General Terms and Conditions
of Across Systems GmbH ("Across")
Version 5.0, revision September 1, 2022
1) Applicability of These General Terms and Conditions
These General Terms and Conditions shall apply to all contracts concluded with Across from September 1, 2022. Other contractual terms and conditions will not become part of the contract, unless such are agreed in writing.
2) Contract Conclusion
Offers of Across are subject to confirmation and are not binding, unless the offer is expressly designated as binding in writing. A legal obligation shall only come into existence by means of a signed contract, by means of a written order confirmation of Across, or by means of the commencement of the performance by Across following the order.
3) Subject Matter, Performance Scope
3.1 Prior to the conclusion of the contract, the customer made sure that the functions of the software and the information on the services meet his needs and requirements.
3.2 The scope, type, and quality of the delivery and performance shall be governed by the contract signed by both parties, by the order confirmation of Across Systems GmbH, or by the offer of Across Systems GmbH. Other information or requirements shall only become part of the contract if the contracting parties agree such in writing or Across confirms such in writing. Retroactive changes to the performance scope are subject to written agreement or written confirmation by Across Systems GmbH.
3.3 Product descriptions, portrayals, test programs, etc. represent performance descriptions, but not guarantees in the meaning of the law. A guarantee will only be regarded as such if expressly declared in writing by the management of Across Systems GmbH.
3.4 The customer will receive the software, consisting of the machine code and the manual, in digital form. The customer cannot demand the provision of the source code.
3.5 When providing standard software, Across may conduct audits at the customer at all times for good cause or otherwise once a year in order to verify that the agreed scope of use is being complied with. In this context, Across shall comply with the following rules:
a) The audit shall be announced in writing two weeks in advance (except in justified urgent cases).
b) The audit shall be conducted by an employee of Across or an expert. The auditor shall submit a declaration to the customer according to which the auditor may only inform Across of overruns of the scope of use and the observations made in this connection and may not forward any personal data from the customer's sphere.
3.6 The customer shall give the auditor the information that is required for clarifying the actual usage volume and permit him to perform appropriate audit procedures. Business and company secrets of the customer shall not be disclosed to Across.
3.7 Should any underlicensing be detected, Across shall at least have the following claims:
a) Refund of the audit costs
b) Penalty amounting to twice the license fees not paid
c) Compensation of any further damage
d) In the case of continued use: payment of the license fee
3.8 Software, customizations, and extensions that are created by order of the customer will be furnished with interfaces or functions that correspond to the software environment at the time of completion. Depending on the development of the software environment, a need for changes can always arise with respect to the interfaces and/or functions; this shall not be construed as a defect of the work result, but as a new order.
4) Rights of the Customer to the Software
4.1 Upon full payment of the license fee, the license grants the customer permission to use the software exclusively for his own internal business purposes according to the terms and conditions of the contract along with its appendices and as described in the documentation. Copies of the software and documentation may only be made in a reasonable quantity for archiving, backup, and test purposes.
4.2 The software (program and manual) is legally protected. In the relationship between the contracting parties, any copyrights, patent rights, brand rights, and all other property rights to the software and to other items that Across provides or makes accessible to the customer for use with the software within the scope of the initiation and performance of the contract shall belong to Across alone. In cases in which the rights belong to third parties, Across has the needed utilization rights.
4.3 The customer may only use the program for processing data himself and for his own purposes. The right of use is limited to employees of the customer and third parties directly commissioned by the customer, but only on a project-specific basis for projects commissioned directly by the customer. Further contractual usage rules (e.g. limitation to a certain number of workplaces or persons) shall be technically implemented and complied with in practice. In particular, language service providers of the customer are not permitted to perform tasks that go beyond the translation or review directly on the system.
4.4 All other utilization actions, especially letting, lending, and distribution in tangible or intangible form, use of the software by and for third parties (e.g. by way of outsourcing, data center activities, application service providing) are not permitted without the prior written approval of Across. If the right of use is to be expanded, separate licenses must be purchased or suitable written agreements must be concluded.
4.5 Subject matters of contracts, documents, proposals, test programs, etc. of Across Systems GmbH that are made available to the customer before or after the conclusion of the contract constitute intellectual property and business and company secrets of Across. They shall not be used in any way without the written permission of Across and shall be kept confidential.
