valid as of: July, 2011
1.1 The present General Terms of Contract regulate the relationship between the contractor (hereinafter referred to as "Contractor") and INTERSHOP as the customer and are applicable to the provision of subcontractor services by Contractor for INTERSHOP for the purpose of the completion of a contract taken over by INTERSHOP as the main contractor („Main Contract“).
1.2 If Contractor uses General Terms of Contract as well, the contract will come into being also without an express agreement on the inclusion of General Terms of Contract. The present General Terms of Contract shall apply exclusively. Contractor's Terms of Contract shall not apply, even if INTERSHOP does not expressly object thereto.
Contractor, as subcontractor of INTERSHOP, shall provide the services specified in the „Individual Order for Subcontractors“. In this Individual Order for Subcontractors, the details concerning the setting of tasks, period of provision of services, nature and amount of remuneration, etc. are laid down in writing.
3.1 In addition to the Individual Order for Subcontractors and the present Terms of Contract, the main contract shall apply as well, insofar as it has technical and legal relevance for the specification of the subcontractor performance.
3.2 The placing of order on subcontractor services is subject to the suspensive condition of the effective conclusion of the corresponding main contract.
3.3 INTERSHOP reserves the right to withdraw from any Individual Order for Subcontractors in case that INTERSHOP and Contractor are not able to reach an agreement on the adaptation - if required - of this subcontract to the provisions of the main contract, in particular as far as the arrangements of dates, functionalities, prices, warranty, and rights of use are concerned, within 14 days after the conclusion of the main contract, or in case that the key account is willing to conclude or has concluded the main contract on condition that the subcontractor performance will be provided by another contractor. If the main contract has not yet been concluded at the moment of entering into the subcontract, Contractor shall be informed accordingly as soon as the main contract has been signed and the main contract will be included in the order on subcontractor services by a note made by INTERSHOP. In this case, INTERSHOP's right to withdraw is bound to the conclusion of the main contract.
Contractor is neither an employee of INTERSHOP nor bound by instructions given by INTERSHOP. It determines the nature and volume of its activities as well as its working time at its complete discretion, taking into account the respective customer projects. In particular it may also accept orders placed by other companies and use the help of third parties to complete its duties resulting from the order on subcontractor services.
5.1 The payment of taxes on the income from the present contract shall be incumbent on Contractor and its staff members, respectively. Contractor shall also bear the health insurance and social security contributions required. Taxes as well as health insurance and social security contributions to be paid by INTERSHOP to Contractor, whatever the legal ground may be, shall be reimbursed by Contractor to INTERSHOP.
5.2 Contractor agrees not to work again for the key account of INTERSHOP, for whom Contractor has been working under the present contract, on its own account or on account of a third party within a 12-month period, unless having obtained beforehand the express consent of INTERSHOP. Furthermore, Contractor agrees not to hire away INTERSHOP employees and have them work for its company as self-employed or employed persons and not to introduce INTERSHOP employees to INTERSHOP customers or other third parties.
Insofar as admitted by the provisions of the main contract, and to the extent required for specifying the services to be provided by Contractor, INTERSHOP shall disclose to Contractor the main contract and all relevant records related thereto, with the exception of the conditions agreed between INTERSHOP and the key account. Contractor has to treat such information confidentially and is not allowed to disclose it to third parties.
7.1 Without prejudice to the agreed requirements as to subcontractor's services, they have to be in accordance with all relevant legal provisions, the state of science and engineering, and the recognized software-engineering rules.
7.2 Contractor has to check without delay the records handed over to it for the purpose of executing the order; it has to point out errors, incompleteness or inaccuracy, and to propose appropriate changes, if necessary.
7.3 Contractor shall inform INTERSHOP immediately in writing about any circumstances that may jeopardize the scheduled work progress and the punctual completion of the subcontractor services.
7.4 Unless otherwise agreed in a particular case, the contracting parties shall nominate project supervisors authorized to make and accept binding declarations. The project supervisors shall hold regular meetings to inform each other about the work progress.
8.1 Contractor may alter the specification of services and effect other technical modifications only after having obtained the express written approval of INTERSHOP.
