We, the Crosscan GmbH, Ruhrstraße 48, D-58452 Witten ("we", "us" or "Crosscan"), offer the sale of hardware products with embedded software, for example, in the form of sensors and article surveillance (EAS antennas, hard tags, adhesive label, labels and security leashes; hereinafter collectively referred to as "Hardware"), the provision of standard software (in particular apps), the installation, maintenance and servicing of the Hardware as well as training on the use of the Hardware (collectively "Support"), the development of bespoke software (in particular interfaces) as well as temporary access to the Crosscan Retail Analytics web application ("Web Application") via the internet.
Part I, General Conditions - Section 1
1.1 These General Terms and Conditions of Crosscan GmbH ("GTC"), together with the offer and any documents to which they refer, constitute the entire agreement ("Agreement") between the parties relating to
1.1.1 the provision of the Hardware and standard software;
1.1.2 the Support and development of bespoke software; and
1.1.3 the temporary access to the Web Application.
1.2 Except for any framework agreement entered into by the parties, this Agreement supersedes all prior drafts, agreements, representations and warranties of any kind, whether written or oral. In the event of a conflict between any provision of these GTC and any provision of a framework agreement agreed with the customer, the respective provision of the framework agreement shall prevail.
1.3 Deviating, conflicting or supplementary general terms and conditions of the customer, including those contained, for example, in an order or a delivery confirmation of the customer, shall not apply unless the parties agree otherwise in writing or we expressly consent to them. This requirement of consent shall apply in any case, even if we act in knowledge of the customer's general terms and conditions.
2.1 The provisions of Part I and Part V shall apply to all services provided by Crosscan pursuant to this Agreement.
2.2 The provisions of Part II apply to the provision of the Hardware and standard software by Crosscan.
2.3 The provisions of Part III apply to the Support as well as the development of bespoke software by Crosscan.
2.4 The provisions of Part IV apply to the provision of the Web Application.
3. Scope of services
The nature, content and scope of the services to be provided by Crosscan are defined in the offer, the service package for the Web Application selected and referred to therein, as well as the service and/or product description of Crosscan on which the respective offer is based.
4. Conclusion of contract; offer and acceptance
Offers are subject to change and non-binding. The order of the service by the customer shall be deemed a binding offer. Orders of the customer can be accepted by us within four (4) weeks after receipt by way of written confirmation (e.g. by order confirmation), activation of the Web Application for the customer or delivery and, if applicable, installation of the ordered Hardware and, if applicable, software. Silence on our part in response to the customer's binding offer shall be deemed to be a rejection of the offer.
Part II, Provision of Hardware and standard software
The provisions of this Part II apply to the provision of the Hardware and standard software by Crosscan.
6. Delivery of the Hardware and standard software; place of performance; passing of risk and shipment
6.1 Crosscan delivers the Hardware and standard software described in the offer, with which a counting accuracy of up to 98% can be achieved.
6.2 Delivery is made by providing the Hardware and standard software at Crosscan.
6.3 The risk of accidental loss and accidental deterioration shall pass to the customer upon provision.
6.4 At the customer's request and expense, the Hardware will be shipped to another destination. Crosscan has the right to determine the type of shipment (in particular packaging, shipping route, carrier).
7. Retention of title
7.1 Crosscan retains ownership of the Hardware until the fees have been paid in full.
7.2 In the event of seizures, an application for insolvency proceedings or other interventions by third parties in Crosscan's rights of ownership, the customer must notify Crosscan in writing without delay.
8. Obligation to inspect and give notice of defects
8.1 The customer will inspect the Hardware and standard software, including any documentation, within five (5) business days as of delivery, in particular regarding completeness and basic functionality. Material defects and defects of title (hereinafter "Defects") that are discovered or could have been discovered in this process must be reported to Crosscan by the customer in writing or by e-mail within additional five (5) working days ("Notice of Defects"). The Notice of Defects must describe the Defects as precisely as possible.
8.2 In the event of a breach of the obligation to inspect and give Notice of Defects, the Hardware and standard software or the documentation shall be deemed approved with regard to the respective defect.
