Across Systems GmbH – General Terms and Conditions
Revision 10/2015 - Version 2.6© Across Systems GmbH
1 Applicability of These GTC
(1) These General Terms and Conditions (hereinafter also referred to as "GTC") apply to the entire business relationship between Across Systems GmbH, Im Stoeckmaedle 13, D-76307 Karlsbad, Germany (hereinafter referred to as "ACROSS") and the customer (hereinafter referred to as the "Contracting Partner"). The GTC of ACROSS apply exclusively; conflicting confirmations or general terms and conditions of the Contracting Partner are hereby expressly rejected. This shall apply even if the Contracting Partner submits or accepts an offer under the condition that his own general terms and conditions shall have priority.
(2) Deviating provisions and regulations of the Contracting Partner are hereby expressly rejected; other conditions shall not become part of the contract, even if ACROSS does not expressly reject them. If, in individual cases, different provisions and regulations are agreed by express approval of ACROSS, such shall have priority over these GTC. The same applies in cases in which deviating agreements were made in the underlying offer of ACROSS.
(3) Depending on the content of the contract concluded between the Parties, the respective special terms and conditions of ACROSS (Support and Update Terms, End-User License Agreement (EULA), Terms of Use of the crossMarket Network) shall apply additionally.
(4) Oral side agreements shall be documented in text form on a permanent storage medium, e.g. e-mail.
(5) ACROSS does not conclude any contracts with consumers (Section 13 of the German Civil Code (BGB)). Only businesspeople/entrepreneurs qualify as contracting partners and customers (hereinafter only referred to as "Contracting Partner(s)") under the contracts and business relationships underlying these GTC (Section 14 of the German Civil Code (BGB)). By concluding a contract with ACROSS, the Contracting Partner expressly confirms that he is an entrepreneur.
2 Content of the Contract, Coming into Existence of the Contract, Order of Precedence of the Provisions
(1) Depending on the respective individual agreement, the subject matter of the contract is the sale or letting of software of ACROSS to the Contracting Partner and perhaps additionally the performance of maintenance, programming, and installation work. This may include but is not limited to the performance of update and support services, the adaptation/customization of the software and other services requested by the Contracting Partner, such as consulting services in the broadest sense (process consulting, infrastructure, security, start-up coaching), training, hosting solutions (ASP), and software as a service (SaaS).
(2) Offers of ACROSS are subject to confirmation and are not binding unless a binding confirmation is expressly made in writing. Orders shall only be binding if ACROSS confirms them or fulfills them by delivering the goods or performing the service.
(3) The contract comes into existence on the basis of an order that the Contracting Partner places by mail/e-mail/web order form/telephone (offer) on the one hand and the fulfillment or express confirmation of the order (= acceptance) by ACROSS on the other hand. Mere confirmation of receipt of the order (e.g. in the form of a confirmation e-mail) by ACROSS does not represent the acceptance of the Contracting Partner's offer. In the case of software that is downloaded by the Contracting Partner, the contract comes into existence if, in response to the Contracting Partner's request for a Customer Product Key for the activation (= offer), ACROSS sends this Customer Product Key to the customer by e-mail (= acceptance).
(4) If, contrary to subsection (3), ACROSS prepares an individual offer in response to the Contracting Partner's inquiry, this will merely constitute an invitation for the Contracting Partner to submit an offer to contract.
(5) Note: The said system requirements that must be fulfilled on the side of the Contracting Partner merely reflect the bottom limit of what is required, i.e. the minimum specifications that must be complied with for the due operation of the software.
(6) To avoid delays and wrong delivery, the Contracting Partner shall specify the product designation and operating system in his orders. Unless expressly requested, this information is not required when purchasing via a web form.
(7) Order of precedence of the provisions:
The contract documents shall apply in the following descending order of precedence:
- Individual amendments and/or supplements to the contractual agreements;
- Individual contractual agreements, especially the offer of ACROSS;
- Special terms and conditions of ACROSS (e.g. Support and Update Terms, End-User License Agreement (EULA), Terms of Use of the crossMarket Network, EULA for crossConnect for External Editing);
- General Terms and Conditions of ACROSS;
- System requirements defined by ACROSS;
- Standards/DIN standards;
- Statutory regulations.
