Valid as of February 2025
1.1 Subject Matter
These Terms of Intershop Communications AG (INTERSHOP) govern the provision of Intershop Platform Services by INTERSHOP for cloud based online presence of a Customer of INTERSHOP.
Such Service chosen by a Customer includes
The exact scope of the INTERSHOP Platform Services and the applicable documents are set out in the individual order together with its appendices or the order-confirmation in case of ordering via the INTERSHOP Customer Service Portal (the Contract).
1.2. Contract Conclusion via the INTERSHOP Customer Service Portal
Upon completion of the Customer's order (clicking on the order button) in our INTERSHOP Customer Service Portal, the Customer submits a binding and chargeable purchase offer. A purchase agreement for the services is only concluded when Intershop expressly declares acceptance of the purchase offer by means of an order confirmation.
INTERSHOP provides the Services described in this Contract. INTERSHOP shall be entitled to commission third party companies or affiliated companies as sub-contractors for provision of the Services or parts of them.
3.1 Term
3.1.1 The term of the Platform Services or parts of them is specified in the Contract.
3.1.2 Term shall commence upon the date of making the Platform Services available as notified by INTERSHOP after closing of a Contract.
3.1.3 Unless otherwise set forth in the Contract, term of Platform Services shall expire after the term set forth in the Contract and shall be automatically extended by additional 12 months periods, unless the Contract is terminated with 3 months’ notice to the end of the then applicable term.
3.1.4 Any different terms for individual optional services can be found in the contractually agreed service description.
3.2 Termination with Good Cause
3.2.1 Termination with good cause by the Parties shall remain unaffected.
3.2.2 A good cause for INTERSHOP will be in particular assumed if
3.2.3 A good cause for Customer will be in particular assumed if
INTERSHOP after notification by Customer in accordance with section 5.1.2 below, is unable to remedy a defect within an appropriate period of time, and Customer cannot be expected to be bound by the Contract any longer.
3.3 Consequences of Termination
3.3.1
In the event of termination, INTERSHOP shall surrender to Customer the entire current Customer data as accurred in the course of fulfilling this Contract one week after the end of term, at the latest. Such data shall be made available by INTERSHOP to Customer in a common data file format.
3.3.2
Any further provision of data is considered as additional service and will be charged additionally.
3.3.3
Any statutory obligations to retain data or records on part of INTERSHOP shall remain unaffected.
4.1 Default
4.1.1
In the event Customer is in default with payments, INTERSHOP is entitled to claim default interest in the statutory applicable amount above the base interest rate.
4.1.2
If Customer is in default with payment of contractually agreed remuneration and does not remedy the default even after receiving a reminder and a further deadline, INTERSHOP, may, without prejudice to other rights, restrict and/or block use of Platform Services by Customer after respective written notification of Customer.
4.2 Set-Off/ Retention
Customer is only entitled to set-off or withhold payments if his counterclaim is undisputed or has been finally determined by a binding court order.
5.1 Contents
5.1.1
INTERSHOP warrants that any Platform Services will be provided with reasonable care and in professional manner in accordance with the essential requirements of the relevant service description. INTERSHOP therefore guarantees neither warrants uninterrupted nor error-free use of Platform Services. System availability rate owed by INTERSHOP bases on the service description included in a respective Contract.
5.1.2
Customer shall notify INTERSHOP immediately of any possible disruptions of Platform Services, after becoming aware of them; such notification must be made in writing with a detailed description of such disruption.
5.1.3
Upon notification in accordance with section 5.1.2 above, INTERSHOP has given the opportunity to remedy such default. If a remedy is materially successful, a possible violation of obligation on part of INTERSHOP shall be considered remedied. If, however, such default cannot be remedied within a reasonable period of time, Customer shall be entitled to terminate the relevant part of the Contract or the entire Contract for good cause, if the Customer cannot be expected to be bound by the entire Contract any longer (see section 3.2.3 above). If INTERSHOP is responsible for a default, Customer may claim, instead of or in addition to termination, reimbursement of damages incurred in the extent set forth in section 9 below.