9. Prices, terms of payment, price adjustments
9.1 The customer shall pay the fees agreed upon in the offer for the Hardware. All prices are exclusive of any value added tax, customs duties and other levies payable, unless otherwise agreed.
9.2 If Crosscan ships the Hardware to another destination at the customer's request, the customer shall bear the costs of packaging and shipping in addition to the remuneration referred to in clause 9.1 above.
10. Rights of use
10.1 Rights to embedded software:
If embedded software is provided to the customer as part of the Hardware, the customer is entitled to use this software as intended as part of the Hardware. This includes the right to distribute this software as part of the Hardware to third parties.
10.2 Rights to standard software
If standard software (e.g. apps) is provided to the customer, Crosscan grants to the customer the non-exclusive, perpetual, worldwide, sublicensable, transferable and irrevocable right to load, display, run, and transmit the standard software in whole or in part for the aforementioned purposes.
10.3 Third-party components
If and to the extent the embedded or standard software contains third-party components, the customer shall be granted the following rights of use:
10.3.1 Sublicense: Sections 10.1 and 10.2 apply mutatis mutandis to third-party components for which Crosscan grants the customer rights of use by way of a sublicense. Any special licence terms applicable to third-party components are attached to this Agreement in Annex 2. They shall apply in addition to this Agreement and take precedence over this Agreement to the extent they are inconsistent with it.
10.3.2 Open Source Components: Rights of use to open source software components are granted to the Customer directly by the respective right holders in accordance with the respective applicable open source licences contained in Annex 3 to this Agreement.
11. Material Defects and Defects of title (software and Hardware)
Crosscan's liability for Defects of the Hardware or standard software is limited in accordance with the following provisions.
11.1 Exclusion of warranty
11.1.1 Warranty claims are excluded in case of minor or insignificant deviations from agreed specifications and in case of only insignificant impairment of use. Product descriptions shall not be deemed warranted unless this has been agreed upon separately in writing.
11.1.2 If the parties explicitly agreed for used Hardware to be provided by Crosscan to the customer, warranties for material defects are excluded, unless claims for damages arise out of gross negligence or an intentional breach of obligations by Crosscan, or out of any injury to life, body or health.
11.1.3 If a defect is not caused by the Hardware or standard software provided by Crosscan, but instead by a third-party’s or the customer’s hardware or software products, the customer's shall not be entitled to warranty claims against Crosscan with regard to these defects. This also applies insofar as the customer or a third party commissioned by the customer has made changes or edits to the Hardware or standard software without the consent of Crosscan or has not installed or operated the Hardware properly, unless the customer proves that the changes or edits are not the cause of the Defect.
11.2 Notice of Defects
Defects must be reported in writing with a comprehensible explanation of the symptoms.
11.3 Supplementary performance
11.3.1 If the customer notifies a Defect, Crosscan is entitled and obliged to supplementary performance within a reasonable period of time on two occasions. Crosscan will, in its own discretion, either remedy the Defect (rectification) or deliver a defect-free item (replacement). Crosscan's right to refuse supplementary performance under the statutory preconditions remains unaffected.
11.3.2 Crosscan is also entitled to remedy the Defect by providing a workaround or temporary solution as far as it is reasonable for the customer.
11.3.3 The customer acknowledges that Crosscan successfully remedied the Defect if Crosscan either,
(i) within two (2) weeks as of the customer’s Notice of Defects, releases and makes available to the customer a new version of the embedded or standard software, which remedies the Defect; or, if Crosscan does not release such a new version,
(ii) within three (3) weeks of the customer's Notice of Defects, remedies the relevant Defect or provides the customer with a replacement, workaround or temporary solution as defined above.
11.3.4 If it turns out that Crosscan is not responsible for a Defect, the customer will bear the costs and expenses for rectification, repair and/or replacement.
11.4 After a reasonable number of unsuccessful attempts to remedy the Defect and if the statutory requirements are met, the customer may withdraw from the Agreement, reduce the fees and/or claim damages in accordance with the statutory provisions.
