INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS
Terms), valid as of: April 2018
Page 1 of 6
§1 Subject Matter and Contract Documents
These Terms of Intershop Communications AG
(INTERSHOP) shall regulate rendering of Cloud or
CaaS (Commerce as a Service) Services and any
associated services by or on behalf of INTERSHOP for
cloud based online presence of a contractor of
INTERSHOP (Customer).
Such Cloud Services chosen by a Customer may
include
infrastructure
application management,
Software as a Service.
Such CaaS Services chosen by a Customer may
include
infrastructure
application management
Software as a Service
Definitive scope of services as well as any applicable
contractual documents are defined by an individual
specific contract including its annexes and
attachments (Contract).
Customer shall not be entitled to specific hardware or
software specially allocated to him.
§ 2 Responsibilities of INTERSHOP
INTERSHOP shall render the Cloud or CaaS Services
described in more detail in the Contract. INTERSHOP
shall be entitled to commission third party companies
or affiliated companies as sub-contractors for
provision of the Cloud or CaaS Services, or parts of
them.
§ 3 Term and Termination
3.1 Term
3.1.1 The term of the Cloud or CaaS Services or
parts of them is defined in the Contract.
Should no regulation exist, the term shall be
36 months.
3.1.2 Term shall commence upon the date of
making the Cloud or CaaS Services available as
notified by INTERSHOP after closing of a
Contract, which date shall be within a period
of 3 months of closing of a Contract. In the
event this date of making services available as
given by INTERSHOP is beyond this period,
Customer shall have a right to terminate with
good cause.
3.1.3 Unless otherwise set forth in the Contract,
term of Cloud or CaaS Services shall expire after the
term set forth in the Contract, and shall be
automatically renewed by the minimum term of the
relevant Infrastructure Package, unless the Contract
is terminated with 8 weeks’ notice until the end of the
applicable term. The term for Application
Management services corresponds to the term of the
relevant Infrastructure Package.
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
Customer is in default with payment of
two consecutive monthly payments for
Cloud or CaaS Services, or a material
portion of it (> 20 %);
Customer is in default for more than two
deadlines with payment of monthly costs
which exceed an amount that equals the
double amount of monthly costs;
Customer stops his business operations,
dissolves his business or is insolvent, or if
insolvency, bankruptcy or similar
proceedings are pending relating to its
assets for a period of more than ten
working days;
in connection with rendering of Cloud or
CaaS Services rights of any third party are
violated and thus rendering of
contractually agreed services or parts of
them is temporarily impossible or
possible only to a very limited extent;
Customer misuses Cloud or CaaS
Services, in particular if he uses them for
distribution of racist, sexist, criminal or
otherwise discriminating contents, or if
he has such contents distributed, or if he
violates applicable laws, statutory or
authority bans, or violates public morals
or public order;
Customer materially jeopardizes Cloud or
CaaS Services by neglecting duties of care
imposed on him, or if he unlawfully lets
any third party use them.
3.2.3 A good cause for Customer will be in particular
assumed if
INTERSHOP after notification by Customer
in accordance with item 5.1.2 below, is
unable to remedy a defect within an
appropriate time-limit, and Customer
cannot be expected to be bound by the
Contract any longer;
the date for making the services available
given by INTERSHOP is beyond the period
set forth in item 3.1.2 above.
3.3 Consequences of Termination
3.3.1 In the event of termination, INTERSHOP shall
surrender to Customer the entire current
customer data as incurred in the course of
fulfilling this Contract one week prior to the
end of term, at the latest. Such data shall be 
INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS
Terms), valid as of: April 2018
Page 2 of 6
made available by INTERSHOP to Customer in
a common data file format of its choice.
3.3.2 Any further provision of data shall be
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.
3.4 Written Form Requirement
Any termination notice requires written form
(personal signature of undersigning person is
required).
3.5 Delivery by Registered Mail
Termination notices shall be served by registered
mail for purpose of evidence.
§ 4. Prices and Terms of Payment
4.1 Remuneration
Remuneration may be a one-time payment, recurring
payments and/or usage-based. Details are set forth
in a Contract.
4.2 Payment
Invoices shall be due and payable without deduction
upon receipt. Unless otherwise agreed in writing,
recurring payments shall be invoiced in advance on a
monthly basis. Usage-based Remuneration shall be
charged the following month as a rule.
4.3 VAT
Remuneration agreed in a Contract shall be excluding
applicable statutory VAT, if nothing to the contrary
has been stipulated.