3 Delivery Problems, Force Majeure, Partial Delivery
(1) If ACROSS is unable to deliver the ordered goods or to perform the service through no fault of its own, because a cover transaction was concluded with a supplier for the purpose of supplying the Contracting Partner, and the supplier of ACROSS does not fulfill his contractual obligations to ACROSS, ACROSS may rescind the contract with the Contracting Partner. In this case, ACROSS will without delay inform the Contracting Partner of the inability to deliver. If the purchase price has already been paid, it will be refunded without delay.
(2) ACROSS shall not be responsible for delays in delivery or performance for the following causes, even if binding periods and deadlines have been agreed; the same shall also apply if these causes occur at the legal representatives, agents, or suppliers (or their sub-suppliers) of ACROSS:
Circumstances of force majeure as well as other unusual events that occur only after the conclusion of the contract through no fault of ACROSS or that remained unknown to ACROSS at the conclusion of the contract through no fault of ACROSS and that ACROSS could neither foresee nor avoid; moreover, subsequent strikes, fire, floods, labor disputes, interruptions in operations, changes in administrative permits or in the law and administrative orders that cannot be attributed to operational risks. Such events shall entitle ACROSS to postpone the delivery/performance for the period of the obstruction and a reasonable lead time. ACROSS may rescind the contract if ACROSS furnishes evidence of an unacceptable impediment to performance to the Contracting Partner. In the aforementioned cases, the Contracting Partner shall not be entitled to damages and shall not have any right of rescission. Circumstances that merely lead to temporary and thus acceptable delay in delivery/performance are excepted.
(3) In the case of events pursuant to subsection (2), ACROSS shall refund any payments that the Contracting Partner has already made for the delivery/services. However, ACROSS may request the portion of the agreed compensation that is attributable to any delivery/services already performed as of the time of occurrence of the force majeure. Apart from this, the Parties shall not have any claims in these cases.
(4) Partial delivery/services are permissible unless the Contracting Partner obviously does not have any interest in such or these are obviously unacceptable to him. The Contracting Partner shall accept partial delivery. If ACROSS makes use of this right, any packaging and shipping costs will only be charged once for the delivery.
4 Trial Version
The Contracting Partner may request a trial version of the software (Across Language Server) from ACROSS. This trial version may be used without any restrictions for 30 days after the installation or until the end of the next calendar month. If the Contracting Partner wishes to continue to use the software without any restrictions, he may request a Customer Product Key from ACROSS, which will send it to him by e-mail. The trial version can also be used on a server of ACROSS via remote access; in this case, the Contracting Partner does not need to install the software.
5 Prices, Terms of Payment
(1) ACROSS delivers against advance payment, credit card, or direct debit (SEPA debit).
(2) The prices applicable at the time of the order or the prices agreed between the Parties shall be authoritative. These prices are subject to statutory VAT (currently 19 percent) plus any agreed shipping and packaging costs. Cash discount is not granted.
(3) If the Contracting Partner opts for advance payment, the agreed purchase price shall be transferred to ACROSS within 10 days of the order, specifying the order number.
(4) Notwithstanding subsection 1, ACROSS may, at its own discretion, agree delivery against invoice with large companies and government agencies. In the case of delivery against invoice, the invoice amounts shall be due without any deductions within 14 days of the issue of the invoice. Advance payments or amounts debited to credit cards or bank accounts will be taken into consideration when the invoice is issued.
(5) If the Contracting Partner is in arrears with his payment, ACROSS may at least charge default interest amounting to 9 percent over the respective base interest rate. ACROSS may prove and assert greater damage due to the delay. Should the Contracting Partner fall in arrears with his payment, all claims of ACROSS against the Contracting Partner shall immediately become due for payment. This shall also apply in the event of a material deterioration of the financial situation and discontinuation of payments of the Contracting Partner. If the payment date is exceeded, the default interest shall be due even if no reminder is sent. Any rights of use granted shall be suspended for as long as the Contracting Partner is in arrears with his payment, and ACROSS will exercise its right of retention with respect to any agreed support and update services.