11.5 The customer shall reasonably support Crosscan during supplementary performance. In particular, the customer shall grant Crosscan access to the Hardware, provide the Hardware to Crosscan at Crosscan's request, and integrate corrective measures or replacements for the embedded or standard software provided by Crosscan, or have them integrated by Crosscan. If Crosscan provides a replacement, the customer must return the defective Hardware in accordance with the statutory provisions.
11.6 Claims based on material defects and defects of title shall become statute-barred twelve (12) months after the passing of risk as stipulated in clause 6 (hereinafter “Limitation Period”). If Defects occur within the Limitation Period, the Limitation Period shall be extended by the period during which the Defects are remedied. Several such consecutive periods shall be deemed to be one period as defined by sentence 2 of this clause 11.6.
11.7 The customer's statutory obligations to inspect and notify Crosscan of Defects shall remain unaffected.
Part III, Hardware Support and bespoke software development
The provisions of this Part III apply to the Support and development of bespoke software by Crosscan.
13. Obligations of Crosscan
Crosscan provides the services described in the offer for the Support of the Hardware (see clause 14) and/or services for the development of bespoke software (see clause 16).
14.1 Crosscan will provide Support services for the Hardware, if the parties have agreed on such Support services in the offer or otherwise.
14.2 The Hardware is considered to be fully installed,
14.2.1 when the customer uses the Web Application and the customer successfully dials into the Web Application, or
14.2.2 if the customer does not use the Web Application, when the data is transferred via the data connection provided by the customer, or
14.2.3 if the customer neither uses the Web Application nor provides a corresponding data connection, when the Hardware is physically attached.
14.3 If and to the extent that acceptance of the installation of the Hardware has to take place, acceptance shall be deemed to have taken place when
14.3.1 the delivery of the Hardware and the installation have been completed; or
14.3.2 the customer has failed to take delivery within 30 days for a reason other than a Defect reported to Crosscan that makes the use of the Hardware impossible or substantially impairs it.
15. Obligations of the customer to cooperate in the Support services
15.1 The successful planning and delivery of the Support services requires the customer’s cooperation to a high degree. It further requires the customer to provide all necessary information requested by Crosscan to be provided completely and promptly.
15.2 The customer will provide Crosscan with the information on the sector in which they operate and with the full address of all locations where measurements intended to be analysed by the Web Application take place.
15.3 Additionally, the customer is obliged
15.3.1 to reasonably support Crosscan in the provision of the Support services. In particular, the customer will ensure that the conditions, which are necessary for Crosscan to provide the services, are given on the agreed installation date, especially the requirements for installation communicated by Crosscan ("Installation Conditions");
15.3.2 to provide Crosscan with complete and accurate information required for the performance of the service; and
15.3.3 to provide timely information, also without being requested to do so, about all circumstances and processes that are of importance for the provision of the agreed services.
If the Installation Conditions are not met on the installation date for reasons for which the customer is responsible, the customer must reimburse Crosscan for the costs and expenses incurred by Crosscan as a result.
15.4 The customer is obliged to observe and use
15.4.1 the checklists provided by Crosscan for the processing and/or rectification of reported faults and/or
15.4.2 the instructions issued by Crosscan in this case.
15.5 The customer is obliged to take appropriate and reasonable precautions to prevent unauthorised third parties from accessing the Web Application, the software, any backup copies, documentation and accompanying materials. The customer shall oblige his employees to prevent unauthorised access by means of suitable contractual or other regulations or measures.
16. Development of bespoke software
Crosscan develops the bespoke software specified in the offer for the customer by means of an agile development process.
16.1 The individual steps of software development – from the determination of requirements to specification, development, and programming to the provision to the customer - are carried out in an agile development process. Crosscan will work according to the rules of the "Scrum" development model.
16.2 Agile development model
The Parties have agreed to use "Scrum" as the agile, iterative development model for the bespoke software, which, among others, is based on the following principles:
16.2.1 The development and programming of the bespoke software takes place in several development cycles, so-called iterations (also called "sprints"). In such an iteration, individual functions, functions defined jointly by the parties or combinations of functions of the bespoke software to be developed are planned, programmed until executable, tested, made available for functional testing and approved by the customer. Each such function or combination of functions is usually a piece of software that can run on its own.