8.2 Up to the unconditional acceptance of the complete subcontractor performance, INTERSHOP may demand in writing the alteration of the subcontractor services stipulated in the Individual Order for Subcontractors. Contractor shall be obligated to agree to such request for alteration, as far as it is acceptable for it, in particular in view of the effort involved. If Contractor does not reject the alterations as being unacceptable within two weeks after having received INTERSHOP's request for alteration and if it does not prove the unacceptability with appropriate means, Contractor shall have to provide the modified services.
8.3 In the event that the alteration of subcontractor services influences contractual provisions, e.g. remuneration or time scheduling, a change-conditioned adaptation of these provisions, taking into account the additional or reduced expenditure, shall be agreed on Contractor's request. The adaptation of the remuneration shall be subject to the criteria underlying the Individual Order for Subcontractors. Contractor has to assert such requests for alteration in writing within 2 weeks after receiving the request for alteration from INTERSHOP. If Contractor fails to observe this time limit, the changed subcontractor service shall have to be provided on the terms agreed in the individual order.
9.1 Unless otherwise agreed, the remuneration stipulated in the Individual Order for Subcontractors shall be a fixed price remuneration.
9.2 Statements of accounts will be prepared on a monthly basis or for the times agreed in the Individual Order for Subcontractors (acceptance of parts, milestones). Contractor has to charge INTERSHOP for its services. An acknowledged performance record has to be attached to the corresponding invoice. In this respect, the hours worked by Contractor have to be confirmed in writing on the "Order/Certificate of Services provided" form, and, if remuneration according to the work progress (acceptance of parts, milestones) has been agreed, the acceptance of the work results on the „ Declaration of Acceptance“ form, either by the key account for whom Contractor is working within the scope of this contract, or, as an exception, by the INTERSHOP project supervisor present on site.
9.3 The remunerations shall cover in any case all Contractor services required to fulfill the contract properly, completely and on schedule. In particular, Contractor may not assert claims beyond this remuneration due to material possibly used. Traveling and other expenses shall be reimbursed only after having agreed thereupon expressly and in writing. The remuneration agreed is to be understood plus the statutory VAT.
10.1 The subcontractor services are subject to an acceptance test regarding the elements specified in the contract for work. The acceptance test has to be documented in an acceptance report.
10.2 Contractor shall notify INTERSHOP in writing on the completion and readiness for the acceptance test of its services. Unless otherwise agreed, the subcontractor services shall be subjected to a functional test. Neither the actual putting into use of the subcontractor performance nor its payment shall bring about the effect of the acceptance of the performance. Once the functional test has been completed successfully and the subcontractor performance has been assessed as being according to contract, INTERSHOP will declare its acceptance. If appropriate, the details of this functional test are to be agreed separately between Contractor and INTERSHOP. If there is no such agreement, the acceptance shall be performed - in case of doubt - by INTERSHOP according to the provisions and criteria laid down in the main contract.
10.3 If the order is subdivided into subtasks, an acceptance test of partial services shall take place upon completion of each subtask (acceptance of part). Contractor and INTERSHOP shall expressly agree upon the question whether and to what extent acceptance tests of parts shall be carried out, considering the provisions of the main contract. Subject matter of the last acceptance shall be the last partial service and the interaction of all partial services, consequently the acceptance of the overall performance.
10.4 In the event that deficiencies are detected during the functional test within the acceptance procedure, INTERSHOP will write down these deficiencies in the acceptance report and demand corrective action from Contractor, setting a reasonable time limit. The acceptance test will be considered as interrupted for the time required to remove the deficiencies. After Contractor has removed the deficiencies detected by INTERSHOP, Contractor shall offer its services again to INTERSHOP for acceptance.
10.5 If the corrective action fails in spite of the time limit fixed in writing by INTERSHOP, INTERSHOP shall be entitled to reject the corrective action by Contractor and, instead, carry out the corrective action itself or have it carried out at the expense of Contractor. Apart from that, INTERSHOP reserves the right to assert warranty claims for all deficiencies not eliminated with the rework.
10.6 Apart from that, INTERSHOP is entitled to refuse acceptance in case of defective subcontractor performance, even if the services agreed in the main contract between INTERSHOP and the key account have already been accepted. It is consequently understood that the acceptance of the services does not include the acceptance of the subcontractor performance.
