General Terms and Conditions
of Across Systems GmbH
Version 4.0, revision May 28, 2021
1 Applicability of These General Terms and Conditions
1.1 Unless otherwise agreed in writing, all B2B contracts for services concerning software (especially software licensing, software development, and software services) shall be governed exclusively by these General Terms and Conditions. Other contractual terms and conditions shall not become part of the contract, even if Across Systems GmbH does not expressly reject such.
1.2 Even if this is not again pointed out when concluding similar contracts in the future, these General Terms and Conditions of Across Systems GmbH in the version that can be accessed at www.across.net/en/legal-notice/gtc when the customer makes his declaration shall apply exclusively, unless the contracting parties agree otherwise in writing.
1.3 Additionally, Sections 433 ff of the German Civil Code (BGB) shall apply to the sale of standard software, Sections 535 ff of the German Civil Code (BGB) shall apply to the letting of standard software, Sections 598 ff of the German Civil Code (BGB) shall apply to the lending of standard software, and Sections 611 ff of the German Civil Code (BGB) shall apply to services (e.g. installation, parameterization, training, modification, and supplementation of the standard software).
1.4 Across Systems GmbH does not conclude any contracts with consumers (Section 13 of the German Civil Code (BGB)) for the agreement of a paid service.
2 Contract Conclusion
2.1 Offers of Across Systems GmbH 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 contract signed by both parties, by means of a written order confirmation of Across Systems GmbH, or by means of the commencement of the performance by Across Systems GmbH following the order. Across Systems GmbH can request written confirmation of oral declarations of the customer to enter contracts.
2.2 The customer will be bound to his declarations to conclude contracts for a period of four weeks.
3 Subject Matter, Service Scope
3.1 Prior to the conclusion of the contract, the customer has verified that the specification of the software and of the other services meets his needs and requirements. The customer knows the features and conditions of the software.
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 Systems GmbH confirms such in writing. Retroactive changes to the service scope are subject to written agreement or written confirmation by Across Systems GmbH.
3.3 Product descriptions, portrayals, test programs, etc. represent service descriptions, but not guarantees. A guarantee must be 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. The customer is not entitled to surrender of the source code.
3.5 When providing standard software, Across Systems GmbH may conduct audits at the customer at all times for good cause or otherwise once year in order to verify that the agreed scope of use is being complied with. In this context, Across Systems GmbH will 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 Systems GmbH or an expert. The auditor shall submit a declaration to the customer according to which
- the auditor may only inform Across Systems GmbH of overruns of the scope of use and the observations made in this connection; and
- the auditor is not permitted to 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 Systems GmbH.
3.7 Should any sublicensing be detected, Across Systems GmbH shall at least have the following claims:
a) Refund of the audit costs
b) Penalty of twice the amount of 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 In the case of a purchase contract, all deliveries and services of Across Systems GmbH are subject to retention of title. The delivered goods remain property of Across Systems GmbH until the purchase price is fully paid.
3.9 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.
4 Rights of the Customer to the Software
4.1 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 Systems GmbH surrenders or makes accessible to the customer within the scope of the initiation and performance of the contract shall belong to Across Systems GmbH alone. In cases in which the rights belong to third parties, Across Systems GmbH has the needed utilization rights.
4.2 The customer may only use the program for processing data himself 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. Any other 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. Across Systems GmbH hereby grants the customer all permissions required for the use in the form of a non-exclusive right of use. Section 16 shall apply for the duration of the right of use.
4.6 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. through outsourcing, data center activities, application service providing) are not permitted without the prior written approval of Across Systems GmbH. If the right of use is to be expanded, separate licenses must be purchased or suitable agreements must be concluded.
4.7 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 are intellectual property and business and company secrets of Across Systems GmbH. They shall not be used in any way without the written permission of Across Systems GmbH and shall be kept confidential pursuant to section 17.
4.8 The customer shall have the same rights to software, customizations, and extensions that are created by order of the customer as to the standard software.
4.9 For standard third-party software, the legal rules of the licensor, which Across Systems GmbH will provide to the customer on request, shall have precedence over the rules of this contract. These GTC apply subordinately.
4.10 Across Systems GmbH 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 Systems GmbH may request a written confirmation from the customer that the customer has stopped using it.
4.11 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).
4.12 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.
4.13 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.
4.14 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 Systems GmbH designates such as binding in writing. Across Systems GmbH 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 Systems GmbH is to render delivery and performance shall be extended by the time during which the customer is in arrears with payments from the contract, by the time during which Across Systems GmbH is unable to render delivery or performance due to circumstances for which it is not responsible, and by a reasonable start-up time after the end of the respective 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. An 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 The place of performance of services is the location of the registered office of Across Systems GmbH.
5.6 Across Systems GmbH may perform the services directly (i.e. through its own employees) and/or, at its own discretion, commission third parties (e.g. subcontractors) for this purpose.