5.1.4
Any claims and rights due to a defect in performance shall be time-barred after six months of the date when such default has been objected to for the first time or should have been objected to in accordance with section 5.1.2 above.
5.1.5
In all other respects, the warranty period is 12 months.
5.2 Safety
Customer understands and acknowledges that INTERSHOP has no control over data transmission via telecommunication facilities, including the internet, beyond the interface between the network data processing center and internet service providers. INTERSHOP assumes no liability for data transmission.
INTERSHOP does not guarantee secure operations of Platform Services, nor prevention of disruptions by any third parties.
6.1 Confidential Information; Business and Trade Secrets
INTERSHOP and Customer are obliged for an unlimited period of time to maintain confidentiality regarding all information designated as confidential or business and trade secrets that become known to INTERSHOP or Customer in connection with the execution of the contract or which should be reasonably known to the Recipient to be confidential and/or proprietary in nature. Disclosure to third parties not involved in the execution of the contract may only take place with the written consent of the other party.
6.2 Exceptions
The obligation to maintain confidentiality does not apply to INTERSHOP insofar as ideas, concepts, know-how, technologies and data are concerned that relate to software development, provision of software or Platform Services respectively, and that are already known to INTERSHOP, or were known outside of this Contract.
6.3 Obligations of Employees and Other Persons to comply with Confidentiality Regulations
INTERSHOP and Customer shall oblige all persons involved in the execution of this Contract shall be bound by an obligation to comply with these provisions.
6.4 Personal Data
INTERSHOP is authorized to process the entrusted personal data within the scope of the purpose of the Contract or to have it processed by third parties in compliance with data protection provisions. In this case Parties shall conclude a separate data protection agreement.
6.5 Protection of Access Data for Cloud Services
Personal access data shall not be disclosed or forwarded by Customer to any third party and must be kept protected against any unauthorized access or use, whereas integration partners are not deemed “third parties”.
7.1 Cloud Services
As part of the provision of Platform Services, the Customer is granted a temporary, non-exclusive right of use to access the online shop and any adjustments for the duration of the Contract, and to use the functionalities associated with the online shop by using a browser in accordance with the concluded Contract for its internal business purposes and those of its Affiliates. Affiliate means, any company which is directly or indirectly Controlled by or Controls or is under common Control with the Customer. “Control” means the direct or indirect ownership of more than fifty percent (50 %) of the voting interests in such company. The term “Controlled” shall be interpreted accordingly.
If such Control changes to such extent that Customer no longer has the above defined Control over an Affiliate, those Affiliates are excluded from the scope of the Contract beginning from the date of losing Control. If Customer is merged with another company, acquired or similar, the right of use is limited to those Affiliates, that would have been Affiliates before the M&A event; further new Affiliates are not covered by the Contract.
The Platform Services are provided up to the transfer point, the so-called backbone, the router output of the data center used by INTERSHOP.
No further rights shall be granted to the Customer, in particular with regards to INTERSHOP standard software (operating software), customization services (i.e. individually developed software) or other tools used by INTERSHOP to provide services (such as image server, mail server, Jira) or the hardware used. The Customer is not entitled to make the online shop and possible adjustments available to third parties in any way and/or to have it used by third parties and/or otherwise have it made accessible to third parties. In particular, the Customer is not permitted to reproduce, sell and/or rent and/or lease the online shop and/or parts or adaptations thereof for a limited period of time. Customer acknowledges the copyrights to the standard software developed by INTERSHOP.
Customer shall not be entitled to specific hardware or software specially allocated to him. INTERSHOP shall also be entitled to make the most current version of the contract software available to the Customer during the term of the contract; the most current feature list shall apply with respect to the INTERSHOP standard software selected in the packages.
7.2 Third Party Software
Relevant provisions of a service provider apply to third party software.
8.1 Customer’s Duty to Inform
Customer is obliged to immediately inform INTERSHOP about any infringement of protective rights by any third party, and to provide any records and information required for legal defense and prevention.