10.7 In the event that, as an exception, it has been agreed that the acceptance shall be effected by the key account together with the acceptance or, possibly, the acceptance of a part of the services provided under the main contract, Contractor cannot require from INTERSHOP the initiation of the acceptance procedure, if it is already visible at this point of time that the subcontractor performance does not yet meet the acceptance requirements.
11.1 Contractor warrants that the subcontractor performance provided is in accordance with the characteristics assured under the contract, free from errors that would make its use impossible or reduce its usefulness presupposed according to the contract.
11.2 The warranty period depends on the warranty period of the main contract. It shall commence on the day of acceptance of the complete subcontractor performance by INTERSHOP. Contractor is obligated to eliminate immediately any deficiencies appearing during the warranty period.
11.3 Contractor agrees to offer the further development and upkeep of the project-specific results at generally accepted market prices after the warranty period has finished, taking into account that this service will be guided by the requirements of the key account.
12.1 Contractor guarantees that the subcontractor performance is free from third party's rights that would exclude, restrict or hinder the utilization by INTERSHOP and the key account, respectively. Contractor exempts INTERSHOP and, upon INTERSHOP's request also the key account, from any claims of third parties for the alleged violation of property rights, including all costs accrued.
12.2 The utilization of the work results (in object and source code form and relevant documentation, if applicable) obtained through the activities for INTERSHOP by Contractor has to be agreed in writing with INTERSHOP. In case that the services provided by Contractor lead to the arising of copyrights or other intellectual property rights, Contractor grants INTERSHOP already today the fully paid up, irrevocable, exclusive, transferable, unlimited right to use and modify the work results, create derivative works within the scope of the business operated by Intershop or the key account.
12.3 The acquisition of title by INTERSHOP, resulting from the aforementioned regulations, shall be compensated by the remuneration of the subcontractor performance.
13.1 The contract shall take effect from the respective date of the Individual Order for Subcontractors.
13.2 INTERSHOP may terminate the contract concluded with Contractor in accordance with the legal provisions of §§ 621 et seq. and 649 BGB [German Civil Code] at any time without complying with any period of notice.
13.3 In case of termination, INTERSHOP shall remain obligated to pay for the subcontractor services provided up to this time. Any services not provided by Contractor shall be considered as saved expenses. If Contractor alleges to have saved less expenses than it would still have had to spend after the termination in order to fulfill the contract, it will have to prove it by appropriate means.
13.4 If INTERSHOP terminates the contract due to reasons for which Contractor is responsible, INTERSHOP will have to pay only for such parts of the subcontractor performance that can be used by INTERSHOP. In all other respects, Contractor shall be liable for compensation.
13.5 The notice to terminate must be made in writing for reasons of proof.
Contractor shall provide the services by itself or have them provided by adequately qualified personnel. If the main contract expressly prohibits the employment of subcontractors other than Contractor, Contractor shall neither be entitled to conclude subcontracts without the prior written consent of INTERSHOP, nor to place the order in the hands of another company. For commissioning third parties, i.e. also if a prohibition to employ third parties has not expressly been agreed in the main contract, Contractor shall be obligated to ask INTERSHOP whether employment has been prohibited.
15.1 Contractor shall use any information, records and materials received from INTERSHOP or from the key account in connection with the subcontractor performance, exclusively for providing the subcontractor performance.
15.2 Contractor is bound to secrecy, without any time-limit, with regard to any information or business and trade secrets designated as confidential, which have been disclosed to it by INTERSHOP, the customer or third parties in connection with its activity with the INTERSHOP customer or which otherwise have become known to it.
15.3 The disclosure of such information, records or materials, or rather business and trade secrets, is only permitted to the extent that is indispensable for the provision of the subcontractor services; agents have to be bound to observe secrecy in accordance with the aforementioned provisions.
16.1 All claims based on the present contract shall be governed by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Venue for the settlement of any and all disputes arising from and in connection with this contract shall be Jena.
16.2 Amendments and supplements to these terms as well as special undertakings and arrangements shall be taken down in writing for reasons of proof. No oral agreements have been made.
16.3 If any provisions of this contract should be void, the other provisions will remain in full force and effect.
