valid as of: June 27, 2016
1.1 These present General Terms and Conditions apply to the temporary supply of Intershop Standard Software.
1.2 The User intends to deploy the Software in his company for a limited period of time. Therefore, Intershop grants the User use of the Software for a limited period of time under a separate offer, i.e. contract, and to this effect supplies the User with the most recent version of the Software as at the time of the conclusion of contract, unless the offer provides otherwise.
1.3 Intershop’s present General Terms and Conditions apply exclusively. Intershop does not acknowledge or accept any of the User’s general terms and conditions, even if Intershop does not expressly object to them. The same applies if Intershop is aware of opposing general terms and conditions of the User and nevertheless performs the obligations owed.
2.1 The subject matter of these present terms and conditions is the temporary supply of the Software and the assignment of the rights required to use it under the contract as according to Sect. 3 hereunder.
2.2 Prior to the conclusion of the contract, the User has verified that the specifications of the Software correspond with his intentions and requirements. He is aware of the fundamental functional characteristics and requirements of the Software.
2.3 The scope, nature, and quality of the supplies and performance is subject to Intershop’s offer or the contract signed by both parties, otherwise Intershop’s confirmation of order. Other specifications or requirements shall only become part of the contract if so expressly agreed by the contracting parties in writing or if confirmed by Intershop in writing. Subsequent alterations of the scope of performance shall only be effective if mutually agreed in writing or confirmed by Intershop in writing.
2.4 The technical aspects of the delivery of the Software shall be agreed by the parties; in the absence of any other agreement, the program and the documentation/manual are at Intershop’s option delivered either on CD-ROM or by submitting user credentials for an electronic download location. Credentials and download location must be treated in strict confidence. The User shall have no right to the source code.
2.5 Product descriptions, illustrations and test programs are descriptions of performance but not guarantees or warranties. A guarantee/warranty shall only be effective if declared in writing by Intershop’s management board.
2.6 Installation and configuration services are not part of the subject matter of these Terms and Conditions, but may be agreed separately by the parties.
2.7 The User shall take reasonable precautionary measures for the event of a full or partial failure of the Software (e.g. back-ups, failure diagnostics, regular checks of the findings, emergency planning). The User is responsible for securing the operative environment of the program.
2.8 Updates of the Software shall only be supplied under a separate agreement, except for the purpose of remedying defects.
3.1 The User shall be granted a non-exclusive, non-transferable, and not sublicensable license, that is limited in time to the agreed term of the contract and the EULA, to install and use the Software as provided by the contract and the EULA, the documentation, and the provisions of these present Terms and Conditions.
3.2 The Software is licensed for the scope of functional use specified in the individual contract. The scope of functional use is determined by the type and quantity of transactions or modules. When using the Software, the scope of the license specified in and thus permitted under the contract may not be exceeded.
4.1 Any delivery and performance dates stated are non-binding, unless Intershop has classified them as binding in writing.
4.2 Delivery and performance dates shall be extended by the period of time in which the User is in arrears with payment and by the period of time during which Intershop is prevented through no fault of its own from carrying out delivery or performance, and by a reasonable start-up time as from the cessation of the causes of prevention. Such circumstances also include force majeure and industrial action. Time limits shall also be considered extended by the period of time during which the User breaches the contract by failing to perform a contractual obligation to cooperate, e.g. by failing to grant information or access, or by failing to deliver material or make employees available.
4.3 If the contracting parties subsequently agree upon other or additional services or performance having an impact on the time limits agreed, these time limits shall be extended by a reasonable period of time.
4.4 If the User issues demand letters or fixes additional time limits they shall only be effective if in writing. Additional periods of time must be reasonable. A time limit of less than two weeks is only reasonable in the case of particular urgency.
5.1 Unless otherwise agreed, the agreed fee shall be due and payable in full within 14 days from delivery of the Software and invoicing. Unless otherwise agreed, Intershop’s list of prices and conditions shall apply.
5.2 Intershop reserves the right to modify by the end of the first year of the contractual term the fee after written notice observing a period of six weeks with effect to the end of the contractual year. Such modification may not exceed the fees for the previous twelve month’s period by more than 15 percent. If the fee is increased by more than 15 percent of the fees for the previous twelve month’s period, the User may terminate the contract in writing giving 2 week’s notice to the date on which the increase takes effect.
5.3 In the event that the contract is extended under Sect. 15.1 of this present agreement, Intershop reserves the right to adjust the fees to the Standard Price List in effect at that date. In the case that the prices for any contractual performance are changed, Intershop agrees to notify the User thereof three months before the end of a contractual year, at the latest.
5.4 The User shall pay separately for services that are not covered by the subject matter of the contract. In such cases, the rates applicable as per Intershop’s Standard Price List apply.
5.5 Travel costs, expenses, accessories, etc. shall be paid at cost. Additional services ordered by the User (e.g. advice and support during program installation) will be brought to account on the basis of Intershop’s current price list.
