS”) by means of a software extension (“plug-in”). With IVS, users of an LMS have the opportunity to expand the didactical possibilities of video teaching.
2.2 The plug-in for the use of IVS is usually available online via the download portals / online directories of the respective LMS providers. If the LMS is an open source solution, the plug-in is usually published under the same open source software license. In order for you to be able to use the functionalities of IVS without any restrictions, you shall acquire from us time-limited rights of use within the scope of the installation of the plug-in.
2.3 An essential part of the services provided within the scope of our business relationship is the use of the functionalities of IVS for a limited period of time during the term of the contract against payment of a fee (hereinafter “IVS use”). We also offer “support services” in connection with the installation and use of IVS on request.
2.4 With the IVS use we support you with our services in your projects. The responsibility for the success and results of the IVS use shall remain with you.
2.5 We shall be entitled to make changes to the IVS functionalities at any time, which are reasonable for you, in consideration of your interests.
2.6 In addition to the IVS use and the support services, we shall provide you with further services, in particular success-related services such as the development of customer-specific extensions of IVS (jointly “Work Services”) or other consulting and support services (“Services”). For Work Services, the “Supplementary Provisions for Work Services” of these GTC (Sections 12 et seq.) shall apply in addition and shall have priority over the other sections of these GTC. For Services, the “Supplementary Provisions for Services” of these GTC (Sections 18 et seq.) shall apply in addition to and have priority over the other sections of these GTC.
3 IVS Use
3.1 We enable the IVS use for you by activating it. You can purchase the respective license online from us. The license has to meet the corresponding settings in the plug-in. We offer you the following usage/remuneration models for the IVS use:
3.1.1 User-based model: the IVS use shall be valid for your entire LMS instance; there shall be no limit to the number of courses that can be held within the instance. The scope of the IVS use depends on the maximum number of active user accounts of the instance over the whole period. IVS use shall be for one calendar year at a time.
3.1.2 Course-based model: The IVS use shall bevalid for a single course hosted within the LMS instance. The extent of the IVS use also depends on the maximum number of participants in this course. IVS use shall be for one semester (6 months).
3.2 The IVS use shall always be bound to your specific LMS instance.
3.3 The presentation of the usage/remuneration models on our website shall not constitute a legally binding offer, but an invitation to place an order (“invitatio ad offerendum”). Errors and omissions excepted. By completing your order process, you are submitting a legally binding offer to purchase the corresponding IVS use. We accept this offer by activating the IVS use for your LMS instance.
3.4 We continuously and to the best of our knowledge and belief shall check the functionality of the IVS in interaction with the LMS products for which we offer IVS. However, we shall not be responsible for errors and incompatibilities in IVS resulting from changes to the LMS products and the interfaces to plug-ins by the LMS providers.
3.5 In order to enable us to check your compliance with the agreed scope of use, we shall be entitled to arrange for the transmission of anonymized and therefore non-personal data (Information about LMS instance, number of course participants, number of active user accounts) on your IVS use to our systems at regular intervals.
4 Support services
4.1 On request, we will support you during the installation and set-up process of the IVS and in the selection of our usage/remuneration models that are suitable for you. We provide these support services by telephone, e-mail and/or remote maintenance tool (e.g. TeamViewer) during the following service hours: Monday to Friday (except public holidays in Hamburg or Bavaria) from 09:00 – 17:00 o’clock. We shall charge for this support according to actual effort at our currently valid prices.
4.2 We use carefully selected own employees or third parties as subcontractors with the respective agreed and required qualifications to provide the support services. We shall be entitled at any time to replace our own employees or third parties employed to perform the Support Services with employees with comparable qualifications and experience. If these employees have been communicated to you by name, we will inform you about the replacement.
5 Cooperation services
5.1 You shall acknowledge your obligations to cooperate as a prerequisite for the performance of services by us and thus as your contractual obligation.
5.2 The provision of licensed IVS functionalities shall be subject to certain requirements with regard to the hardware used by you. You will inform yourself about the essential functionalities of the IVS and its technical requirements and observe them. You shall bear the risk whether IVS meets your wishes and circumstances.
5.3 Technical requirements and specifications according to clause 5.2 may change from time to time, especially in connection with updates of the IVS and the underlying LMS product. We shall inform you in good time before a change in the requirements and specifications. You shall implement current requirements and specifications without delay.
5.4 You shall be responsible for creating and maintaining the prerequisites in your company to be able to use the IVS (e.g. with regard to the use of up-to-date browsers). Information on this can be found in our FAQ inter alia.