4.4 Default
4.4.1 In the event Customer is in default with
payments, INTERSHOP shall be entitled to
claim default interest in the statutory
applicable amount above the basic interest
rate. INTERSHOP shall reserve the right to
claim higher interest upon presenting proof of
higher interest damages.
4.4.2 If Customer is in default with payment of
contractually agreed remuneration,
INTERSHOP, notwithstanding any further
rights, may restrict and/or block use of Cloud
or CaaS Services by Customer after respective
written notification of Customer.
4.5 Set-Off/ Retention
Customer shall only be entitled to set-off or retain
payments if his counter-claim is undisputed or has
been finally determined by a binding court order.
§ 5. Warranty and Safety
5.1 Contents
5.1.1 INTERSHOP shall warrant that any Cloud or
CaaS Services are rendered with appropriate
care and technical expertise in accordance
with major aspects of relevant service
specifications. However, according to state-ofthe-art standards it is impossible to exclude
any errors in IT components under all
application conditions. INTERSHOP shall
therefore neither warrant uninterrupted nor
trouble-free use of Cloud or CaaS Services.
System availability rate owed by INTERSHOP
shall base on the service specifications
included in a respective Contract.
5.1.2 Customer shall notify INTERSHOP
immediately of any possible disturbances of
Cloud or CaaS Services, however, within two
weeks of becoming aware of them at the
latest; such notification must be made in
writing in form of a detailed description of
such disturbance. If no such notification is
made, any claims and rights relating to such
default, as far as such was recognizable for
Customer, shall be excluded.
5.1.3 Upon notification in accordance with section
5.1.2 above, INTERSHOP shall be 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
(please see section 3.2.3 above, first subsection). 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 in connection with a
default 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 item 5.1.2
above.
5.1.5 In all other respects, a warranty period of 12
months shall apply.
5.2 Safety
Customer understands and acknowledges that
INTERSHOP does not have any control of data
transmission via telecommunication facilities,
including the internet, beyond the interface between
the network data processing centre and internet
service providers. In this regard, INTERSHOP shall
have no liability for data transmission, in particular
for the following disturbances or errors:
INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS
Terms), valid as of: April 2018
Page 3 of 6
minimum availability or available capacity
(neither quality-wise nor time-wise)
relating to connectivity (connection paths);
trouble-free data transmissions,
procedures, possible loss and/or garbling
of data in connection with their
transmission.
INTERSHOP shall therefore neither warrant secure
operations of Cloud or CaaS Services, nor prevention
of disturbances affecting the Cloud or CaaS
environment or Customer components by any third
party. For the rest, the regulations included in the
service specifications shall apply.
§ 6. Confidentiality
6.1 Confidential Information; Business and Trade
Secrets
INTERSHOP and Customer shall be under an
unlimited secrecy obligation to keep confidential any
confidential information or business and trade
secrets marked as such which come to the attention
of INTERSHOP and Customer respectively in the
course of the fulfilment of a Contract. Any disclosure
to any third party which is not associated with
fulfilment of a Contract shall only be made after
written consent given by the respective other Party.
6.2 Exceptions
Such secrecy obligation shall not apply to INTERSHOP
to the extent ideas, concepts, know-how,
technologies and data are concerned which relate to
software set-up, provision of software or Cloud or
CaaS Services respectively, and which are already
known to INTERSHOP, or have already been known
outside this Contract.
6.3 Responsibilities of Employees and Other
Persons Relating to Secrecy
INTERSHOP and Customer shall ensure that any
persons involved in the fulfilment of this Contract
shall be bound by an obligation to comply with these
provisions.
6.4 Personal Data
INTERSHOP shall be authorized to process or have
processed by third parties personal data entrusted to
them basing on this Contract in accordance with data
protection provisions. In the event personal data are
processed, the Parties shall close a separate
agreement.
6.5 Telecommunication Secrecy
INTERSHOP and Customer each shall inform their
employees about compliance with the
telecommunication secrecy obligation pursuant to §
88 TKG [= German Telecommunications Act]. For the
purpose of fulfilment of this Contract INTERSHOP
shall be entitled to perform any technically required
processing activities, e.g. duplicating of data sets in
order to prevent losses, readout of log files etc., as far
as such is necessary, and only if this does not result
in a content changes of data, and if it is in the interest
of the Customer.
