General Terms and Conditions
of ACROSS Systems GmbH
Version 3.0, revision October 16, 2020
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 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 in the version that can be accessed at www.across.net/en/legal-notice/gtc when the client 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).
2 Contract Conclusion
2.1 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 contract signed by both parties, by means of a written order confirmation of ACROSS, or by means of the commencement of the performance by ACROSS following the order. ACROSS can request written confirmation of oral declarations of the client to enter contracts.
2.2 The client 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 client has verified that the specification of the software and of the other services meets his needs and requirements. The client 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, or by the offer of ACROSS. 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 service scope are subject to written agreement or written confirmation by ACROSS.
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.
3.4 The client will receive the software, consisting of the machine code and the manual. The client is not entitled to surrender of the source code.
3.5 When providing standard software, ACROSS may conduct audits at the client 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 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 or an expert. The auditor shall submit a declaration to the client according to which
- the auditor may only inform ACROSS 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 client's sphere.
3.6 The client 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 client shall not be disclosed to ACROSS.
3.7 Should any sublicensing be detected, ACROSS 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 are subject to retention of title. The delivered goods remain property of ACROSS until the purchase price is fully paid.
3.9 Software, customizations, and extensions that are created by order of the client 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 Client 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 surrenders or makes accessible to the client 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.
4.2 The client may only use the program for processing his own data in his own business for his own purposes. 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. ACROSS hereby grants the client 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.
4.3 The client may create any backup copies of the programs that are required for secure operation. The backup copies shall be stored safely. If technically possible, the copyright notice of the original storage medium or of the software version that was transmitted online shall be applied to the backup copies. Copyright marks, trademarks, and product identifications shall not be deleted, modified, or suppressed. Copies that are no longer needed shall be deleted or destroyed. The manual and other documents provided by ACROSS shall only be used for company-internal purposes.
4.4 The client may resell software acquired according to the "purchasing" model. In this context, the client shall comply with the following requirements:
a) The transfer to the third party shall take place through permanent sale and without any return claim or redemption option.
b) The third party shall make the following declaration to ACROSS:
"We want to buy the software . . . . (exact designation including specification of the license volume) from . . . . (company and address of the client). We have received copies of the documents that stipulate the rights of use and obligations with which the previous buyer had purchased the software. We undertake towards you to comply with these rules of use. This applies especially to sections 4, 11.2 and 11.3, 15, and 17 of the General Terms and Conditions of Across Systems GmbH agreed at the time.
Our right of use will not begin before the previous purchaser informs you in writing that he has deleted the software as far as this is possible and can reasonably be expected and that, upon commencement of our right of use, he no longer has any right to use the software and will no longer perform any usage actions.
In the event of sale of the software by us, we undertake to comply with the same rules that our legal predecessor is subject to towards you."
The client shall ensure that the third party can only use the software once the client has deleted the software and ACROSS has received the signed declaration pursuant to (b) from the third party.
4.5 In the event of a breach of these rules by the client, the client shall owe ACROSS a penalty amounting to half of the amount that the third party would have had to pay ACROSS for the software, at least in the amount of half of the purchase price agreed today.
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.
4.7 Subject matters of contracts, documents, proposals, test programs, etc. of ACROSS that are made available to the client before or after the conclusion of the contract are intellectual property and business and company secrets of ACROSS. These may not be used in any way without the written permission of ACROSS and shall be kept secret pursuant to section 17.
4.8 The client shall have the same rights to software, customizations, and extensions that are created by order of the client as to the standard software.
4.9 For standard third-party software, the legal rules of the licensor, which ACROSS will provide to the client on request, shall have precedence over the rules of this contract. These GTC apply subordinately.
4.10 ACROSS may provide the client with a trial version of the software or enable its use online. The use is enabled for test purposes only. This right of use will end 30 days after the use is enabled. ACROSS may request a written confirmation from the client that the client 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 client 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 client 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 client 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 payable license model are prohibited.
5 Performance Dates, Delays, Place of Performance
5.1 Information on delivery and performance dates is not binding, unless ACROSS designates such as binding in writing. ACROSS may render partial performance insofar as the client is able to make meaningful use of the delivered parts.
5.2 Time periods within which ACROSS is to render delivery and performance shall be extended by the time during which the client 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 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 client, 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 client 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 client'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.
5.6 ACROSS may perform the services directly (i.e. through its own employees) and/or, at its own discretion, engage third parties (e.g. subcontractors) for this purpose.
5.7 The work will be deemed accepted at the latest if the client has used the performance rendered by ACROSS productively for four weeks (e.g. by using the programming in the client'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. 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 client'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 client (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 client may only offset claims against claims that are recognized by ACROSS or legally established. Except as provided in Section 354a of the German Commercial Code (HGB), the client can only assign claims from this contract to third parties with the prior written approval of ACROSS. The client shall only have a right or retention or the defense of non-fulfillment of the contract within this contractual relationship. The client is not authorized to assign or transfer his rights and obligations from the contract without the consent of ACROSS.
