valid as of: February 2016
1.1 These general terms and conditions regulate the perpetual licensing of the Intershop standard software “IOM” (subsequently referred to as “Software”).
1.2 Only these general terms and conditions apply. Terms and conditions of the party receiving the software for future use (subsequently referred to as the “User”) are not valid, even if not explicitly stated by Intershop. The terms and conditions presented in this document also apply if Intershop knowingly renders services due that are in conflict with the User’s terms and conditions.
2.1 The User is an authorized User of the Intershop Software who acquires or rents or legitimately uses the Software either as a direct contractual partner of Intershop or as a contractual partner of a reseller (sales partner).
2.2 Standard software is manufactured in advance and is intended for the Use of a multitude of Users. Standard software is not custom-made for the individual needs of the User.
2.3 Documentation provided to the User for Use with the software shall include, as available, all documents that are necessary for understanding, explaining or using the software as intended. The documentation is meant to inform the User of the structure, efficiency, Use and conditions for Use of the program. Documentation may be available in digital form.
2.4 The Feature List describes the individual properties and characteristics of the software, as well as the limits of its intended Use.
2.5 Use is defined as the transfer and loading of Intershop software to a computer’s memory, installing or displaying the software, and running it on a computer for the purpose of using the software functionality that is described in the documentation.
3.1 The right to Use the software is granted to the User by a separate agreement between the User and Intershop.
3.2 The right to transfer User rights, to copy the software, to deploy multiple installations, and to modify the program are also subject to the terms and conditions of the separate agreement between Intershop and User.
4.1 A contract will be concluded by an order and a confirmation of that order. In the case of non-binding offers a valid contract comes into force only when Intershop explicitly confirms an order from the contractual party in writing.
4.2 Unless specifically mentioned in a separate written and signed agreement, the Intershop price list valid on the date the contract is signed shall apply.
4.3 The value-added tax shall be added to the prices listed.
4.4 All fees are due upon receipt of an invoice and must be paid in full.
4.5 Intershop delivers the software only after the total amount invoiced has been paid.
4.6 Intershop remains the sole owner of software, data media and documentation until all invoices associated with this contractual agreement are paid in full.
4.7 By asserting the rights arising from retention of title, Intershop may revoke the Users right to use the software The User must destroy any copies of the software that have been made.
5.1 All agreements must be made in writing, deadlines and time-periods verbally specified by Intershop shall be non-binding.
5.2 Intershop is entitled to complete a delivery of products and services in several parts.
5.3 All deliveries shall be sent at the cost and risk of the User.
5.4 The location of service to be rendered shall be Jena, Germany.
6.1 The User must immediately verify, that the software, including all data media and documentation, is free of any defects, is not missing any data, and that all functions of the software are operating properly. The description of the defects must include a technically reproducible detailed description of the defect. In case of defects that are not immediately apparent, the User may report the defect within the warranty period, immediately upon detection.
6.2 The User shall describe defects precisely in a written notification, especially the symptoms of the detected defect.
6.3 If the User does not comply with the duty to examine the product and give notice of defects, the software shall be deemed approved as is, including any deficiencies.
7.1 Intershop commits itself to providing the User with software that is free of content defects and defects of title. The software is considered free of content defects when it meets the requirements of Use agreed upon via contract.
7.2 In the case that the software is not free of content defects or defects of title, the User has the right to defect-free software. In this case, within a reasonable amount of time, Intershop is either to remove the defect from the existing software, or to deliver a new defect-free product. If Intershop delivers a new defect-free product, Intershop reserves the right to request the return of the original defect product. Only after the unsuccessful second attempt at a replacement of the defect product may the User request a reduction in cost or a cancellation of the contract.
7.3 Intershop may, under good faith, refuse to provide a replacement if the effort required is disproportionately high when compared to the value of the contract between Intershop and the User. In this case, the User has the right to request a reduction in cost or a cancellation of the contract.
7.4 Information in brochures and other documents are merely product descriptions and do not provide any guarantee. Guarantees require a detailed and signed written confirmation from Intershop.
7.5 The statute of limitations for contractual claims for damages by the User against Intershop is twelve (12) months after handover to the carrier.
8.1 Intershop shall only be liable for willful misconduct or gross negligence on the part of Intershop itself or its employees.
8.2 In cases of ordinary negligence, Intershop shall only be liable if an obligation whose observance is of particular significance for achievement of the purpose of the agreement and can therefore be considered to be fulfilled (cardinal obligation) is violated. If in such cases a cardinal obligation is violated, liability shall be limited to a maximum of the total amount of the license fee already paid by the User. Both parties retain the right to prove a higher damage provided that such damage is typically expected in the framework of software Use.
8.2 Liability according to the product liability laws remains valid (i.e. § 14 German Produkthaftungsgesetz) for bodily harm or liability due to an explicit guarantee.
8.3 In the case data loss, Intershop is only liable for the costs of necessary reconstruction from back-up copies, i.e. safety copies prepared on a regular basis.
8.4 Intershop is responsible for ensuring that the software is free of third party patents that exclude or restrict the User’s rights of Use. Otherwise, Intershop shall support the User in court and shall indemnify the User from any existing claims to compensation for damage, unless the User Uses a program that has not been released by Intershop, Uses the software after it has been changed by a party other than Intershop, or Uses the software with programs not licensed by Intershop or in a manner that is not in adherence with the terms of Use agreed upon via contract. As a precondition for the above, User has to inform Intershop immediately in writing about such claims and allows Intershop upon request and at Intershop’s cost – as between User and Intershop – to defend against and control such proceedings. The User shall reasonably support Intershop hereby and shall make all necessary information available to Intershop.
9.1 The law of the Federal Republic of Germany, excluding the UN sales law, applies for all claims arising from the contract. In addition, the provisions of the export administration law of the United States shall apply.
9.2 Jena, Germany, is the place of jurisdiction for all disputes arising from the contract.
9.3 Additions or modifications to these contractual obligations must be made in writing and enter into effect only when signed by both parties. Declarations made by Intershop representatives shall only be binding with written consent from Intershop.
9.4 Should one or more provisions of this Agreement be or become invalid, then this shall not affect the validity of the remaining provisions. The invalid clause shall then be replaced by a valid clause that comes as close as possible, in its economic purpose, to the original intent of the invalid clause.