6.6 Protection of Access Data for Cloud or CaaS
Services
Personal access data shall not be disclosed or
forwarded by Customer to any third party and shall
be kept protected against any unauthorized access or
use.
§ 7. Rights of Use
7.1 Purchase of INTERSHOP Software
The provisions agreed between Customer and
INTESHOP in a licencing agreement shall apply to
INTERSHOP‘s standard software. Unless otherwise
agreed in writing, Customer shall be granted a simple,
non-exclusive right to use for the term of the
Contract, as far as such is required for use of Cloud
or CaaS Services.
7.2 CaaS Services
As part of the provision of CaaS Services, the
Customer is granted a temporary, non-exclusive right
of use to access the online shop and any adjustments
that may have been made for the duration of the
CaaS Agreement concluded between the Customer
and INTERSHOP, and to use the functionalities
associated with the online shop in accordance with
the agreement concluded using a browser. No
further rights shall be granted to the Customer, in
particular with regards to Intershop standard
software (operating software), customization services
(i.e. individually created 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 duplicate,
sell and/or rent and/or lease the online shop and/or
parts or adaptations thereof for a limited period of
time.
7.3 Third Party Software
Relevant provisions of a service provider (e.g.
Microsoft Azure) shall apply to third party software.
§ 8. Intellectual Property Rights
8.1 Customer’s Duty to Inform
Customer shall agree to immediately inform
INTERSHOP about any violation of protective rights by
any third party, and to provide any records and
information required for prevention.
8.2 Indemnification by INTERSHOP
8.2.1 In the event after closing of a Contract
violations of copyrights, trademarks, patents
or other commercial or intellectual property 
INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS
Terms), valid as of: April 2018
Page 4 of 6
rights are claimed, and if contractually agreed
use of Cloud or CaaS Services is thus impaired
or prevented, INTERSHOP shall indemnify
Customer against any and all such claims
provided Customer informs INTERSHOP
immediately in writing of such claims. Insofar
INTERSHOP will obtain for Customer a licence
for further use, or upon its choice will change
the material and/or services in order to
ensure that no further violation occurs, or, if
change of material and/or services is
impossible for reasons INTERSHOP is not
responsible for, will reverse the relevant
business and reimburse to Customer the
agreed remuneration. Any relevant drawn
profit has to be surrendered by Customer.
8.2.2 Customer’s right according to section 8.2.1
above shall be excluded if Customer uses
material which has not been approved by
INTERSHOP. The same applies if such material
has been changed by somebody which is not
INTERSHOP, or if Customer uses it in
contradiction to agreed terms of use, unless
such actions have not been the cause of the
violation described in section 8.2.1 above.
8.3 Indemnification by Customer
Customer shall indemnify INTERSHOP and its
vicarious agents upon first request against any claims
made by any third party against INTERSHOP because
of violation of protective rights, and from the time of
first request will take on any further dealings with
such third party, unless Customer is not responsible
for such violation of protective rights. INTERSHOP
shall assist and support Customer to the extent
necessary. Any expenses associated with it shall be
reimbursed to INTERSHOP by Customer.
§ 9. Liability
9.1 Liability for Wilful Acts and Gross Negligence
INTERSHOP shall be liable for any damage caused by
wilful acts or gross negligence on part of INTERSHOP,
its statutory representatives, or vicarious agents.
9.2 Liability for Major Contractual Obligations,
Foreseeable Damage
Furthermore, INTERSHOP shall be liable for ordinary
negligence when violating material contractual
obligations. Material contractual obligations are
obligations (i) the fulfilment of which enables proper
implementation of this Contract in the first place, (ii)
violation of which jeopardizes execution and
implementation of this Contract, and (iii) in whose
compliance Customer may trust as a rule (so-called
material contractual obligations). In the event of
violation of material contractual obligations due to
ordinary negligence, INTERSHOP shall only be liable
for damage which is 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 a Contract,
neither in connection with rendering of Cloud or CaaS
Services, nor taking into account specific
circumstances of a precise commissioning.
INTERSHOP shall not be liable for simple negligence
relating to other obligations outside the ones
described in the preceding sentences.
9.3 Unlimited Liability In Case of Injuries to Life
and Limb; Quality Warranty; Malice; 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 maliciously withheld defects. Any liability
basing on the German Product Liability Act shall
remain unaffected.
9.4 Exclusion of Liability for Initial Errors
Regardless of Negligence or Fault
INTERSHOP’s liability regardless of negligence or fault
relating to errors already existing at the time of
closing pursuant to § 536a (1) of the German Civil
Code shall be expressly excluded, unless one of the
requirements of section 9.1 through 9.3 above is met.