16.2.2 Clauses 10.2. and 10.3. shall apply accordingly to the bespoke software provided.
16.2.3 Instead of creating a detailed specification of the bespoke software upfront, the parties define the functions of the bespoke software only roughly in so-called user stories. Such user stories describe the requirements from the perspective of a user using everyday language. A detailed description and specification of the requirements and the functions to be created within the framework of the iterations, if required, only takes place at the beginning of the respective sprint.
16.2.4 The functions or combinations of functions to be programmed in the respective iteration are prioritised by the customer with Crosscan's support before the development and programming work begins. The customer thus decides which functions are to be developed and programmed in which sprint. After the end of a sprint, the customer can define the functions to be developed in the next iteration following the same approach.
16.2.5 After the end of an iteration, the customer can express wishes for new functions of the bespoke software and remove individual functions from the scope. The customer can thus react flexibly to new findings and any changed needs during software development.
17. Obligations of the customer to cooperate in software development
17.1 The agile development model particularly requires the active participation of the customer. The customer is aware that for success of the software development, he must continuously allocate his own resources to a sufficient extent.
17.2 At Crosscan's request, the customer will immediately provide the professional and technical information necessary for the software development, make documents available and take decisions.
18. Term of contract; termination
18.1 The agreement on Hardware Support and bespoke software development shall come into effect upon signature by the parties and shall be concluded for an indefinite period. It may be terminated by either party at any time giving three (3) months’ prior notice.
18.2 The parties may also terminate the agreement on Hardware Support and bespoke software development with immediate effect for good cause. The termination shall be in writing. The following cases shall in particular constitute good cause for termination:
(i) a party intentionally or negligently breaches material obligations or repeatedly breaches non-material obligations under the agreement and does not remedy the breach within a reasonable period of time even after being requested to do so by the other party and it is no longer reasonable for the other party to adhere to the agreement on Hardware Support and bespoke software development,
(ii) insolvency proceedings have been opened or are imminent against the assets of the customer; or
(iii) the Customer is in default of payment of an invoice for more than thirty (30) business days.
The parties agree that the closure of branches does not constitute good cause for termination.
19.1 Support services
For the Support services, the customer shall pay the fees specified in the offer.
19.2 Development of the bespoke software
For the development of the bespoke software as well as for all services in this context, including the grant of rights of use, Crosscan shall receive an expense-based remuneration based on Crosscan's respective current daily rates, in each case plus the applicable VAT.
19.3 If the customer sets up or has set up an interface between the Web Application and a PEP or merchandise management system, costs may be incurred by the relevant system provider. These costs must be borne by the customer, as Crosscan has no control over them.
Part IV, Provision of the Web Application
The provisions of this Part IV apply to the provision of the Web Application.
21. Duties of Crosscan
21.1 The Web Application is operated by Crosscan as a SaaS solution. For the duration of the provision, Crosscan provides access to respective current version of the Web Application. The customer is enabled to use the software stored and running on Crosscan's own servers or the servers of a service provider commissioned by Crosscan via an internet connection during the term of the agreement concerning the Web Application for his own purposes and to store and process his data using the Web Application. A physical transfer of the Web Application or the data stored therein to the customer (for example on a data carrier) does not take place.
21.2 Crosscan will make the Web Application available for use by the customer at the router exit of the data centre, in which the server storing the Web Application is located ("Point of Delivery"), subject to the terms and conditions of this Part IV and the service package selected by the customer. The service packages allow the customer to use the Web Application to the extent defined for the respective service package and thus to evaluate visitor frequency measurements made using the Hardware.
21.3 The customer and the users authorised by the customer can currently use the Web Application via the customer portal accessible at the internet addresses v3.connect.crosscan.com. Crosscan will provide the customer with the customer-specific access data required to use the Web Application.