(6) At the discretion of ACROSS, payments will first be set off against older debts. If prosecution costs have already been incurred (especially costs of reminders), ACROSS may first set off payments of the Contracting Partner against these costs, then against the interest, and finally against the principal amount.
6 Retention of Title upon Purchase
In the case of a purchase contract, all deliveries and services of ACROSS are subject to retention of title. The delivered goods remain property of ACROSS until the purchase price is fully paid.
7 Prohibition of Set-Off, Rights of Lien
(1) The Contracting Partner is not authorized to set off his own claims against payment claims of ACROSS, unless the claims of the Contracting Partner are undisputed or legally established.
(2) The Contracting Partner is not authorized to assert rights of lien – even from notices of defect – against the payment claims of ACROSS, unless they result from the same contractual relationship and are undisputed, legally established, or ready to be adjudicated upon.
8 Software Products, crossMarket Account, Backups
(1) Apart from software manufactured by ACROSS (original products), ACROSS also sells third-party products that expand the contents or functionality of ACROSS. This may comprise third-party merchandise or software.
(2) When purchasing a software product, the Contracting Partner obtains a license to use the software product according to the applicable license terms. In the case of third-party products, the license terms of the respective manufacturer shall apply, which can be viewed at any time at the manufacturer's homepage or be requested from ACROSS.
(3) When purchasing the software package, the Contracting Partner acknowledges these license terms. The software products will remain the intellectual property of the specific licensor. All mentioned product designations, trademarks, and logos remain the property of the specific owner. Third-party copyrights must be observed when using delivered goods. Goods that are free of defects cannot be subsequently returned or exchanged.
(4) Note: Use of the software always necessitates the existence of an account in the web-based crossMarket network (which is basically free of charge). The software of the Contracting Partner is mandatorily linked to the crossMarket account. Details of this account and the crossMarket network are provided in the Terms of Use of crossMarket, which can always be accessed at www.crossmarket.net/en/terms-of-use and which the Contracting Partner must accept when registering the crossMarket account or at the latest when he starts using the software.
(5) The Contracting Partner shall duly protect himself against loss of data. As the installation of new software or the modification of installed software involves the risk of loss of data, the Contracting Partner shall create a comprehensive backup as a measure to prevent loss of data prior to installing new software or modifying the installed software.
(6) The Contracting Partner shall regularly back up his data under consideration of the risk (at least once a day) and create backup copies in order to enable their recovery in the event of loss of data and information.
9 Rights of Use, Property Rights, Copyright Marks, Modification, Decompilation, Assignment to Third Parties
(1) The Contracting Partner gains a non-exclusive right to use the delivered software program. Details of the scope and transferability of the right of use are specified in the End-User License Agreement (EULA), which can be accessed at ftp://ftp.across.net/legals/license_en.pdf and which the Contracting Partner accepts at the latest when he starts using the software. Except for backup copies to ensure future use, the creation of copies is prohibited.
(2) Moreover, the Contracting Partner shall respect all intellectual rights to the goods and, in the case of resale, pass on the restrictions of the right of use imposed upon himself to his contracting partners.
(3) Marks of the software, especially copyright marks, trademarks, serial numbers, etc. may not be removed, modified, or obscured.
(4) Use in the network is only permitted under an express license whose scope comprises this.
(5) The Contracting Partner is not authorized to duplicate the software or the application documentation, unless this is absolutely necessary for the intended use.
(6) The Contracting Partner may create copies of the software if this is necessary to ensure future use of the program and for backup and archiving purposes in line with the business requirements of the Contracting Partner. Upon request, the Contracting Partner shall inform ACROSS of the number, storage medium, and storage location of the created copies. The Contracting Partner's right to duplicate the program code under the conditions of Section 69d (1) of the German Copyright Code (UrhG) remains unaffected.