9.5 Liability for Loss of Data
Liability for loss of data shall be restricted to typical
data recovery damage which would have incurred if
regular and appropriate security copies and back-ups
had been made, unless one of the requirements of
section 9.1 through 9.3 above is met. Therefore,
Customer shall be obligated to regularly secure data
and programmes in application-relevant appropriate
intervals.
9.6 Scope of Exclusion of Liability and Restriction
of Liability Respectively
To the extent INTERSHOP’s liability has been excluded
or restricted, this shall also apply to any personal
liability of employees, statutory representatives and
vicarious agents.
§ 10. Customer’s Duty to Collaborate
10.1 Assistance
Customer shall assist and support INTERSHOP using
its best endeavours, and in particular Customer shall
provide any required collaborative actions and
supportive services in a timely and complete manner.
Any consequences resulting from a violation of this
provision shall be on account of Customer.
Details of such obligations to collaborate on part of
Customer shall be set forth in a Contract, if
applicable.
Any further rights of INTERSHOP shall remain
unaffected.
INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS
Terms), valid as of: April 2018
Page 5 of 6
10.2 Other Responsibilities of Customer
Customer agrees to refrain from misusing Cloud or
CaaS Services; in particular he shall not distribute or
have distributed any racist, sexist, criminal or
otherwise discriminating contents. Customer further
agrees to comply with any applicable laws, statutory
and authority bans and to refrain from violating
public morals or public order. Provisions on
indemnification in accordance with item 8.3 above
shall apply accordingly.
Customer agrees to comply with any applicable
relevant statutory provisions.
10.3 Opportunity to Restrict Cloud or CaaS
Services in Case of Violations of Item 10.2
In case of a violation of section 10.2 above or if such
violation is claimed by any third party respectively,
INTERSHOP shall be entitled (a) to restrict Customer’s
access to Cloud or CaaS Services, and/or (b) request
Customer to remove the contents in question, or to
have them removed. Further rights of INTERSHOP
shall remain unaffected.
10.4 Obligation to Inform
10.4.1 INTERSHOP shall notify Customer in advance
of any anticipated measures according to
section 10.3 above, and grant Customer an
appropriate time-limit to remedy such
violations before INTERSHOP performs any of
the measures described in section 10.3. This
shall not apply if such measure does not allow
any delay.
10.4.2 Customer shall immediately notify
INTERSHOP if circumstances occur in
connection with rendering of Cloud or CaaS
Services which might result in claims against
Customer or INTERSHOP. Upon INTERSHOP’s
request, Customer shall immediately provide
any information associated with such
circumstances.
10.5 Customer Components
Customer shall make available any components
described in the Contract, and in particular in service
specifications, and shall ensure availability of relevant
rights of use and maintenance agreements. This shall
in particular include the INTERSHOP standard
software and any third party software.
Customer shall be responsible for any contents of
internet presence. Customer shall represent toward
INTERSHOP that he has obtained any relevant rights
and will not violate any third party rights respectively.
Customer permits INTERSHOP to host, use, process,
display and/or transmit its contents in order to be
able to render the Cloud or CaaS Services under this
Contract. Customer further represents toward
INTERSHOP that its contents do not include any
viruses, Trojans, worms or other harmful or
damaging programme routines.
Customer shall be responsible for admissibility of
contractually agreed 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 Capacity Planning
Capacity planning (storage space) shall be made by
Customer and shall fall within his scope of
responsibility unless something to the contrary has
been agreed in this Contract, in particular in the
service specification. Selection of components and
variable parameters (e.g. volumes, storage demand)
bases on information given by Customer. Any
excesses shall be invoiced basing on the relevant
applicable INTERSHOP price list.
10.7 Certificates and Domains etc.
Customer shall be solely responsible for selection,
procurement, administration and use of public and
private keys of digital certificates and domains etc.
which are to be used in connection with Cloud or
CaaS Services.
§ 11. Other Rights and Obligations
11.1 Granting of Licences
The Parties grant each other only those licences and
rights which have been expressly specified and
agreed. No rights in excess of those shall be granted.
11.2 Settlement of Disputes
Any possible disputes or complaints shall be settled
amicably, if possible. In particular, each Party shall
enable the other Party to fulfil its obligations within a
reasonable time-limit before it initiates legal steps
because of non-fulfilment of contractual obligations.
