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Across Systems GmbH 
General Terms of Trade

§ 1 Scope of Application

(1) All goods and services of Across Systems GmbH are subject to the following General Terms of Trade of Across Systems GmbH. Terms and conditions different from those specified herein are only effective if expressly approved by Across Systems GmbH.

(2) These General Terms of Trade also apply to future business relations, even if they are not expressly agreed upon in advance.

(3) Orally made collateral agreements must be documented on durable data loggers, e.g. e-mail. Modifications of the rules, including confirmation clauses, as well as agreements on delivery times, firm or without engagement, require documented confirmation by Across Systems GmbH.

(4) “End User” as per these General Terms of Trade is a natural person who places orders with Across Systems GmbH for purposes which are not associated with the person’s commercial or free-lance activities. “Tradesman” as per these General Terms of Trade is a natural or legal person or a personal company with legal status who buys goods from Across Systems GmbH in pursuit of its commercial or freelance activities.  

§ 2 Offers, Conclusion of a Contract, Performance and Delivery Obligations

(1) Offers are without engagement, unless otherwise specifically agreed as binding. Orders are only considered to be firm if acknowledged by Across Systems GmbH and carried out by shipment of the goods. Orally agreed collateral arrangements are not effective without a written confirmation.

(2) The contract is created by the customer sending an order by e-mail/letter or filling in and confirming the form on the web and by Across Systems GmbH acknowledging and proceeding with the order.

(3) In order to avoid delays and wrong deliveries, all orders must specify the product name, the operating system and the data carrier to be supplied. If not expressly requested, this information is not required if the purchase is completed by filling in the web form. If ordered goods are not available, Across Systems GmbH is entitled to withdraw from the contract. Across Systems GmbH will notify the customer immediately of such unavailability and reimburse to the customer any costs charged.  

§ 3 Delivery

(1) Any times quoted for dispatch or deliveries are estimates only and shall only be binding upon Across Systems GmbH if confirmed in writing. Meeting an estimated delivery date is always dependent on timely receiving subsupplies. If a subsupplier cannot deliver for reasons beyond Across Systems GmbH’s responsibility or if the delivery is delayed or impeded by force majeure or other events for which Across Systems GmbH cannot be held responsible, Across Systems GmbH is entitled to withdraw from the contract. In such case the customer has no right to claim damages. Such events include: fire, flood, labour disputes, operating problems, strike, alterations of licenses and laws by authorities, which are not part of the normal operating risks. The customer will be notified immediately of such a default in delivery.

(2) Partial deliveries can be made, unless the customer declines them or it is unreasonable for him to accept them. If partial deliveries are made, Across Systems GmbH will charge packing and shipping costs only once.  

§ 4 Shipment/Passing of Risks/Failure to accept goods

(1) The goods are shipped ex stock of Across Systems GmbH in Karlsbad-Ittersbach, Germany.

(2) The risk of loss or damages will in all cases pass to the customer as soon as the shipping goods leave the warehouse or the office of Across Systems GmbH. The same applies to deliveries free destination.

(3) If a customer does not accept the sold goods, Across Systems GmbH is entitled to demand acceptance or, at its option, claim 10% of the purchase price as a flat rate of indemnification, unless the customer proves that damage does not exist or has a lower value. In the event of an extraordinarily high damage, Across Systems GmbH reserves the right to assert its own claims. If the customer does not accept, or delays, delivery of the goods Across Systems GmbH will store the goods on customer’s behalf and at customer’s risk at its own premises, or at a forwarding agent or a public warehouse. During the time of storage caused by failure or delay of acceptance, the customer shall pay to Across Systems GmbH a voucherless flat rate of Euro 20,- per week for storage charges. This flat rate may be reduced if customer proves that no cost or damage occurred. In case of extraordinarily high storage costs Across Systems GmbH reserves the right to assert its own claims.  

§ 5 Prices and Conditions of payment

(1) List prices are valid at the time of ordering. Discounts will not be granted.

(2) The prices for End Users are to be understood for deliveries ex company site of Across Systems GmbH, excluding costs of packaging and freight. All prices are in Euros and subject to change without notice. For packaging and freight the following costs will be charged to End Users: Euro 8,00 (US $ 9,00). The costs of shipment to tradesmen will be computed according to the gross weight of the goods dispatched. For shipments abroad the packaging and freight will be charged at cost.

(3) Across Systems GmbH is not obligated to accept payment by cheques or drafts. If accepted, this payment shall constitute settlement of the account. Charges for withdrawal and discoun-ting as well taxes on drafts shall be for customer’s account. Across Systems GmbH does not warrant the punctual presentation, notification of protest and return of a draft in case of dishonour.

(4) Across Systems GmbH delivers against advance payment, collection on delivery or credit card. Supplies to large companies and public authorities will be invoiced according to prior agreement. Advance payment or settlement by credit card will be duly considered at the time of invoicing. Shipments abroad are payable against credit cards.

