valid as of: March 15, 2018
This Agreement lays down provisions regarding the use of Oracle software in conjunction with the standard software, Intershop 7 or a later version of Intershop Software, when Users procure this use via the Intershop Communications AG (Intershop).
2.1 User
A User is an authorized User of the Intershop software and the Oracle software who holds the right as a direct contractual partner of Intershop or a contractual partner of a reseller (sales partner) to use Intershop software together with the Oracle software.
2.2 Use/Installation
Use of the Oracle software occurs with each exchange of the Intershop Software with the Oracle software regardless of whether an exchange is limited to data or involves data and functions.
3.1 Licensing of the Oracle software according to this EULA takes place only for natural or legal persons who have signed a contract with Intershop regarding the use of the Intershop Software and the Oracle software.
3.2 In terms of content, use of the Oracle software in regard to content is restricted to the scope of use for the application package for the Intershop software and the internal business purposes of the User. The individual contract between Intershop and the User can contain further details concerning scope of use. If the use of the application package applies to an outsourcing process, the User shall have the right to use the Oracle software in the outsourcing process as long as the outsourcing service provider is obligated to observe and comply with the provisions of this EULA.
3.3 The User‘s right to use Oracle software also encompasses use for carrying out interactions between the User and User’s customers and suppliers.
3.4 The User shall be granted a simple, non-exclusive and, depending on the regulation in the individual contract, a perpetual or a time-limited right of use for the Oracle software.
3.5 The User shall not have the right to assign or sublicense Oracle software user rights unless corresponding express permission has been given by Intershop and/or Oracle.
4.1 Intershop expressly points out that Oracle is the proprietor of the intellectual rights concerning the Oracle software made available. The User shall recognize these rights regarding the relevant Oracle software.
4.2 The User is not allowed to make any copies in part or in whole of the Oracle software covered under this EULA or to give said software to third parties if this is not expressly permitted by law or under the terms of this EULA. Furthermore, the User is not permitted to use the Oracle software to develop software or software parts similar to it.
4.3 Oracle is the proprietor of the industrial property rights (trademarks, patents, etc.) connected with the Oracle software that is provided by Intershop in conjunction with this EULA. The User is forbidden from removing or altering copyright notices, serial numbers, or any other features whose purpose is program identification, or any other notices of proprietary rights. Intershop expressly points out that any infringement of or attempt to infringe upon the intellectual or industrial property rights regarding the Oracle software is punishable by law (§§ 106-108b UrhG [German Copyright Act]) with fines or imprisonment of up to five years.
5.1 The User may not assign and/or transfer the licensed Oracle software to third parties (natural or legal persons) without express permission from Intershop and/or Oracle.
The User does not have the right to make any security interests in the Oracle software and/or the services provided by Intershop and/or Oracle in connection with the Oracle software available to third parties.
5.2 The User does not have the right to rent or lease the Oracle software to others, or to use it for time-sharing or subscription services.
5.3 The User is forbidden from making the Oracle software available in any way to third parties for their business operations unless such a use by the User has been expressly permitted in writing by Intershop and/or Oracle.
6.1 The User is prohibited from engaging in any reverse translation of the program code made available for use into other code forms (decompilation) or other methods/processes with which the basic system architecture underlying the Oracle software can be analyzed for reconstruction (reverse engineering), including any alterations to the program.
6.2 Removing any copy protections or similar protective routines is not allowed without the knowledge or cooperation of Intershop and/or Oracle. However, the User shall have the right to make a sufficient number of program copies for licensed use and a copy of each program data carrier.
6.3 The User shall have the right to edit or decompile the Oracle software if this is necessary to achieve interoperability between the Oracle software and other programs (in particular, but not limited to, Intershop 7 software or its later versions) or to eliminate errors in the Oracle software if the information necessary to do this is not made accessible to the User by Intershop and/or Oracle after being requested by the User and the User has duly informed Intershop and/or Oracle in advance of any such action listed above.
7.1 Intershop shall be fully liable for damage caused willfully or through gross negligence for which Intershop or Oracle, or a legal agent or vicarious agent of these firms, is culpable or in cases in which a feature of the Oracle software is missing although Intershop and/or Oracle has guaranteed it. Intershop shall be liable for the contractual breach of a cardinal duty; however, in cases where this damage is the result of simple negligence, liability will be limited to the foreseeable damage that typically occurs in such cases.