11.3 Non-Responsibility
A Party shall not be responsible for non-fulfilment of
obligations which are outside their reasonable
control.
11.4 No Transfer of Rights
As far as no deviating provisions have been expressly
agreed, Customer shall not be entitled to market
Cloud or CaaS Services, or parts of it, under this
Contract, or to make them available to any third
party. For clarification purposes: use of Cloud or CaaS
Services for processing of internal business
transactions of Customer in the context of operation
of its own online shops shall expressly not be
excluded by this provision.
11.5 Online Presence Liability
Customer manages his online presence in his own
responsibility.
INTERSHOP General Terms and Conditions for Cloud Services & Commerce-as-a-Service (Cloud & CaaS
Terms), valid as of: April 2018
Page 6 of 6
11.6 Use of Qualified Staff
The Parties shall use employees who are qualified to
fulfil the obligations of the relevant Party under this
Contract. Besides, the Parties shall be solely
responsible for their choice, use and supervision and
remuneration of any employees used by them.
11.7 Reference, Naming for Advertising Purposes
Customer shall agree that INTERSHOP may use the
service relationship with Customer as a reference,
and in particular that INTERSHOP indicates in its
advertising material to this service relationship with
Customer.
§ 12. Change of Contract
12.1 Services
INTERSHOP in its reasonable discretion may change
and amend fees and terms and conditions for Cloud
or CaaS Services by written notification with 90 days’
notice and effective for the future.
Increase of remuneration shall be based on general
increase of expenses for INTERSHOP, and shall be
restricted to a maximum of 10% p.a. relating to the
same quantity of accounting.
Any changes of terms and conditions of Cloud or
CaaS Services shall on principle refer to new
commissions, extensions or renewals, unless a
change is required for legal purposes 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 of
effectiveness of such change. However, this shall only
apply if and to the extent such change of terms and
conditions of Cloud or CaaS Services is unacceptable
for Customer. Termination requires written form.
12.2 Other Changes of Contract
Besides, any changes of this Contract require written
agreement.
§ 13 Contact
Any written notifications under this Contract shall be
addressed to:
Intershop Communications AG, Intershop Tower,
07740 Jena / Germany.
§ 14. General
14.1 Protective Clause
Any deliveries and performances by INTERSHOP shall
be exclusively subject to INTERSHOP’s standard
terms and conditions of business. We object to
Customer’s standard terms and conditions of
business.
14.2 Applicable Law; Place of Jurisdiction
Laws of the Federal Republic of Germany shall be
applicable with exclusion of the UN Contract on
International Sale of Goods (CISG).
Exclusive place of jurisdiction relating to any disputes
resulting from this business relationship towards
businessmen and public law legal entities, or public
law special funds shall be Jena, unless another place
of jurisdiction is stipulated by law.
14.3 Severability
Should individual provisions be or become, partly or
wholly, invalid, or if this Contract contains a legal gap,
the validity of the Contract in its entirety and the
effectiveness of the remaining provisions shall
remain unaffected. In such case, the contractual
Parties agree to negotiate a provision which comes as
close as possible to the mutual interests of the Parties
as vested in this Contract.
14.4 Written Form Requirement
Any agreement which includes a change of,
amendment to or specification of the terms and
conditions of this Contract as well as any
representations as regards properties and other
representations and any other special agreements
between the contractual Parties shall be made in
writing. Any manifestation of intent by E-mail or text
message shall not be sufficient. This written form
requirement shall also apply to a cancellation of this
written form requirement clause.
14.5 Completeness
Upon closing of this Contract all previous oral and
written agreements relating to the subject matter of
this Contract shall become invalid.
14.6 Changes of Standard Terms and Conditions
INTERSHOP shall be entitled to amend these Cloud
and CaaS Terms at any time provided no material
provisions of the Contract are affected by such
amendment, and such change is required in order to
adapt to technical and/or legal developments which
were not foreseeable at the time of closing of
Contract, and the non-consideration of which would
considerably impair the balance of this Contract.
INTERSHOP will notify Customer in writing on time
about any change of these Terms applicable to him.
Any amendments shall be considered accepted by
Customer if he does not object to them in writing
within one month of relevant notification, or if he
does not terminate the Contract. In case of objections
of Customer, INTERSHOP shall be entitled to
terminate the existing contractual relationship. In its
notification, INTERSHOP will specifically indicate to
such time-limit and its consequences.