(7) Any and all other duplication is prohibited.
(8) The Contracting Partner is not permitted to rework the software, unless this is necessary for the intended use. Reworking is permitted if this is necessary for the elimination of a defect and ACROSS is in arrears with the elimination of the defect, ACROSS unjustifiably refuses to eliminate the defect, or ACROSS is unable to eliminate the defect without delay for reasons attributable to its field of responsibility. Reworking is also permitted if this is necessary to eliminate compatibility problems with respect to the interaction of the software with other programs required by the Contracting Partner and ACROSS is unwilling or unable to eliminate such against payment of reasonable, customary compensation. The Contracting Partner is not permitted to engage third parties who are competitors of ACROSS for such measures, unless he furnishes evidence that there is no risk of disclosure of important business and company secrets of ACROSS (especially of the software functions and design).
(9) Decompilation of the software is only permitted if the requirements and conditions specified in Section 69e (1) of the German Copyright Act (UrhG) are on hand. The information gained in this way shall not be used or forwarded in violation of the provisions of Section 69e (2) of the German Copyright Act (UrhG).
(10) Without the permission of ACROSS, the Contracting Partner is not authorized to give the software to third parties in any way, including but not limited to sale or letting. Dependent use by the employees of the Contracting Partner and other third parties subject to the Contracting Partner's authority to issue instructions is permitted within the scope of the intended use.
10 Reporting, Safekeeping, and Cooperation Obligations of the Contracting Partner
(1) The Contracting Partner shall report any defects in the software to ACROSS without delay. In this context, the Contracting Partner shall take the troubleshooting instructions of ACROSS into consideration to the extent he can reasonably be expected to do so and forward all information that is available to him and that is required for the elimination of the defect to ACROSS.
(2) The Contracting Partner shall inform ACROSS if the computers on which the software is deployed are changed.
(3) The Contracting Partner shall take suitable precautions to protect the software from unauthorized third-party access. The Contracting Partner shall keep any original storage media, the storage media containing the copies created by him according to the contract, and the application documentation (if such exists physically) in a secure place. The Contracting Partner shall inform his employees and other authorized dependent users that the creation of copies beyond the contractual scope is prohibited.
11 Warranty for Defects for ACROSS Products
(1) In the case of a purchase contract, the warranty for defects in the case of justified notice of defect is limited to replacement or rectification, as ACROSS may choose. ACROSS can also fulfill the obligation to eliminate defects by providing a new program version. Defects that impair the use of the program to such an unacceptable degree that it is impossible to wait for the next scheduled program version for the elimination shall, at the discretion of ACROSS, be eliminated in the current program version or be compensated by means of information on an acceptable circumvention or workaround.
(2) Should the rectification measures or replacements fail after a reasonable period, the Contracting Partner may either demand reduction of the purchase price or rescission of the contract. The rectification or replacement period shall be at least four weeks. Rectification or replacement will be deemed failed if three attempts to eliminate the defect have not been successful.
(3) If the contract is rescinded, the Contracting Partner shall without delay discontinue the further use of the software and destroy all copies of the software including any backup copies etc. as well as the accompanying written material. Upon request, the Contracting Partner shall furnish evidence of the destruction or declare this in lieu of an oath.
(4) The Contracting Partner can only assert warranty claims if he has duly complied with his inspection and reporting obligations pursuant to Section 377 of the German Commercial Code (HGB). Upon delivery, the Contracting Partner shall therefore check the goods without delay to make sure that they are free of defects and complete and without delay notify ACROSS of any defects discovered. If the Contracting Partner fails to conduct the inspection or submit the notice of defect in due time, the delivered goods will be deemed approved, unless the defect could not be discovered during the inspection. Concealed defects that are discovered later on shall be reported to ACROSS within 14 days of their discovery; otherwise, the goods will be deemed approved despite these defects. The notice of defect shall be submitted in writing and provide a detailed description of the reported defect.