7.5 Should the client fall in arrears with his payments, all claims of ACROSS against the client 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 client. 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 client is in arrears with his payment, and ACROSS will exercise its right of retention with respect to any agreed support and update services.
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 client 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 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 Client
8.1 The client shall examine all items delivered by ACROSS 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 client 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 client receives within the scope of the warranty and a maintenance agreement.
8.2 The client 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 client is responsible for ensuring the operability of the work environment of the program.
8.3 The client is responsible for the full operability of the software environment prescribed by ACROSS. ACROSS publishes the requirements for the software environment on its website.
8.4 Only employees of the clients who have passed the training offered by ACROSS are authorized to report errors and to request services.
8.5 The client shall inform ACROSS if the computers on which the software is deployed are changed.
9 Defects of Quality
9.1 Upon risk transfer, the software has the agreed properties and is suitable for the contractually agreed use or, if nothing has been agreed, for normal use. It is fit for practical use and has the quality common for software of this type; however, it is not free of errors. A functional impairment of the program that results from hardware defects, environment conditions, incorrect handling, etc. does not constitute a defect. Insignificant quality deficiencies shall not be taken into consideration.
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 client shall accept an equivalent new program version or the equivalent preceding program version without the error, if the client can reasonably be expected to do so. The client shall take care of the installation of software (patches or new versions).
9.3 The client shall assist ACROSS in the error analysis, troubleshooting, and support especially by clearly describing encountered problems, by comprehensively informing ACROSS, and by giving ACROSS 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 client shall establish the required technical preconditions 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 may demand reimbursement of expenses if no defect is found and the client had not reported the defect without any negligence on his part. The burden of proof lies with the client. Section 254 of the German Civil Code (BGB) shall apply analogously.
9.5 If ACROSS definitively refuses to render supplementary performance or if such fails definitively or the client cannot reasonably be expected to accept such supplementary performance, the client 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 expire pursuant to section 15.
10 Defects of Title
10.1 ACROSS warrants that the contractual use of the software by the client does not conflict with any third-party rights. In the event of defects of title, ACROSS can comply with its warranty by obtaining a legally flawless possibility for the client to use the software or equivalent software, as ACROSS may decide.
10.2 The client shall without delay notify ACROSS in writing in case third parties assert property rights (e.g. copyrights or patent rights) to the software. ACROSS will assist the client 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 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) The liability for intent, deceit and guarantee is unlimited.
b) In the event of gross negligence, ACROSS 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 client regularly relies and may rely) by way of slight negligence, ACROSS shall be liable in the amount of the typical damage that is foreseeable at the conclusion of the Agreement, up to a maximum of €100,000 per incident. Strict liability pursuant to Section 536a of the German Civil Code (BGB) is excluded.
11.2 ACROSS reserves the defense of contributory negligence. In particular, the client is under the obligation to back up data and ward off malware according to the state of the art.
11.3 In the event of injury to life, body, and health and in the case of claims under the German Product Liability Act (ProdHaftG), the statutory regulations shall apply without any restrictions.
12 Warranty for Defects in Third-Party Products
12.1 The warranty for defects that ACROSS grants to the client 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 client. The client accepts this assignment.
12.2 In this case, the client 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 contractual documents required for the prosecution and provide the needed information about the client. The warranty for defects of ACROSS 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 client allows the claim against the manufacturer to expire, he will also forfeit his claim against ACROSS.
13 Service Quotas
13.1 The client 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 client 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. 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 client 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 client 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. The client shall grant ACROSS a direct debit authorization for this purpose. The costs and expenses in case the payment cannot be debited shall be borne by the client. 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 client 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 client 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 client 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. Section 15.1 shall not apply in the event of damages and reimbursement of expenses due to intent, gross negligence, guarantee, or deceit or in the cases specified in section 11.3.
16 Beginning and End of the Rights of the Client
16.1 The ownership of delivered items and the rights pursuant to section 4 will only pass to the client 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).
16.2 ACROSS 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, 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 client permanently, especially if the client 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 may request the client to return the surrendered items or to provide written confirmation that these have been destroyed; moreover, ACROSS 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 client shall only make the subject matters accessible to the employees and other third parties that need the access to exercise their work duties. The client shall instruct these persons about the need to keep the items confidential.
17.3 ACROSS processes the data of the client 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 client 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/en.
18.1 Training will take place at ACROSS.
18.2 ACROSS may cancel training dates for important reasons. ACROSS will duly inform the client of the cancellation of a date and offer alternative dates.
19 Embargo Provisions, Refusal of Acceptance
The client knows that some goods supplied by ACROSS are subject to certain export restrictions and hereby acknowledges that ACROSS 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.
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 reserves the right to amend its General Terms and Conditions. Within the scope of continuing obligations, the client will be expressly informed about any amendments, and his attention will be drawn to the amended passages, which will be highlighted. If the client 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 client'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.