4.6 The customer shall merely have a right of use for new software, customizations, and extensions created by order of the customer to the same extent as for the standard software.
4.7 For standard third-party software, the legal rules of the licensor, which Across will provide to the customer on request, shall have precedence over the rules of the contract, and these GTC apply subordinately.
4.8 Across may provide the customer with a temporary trial version of the software or enable its use online. The use is enabled for test purposes only. This right of use will end upon expiry of the agreed time limit for the possibility of use. Across may request a written confirmation from the customer that the customer has stopped using it.
4.9 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 breach of the provisions of Section 69e (2) of the German Copyright Act (UrhG).
4.10 When using crossConnect for external Editing (cCfeE), the customer shall observe the following restrictions:
a) It is prohibited to manipulate, especially to decode, the data exported or imported by cCfeE in any way.
b) Following his processing, the customer shall re-import any data that he exported from the Across infrastructure to the Across infrastructure, unless the functions concerned do not require any re-transfer (e.g. preview). If data that have been exported from the Across infrastructure have leaked out or could leak out, the customer shall without delay inform Across and the owner of the data and initiate all steps to prevent or at least limit the dissemination of the data.
4.11 Across may at all times replace license keys required for using the software with new keys. Across will duly announce the replacement of the key by e-mail.
4.12 Any and all usage actions that endanger or circumvent the paid license model are prohibited.
5) Performance Dates, Delays, Place of Performance
5.1 Information on delivery and performance dates is not binding, unless Across expressly designates such as binding in writing. Across may render partial performance insofar as the customer is able to make meaningful use of the delivered parts.
5.2 Time periods within which Across is to deliver goods and perform services will be extended by the time during which the customer is in arrears with payments from the contract, by the time during which Across is unable to render delivery or performance due to circumstances for which it is not responsible, and by a reasonable lead time after the end of the respective reason for the hindrance. These circumstances also include force majeure and labor disputes. Time periods will also be extended by the time during which the customer, in breach of the contract, fails to cooperate, e.g. does not provide a piece of information, does not grant access, does not deliver an item the customer is supposed to provide, or does not make employees available.
5.3 If the parties retroactively agree other or additional services that affect agreed time periods, the respective time periods shall be duly extended.
5.4 To be valid, the customer's reminders and notices of extension must be made in writing. Any additional period that is granted must be reasonable. A period of less than two weeks will only be deemed reasonable in the event of special urgency.
5.5 Across may render the performance directly (i.e. through its own employees) and/or, at its own discretion, commission third parties as subcontractors or freelancers.
5.6 The work will be deemed accepted at the latest if the customer has used the performance rendered by Across productively for four weeks (e.g. by using the programming in the customer's business operations or by using the installed software) without submitting any notice of defect to Across.
6.1 Every termination of the future mutual performance (e.g. in the event of rescission, reduction, termination for good cause, payment of damages instead of performance) must always be threatened in advance, specifying the reason and granting a reasonable period (usually at least two weeks) to eliminate the problem, and can only be declared within two weeks of the end of this period.
6.2 To be valid, all declarations made in this connection must be made in writing; this includes any changes to this requirement for written form.
7) Remuneration, Payment
7.1 The agreed remuneration shall be due for payment without any deductions within 14 days of the customer's receipt of the invoice.
7.2 Any travel expenses, other expenses, accessories, freight costs, and telecommunication costs shall be compensated additionally on a cost basis. Any additional services requested by the customer (e.g. advice and support for the program installation) will be billed.
7.3 All remuneration is subject to statutory value-added tax.
7.4 The customer may only offset claims against claims that are recognized by Across or legally established. The customer may only assign claims from the contract to third parties with the prior written approval of Across. The customer shall only have a right or retention or the defense of non-fulfillment of the contract within this contractual relationship; this does not apply to undisputed or legally established claims. The customer is not authorized to assign or transfer his rights and obligations from the contract without the consent of Across.
7.5 If the customer falls in arrears with his payments, all claims of Across against the customer will 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 customer. If the payment date is overrun, the default interest shall be due even if no reminder is sent. Any granted rights of use will be suspended for as long as the customer is in arrears with payments.
7.6 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 customer against these costs, then against the interest, and finally against the principal amount.
7.7 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 person-days according to the price list of Across Systems GmbH and the reimbursement of ordinary travel costs (€0.52/km for car trips or a second-class railway ticket as well as accommodation costs in a middle-class hotel) are deemed agreed.