(5) If the notice of defect was unjustified and the goods were provably free from defects and the Contracting Partner recognized this or negligently failed to recognize this because the cause of the notice of defect lay within his own field of influence and responsibility, the Contracting Partner shall fully compensate ACROSS for the expenses incurred by ACROSS due to the unjustified notice of defect.
(6) The Contracting Partner shall not have any claims under the warranty for defects if the defect is the result of improper handling, use, or modification or of wear and tear due to excessive use of the delivered goods. The warranty for defects shall not apply if the Contracting Partner or third parties install the contractual product incorrectly, perform maintenance work on it, repair it, use it, or expose it to ambient conditions that do not meet the installation requirements/system requirements.
(7) The period of the warranty for defects is one year counting from the delivery of the goods.
(8) Note: According to the state of the art, it is not possible to create computer software in such a way that it will operate flawlessly in all applications and combinations. In view of the known complexity of the software, ACROSS therefore does not guarantee that the software is suitable for a particular purpose, that it is compatible with all other software or hardware products, or that fully failure-free operation is possible in a specific case.
12 Liability
(1) The Contracting Partner may only claim damages from ACROSS beyond the statutory claims under the warranty for defects in the event of intent or gross negligence. This exclusion of liability does not apply in the event of injury to life, body, or health or if material contractual obligations are breached.
(2) Except for cases of intent, gross negligence, and damage from injury to life, body, or health, the liability of ACROSS is capped at the limit of the damage typically foreseeable at the conclusion of the contract.
(3) The liability of ACROSS under the German Product Liability Act (ProdHaftG) and other mandatory statutory regulations remains unaffected.
(4) Claims for damages cannot be asserted against ACROSS if the Contracting Partner would not have incurred the damage if he had duly backed up the data in his field of responsibility. When software is delivered, this shall apply only if ACROSS has duly instructed the Contracting Partner in the backup process. Apart from this and except for cases of intent and gross negligence, the liability for loss of data is limited to the typical recovery expenses that would have been incurred if backup copies had been regularly created under consideration of the risk situation.
(5) The Contracting Partner undertakes to regularly check his data for viruses. ACROSS does not accept any liability for damage or loss of data from viruses delivered through storage media. Liability for damage is excluded especially if the Contracting Partner could have prevented the occurrence of damage through daily program or data backups.
(6) If ACROSS is entitled to damages due to non-fulfillment of a purchase contract, it may claim a lump sum of 15 percent of the agreed price as compensation. In the event of excessive damage, e.g. if extensive functions not available in the standard edition of the software have been added, ACROSS reserves the right to assert this damage instead of the lump-sum compensation specified in sentence 1.
13 Warranty for Defects in Third-Party Products
(1) The warranty for defects that ACROSS provides to the Contracting Partner shall be secondary to the warranty for defects granted by the software or hardware manufacturer/supplier. For this purpose, ACROSS hereby proactively assigns its claims against the manufacturer/supplier under the warranty for defects with respect to the contractual software or hardware and/or documentation or other instructions for use to the Contracting Partner. The Contracting Partner hereby accepts this assignment.
(2) In this case, the Contracting Partner shall thus first assert warranty claims against the manufacturer/supplier, if necessary in court. The limitation period of warranty claims against ACROSS is suspended for the duration of the judicial prosecution. ACROSS shall surrender the contract documents required for the prosecution and provide the needed information about the Contracting Partner. The warranty for defects of ACROSS shall revive if it appears unlikely that the claims asserted against the manufacturer/supplier will be successful, e.g. due to insolvency, inability to locate the defendant, legal restrictions, or existing reciprocal rights.
(3) If the Contracting Partner allows the claim against the manufacturer to expire, he will also forfeit his claim against ACROSS.
14 Unique Features in the Case of Services under a Lease Contract (Software Lease, SaaS, ASP)
If software is let, either by way of application service providing (ASP) or in the form of software as a service (SaaS), under models combining software rent and word-based billing, or in the case of all other rights to use software products of ACROSS that are granted to the Contracting Partner temporarily against recurring payments (see the specific offer of ACROSS), the following supplementary/deviating provisions shall apply:
(1) Rent
ACROSS lets the standard software as shown in the respective offer/order for the agreed term of the contract. Except for the purpose of eliminating defects, software updates will only be provided on the basis of a separate support and update agreement between the Parties.