21.4 The customer ensures the technical requirements for the use of the Web Application are met on his side. Generally, internet access and a standard browser are required. The customer shall keep the browser and operating system of computer used to access the Web Application up to date. In case of a poor internet connection, the Web Application can only be used to a limited extent, in particular the response times are then noticeably slowed down.
21.5 Hosting takes place exclusively in Germany or in member states of the EU or the EEA.
21.6 By using suitable means, in particular virus scanners and firewalls, Crosscan ensures or has an authorised third party ensure that unauthorised access to the customer's data stored in the Web Application and the transmission of damaging data, in particular viruses, are prevented or inhibited, insofar as this is possible with reasonable economic and technical effort. However, the customer is aware that complete protection against harmful data is not possible. If a threat cannot be eliminated by other means in a technically and economically reasonable and promising manner, Crosscan is entitled to delete or have deleted from the Web Application any data of the customer that contains damaging code. Crosscan will inform the customer about this action.
21.7 Crosscan will back up customer's data stored in the database in accordance with current technical standards at least once every working day or have it backed up by a commissioned third party. The backup will be made on magnetic tapes or other suitable media, which may not be deleted or re-recorded for at least the following seven days. The customer shall be responsible for compliance with any retention periods, in particular those under commercial and tax law.
21.8 In order to fulfil the obligation of maintenance, Crosscan will carry out the maintenance and servicing measures required according to the state of the art.
22. Availability of the Web Application
The availability of the web application results from the Service Level Agreement attached to the offer. In addition, the following applies:
22.1 The Web Application is available Monday to Friday from 7:00 a.m. to 6:00 p.m. and Saturday from 7:00 a.m. to 4:00 p.m. CET ("Operating Hours"). Sundays and public holidays are not included in the operating hours.
22.2 The average availability during the operating hours is 90% on a monthly average.
22.3 The Web Application may also be available at times outside the Operating Hours ("Maintenance Hours"), but Crosscan is not obliged to ensure the availability of the Web Application during the Maintenance Hours or to ensure that the Web Application is available without restrictions during the Maintenance Hours. If maintenance is required during the Operating Hours, Crosscan will, to the extent possible, provide the customer with reasonable advance notice. To compensate for this, Crosscan will restrict the regular maintenance times to the same extent.
23. Cooperation obligations of the customer
23.1 The customer must take reasonable action to ensure trouble-free operation of the Web Application and refrain from doing anything that could impair the security and stability of the Web Application. In particular, the customer shall keep the access data secret and ensure that no third party can misuse this data. The customer will oblige the users authorised by him accordingly.
23.2 The customer shall secure the devices on which the Web Application is used against unauthorised access and regularly check them for viruses and other malware. If there is any suspicion of virus infestation or the like, the devices concerned must not be used to access the Web Application.
24. Data processing rights; data protection
For the purpose of providing the Web Application and to the extent necessary to provide the services owed under this Agreement, the customer grants Crosscan the right to reproduce the data that is to be stored by Crosscan for the customer. Crosscan is also entitled to keep the data in a failover system or a separate failover computer centre. In order to eliminate disruptions, Crosscan further has the right to make changes to the structure of the data or the data format.
25. Adjustment of Services
25.1 Crosscan is entitled to make changes to the contractual services in connection with the Web Application, including changes to the features as well as the availability of the Web Application ("Adjustment of Services"). In particular, Crosscan shall be entitled to an Adjustment of Services, if it becomes necessary for an important reason, such as alignment with to technical developments, provieded the performance features of the Web Application are not impaired.
25.2 In case of Adjustments of Services, Crosscan will notify the customer in writing or by e-mail in due time before the adjustment take effect ("Change Notification"). The customer may object in writing or by e-mail to the changes by giving four (4) weeks’ notice as of receipt of the Change Notification.
25.3 If the customer does not object, the Adjustment of Service becomes part of the Agreement. Crosscan will inform the customer accordingly in the Change Notification. If the customer objects, Crosscan may terminate the Agreement on the provision of the Web Application at the end of the next calendar month.