8) Duties and Obligations of the Customer
8.1 The customer shall take due precautions for the case that the program does not function properly or not at all (e.g. by means of backups, documentation of the software use, malfunction diagnosis, regular review of the results, emergency planning). The customer is responsible for ensuring the operability of the work environment of the program.
8.2 The customer is responsible for the full operability of the software environment prescribed by Across. Across publishes the requirements for the software environment on its website.
8.3 Only employees of the customer who belong to the customer's help desk or who have passed the training offered by Across are authorized to report errors and to request services.
9) Defects of Quality
9.1 For a period of 12 months from the date of delivery/making available of the software, Across warrants that the software, for which the customer has a valid program license and, when used in accordance with the documentation, largely meets the functions described in the documentation. For a period of 12 months from the conclusion of the performance of the respective service, Across warrants that all services performed by Across under the contract are in accordance with the common industry standard.
9.2 In the event of defects of quality, Across may first render supplementary performance. Across may, at its own discretion, render supplementary performance by eliminating the defect, by delivering software that does not have the respective defect, or by showing ways to avoid the effects of the defect. In the event of a defect, at least three supplementary performance attempts shall be accepted. The customer shall accept an equivalent new program version or the equivalent preceding program version that does not contain the respective error. The customer shall take care of the installation of software (update or new versions).
9.3 The customer shall assist Across in the error analysis, troubleshooting, and support especially by clearly describing encountered problems, by comprehensively informing Across, and by giving Across Systems GmbH the time and opportunity needed for the troubleshooting. Across may, at its own discretion, perform the troubleshooting on site or on its own business premises. Across may also perform services by way of remote maintenance. The customer shall establish the technical preconditions that are required and that he can reasonably be expected to provide at his own expense and grant Across electronic access to the software after due prior announcement.
9.4 Across may demand remuneration for any extra expenses that result from the fact that the software has been modified, used outside the prescribed environment, or used incorrectly. Across Systems GmbH may demand reimbursement of expenses if no defect is found.
9.5 If Across definitively refuses to render supplementary performance or if such fails definitively or the customer cannot reasonably be expected to accept such supplementary performance, the customer may either rescind the contract or reduce the remuneration by a reasonable amount.
10) Defects of Title
10.1 Across warrants that upon delivery, the use of the software does not conflict with any third-party rights. In the event of defects of title, Across may, at its own discretion, obtain a legally flawless possibility for the customer to use the software or equivalent software.
10.2 The customer shall without delay notify Across in writing in case third parties assert property rights (e.g. copyrights or patent rights) to the software. Across may determine the mode of defense at its own discretion or agree a judicial or extrajudicial settlement at its own discretion. The customer is not authorized to grant third-parties rights or to agree a settlement.
11.1 Regardless of what the legal reason may be, the liability for claims for damages against Across shall be limited to the single amount of the license fee paid by the customer to Across. Insofar as claims for damages pertain to certain software or services purchased from Across, the liability shall be limited to the license fee paid for this software or the amount paid for the services that caused the damage. Software solutions that are functionally and/or technically dependent on each other or that are not operable without other software will be included in the calculation of the total liability amount. In any case, the compensation for consequential damage such as lost profit, loss of data and other software and their recovery, or the consequences of operational disruption or computer failure or outages and their recovery or stoppages is excluded. Across shall not be liable for any special, incidental, consequential, or indirect damage. Liability for negligence is limited to damage that arises due to typical occurrences and as a result of breaches of material contractual obligations.
11.2 The above limitation of liability shall not apply in the case of damage or injury caused by gross negligence or intent on the part of Across. The liability under the German Product Liability Act (ProdHaftG) remains unaffected. Insofar as the liability of Across is excluded or limited, this also applies to the personal liability of the employees and representatives of Across.
11.3 Across reserves the defense of contributory negligence. In particular, the customer is under the obligation to back up data and ward off malware according to the state of the art.
12) Warranty for Defects in Third-Party Products
12.1 The warranty for defects that Across grants to the customer shall be subsidiary 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 customer. The customer hereby irrevocably accepts this assignment.
12.2 In this case, the customer shall first assert warranty claims against the manufacturer/supplier. Across shall surrender the contractual documents required for the prosecution and provide the needed information.