The software is provided for contractual use according to the respective offer/order. The function scope of the software, the requirements for the operation of the hardware and software, and the required system environment is available on the ACROSS homepage at www.across.net or is specified in the respective offer/order.
(2) Delivery, Installation, Consulting
ACROSS enables the Contracting Partner to download the software and the application documentation.
The Contracting Partner shall install the software. For the installation, ACROSS draws attention to the installation instructions in the application documentation, especially to the hardware and software environment that the customer must have. At the request of the Contracting Partner, ACROSS may take care of the installation of the software under a separate agreement.
ACROSS shall only owe consulting services if this has been expressly agreed separately. The Contracting Partner shall pay separately for any consulting services to be provided according to the latest applicable price list of ACROSS, alternatively at reasonable, customary conditions.
ACROSS shall only owe adjustments/modifications of the software and the creation of interfaces to third-party programs if this is required for the maintenance/repair of the rented object or to ensure the contractual use. Apart from this, ACROSS shall only be under the obligation to perform adjustments/modifications if this is expressly agreed; if necessary, the Contracting Partner shall pay for such services according to the latest applicable price list of ACROSS, alternatively at reasonable, customary conditions.
If the Parties have additionally concluded a support and update contract, this shall not affect the Contracting Partner's claims for defects.
(3)Adjustment/Preservation of the State of the Art by the Contracting Partner During the lease term, the Contracting Partner shall adjust/upgrade his IT system in accordance with the state of the art insofar as this is necessary for the use of a new or updated program version or in case he uses or wants to use the software to an above-average extent. ACROSS is not responsible for any circumstances outside its sphere of influence that impair the use of the software or make it impossible, such as the requirement for installation of new versions and updates of the operating system, the drivers, the database, and other third-party software required for the use of the software. The Contracting Partner must therefore adapt the hardware and software environment to the currently required state of the art on his own responsibility and at his own expense. ACROSS will assist the Contracting Partner in this context as far as possible and as far as can reasonably be expected. In particular, ACROSS shall duly inform the Contracting Partner about this and about the necessary steps before it becomes necessary for the Contracting Partner to change his system environment.
(4) Rent, Due Date, Adjustments
The rent is specified in the respective offer/order. The rent comprises the compensation for the provision and use of the software and for its maintenance and repair.
The rent shall be due for payment on an annual basis in advance as of January 1 for the entire calendar year. For the current calendar year, the rent shall be paid on a pro-rata basis for the remaining part of the calendar year and shall be due for payment upon conclusion of the contract. The Contracting Partner shall grant ACROSS a direct debit authorization for this purpose. The costs and expenses in case the payment cannot be collected shall be borne by the Contracting Partner.
ACROSS may adjust the rent with six months' prior written notice, effective as of the start of a new calendar year. In the case of an increase of more than 10 percent, the Contracting Partner may terminate the contract with three months' notice, effective as of the entry into force of the increase.
(5) Rights of the Contracting Partner in the Event of Defects
ACROSS is under the obligation to eliminate defects of the surrendered software including the application documentation. At its own discretion, ACROSS may eliminate defects through free-of-charge rectification or replacement.
Notice of termination by the Contracting Partner pursuant to Section 543 (2) sentence 1 no. 1 of the German Civil Code (BGB) on grounds that the contractual use has not been granted is only permitted if ACROSS has been given sufficient opportunity to eliminate the defect and this has failed. The elimination of defects shall only be deemed failed if it is impossible, if it is refused by ACROSS or delayed in an unacceptable way, if there are justified doubts with respect to the prospects of success, or if the situation is unacceptable to the Contracting Partner for other reasons.