26. Term of contract; termination
26.1 The agreement on the provision of the Web Application shall become effective upon signature by the parties and shall initially be valid for twenty-four (24) months, unless a different minimum term has been agreed in writing ("Initial Term"). It shall be automatically renewed for further one-year periods ("Supplementary Term") unless one party terminates the agreement on the provision of the Web Application in writing giving one (1) month's prior notice to expire at the end of the Initial Term or the Supplementary Term.
26.2 Clause 18.3. shall apply accordingly.
27. Fees and terms of payment
27.1 fee agreed upon in the offer. If the Web Application is provided for a shorter period than a full calendar month, the monthly fee is reduced pro rata temporis. Clause 9.1. sentence 2 applies accordingly.
27.2 Invoicing is done quarterly in advance. The remuneration per quarter is due by the 10th working day of the first month in each quarter. Upon expiry of this payment term, the customer shall be in default.
27.3 If the customer has issued a SEPA business-to-business direct debit mandate, Crosscan is entitled to collect all amounts due by SEPA business-to-business direct debit or credit card. Crosscan's creditor identification number is: DE32CSW00000844360. If the customer has not issued a SEPA business-to-business direct debit mandate, the customer is obliged to pay the invoiced amounts by the due date at the latest.
28. Rights of use
28.1 Since the Web Application runs exclusively on Crosscan's servers or those of Crosscan's appointed service provider, the customer does not need any copyright rights to use the Web Application, nor does Crosscan grant any such rights.
28.2 However, for the duration of the provision, Crosscan grants to the customer the right
28.2.1 to load the user interface of the Web Application into the main memory of the terminal devices used for access in order to display the Web Application on the screen,
28.2.2 to make the resulting reproductions of the user interface, as well as
28.2.3 to use the Web Application for visitor frequency measurement.
This right is non-exclusive, non-transferable, unlimited in territory, but limited in time to the duration of the provision.
29. Warranty for the Web Application
29.1 Crosscan is liable for material defects and defects of title (hereinafter "Defects") of the Web Application in accordance with the following provisions and otherwise in accordance with the statutory provisions.
29.2 In principle, the statutory provisions on warranty apply. In particular, sections 536b and 536c of the German Civil Code apply. However, the application of section 536a para. 2 of the German Civil Code (which stipulates lessee's right to remedy defects himself) is excluded. The application of Section 536a para. 1 of the German Civil Code (which regulates lessor’s liability for damages) is also excluded insofar as this regulation provides for strict liability.
29.3 The customer's right of termination on the grounds of failure to enable use of the Web Application pursuant to section 543 para. 2 sentence 1 no. 1 of the German Civil Code is excluded unless the creation of contractual usage is deemed to have failed. At the earliest, the creation of contractual usage shall be deemed to have failed if Crosscan does not remedy a significant Defect or provide a workaround within a period of four (4) weeks as of receipt of the notice of defects, given the customer has duly performed the cooperation services incumbent upon him in this context. The customer is not entitled to terminate the agreement due to insignificant Defects.
29.4 The customer is obliged to notify Crosscan immediately and as precisely as possible of any functional failures, malfunctions or impairments of the Web Application.
29.5 If functional failures, malfunctions or impairments of the Web Application have been caused by the customer, the telecommunication service provider, the access provider or the mobile phone provider of the customer or otherwise by third parties attributable to the customer, the customer's warranty claims based on this failure, malfunction or impairment shall be excluded.
Part V, General Part - Section 2
The customer will name at least one technical contact and one accounting contact and provide the contact details (including telephone number and e-mail address) to Crosscan. The customer shall notify Crosscan of any changes without delay.
31. Performance time
31.1 Delivery, installation and performance dates stated by Crosscan are non-binding unless Crosscan and the customer expressly agree otherwise in writing.
31.2 The occurrence of default in delivery or performance shall be determined in accordance with the statutory provisions. In any case, a reminder by the customer is required.
32.1 The invoice will be send to the customer by e-mail attachment (pdf file) to the e-mail address provided by the customer, or alternatively, at the customer's request, by post. Crosscan has the right to issue collective invoices for all locations of the customer.