5.6 All prices are plus the statutory VAT.
5.7 The User may only set-off claims that are undisputed by Intershop or if they are established by final court judgement against which no legal recourse is possible. With the exception of the cases of Sect. 354 a HGB (German Commercial Code), the User may only assign claims under this contract to third parties with Intershop’s prior written approval. The User is only entitled to claim a right of retention or raise the defence of non-performance inside this present contractual relationship.
6.1 The service offer also includes the performance of Support services during the contractual term.
6.2 Accordingly, Intershop warrants that the contractual quality of the Software is maintained during the contractual term. Intershop shall remedy any defects appearing in the quality of the Software within a reasonable period of time. The individual service obligations are specified in the separate annex „Support“. Support does not comprise any upgrades.
7.1 Immediately upon delivery or granting accessibility according to commercial law (Sect. 377 HGB (German Commecial Code), the User shall inspect through a qualified employee all goods delivered by Intershop for any obvious non-conformity or defects, obvious incompleteness, or the complete absence of the documentation and for the functionability of all program functions, and to give written notification of any defects ascertained stating and describing precisely the defect. The foregoing also applies to the download location in case of electronic delivery.
7.2 The User shall thoroughly test every module for its useability in the specific situation prior to commencing productive operation. This also applies to software obtained by the User under the warranty.
8.1 Under these present Terms and Conditions, Intershop warrants that the contractual quality of the Software is maintained during the contractual term.
8.2 Defects are remedied at the discretion of Intershop either by gratuitous repair or by replacement.
8.3 The User may only terminate the contract under Sect. 543 (2) No. 1 BGB (German Civil Code) on the grounds of a failure to grant the contractual use if Intershop has been given sufficient opportunity to remedy the defect but has failed to do so. A remedy of the defect may only be considered failed if it is impossible, repudiated, or unreasonably delayed by Intershop, or if reasonable doubts exist as to the prospects of success, or if it is unreasonable to the User for other reasons.
8.4 The User’s rights arising from defects are excluded if the User modifies, or arranges for modifications of the Software to be made, without Intershop’s prior approval, unless the User provides evidence that such modifications do not unreasonably (for Intershop) impair the analysis and remedy of the defects.
8.5 The User’s right to carry out the remedy on behalf of Intershop under Sect. 536 (2) BGB is excluded unless the User provides evidence that Intershop’s interest in secrecy, in particular in relation to the Software’s source code, is appropriately protected.
9.1 Intershop shall only pay damages or reimbursement of futile expenses, whatever the legal cause (e.g. contractual and non-contractual obligations and transactions, defects in quality or title, breaches of obligations, or tort), subject to the following limitations:
a) liability for wilful intent, and under a guarantee is unlimited.
b) In cases of gross negligence, Intershop shall be liable in the amount of the damage that is foreseeable at the time of the conclusion of the contract and is typical for the type of contract.
c) In the case of a less than grossly negligent breach Intershop’s obligations, Intershop’s liability is limited to breach of an obligation that is so fundamental to the contract that the achievement of the subject matter of the contract is at risk (cardinal obligations; in particular delay). Intershop shall in these cases be only liable in the amount of the damage that is foreseeable at the time of the conclusion of the contract and is typical for the type of contract, however not exceeding the underlying order value.
9.2 Intershop is free to raise the defence of contributory negligence. In particular, the User is obliged to back up data and institute state-of-the-art anti-virus measures. In the case of data loss, Intershop shall be liable only in the amount of the reconstruction efforts that are necessary if back-up copies exist.
9.3 In the case of an injury to life, the body, or health, and in the case of claims under the German Product Liability Act, the statutory provisions apply exclusively.
10.1 Unless otherwise agreed, the term of the contract is at least 3 years from the conclusion of contract. The contract is extended by at least one additional year unless it is terminated by one of the contracting parties giving at least three month’s notice to the end of the relative contractual year.
10.2 The right to terminate the contract without notice for sound cause shall not be affected. A sound cause shall include the case that the User is in arrears with the performance of his contractual obligations, in particular the obligation to render accounts and make payments, or if the User uses the Software in excess of the usage permitted under this present contract and does not cease to do so within a reasonable period of time after having received a demand letter from Intershop.
10.3 Notices of termination, whatever the cause, shall only be valid if in writing. The calculation of the time limits to be observed shall commence on the day of receipt by the recipient.
10.4 In the case that notice of termination is given, the license shall cease usage of the Software and remove all copies of the program installed from his computers, and, at the Licensor’s discretion, either return to the licensor or destroy all backup copies made.
11.1 The contracting parties agree that the laws of the Federal Republic of Germany, excluding the CISG, shall apply.
11.2 The place of jurisdiction for all disputes arising from this present contract shall be Jena.
11.3 All and any agreements containing an alteration of, addition to, or specification, of these present contractual terms, and guarantees, warranties, and agreements, must be made in writing. Declarations made by Intershop’s representatives or auxiliary persons shall only be binding with Intershop’s prior written approval. Likewise, the suspension of the requirement of the written form shall only be effective if in writing.
11.4 In the event that one of the provisions of these present General Terms and Conditions is invalid, the validity of the remaining provisions shall not be affected. If the present General Terms and Conditions contain a gap or an omission, a provision shall apply that comes closest to what the parties had intended if they had considered this fact.