(5) On all invoices not paid when due, Across Systems GmbH shall charge interest at the rate of 5% over the prevailing rate of discount of the German Federal Bank. The right to assert further claims arising from delays is reserved. In the event of a payment in arrears, all customers related accounts receivable of Across Systems GmbH will be due for immediate settlement. The same applies in the event of deterioration of customers assets and of payment that the customer suspends. Interest charges for default payments will accrue without notice.

(6) If Across Systems GmbH claims for damage caused by breach of a purchase contract, an indemnification equaling a flat rate of 15% of the agreed price will be chargeable provided unless there is evidence of a considerably smaller damage. The right to assert a claim for actual damage in a larger amount is reserved.

§ 6 Reservation of Proprietary Rights

(1) All deliveries and service are subject to a reservation of all proprietary rights. Across Systems GmbH continues to own all goods delivered until full payment of the purchase price is received or all cheques and drafts are honoured and all other demands are settled in accordance with the agreement concluded between Across Systems GmbH and the customer.

(2) The customer is entitled to resell the goods subject to the condition of complying with the rules for transactions in the ordinary course of business. Customer is not allowed to dispose of the goods by protective conveyance or by pawning. Across Systems GmbH is to be notified immediately of any dispositions by third parties, including in particular any intended pawnings and cessions, and all documents required for intervention must be submitted without delay.

(3) Exercising proprietary rights and claiming restitution are not considered to constitute a withdrawal from the contract.

(4) The customer hereby assigns to Across Systems GmbH all accounts receivable resulting from reselling the goods. The customer may, subject to revocation by Across Systems GmbH, collect these receivables. On demand of Across Systems GmbH, the customer must disclose the assigned accounts receivables and their debtors. Across Systems GmbH may give notice of the cession to the debtors of the customer.

(5) The goods under Across Systems GmbH’s proprietorship may be processed by the customer on behalf of Across Systems GmbH. The proprietary rights on these goods will correspond to the market price prevailing at the time of processing. Upon integration of the goods subject to reservation with other materials, Across Systems GmbH will become co-owner of the new product on basis of the value of the goods in proportion to the value of the other materials at the time of processing. The delivery will be superseded by the customer taking the new product into possession free of charge on behalf of Across Systems GmbH.

(6) In the event of a delay or an expected default of payment by the customer, Across Systems GmbH is entitled to collect all respective goods which are still at customer’s disposal. The customer must permit access to his premises by authorized employees or agents of Across Systems GmbH during office hours and without prior announcement.

(7) The reservation of proprietary rights will be released if the secured funds exceed the outstanding debts by more than 20%.

(8) If third parties assert rights to the goods subject to reservation, e.g. in the case of pawning, the customer must state that Across Systems GmbH is the owner and must notify Across Systems GmbH without delay. Costs which may result from Across Systems GmbH’s intervention are to the debit of the customer.

(9) Across Systems GmbH has the option to allocate payments to older overdue receivables. Payments received may be set off against cost of legal actions – in particular hortatory proceedings in the first place, secondly against interest and finally against the main debt.  

§ 7 Prohibition of Set-off and Rights of Retention

(1) The customer is not entitled to set off his own claims against payments due by him unless the claim is supported by legal findings.

(2) The customer is not entitled to retain payments because of complaints about quality unless these complaints are uncontested or supported by legal findings.  

§ 8 Software Product

(1) In addition to self-manufactured software (products of its own), Across Systems GmbH also markets third-party products which extend the contents or the functionality of Across. These can include trading goods or software of third-party manufacturers.

(2) The Software Product purchased by the customer includes a data carrier (CD ROM, disk, e-mail, etc), the pertaining documentation, if available, and a license for the use of the software product in accordance with the license conditions. For third-party products, licensing terms of the corresponding manufacturer apply.

(3) Starting with the first use of the software package, the customer accepts these license terms and conditions. The software product remains the intellectual property of the licensor. All mentioned identifications, brands and logos are property of the respective owners. All product documentation, brand names and logos appearing in the online shop or on internet pages are the property of Across Systems GmbH. When using products delivered, the proprietary rights of third parties must be observed. By opening the sealed disc packaging, the attached license conditions of the manufacturer are acknowledged. A subsequent return or replacement by another product is not allowed.

(4) The customer must protect himself from the loss of data. Because new installation or a modified installation of the software can create risk of loss of data, the customer must take care that the data are secured by all means available.  

§ 9 Protective Rights

With the purchase of the software program the customer acquires a single right of use. The transferability of this right as well as the making of a security copy is determined by the regulation of the EULA (End User License Agreement); a copy of which is regularly attached to the product. Making copies is generally not permitted unless it is expressly agreed upon in individual cases. In addition, the customer must respect all intellectual property rights to the goods and in the event of resale must transmit the limitation of the right of use to his customers. The use on an internal network is only permitted on basis of a license which is expressly extended to this effect.  

§ 10 Warranty/Exclusion of Liability

(1) In the case of quality claims the warranty is, at the option of Across Systems GmbH, limited to replacement deliveries or subsequent repair. Across Systems GmbH disclaims any express or implied warranties of fitness for a particular purpose and merchantability. Releasing a new version of software by Across Systems GmbH does not constitute a defect of the previously sold software.