32.2 Invoices issued by Crosscan are due for payment in accordance with the payment term agreed with the customer. Unless otherwise agreed, the term of payment is fourteen (14) days as of the invoice date and payment must be made net without deduction. Upon expiry of this payment term, the customer shall be in default. If the order stipulates that a delivery or service will be made in whole or in part against advance payment, the customer shall pay the remuneration in advance.
32.3 Crosscan has the right to make price adjustments insofar as these are necessary to compensate for cost increases in the procurement of the contractual services, such as increases in the prices for Hardware or the hosting of the Web Application, and insofar as these are reasonable for the customer. Price adjustments are in particular reasonable if they demonstrably only adjust prices to the general price development determined by the consumer price index of the Federal Statistical Office (overall index).
32.4 Crosscan will announce price adjustments to the customer in writing or by e-mail in due time before they take effect ("Change Notification"). The customer may object to changes with a notice period of four (4) weeks as of receipt of the Change Notification in writing or by e-mail.
32.5 If the customer does not object, the announced price adjustments become part of the Agreement. Crosscan will inform the customer accordingly. If the customer objects, Crosscan may terminate the Agreement at the end of the next calendar month.
33. Force Majeure
33.1 In the event of Force Majeure, the party affected by it shall be released from the obligation to perform for the duration and to the extent the performance is affected by the Force Majeure event. Force Majeure means any unforeseeable, unavoidable and uncaused event beyond the control of a party that prevents it from performing in whole or in part, including, but not limited to, fire damage, floods, strikes, epidemics or pandemics, including the COVID19 pandemic, riots, explosions, acts, omissions and actions of any government or compliance with governmental requests ("Force Majeure").
33.2 If a Force Majeure event occurs, the parties shall notify the respective other party without undue delay and provide detailed information within 15 (fifteen) days, in particular on the extent and, as far as reasonably possible, the expected duration of the Force Majeure event.
34.1 Crosscan is liable without limitation in cases of mandatory statutory liability (in particular under the Product Liability Act) as well as if a guarantee was given, in case of culpably caused damage arising from injury to life, limb or health or in the event of other damage caused intentionally, by gross negligence or fraudulently.
34.2 Otherwise, Crosscan's statutory and/or contractual liability is limited as follows:
34.2.1 Crosscan's liability for the slightly negligent breach of essential obligations arising from the contractual relationship is limited to the amount of damages typically foreseeable at the time of the conclusion of the Agreement. Essential obligations arising from the contractual relationship are such obligations whose fulfilment is essential for the proper performance of the contract in the first place, whose non-fulfilment would jeopardise the purpose of the Agreement and whose fulfilment the customer regularly relies on, so-called cardinal or material contractual obligations (“Kardinalspflichten”).
34.2.2 Crosscan is not liable for the slightly negligent breach of non-essential obligations arising from the contractual obligation.
34.3 Indirect damages and consequential damages which are precisely the consequence of Defects in the delivery item are only eligible for compensation insofar as such damage can be typically expected when the Hardware is used in conformity with its intended purpose. The statutory provisions shall apply.
34.4 The typically foreseeable damage is € 500,000.
34.5 Insofar as Crosscan's liability is excluded or limited, this also applies to the personal liability of Crosscan's representatives, employees and vicarious agents.
34.6 The parties agree that the assumption of a guarantee shall always require an express written agreement in which the guarantee shall be expressly designated as a "guarantee". In this case, the limitations of liability under this clause shall not apply.
34.7 The customer is obliged to take all reasonable measures to avert and mitigate damages, which includes in particular an obligation of the customer to regularly back up data and to perform regular downstream security checks (in particular to avert or detect viruses and other disruptive programs in the customer's IT system).
35. Third party property rights
If a third party asserts claims against the customer, which are based on the infringement of copyrights or industrial property rights through the use of the Web Application or the embedded, standard or bespoke software, the customer is obliged to notify Crosscan hereof immediately. Clause 34 remains unaffected.