5.7 The work will be deemed accepted at the latest if the customer has used the performance rendered by Across Systems GmbH 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 Systems GmbH.
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. In the cases stipulated by law (see Section 323 (2) of the German Civil Code (BGB)), no period needs to be granted. The party that is fully or largely responsible for the problem cannot demand unwinding.
6.2 To be valid, all declarations made in this connection must be made in writing (see section 20.1).
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 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 Systems GmbH or legally established. Except as provided in Section 354a of the German Commercial Code (HGB), the customer can only assign claims from this contract to third parties with the prior written approval of Across Systems GmbH. 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 Systems GmbH.
7.5 Should the customer fall in arrears with his payments, all claims of Across Systems GmbH 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 rights of use granted will be suspended for as long as the customer is in arrears with his payment, and Across Systems GmbH will exercise its right of retention with respect to any agreed support and update services.
7.6 At the discretion of Across Systems GmbH, payments will first be set off against older debts. If prosecution costs have already been incurred (especially costs of reminders), Across Systems GmbH 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 examine all items delivered by Across Systems GmbH in a competent way without delay upon delivery or upon availability according to the regulations of commercial law (Section 377 of the German Commercial Code (HGB)) and shall report any detected defects in writing, providing a detailed description of the error. Before commencing with the productive use, the customer shall thoroughly test every module in order to make sure that they are fit for use in the particular setting. This also applies to programs that the customer receives within the scope of the warranty and a maintenance agreement.
8.2 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.
8.3 The customer is responsible for the full operability of the software environment prescribed by Across Systems GmbH. Across Systems GmbH publishes the requirements for the software environment on its website.
8.4 Only employees of the customer who belong to the customer's help desk or who have passed the training offered by Across Systems GmbH are authorized to report errors and to request services.
9 Defects of Quality
9.1 The software is fit for practical use and has the quality customary for software of this type. A functional impairment of the program that results from hardware defects, environment conditions, incorrect handling, etc. does not constitute a defect. Insignificant quality deficiencies and minor functional impairments shall not be taken into consideration.
9.2 In the event of defects of quality, Across Systems GmbH may first render supplementary performance. Across Systems GmbH 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, unless this is not possible under consideration of the type of the defect or other circumstances. The customer shall accept an equivalent new program version or the equivalent preceding program version without the error, if the customer can reasonably be expected to do so. The customer shall take care of the installation of software (patches or new versions).
9.3 The customer shall assist Across Systems GmbH in the error analysis, troubleshooting, and support especially by clearly describing encountered problems, by comprehensively informing Across Systems GmbH, and by giving Across Systems GmbH the time and opportunity needed for the troubleshooting. Across Systems GmbH may, at its own discretion, perform the troubleshooting on site or on its own business premises. Across Systems GmbH may also perform services by way of remote maintenance. The customer shall establish the required technical preconditions at his own expense and grant Across Systems GmbH electronic access to the software after due prior announcement.
9.4 Across Systems GmbH 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 and the customer had not reported the defect without any negligence on his part. The burden of proof lies with the customer. Section 254 of the German Civil Code (BGB) shall apply analogously.
9.5 If Across Systems GmbH 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, within the scope of section 6, either rescind the contract or reduce the remuneration by a reasonable amount and additionally demand damages or reimbursement of expenses pursuant to section 11. The claims shall be subject to the statute of limitations as specified in section 15.
10 Defects of Title
10.1 Across Systems GmbH warrants that the contractual use of the software by the customer does not conflict with any third-party rights. In the event of defects of title, Across Systems GmbH 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 Systems GmbH in writing in case third parties assert property rights (e.g. copyrights or patent rights) to the software. Across Systems GmbH will assist the customer in his defense against the third-party challenge by way of advice and information.
10.3 Sections 9.2, 9.4, and 9.5 shall apply analogously.
11.1 Across Systems GmbH will only pay damages or reimburse expenses made in vain in the following scope, no matter what the legal reason may be (e.g. from obligations that represent or are similar to legal transactions, defects of quality and title, breach of obligation, or tort):
a) Liability (i) for intent, deceit, and claims covered by the warranty; (ii) for damage from injury to life, body, or heath, which result from a breach of obligations by Across Systems GmbH or its legal representatives or agents; (iii) under the German Product Liability Act (ProdHaftG) is unlimited.
b) In the event of gross negligence, Across Systems GmbH shall be liable in the amount of the typical damage foreseeable at the conclusion of the Agreement.
c) In the event of breach of a cardinal obligation (i.e. an obligation whose fulfillment is essential to the due performance of the Agreement and on whose fulfillment the customer regularly relies and may rely) by way of slight negligence, Across Systems GmbH shall be liable in the amount of the typical damage that is foreseeable at the conclusion of the Agreement. In this context, the liability is capped at €50,000 per incident and €100,000 for all incidents in a calendar year. Apart from this, the liability for slight negligence is excluded, unless liability applies on the basis of subsection a) above.