8.2 Indemnification by INTERSHOP
8.2.1
If infringements of copyright, trademark, patent or other industrial or intellectual property rights are asserted after conclusion of the Contract and if the contractual use of the Platform Services is impaired or prevented as a result, INTERSHOP will defend the Customer against all reasonable claims, provided that the Customer immediately notifies INTERSHOP of these claims in writing. In this respect, INTERSHOP will either provide the Customer with a license for further use or, at its discretion, change the materials so that there is no longer an infringement or, if a change is not possible for reasons for which INTERSHOP is not responsible, reverse the transaction in question and refund the agreed remuneration to the Customer. The Customer must return any benefits derived.
8.2.2
Customer’s right according to section 8.2.1 above is excluded if Customer uses materials that have not been approved by INTERSHOP. The same applies if the materials have been modified by others than INTERSHOP, or if Customer does not use them in accordance with the agreed terms of use, unless such actions are not the cause of the violation described in section 8.2.1 above.
8.3 Indemnification by Customer
Customer indemnifies INTERSHOP and its vicarious agents upon first request from claims that a third party asserts against INTERSHOP due to infringement of protective rights and assumes the further dispute with the third party from the time of the first request, unless Customer is not responsible for such infringement of protective rights. INTERSHOP will support Customer to the extent necessary. Customer shall reimburse INTERSHOP for any associated expenses.
9.1 Liability for Intent and Gross Negligence
INTERSHOP shall be liable for any damage caused by intent or gross negligence on part of INTERSHOP, its statutory representatives, or vicarious agents.
9.2 Liability for Essential Contractual Obligations, Foreseeable Damage
Furthermore, INTERSHOP shall be liable for the ordinary negligent breach of essential contractual obligations. Essential contractual obligations are those obligations (i) whose fulfilment makes the proper execution of this contract possible in the first place, (ii) whose violation jeopardizes the achievement of the execution of this Contract, and (iii) on whose compliance Customer may regularly rely (so-called cardinal obligations). In the event of a breach of essential contractual obligations due to ordinary negligence, INTERSHOP is only liable for damages that are typically foreseeable.
The Parties agree that any damage in excess of the remuneration sum paid by Customer to INTERSHOP for a respective service within the most recent 12 months shall be considered as not typically foreseeable at the time of closing of the Contract, neither in general in connection with the provision of Platform Services, nor taking into account specific circumstances of the concrete Contract.
INTERSHOP is not liable for slight negligent breach of obligations other than those mentioned in the preceding sentences.
9.3 Unlimited Liability In Case of Injuries to Life and Limb; Guarantee of Quality; Fraudulent Intent; Product Liability
The above limitations of liability shall not apply in case of injuries to life and limb, or defects after granting a guaranty for the quality of a product, and in case of fraudulently concealed defects. Liability under the German Product Liability Act remains unaffected.
9.4 Scope of Exclusion or Limitation of Liability
To the extent INTERSHOP’s liability has been excluded or limited, this also applies to any personal liability of employees, statutory representatives and vicarious agents.
10.1 Assistance
Customer shall assist and support INTERSHOP using its best endeavors, and in particular Customer shall provide any required cooperation obligations and supportive services in a timely and complete manner. Any consequences resulting from a breach of this provision shall be borne by the Customer.
Details of the Customer`s obligation to cooperate shall be set forth in a Contract, if necessary.
10.2 Other Responsibilities of Customer
Customer undertakes not to misuse the Platform Services and undertakes not to violate applicable law or official prohibitions. The provision on indemnification pursuant to Section 8.3 shall apply accordingly.
10.3 Restrictability of the Platform Services in Case of Violations of Section 10.2
In case of a violation of Section 10.2, or if such violation is alleged by a third party, INTERSHOP is entitled to (a) restrict Customer’s access to the Platform Services, and/or (b) request Customer to remove the contents in question, or to have them removed. Further rights of INTERSHOP remain unaffected.