36. Data protection
36.1 To the extent that Crosscan processes personal data in the provision of services in accordance with this Agreement, Crosscan acts as a processor and the customer remains obliged to comply with the associated requirements as a controller within the meaning of the European General Data Protection Regulation (GDPR). At the same time, the customer indemnifies Crosscan against all claims of third parties as a result of such processing, to the extent that such claims are based on a violation of data protection provisions, which Crosscan as processor is not obliged to fulfil.
36.2 If Crosscan acts as a processor within the meaning of Art. 28 GDPR, the parties shall conclude a data processing agreement in accordance with Annex 1.
36.3 Crosscan has the right to anonymise the counting and measurement data collected by the customer and use this anonymised data for their own purposes.
36.4 Crosscan will delete all data and information upon reasonable request. This does not apply to data and information contained in customary backups (backups that would require a disproportionate effort to delete). For such backups, the parties agree that
36.4.1 such backups will no longer be used and accessed from the time the data is required to be deleted, and
36.4.2 Crosscan will mark such data for deletion and ensure that it is completely, permanently, and irrevocably deleted no later than 180 days after reasonable request.
37.1 The Parties shall treat as confidential all information, documents and data which are business secrets within the meaning of the Act on the Protection of Business Secrets or are marked as confidential or are generally regarded as confidential in business dealings ("Confidential Information"). Any Confidential Information provided by one party to the other party shall be used by the other party only for contractually intended purposes and the receiving party shall not disclose the Confidential Information to any third party without the consent of the other party except
37.1.1 to fulfil contractual purposes,
37.1.2 vis-à-vis external consultants if they are bound to secrecy,
37.1.3 to enforce legal claims against the other party or
37.1.4 to fulfil legal or official obligations.
37.2 The obligation of confidentiality does not apply to information,
37.2.1 which were publicly known or subsequently become publicly known without any fault of the receiving party;
37.2.2 which were already known to the receiving party at the time of conclusion of the Agreement and are not subject to a non-disclosure agreement or
37.2.3 which were disclosed to the party by a third party and are not subject to a non-disclosure agreement.
37.3 The obligation of confidentiality shall continue to apply indefinitely in the event of termination of this Agreement. The parties shall, upon request of the other party, return Confidential Information of the other party upon termination of this Agreement or destroy it to the extent technically possible.
38. Export/import control law
The Hardware or the embedded, standard or bespoke software may be subject to the export and/or import control laws of individual countries. If the customer requires an official permit for the acquisition, transfer, use or other contractual handling of the Hardware or the embedded, standard or bespoke software or has to comply with other official requirements, the customer undertakes to obtain any such permit and/or to bring about compliance with all such requirements at its own expense. If required, the customer shall provide evidence thereof to Crosscan upon request. The customer is solely responsible for compliance with any applicable laws, regulations or other binding rules that may apply to the acquisition, transport, use or other contractual handling of the Hardware and the embedded, standard or bespoke software.
Crosscan has the right to name the customer as a reference on the internet or in other advertising material. Legitimate interests of the customer shall be taken into account.
40.1 Written form
Amendments or supplements to this Agreement are only effective in writing by authorized person (p.e. CEO). This also applies to the waiver of the written form requirement.
40.2 Offsetting and retention
40.2.1 The customer shall only have a right of set-off his counterclaims, if these counterclaims have been legally established or are undisputed.
40.2.2 The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship as our claim and has also been legally established or is undisputed.
Crosscan has the right to engage third parties for the provision of its services as long as this is not unreasonable for the customer in the case at hand.
40.4 Applicable law, place of performance, place of jurisdiction
40.4.1 These GTC as well as the Agreement and individual orders of the customer are subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
40.4.2 The place of performance for all obligations arising from these GTC and the Agreement is Witten, Germany.
40.4.3 The exclusive place of jurisdiction for all disputes arising out of or in connection with these GTC, the Agreement and their performance is Witten, Germany, provided that the customer is a merchant or a legal entity under public law.
40.5 Severability clause
If any provision of this Agreement is or becomes invalid or unenforceable in whole or in part or contains a gap, this shall not affect the validity and enforceability of the remaining provisions.