(2) If repairs or replacement deliveries fail within an appropriate period of time, the customer has the choice to claim a reduction of the purchase price or to withdraw from the contract. The specified time will not be less than four weeks. Repairs or replacement deliveries are to be considered as unsuccessful if three attempts to correct the quality claims have failed.

(3) Notice of apparent defects or transparent damages must be given in writing to Across Systems GmbH within ten (10) working days from receipt of the goods at the destination, in any case, however, before the goods are processed or assembled. If no quality complaint is lodged within the specified period of time after receipt of the shipment, the goods are considered to be accepted by the customer and all warranty claims are barred. In order to give timely notice, timely dispatch of the notice is sufficient; the burden of proof lies with the customer. Tradesmen must check quality and completeness of the goods immediately after their receipt and must notify Across Systems GmbH of discovered defects without delay. The goods delivered are considered to be accepted if a tradesman fails to inspect the goods received and notify Across Systems GmbH about any defects within the specified time, unless the defect was concealed at the inspection. Notice of a defect found at a later date must also be given to Across Systems GmbH without delay. Otherwise these defective goods will be considered as accepted. The notification of quality complaints must be effected in writing and the defects must be described indetail. Moreover, §§ 377 f. HGB (German Commercial Code) apply correspondingly.

(4) If the quality complaint is not justified and the article is faultless, Across Systems GmbH is entitled to charge the customer for shipping and control costs of Euro 15,– per article. The customer will have the right to prove that respective expense are lower, whilst Across Systems GmbH may furnish evidence that they are higher.

(5) The warranty does not cover defects if the goods are improperly treated, used, modified or worn out by overuse. The warranty is inapplicable if the customer or a third party installs the contractual goods improperly or if maintains them on their own, repair, modify or expose them to a working environment which is not compatible the stated requirements for installation.

(6) Claims of a customer for indemnification on the grounds of non fulfillment, faulty contract conclusion, breach of agreed collateral obligations, consequential damages from defects, damages resulting from unauthorized actions and other legal grounds are excluded, provided that Across Systems GmbH is liable for failing to provide guaranteed properties, for wilful action or for gross negligence.

(7) The warranty period is 12 months from delivery. For the purchase of consumer goods by End Users, the warranty period is extended to 24 months.

§ 11 Warranty for Third-party Products

(1) The warranty for third-party products given by Across Systems GmbH to the customer – insofar as the customer is a tradesman in the terms of § 1 (4) – should be subsidiary as opposed to the warranty of the software and/or hardware manufacturer or the supplier respectively. For this purpose, Across Systems GmbH cedes to the customer in advance its warranty claims against the manufacturer/supplier regarding the software and hardware and/or documentation or other user information covered by the contract. The customer accepts this cession.

(2) Hence, the customer should firstly assert the warranty claims – if necessary by means of legal proceedings – against the manufacturer/supplier. The statute of limitation of warranty claims against Across Systems GmbH is extended by the period of legal proceedings. Across Systems GmbH shall provide the required contract documents and all necessary information about the contract partner. The warranty of Across Systems GmbH is revived, if the claim to the manufacturer/supplier presents itself as ineffective on legal grounds or if financial collapse, e.g. because of insolvency, undiscoverability, legal limitations or an existing contrary legal rights offer no expectation of success.

§ 12 Date Protection and Confidentiality

§ 13 Communication

(1) As far as the contracting partners communicate by e-mail, they acknowledge the unlimited effectiveness of the declaration of intention, transmitted by this means, in accordance with the following regulations.

(2) In e-mail, normal statements may not be suppressed or circumvented by making them anonymously. That means that the statements must indicate the postal and e-mail addresses of the senders, the dates and hours of dispatch and, at their end, a repetition of the senders’ names. An e-mail received in accordance with these regulations will be considered as being sent by the other partner provided that no proof to the contrary is furnished.

(3) All messages must be made in English language.

§ 14 Rules of Embargo

The customer is aware that the products delivered by Across Systems GmbH are partly subject to bans of export and he will commit himself to adhering to restrictions indicated by Across Systems GmbH  

§ 15 Cession of Claims

The customer is not permitted to assign or transfer rights and obligations arising from the contract.

§ 16 Disputes

These terms and conditions constitute the entire agreement between Across Systems GmbH and its customers. If a part, provision, or clause of the terms and conditions of sale, or the application thereof to any person or circumstances, is held invalid, void or unenforceable, such holding shall not affect and shall leave valid all other parts, provisions, clauses or applications of the terms and conditions remaining, and to this end, the terms and conditions shall be treated as severable. The section titles used in these terms and conditions are purely for convenience and carry with them no legal or contractual effect.  

§ 17 Commercial and Legal Domicile

Commercial domicile for the performance of the contracting parties is the registered seat of Across Systems GmbH, Karlsbad, Germany. The legal domicile is agreed to be the court competent for the place of performance, if the customer is a tradesman, a legal person or special institution by public law or if he does not have a general venue in the Federal Republic of Germany. The contracting parties agree, that all legal relations of this con-tract now and after fulfillment of the contract shall be construed and enforced in accordance with German law, excluding the UN purchase right.

If you have any questions concerning this general terms of trade, please contact us at info@across.net.