The rights of the Contracting Partner due to defects shall be excluded if he performs or commissions the performance of modifications to the rental object without the approval of ACROSS, unless the Contracting Partner furnishes evidence that the modifications do not have any effects on the analysis and elimination of the defects that would be unacceptable to ACROSS. The rights of the Contracting Partner shall remain unaffected if the Contracting Partner is authorized to perform modifications, especially within the scope of the exercise of his right to eliminate the defects himself pursuant to Section 536a (2) of the German Civil Code (BGB) and this is done professionally and documented in a traceable form.
(6) Disclaimer
The strict liability of ACROSS pursuant to Section 536a (1) alternative 1 of the German Civil Code (BGB) for defects that already existed at the time of conclusion of the contract is excluded.
In the case of loss of data caused by slight negligence, ACROSS shall only be liable for the damage that would have occurred if the Contracting Partner had duly and regularly backed up the data under consideration of the importance of the data; this limitation shall not apply if the backup was obstructed or impossible for reasons for which ACROSS is responsible.
The aforesaid provisions also apply analogously to the liability of ACROSS with respect to the reimbursement of expenses made in vain.
(7) Term, Termination of the Lease Relationship
The lease relationship begins upon conclusion of the contract for a term of 24 months, starting from the end of the year in which the contract is concluded. Unless it is terminated by either Party with six months' notice, effective as of the end of the respective term, it will automatically be renewed for an additional term of 12 months. Any other rights of termination on the part of the Contracting Partner that may have been agreed remain unaffected. The right of each Party to termination without prior notice for good cause remains unaffected. To be valid, notice of termination must be given in writing.
(8) Return, End of Use
Upon termination of the contractual relationship, the Contracting Partner shall return the software to ACROSS. Any copies of the provided software shall be fully and irrevocably deleted. Instead of the return, ACROSS may also request deletion of the provided software, especially if the Contracting Partner did not receive the software on storage media. Any and all use of the software after the termination of the contractual relationship is prohibited.
15 Unique Features in the Case of Performance under a Contract for Work (Programming, Installation, Customization, etc.)
(1) If ACROSS additionally or exclusively performs services outside the purchase of software in the form of services under a contract for work (e.g. programming services, installation, customization of software, etc.), the following supplementary/deviating conditions shall apply:
(2) The details of the scope of services shall be governed by the underlying individual contract between the Parties.
(3) The Contracting Partner shall have all cooperation obligations that are required for the fulfillment of the contractual service of ACROSS and that lie in his sphere of influence (e.g. granting of access to the data center of the Contracting Partner, if necessary). If the performance of ACROSS cannot begin or the start or completion is delayed due to insufficient fulfillment of the Contracting Partner's cooperation obligations, the Contracting Partner shall be responsible for the associated extension of the execution period.
(4) The type and scope of the services of ACROSS and the cooperation obligations of the Contracting Partner can be regulated in detail in the respective individual contracts.
(5) ACROSS may perform the services directly (i.e. through its own employees) and/or at its own discretion engage third parties (e.g. sub-contractors) for this purpose.
(6) The warranty period is one year from the acceptance by the Contracting Partner.
(7) The work will be deemed accepted at the latest if the Contracting Partner has used the service performed by ACROSS productively for four weeks (e.g. by use of the programming in the Contracting Partner's business operations or use of the installed software) without submitting any notice of defect to ACROSS.
16 Unique Features and Variations in the Case of Performance under a Service Contract (e.g. Consulting, Training, etc.)
(1) If ACROSS additionally or exclusively performs services outside the purchase of software in the form of services under a service contract (e.g. consulting services, training, etc.), the following supplementary/deviating conditions shall apply:
(2) The details of the scope of services shall be governed by the underlying individual contract between the Parties.
(3) The Contracting Partner shall have all cooperation obligations that are required for the fulfillment of the contractual service of ACROSS and that lie in his sphere of influence (e.g. provision of suitable training facilities, if necessary). If the performance of ACROSS cannot begin or the start or completion is delayed due to insufficient fulfillment of the Contracting Partner's cooperation obligations, the Contracting Partner shall be responsible for the associated extension of the execution period.
(4) The type and scope of the services of ACROSS and the cooperation obligations of the Contracting Partner can be regulated in detail in the respective individual contracts.