5.5 If you fail to fulfil a duty or obligation, or do so improperly or late, and if we are therefore unable to provide our services in accordance with the contract, we shall be entitled to charge you additionally for the additional work and expense incurred thereby.
6 Rights of Use
6.1 We shall grant you and the users named by you, upon payment of the prices owed, the simple, non-sublicensable, non-transferable, non-transferable, revocable at any time, timely limited to the term of the contract and in terms of content limited in accordance with the respective usage/remuneration model and the following provisions, the right to access IVS by means of telecommunications and to use the functionalities associated with IVS in accordance with these terms and conditions. You shall not receive any further rights, in particular to IVS, the software application on which IVS is based or the plug-in.
6.2 You shall not be entitled to use IVS beyond the use permitted in accordance with this agreement or to have it used by third parties or to make it available to third parties. In particular, you shall not be allowed to duplicate, sell or cede IVS or parts thereof for a limited period of time, especially not to rent or lend IVS.
6.3 The right of use always refers only to the latest version of IVS provided; with any update, the rights of use of previously provided versions expire for the future.
7 Prices and payment
7.1 The prices for the licensing and support services are based on the information provided during the ordering process. We shall be entitled to adjust the prices at any time.
7.2 Unless expressly stated otherwise, the prices are stated as net prices and, where applicable, are exclusive of taxes (e.g. value added tax) at the statutory rate.
7.3 You may use the means of payment suggested at the time of ordering. You shall not be entitled to the availability of specific payment methods.
7.4 If your payments cannot be made properly or are cancelled (e.g. in the case of returned direct debits due to insufficient funds in your bank account or if you provide incorrect bank details), you shall reimburse us for any damage incurred.
7.5 We shall be entitled to invoice our services upon commencement of the contract; the payment period is 30 days. In deviation from sentence 1 of this clause 7.5, advance payment shall apply to first-time customers. We shall issue invoices exclusively in electronic form without digital signature.
7.6 The assignment of claims against us shall only be effective with our written consent.
8.1 We shall be liable without limitation for damages caused by gross negligence or intent by us, our legal representatives or vicarious agents. We shall also be liable without limitation for damages arising from culpable injury to life, body or health.
8.2 Only in cases of breach of material contractual obligations, the breach of which endangers the purpose of the contract and on the fulfilment of which the customer could rely to a particular extent (so-called cardinal obligations, “Kardinalpflichten”)), we shall also be liable in cases of simple negligence. This liability is limited to compensation for damages that were typically foreseeable at the time of conclusion of the contract. In addition
8.2.1 the liability according to § 536a BGB, and
8.2.2 in cases where we provide you with IVS free of charge for test purposes, our liability for cases of slight negligence shall be excluded.
8.3 In cases of slight negligence, our liability for loss of profit, lack of savings and damage to your image shall be excluded in any case.
8.4 The above limitations of liability shall also apply in favor of our legal representatives and employees and shall also apply in cases of pre-contractual or tortious liability.
8.5 Our liability for damages under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
9 Data protection
10 Term and termination
10.1 Unless otherwise stated in the offer, the commencement of the contract shall be the date of acceptance of your offer by us or, if we commence performance of the service before that date, the date of commencement of performance.
10.2 If you have chosen a user-based model (according to Section 3.1.1), contracts shall have a minimum term of one (1) year. You and we shall have the right to terminate these contracts with four (4) weeks’ notice to the end of the term. If no notice of termination is given, the term shall be extended by one (1) additional year in each case.
10.3 If you have chosen a course-based model (according to Section 3.1.2), contracts shall have a minimum term of one semester (6 months). You and we shall have the right to terminate these contracts with four (4) weeks’ notice to the end of the term. If no notice of termination is given, the term shall be extended by one additional semester (6 months) in each case.
10.4 Notwithstanding Sections 10.2 and 10.3, all contracts concluded prior to August 1, 2022 shall terminate at the end of the agreed term without the need for termination.
10.5 Contracts with an agreed term of more than one (1) year shall end upon expiration of the (fixed) term without the need for termination.
10.6 The right of extraordinary termination for good cause shall remain unaffected.
10.7 Notices of termination shall be made in writing; text form shall be excluded. A transmission of the termination letter (as a scan) by e-mail shall be permissible.
11.1 German law shall apply to the legal relationships between us and to the respective terms and conditions of business. The application of the UN Convention on Contracts for the International Sale of Goods of 11.04.1988 is excluded.
11.2 You shall have no right to set-off or retention unless your claim is undisputed or has been legally established by a court of law.