11.2 Liability for indirect damage is excluded except in the cases specified in section 11.1 a).
11.3 Across Systems GmbH 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 Systems GmbH grants to the customer shall be subsidiary to the warranty for defects granted by the software or hardware manufacturer/supplier. For this purpose, Across Systems GmbH 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 accepts this assignment.
12.2 In this case, the customer shall thus first assert warranty claims against the manufacturer/supplier, if necessary in court. The limitation period of warranty claims against Across Systems GmbH is suspended for the duration of the judicial prosecution. Across Systems GmbH shall surrender the contractual documents required for the prosecution and provide the needed information about the customer. The warranty for defects of Across Systems GmbH shall arise anew 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.
12.3 If the customer allows the claim against the manufacturer to expire, he will also forfeit his claim against Across Systems GmbH.
13 Service Quotas
13.1 The customer may order quotas of services for which Across Systems GmbH has the needed expertise (e.g. training, configuration, consulting, handling support) from Across Systems GmbH 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 Systems GmbH may bill the entire remuneration for the quota upon conclusion of the quota agreement. The quota agreement shall be governed by the General Terms and Conditions of Across.
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 Systems GmbH 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 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 Systems GmbH 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 Statute of Limitations
15.1 The limitation period
a) for claims to refund of the purchase price due to rescission or reduction for defects of quality is one year from the delivery of the software, but no less than three months from the submission of the effective declaration of rescission or reduction in the case of duly reported defects;
b) for other claims from defects of title is one year;
c) for claims for damages or reimbursement of expenses made in vain that are not based on defects of quality or title is two years, beginning from the time at which the customer learns or, without being guilty of gross negligence, should have learned of the circumstances establishing the claim.
15.2 The expiry shall take place at the latest at the end of the maximum periods determined in Section 199 of the German Civil Code (BGB), at the latest. In the cases specified in section 11.1 a), section 15.1 shall not apply.
16 Beginning and End of the Rights of the Customer
16.1 The ownership of delivered items and the rights pursuant to section 4 will only pass to the customer upon full payment of the contractual remuneration (in the case of rental contracts, upon full payment of the first installment). Before that, he shall only have a provisional right of use under the law of obligations, which may be revoked for good cause (see section 16.2). In the case of rental agreements and other temporary licensing agreements, the rights pursuant to section 4 end automatically when the respective agreement ends.
16.2 Across Systems GmbH may terminate the rights pursuant to section 4 for good cause under the conditions specified in section 6. Good cause will be deemed to be on hand if Across Systems GmbH, 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 section 4 in a significant way.
16.3 If the rights pursuant to section 4 do not come into existence or if they end, Across Systems GmbH may request the customer to return the surrendered items or to provide written confirmation that these have been destroyed; moreover, Across Systems GmbH may request the deletion or destruction of all copies of the items and a written confirmation that this has taken place.
17 Non-Disclosure and Data Protection
17.1 The contracting parties undertake to treat all items (e.g. software, documents, and information) that are legally protected or that contain business or company secrets or that are designated as confidential, which they receive from the other contracting party or learn of prior to or during the performance of the contract, as confidential 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.
17.2 The customer shall only make the subject matters 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.
17.3 Across Systems GmbH 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 Systems GmbH may refer to the customer as a reference customer.
17.4 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 transaction will be collected, stored, and used. Apart from this, please refer to the privacy information published at www.across.net.
18.1 Training will take place at Across Systems GmbH. Training at the customer or at third parties is possible by agreement. Any additional expenses will be billed to the customer.
18.2 Across Systems GmbH may cancel training dates for important reasons. Across Systems GmbH will duly inform the customer of the cancellation of a date and offer alternative dates.
19 Embargo Provisions, Refusal of Acceptance
The customer knows that some goods supplied by Across Systems GmbH are subject to certain export restrictions and hereby acknowledges that Across Systems GmbH may refuse to accept an offer for this reason.
20.1 To be valid, all amendments and supplements to the contract must be made in writing. The requirement for written form can only be abrogated in writing. Transmission in text form, especially by fax or e-mail, shall be sufficient to comply with the requirement for written form.
20.2 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 B2B contracts is the location of the registered office of Across Systems GmbH.
20.3 In the event of any and all disputes from or in connection with this contract, contract extensions, or contract supplements, which they 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; Section 203 of the German Civil Code (BGB) shall apply analogously.
20.4 Across Systems GmbH reserves the right to amend its General Terms and Conditions. Within the scope of continuing obligations, the customer will be expressly informed about any amendments, and his attention will be drawn to the amended passages, which will be highlighted. If the customer 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 Systems GmbH undertakes to expressly draw the customer's attention to these consequences of his behavior.
20.5 If these GTC are available in several languages, only the German version of these GTC shall be legally binding.