13) Service Quotas
13.1 The customer may order quotas of services for which Across has the needed expertise (e.g. training, configuration, consulting, handling support) from Across in writing. The specific service requirements and timing of the performance shall be jointly determined when the quota is drawn on.
13.2 The claim to services from the quota agreement shall apply for the rest of the respective calendar year in which the quota agreement is concluded. At the end of the calendar year, the quota will expire without any claim to compensation. If the customer has ordered several quotas, the oldest quota will always be used up first.
13.3 Across may bill the entire remuneration for the quota upon conclusion of the quota agreement.
14) Unique Features in the Case of Services under a Rental Contract (Software Lease)
14.1 During the rental term, the customer 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 immediate 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 customer 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.
14.2 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. Unless the parties have implemented provisions concerning the automatic adjustment of the remuneration, Across may, at its own discretion, adjust recurring fees with six months' written notice, effective as of the end of the year for the subsequent calendar year. In the case of an increase of more than 10 percent, the customer may terminate the contract with three months' notice, effective as of the entry into force of the increase.
14.3 The rental relationship begins upon conclusion of the contract and continues 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 customer 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.
15) Beginning and End of the Rights of the Customer
15.1 Across may revoke the rights of use for good cause. Good cause will be deemed to be on hand if Across, under consideration of all circumstances of the individual case and under consideration of the interests of both parties, cannot be reasonably expected to accept that the software remains with the customer permanently, especially if the customer breaches the limitations of the rights of use in a significant way and does not remedy the situation.
15.2 If the rights of use do not come into existence or if they end, Across may request the customer to return the provided software and documents or to give written confirmation that these have been destroyed; moreover, Across may request the deletion or destruction of all copies of the software and documents and a written confirmation that this has taken place.
16) Confidentiality and Data Protection
16.1 The contracting parties undertake to treat as confidential all items (e.g. software, documentation, records, and information) that are legally protected or that contain business or company secrets, that are designated as confidential, or that are customarily treated as confidential, which they receive from the other contracting party or learn of prior to or during the performance of the contract, even after the end of the contract, unless these are publicly known without any breach of the non-disclosure obligation. The contracting parties shall keep and protect these items in such a way that third-party access is not possible.
16.2 The customer shall only make the contractual items accessible to the employees and other third parties that need the access to exercise their work duties. The customer shall instruct these persons about the need to keep the items confidential.
16.3 Across processes the data of the customer that are required for the business transaction in compliance with the regulations of data protection law. Following the successful completion of the services, Across may refer to the customer as a reference customer. For this, the customer shall conclude a reference customer agreement from Across.
17.1 Any training will take place on the premises of Across. Training on the premises of the customer or of third parties is possible by agreement. Any additional expenses will be billed to the customer.
17.2 Across may cancel training dates for important reasons. Across will duly inform the customer of the cancellation of a date and offer alternative dates.
18) Embargo Provisions, Refusal of Acceptance
The customer knows that some software supplied by Across is subject to certain export restrictions, e.g. of the USA, the EU, or the Federal Republic of Germany, and hereby acknowledges that Across may refuse to accept an offer for this reason, and the customer undertakes not to import or export the software in violation of such restrictions.
19.1 To be valid, all amendments and supplements to the contract must be made in writing. The requirement for written form can only be abolished in writing. Transmission in text form, especially by fax or e-mail, shall be sufficient to comply with the requirement for written form. Any amendment or cancellation of this requirement for written form must also be made in writing.
19.2 The laws of the Federal Republic of Germany shall apply, under exclusion of conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG). The place of performance and jurisdiction for all disputes from and in connection with the contract is the location of the registered office of Across.
19.3 In the event of any and all disputes from or in connection with the contract, contract extensions, or contract supplements, which the contracting parties are unable to settle among themselves, the contracting parties agree to appeal to the Conciliation Office of the German Association of Law and Informatics (www.dgri.de/) in order to fully or partially settle the dispute according to its Conciliation Rules as applicable as of the date of institution of the arbitration proceedings on a preliminary or final basis. The limitation period for all claims from the facts under dispute shall be suspended from the request for arbitration until the end of the arbitration proceedings.
19.4 Across reserves the right to amend its General Terms and Conditions. If the customer does not indicate within eight weeks after being informed about the new version on the website 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 customer's attention to these consequences of his behavior.
19.5 If these GTC are available in several languages, the German version of these GTC alone shall be legally binding.