11.3 Exclusive place of jurisdiction shall be Augsburg, Germany, or another legal venue of our choice.
Supplementary Provisions for Work Services
12 Scope of Work Performances
12.1 IVS is intended to be standard software. However, upon appropriate agreement with you, we may perform services to customize IVS to your particular needs (“IVS Customizations”) or other performance-related services for you in accordance with these Additional Terms. You understand that in the case of IVS Customizations in any case we shall be entitled to incorporate the results into the Standard Product.
12.2 We shall perform the Work Services as agreed in the offer and other service descriptions that become part of the contract (e.g. user stories including acceptance criteria). As a rule, we shall work together according to methods of agile project development.
12.3 Unless otherwise agreed in the offer, we shall implement IVS Customizations in the form of development participation according to the following stages:
12.3.1 “Development Participation Stage 1”: We shall bear half of the costs for IVS Customizations. You determine what share of the other half of the cost you want to pay. For the remaining share, we will look for other customers/organizations that also want the respective IVS Customizations and would like to take over a share of the development participation. Once we have secured a sufficient number of customers/organizations to cover half of the costs, we shall determine the timeframe for implementing the IVS Customizations at our discretion.
12.3.2 “Development Participation Stage 2”: You shall bear half of the costs for the IVS Customizations, we shall bear the other half of the costs. Directly after a corresponding agreement, we shall determine the time frame for the implementation of the IVS Customizations at our own discretion.
12.3.3 “Development Participation Stage 3”: You shall bear the full cost of the IVS Customizations. Upon agreement, we shall commence implementation of the IVS Customizations as soon as reasonably practicable (the minimum lead time shall be two (2) months).
12.4 The agreed remuneration shall only cover the scope of services agreed at the start of the project. Additional services shall be charged separately on the basis of the agreed or customary market prices, unless they are unavoidable and commercially insignificant auxiliary services. Insofar as the originally agreed scope of services contains unintentional gaps or ambiguities, we shall be entitled to adjust the service description accordingly at our reasonable discretion.
13 Special Duties of Cooperation
13.1 In particular, you shall make decisions incumbent upon you regarding the performance and content of the services without undue delay and notify us thereof, and shall examine our proposals for changes without undue delay. Insofar as this is not possible for you, you shall contribute to immediate escalations. You shall be responsible for the control of your employees.
13.2 You shall provide us in a timely manner with all technical and other documents and information necessary for the successful performance of the services.
14.1 Work Performances / works to be performed by us shall be subject to acceptance. Results of services are not subject to acceptance. It may be described in the offer that defined partial results of Work Performances shall be accepted separately (real partial acceptance). Accepted partial results shall be the basis for the continuation of the work; they shall not be covered by any right to withdraw from the contract. In this respect, the object of a separate acceptance shall merely be the contractual interaction of these partial results with other results (integration).
14.2 We shall make the work available to you for acceptance upon completion. Unless otherwise agreed, you shall declare acceptance of the work within five (5) working days after provision if the work does not show any defects preventing acceptance within the meaning of the following provisions.
14.3 In the case of works related to software, we shall agree on the course and scope of the acceptance test at the beginning of the execution of the contract. For the performance of the acceptance test, you shall provide us with test data as well as the test results expected by you in due time before the provision of the works in the form specified by us in the offer and create the agreed technical prerequisites. We may participate in the acceptance test and inspect the test results.
14.4 Defects preventing acceptance shall be defects of classes 1 and 2 according to the following definition:
14.4.1 Class 1 defects shall be deviations that result in the work or a central part of it being unusable for you (example: frequent unavoidable system crashes).
14.4.2 Class 2 defects shall be deviations that result in significant restrictions of use for important functions of the work that cannot be circumvented for a reasonable period of time that is deemed reasonable for you (example: incorrect application results in terms of content; errors in reports).
14.4.3 Class 3 defects shall be all other deviations.
14.5 The parties shall assign the deviations found during the acceptance test to the defect classes by mutual agreement. You shall document the result of the acceptance test, including the defects that have occurred and their classification, in full in an acceptance report within the acceptance period. If you have justifiably refused acceptance, we shall rectify the documented defects that are preventing acceptance. The required parts of the acceptance test shall then be repeated.
14.6 Work shall be deemed to have been accepted as soon as you use it productively or have not handed over a list of defects within fourteen (14) days after handover of the work in which at least one defect preventing acceptance is listed. If you wish to make changes to the design after handover of the work or other project results that are not the subject of a notice of defects, we shall endeavor to take these wishes into account at a later date.
15 Rights of Use
15.1 In the case of the development of IVS Customizations, we shall grant you a right of use to the IVS Customizations in accordance with Section 6 of these GTC.