(5) ACROSS may perform the services directly (i.e. through its own employees) and/or at its own discretion engage third parties (e.g. sub-contractors) for this purpose.
(6) The Parties shall agree in advance how any costs or expenses (e.g. travel costs, accommodation costs, etc.) required for the due performance of the contractually owed services are to be handled. In addition, the general rates for man-days according to the price list of ACROSS and the reimbursement of ordinary travel costs (€0.70/km for car trips or a second-class railway ticket as well as accommodation costs in a middle-class hotel) are deemed agreed.
17 Collection, Processing, Use of Data
All collected personal data will be treated confidentially and will be stored and used according to the regulations of data protection law. Only the data that are necessary for processing the business will be collected, stored, and used. Apart from this, please refer to the privacy information published at www.across.net.
18 Data Protection and Non-Disclosure
(1) The Parties shall treat as confidential all documents, information, and data that pertain to the other Party or to third parties, which they gain in direct connection with the respective project, with at least the diligence of a prudent merchant and under consideration of the relevant provisions under data protection law, including but not limited to those of Section 6 of the German Federal Data Protection Act (BDSG), unless the documents, information, and data are obviously publicly known or have become known otherwise.
(2) Therefore, the Contracting Partner undertakes to maintain secrecy with respect to all information made accessible to him, including but not limited to information designated as confidential and information that is otherwise clearly recognizable as business or company secrets of ACROSS, indefinitely and not to record, pass on, or utilize such. The Contracting Partner shall ensure that any third parties that work for him will refrain from any or all utilization on their own behalf, passing on, or unauthorized recording of such information.
(3) The Contracting Partner undertakes not to pass on the programs and documentation, unless this is necessary to fulfill the imposed obligation. The Contracting Partner shall impose a corresponding obligation on any third parties engaged by him for the creation of the programs.
19 Notifications by Electronic Mail (E-mail)
(1) Insofar as the Contracting Partners communicate by e-mail, they acknowledge the unlimited validity of the declarations intent transmitted in this way according to the following provisions.
(2) In the e-mail, the usual information shall not be suppressed or circumvented through anonymization, i.e. it must contain the name and e-mail address of the sender, the time of the transmission (date and time), and the name of the sender at the end of the message. Unless counterevidence is furnished, an e-mail received within the scope of this provision will be deemed received from the other Partner.
(3) All notifications shall be made in German or English.
20 Embargo Provisions, Refusal of Acceptance
The Contracting Partner knows that the goods delivered by ACROSS are partially subject to certain export restrictions and hereby acknowledges that ACROSS may refuse to accept an offer for this reason.
21 Assignment of Claims
The Contracting Partner is not authorized to assign or transfer his rights and obligations from the contract without the consent of ACROSS.
22 Amendments to the GTC
ACROSS reserves the right to amend its General Terms and Conditions. Within the scope of continuing obligations, the Contracting Partner will be expressly informed about any amendments, and his attention will be drawn to the amended passages, which will be highlighted. If the Contracting Partner does not indicate within six weeks after being informed about the new version that he does not accept the new version, this will be deemed as implicit approval, and the contractual relationship will include the new version from this time on. Otherwise, the contractual relationship will continue to be governed by the unmodified version of the GTC. Along with the information concerning the requested amendments, ACROSS undertakes to expressly draw the Contracting Partner's attention to these consequences of his behavior.
23 Severability
Should any of the provisions of these GTC be or become invalid or should they have a gap, this shall not affect the validity of the other provisions.
24 Place of Performance, Place of Jurisdiction, and Applicable Law
Karlsbad, Germany, the location of the registered office of ACROSS, is agreed as the place of performance for all obligations under the contract. The place of jurisdiction for all claims, including action for payment of bills of exchange and checks and proceedings based on documentary evidence, is Karlsruhe/Baden, Germany. German law shall apply, under exclusion of international provisions such as the UN Convention on the Contracts for the International Sale of Goods (CISG).
25 Binding Language Version
If these GTC are available in several languages, only the German version of these GTC shall be legally binding.