10.4 Notification Obligations
10.4.1
INTERSHOP will notify the Customer in advance of any anticipated measures according to Section 10.3, and set the Customer an reasonable deadline to remedy such violations before INTERSHOP takes any of the measures described in section 10.3. This does not apply if such measure cannot be postponed.
10.4.2
Customer shall immediately notify INTERSHOP if circumstances arise in connection with the provision of Platform Services that could result in claims against Customer or INTERSHOP. At INTERSHOP’s request, Customer shall immediately provide all information related to these circumstances.
10.5 Customer Responsibility
Customer is responsible for the content of internet presence. Customer represents toward INTERSHOP that he has all rights and will not violate any third party rights. Customer permits INTERSHOP to host, use, process, display and/or transfer its contents in order to provide the Platform Services under this Contract. Customer further represents toward INTERSHOP that its contents do not contain any viruses, Trojans, worms or other harmful program routines.
Customer is responsible for permissibility of data collection, data processing and data use by INTERSHOP and its sub-contractors. Customer represents toward INTERSHOP that he is authorized to dispose of any data collected in order to enable INTERSHOP to perform its contractually agreed data protection law-related obligations.
10.6 Reference list
The customer agrees that Intershop may add the customer with its name and logo to its reference list. Any additional publications have to be approved by the customer.
11.1 Settlement of Disputes
Any possible disputes or complaints shall be settled amicably, if possible. In particular, each party shall, before taking legal action for non-performance of a contractual obligation, enable the other party to perform such obligation within a reasonable period of time.
11.2 No Transfer of Rights
Unless explicitly agreed otherwise, the Customer is not authorized to market the INTERSHOP Platform Services or parts thereof under this agreement or to make them available to third parties.
12.1 Services
INTERSHOP may, at its reasonable discretion, change and amend fees and terms and conditions for the Platform Services by written notification with a notice period of 90 days’ and with effect for the future. Increase of remuneration is based on general cost increase for INTERSHOP and shall be limited to a maximum of 10% p.a. for to the same quantity of accounting.
Changes of terms and conditions of Platform Services shall in principle apply to new orders, extensions or renewals, unless a change is required for legal reasons at an earlier stage.
In case of a unilateral change of Contract according to the above provisions, Customer shall be entitled to terminate the Contract with 30 days ‘notice before the amendment comes into effect. However, this shall only apply if and to the extent such a change of terms and conditions of the Platform Services is unacceptable for the Customer. Termination requires written form.
12.2 Other Changes of Contract
Besides, any changes of this Contract require written agreement.
13.1 Protective Clause
Any deliveries and services of INTERSHOP are exclusively subject to INTERSHOP’s standard terms and conditions. We object to Customer’s standard terms and conditions.
13.2 Applicable Law; Place of Jurisdiction
The law of the Federal Republic of Germany applies with exclusion of the UN Contract on International Sale of Goods (CISG).
Exclusive place of jurisdiction for all disputes arising from this business relationship with businessmen and public law legal entities, or special funds under public law shall be Jena, unless another place of jurisdiction is mandatory by law.
13.3 Severability
If individual provisions are or become invalid in whole or in part or if the contract contains a loophole, this shall not affect the validity of the contract as a whole or the validity of the remaining provisions. In such case, the contractual Parties undertake to agree on a provision that comes closest to the mutual interests of the Parties as vested in this Contract.
13.4 Written Form Requirement
All agreements containing an amendment, supplement or specification of the terms and conditions of this Contract as well as any termination notice must be made in writing. This written form requirement shall also apply to a cancellation of this written form clause. This written form requirement shall not apply to contracts concluded via the INTERSHOP Customer Service Portal if the functionalities provided in the INTERSHOP Customer Service Portal are used for amendments, supplements or specifications as well as for terminations of these contracts; otherwise the written form requirement shall remain unaffected.
13.5 Completeness
Upon closing of this Contract, all previous verbal and written agreements relating to the subject matter of this Contract shall become invalid.