15.2 In the case of other Work Performances, we shall grant you a non-exclusive, transferable and sublicensable right of use, unlimited in time, space and content, to the work results created for you. We shall grant you this right subject to full payment and acceptance.
15.3 Until full payment and acceptance of the other Work Performances, you shall have the right to test them as agreed; this shall not include the right of operational use. This right to test shall expire if you are in default of payment for more than thirty (30) days. A separate reminder from us shall not be required for this.
15.4 The granting of rights according to clause 14.2 shall not apply to materials or solutions (hereinafter referred to as “Ghostthinker IP”) pre-existing with us, including any modifications and additions made thereto. We shall retain all rights to Ghostthinker IP at all times. The rights of use granted to you in the Ghostthinker IP incorporated into the Work Performances shall be determined in accordance with the purpose of the contract as set forth by both parties. The isolated use of Ghostthinker IP shall be excluded.
15.5 We shall in any case be entitled to make unrestricted use of the Work Performances including the know-how acquired in the performance of the services, in particular the concepts, procedures, methods and interim results on which the services are based, subject to compliance with our confidentiality obligations.
15.6 Insofar as work results arise within the scope of our performance which are patentable, utility modelable or designable, we shall be entitled to file a corresponding application for property rights in our own name and for our own account. To the extent necessary, we shall grant you the right to use the property right together with the work results. No separate remuneration shall be payable for this property right license.
16 Rights in Case of Material Defects of Works
16.1 You shall notify us in writing of any material defects immediately upon discovery, describing them specifically and in sufficient detail. Your claims for material defects shall become time-barred within twelve (12) months after acceptance, unless we have fraudulently concealed the material defect; your statutory limitation period for claims for damages due to material defects shall remain unaffected. In the case of partial performance, the period of limitation shall depend on the acceptance of the partial performance concerned. Your statutory obligations to give notice of defects shall remain unaffected.
16.2 Defects as to quality in works relating to software shall be assigned by mutual agreement to the classes defined in Clause 14.4.
16.3 We shall be entitled to determine the type of supplementary performance at our own discretion. Supplementary performance shall also include a reasonable option provided to you by us for circumventing errors in software („Workaround”), provided that an insignificant error remains after taking the Workaround into account. We shall also be entitled to demand that you import program parts with corrections („Bug Fixes”) sent to you. We shall be entitled to determine the time of supplementary performance for material defects that do not prevent acceptance at our reasonable discretion.
16.4 You shall assist us in analyzing and remedying the defects free of charge to the extent required. This shall include in particular the provision of documents and information to us free of charge to a reasonable extent.
16.5 You may reduce the agreed remuneration or, in the case of material defects preventing acceptance, withdraw from the contract if supplementary performance has conclusively failed. The conclusive failure shall be determined by us taking into account the complexity and the circumstances of the remedy of the defect, but shall not be assumed in every case after a supplementary performance attempt for a defect has failed twice. Self-remedy of defects on your part or through the involvement of third parties shall be excluded. Clause 8 of these GTC shall apply to your claims for damages.
16.6 We shall not be responsible for material defects based on faulty or incomplete performance descriptions and requirements (e.g. in the form of user stories) provided by you or approved by you, your concepts or defective performance or third parties engaged by you. We are also not responsible for material defects insofar as works have been changed after their acceptance, unless you can prove that the defect is not a consequence of the change.
16.7 If the defect is based on the use of defective third-party software which we use for the purpose of providing the service and whose defect we are not permitted to remedy ourselves, our obligation to remedy the defect shall consist in asserting the claims against the respective licensors.
16.8 You shall reimburse us for the expenses incurred as a result of unjustified notices of defect at the agreed prices in addition to the agreed remuneration.
17.1 We shall be entitled to retain a copy of the work results and project documents for purely internal purposes, even if they contain information that is subject to confidentiality. However, this authorization does not imply any obligation, i.e. in particular we cannot reserve any storage capacities beyond the period of performance. You shall be solely responsible for the storage of your project information and results.
Supplementary Provisions for Services
18 Scope of Services
We shall provide services for you as described in the offer.
19 Changes of Service Scope
19.1 If, compared to the contractual agreement, changed requirements on your part or other circumstances for which you are responsible lead to increased expenses on our part, we shall notify you of this in writing without delay. We shall invoice these services according to actual expenditure, unless we have made a deviating agreement.
20 Evidence, Work Results, Acceptance, Rights of Use
20.1 We shall keep documents and objects of any kind that constitute work results until they are handed over to you.
20.2 Records, documentation and similar documents provided to you under the contract shall remain our property or that of our subcontractors and shall be returned upon request within a reasonable period after termination of the contract.