7.2 Liability for any other damage shall be precluded. In particular, Intershop shall not be liable for direct or indirect loss of profits, corrupted or lost data, transmission errors or errors in received data, business interruptions or other business-related damage or losses that could be due to the non-usability of the Oracle software, regardless of whether such claims are based on contract, warranty or other liability for damages.
7.3 Claims arising from the German Product Liability Act (Produkthaftungsgesetz), or from liability for damage to life and limb, or from other German statutes, according to which a limitation of liability is not permissible, shall remain unaffected by the provisions contained herein.
8.1Intershop or a third party designated by Intershop shall have the right to inspect the use of the Oracle software by the User to verify the licensed Oracle software, the back-up copies and any licensing regarding these. Upon request, the User shall enable Intershop to verify the proper use of the Oracle software, including verification on-site. In particular, Intershop or its designated third party shall inspect that the User is using the program in a qualitative and quantitative manner within the limits of the scope of the license granted to the User. Intershop or its designated third party will conduct such an audit during normal business hours after duly giving notice in advance. Intershop and its designated third party shall observe the confidentiality of the information obtained in this and safeguard the interests of the User in ensuring non-disclosure of his business secrets..
8.2 Intershop has the right to report the results of the audit to Oracle.
8.3 Cooperation of the User is required in the conduction of the audit by Intershop or a third party authorized by Intershop. Any costs connected with this shall be borne by the User.
9.1 The User is not allowed to publish the results of comparative benchmark tests that include the Oracle software.
9.2 No contractual relationship exists between the User and Oracle unless this is expressly agreed upon between Oracle and the User. The contractual relationship regarding the Oracle software falling under this EULA exists only between Intershop and the User.
9.3 Oracle is the third-party beneficiary under this EULA, meaning that Oracle is owed contractual duties but does not itself owe any under this EULA. Oracle has no duties or obligations to fulfill based on this EULA.
9.4 The Oracle software can contain a source code which Oracle usually provides with delivery. The same provisions apply to the source code as to the object code for the oracle software.
9.5 It is expressly pointed out to the User that technology from third parties which is potentially compatible with or required to use of some Oracle computer programs is listed in the application package documentation or elsewhere. Use of such technology provided by third parties in connection with this application package is only permitted in accordance with the application package documentation or in the applicable license agreement for the third-party technology. Their use shall not be based on the provisions of this EULA.
10.1 The User shall receive the following support from Intershop in connection with the Oracle software if such support has been made available by Oracle: regular software updates, software fixes, security warnings, critical patch updates; this shall also include tax-related, legal and regulatory software updates if these have been made available by Oracle. If applicable, upgrade scripts, certifications related to new third-party products/third-party versions and product-related and technical releases, if and when Oracle makes them available.
10.2 No additional support is offered to the User by Intershop and/or Oracle within the scope of this EULA.
10.3 If the User requires additional support for the Oracle software, the User must conclude a support and maintenance contract with a third-party provider. Intershop is able to suggest third-party providers upon request by the User. It is solely the decision of the User whether or not to negotiate contract terms for support and maintenance with the third-party provider and to judge if the services offered correspond to the needs of the User. Intershop shall not be liable for recommending a third-party service provider.
11.1 The right to use the Oracle software shall begin upon signing the individual contract between Intershop and the User.
11.2 The User shall be obligated to discontinue using the Oracle software if use of the Intershop software is terminated or otherwise stopped. In such a case, all program copies and copies of the documentation are to be destroyed or returned to Intershop. In the event that a temporary right of use is granted, this obligation shall apply accordingly at the end of the contractually agreed period of use.
12.1 The User is obligated to observe in full all relevant export rules and regulations of the United States of America, as well as all other applicable export and import laws.
12.2 The law of the Federal Republic of Germany shall apply to all claims arising from this EULA. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
12.3 Legal venue shall be Jena, Germany.
12.4 If a provision contained in this EULA should be invalid, the validity of the remaining provisions shall be unaffected. If this EULA should have a gap, a provision most closely reflecting what the parties would have intended had they considered the issue shall be considered valid.
12.5 Any and all agreements containing an amendment or supplement to, or further specification of, this EULA, or any special guarantees or agreements must be written down. This requirement for written form shall also apply to any waiver of this clause requiring written form.
