HiveMQ GmbH, having its registered office in Landshut (Germany) and registered with the Landshut Local Court under HRB 8906 (hereinafter referred to as: HiveMQ), provides services exclusively to corporate customers (hereinafter referred to as: customers) in connection with the HiveMQ platform software. This is a server software which, when installed on a server, can be used to transfer and exchange data between different end devices via existing data connections. The terms and conditions set out in the HiveMQ Subscription Terms of HiveMQ GmbH apply to the conclusion of a HiveMQ platform license as well as an update and support subscription. The present HiveMQ Project Terms and Conditions of HiveMQ GmbH (hereinafter referred to as: project GTC) shall apply to all HiveMQ platform-related software development project contracts between HiveMQ and customers as well as to consulting and training services provided by HiveMQ to customers.
1 Teil: Common provisions
Sec. 1 Definitions
- HiveMQ platform: The HiveMQ platform is the standard software of HiveMQ, as described in the accompanying documents which the customer receives according to the offer of HiveMQ in case of a subscription in the sense of HiveMQ Subscription Terms.
- Offer: Offer prepared by HiveMQ and sent to the customer, which includes certifications of customer extensions, “sponsored developments,” consulting and/or training services, and prices.
- Extension: Software module that interacts with the HiveMQ platform software and may include one or more additional functionalities or compatibilities of or in connection with the HiveMQ platform. Extensions can be developed by HiveMQ itself or by customers and then certified by HiveMQ.
- Development (also “further development”): Further development of the HiveMQ platform in software form. Developments can change the HiveMQ platform, e.g. functionally or qualitatively (incl. compatibilities) and fix bugs.
- Project: A contract between HiveMQ and a customer that has an extension development and/or extension certification (in this case this is an “extension project”) or a “sponsored development” (in this case this is a “sponsored development project”) as its object, including the resulting contractual rights and obligations. Extension projects as well as sponsored development projects can include consulting and training services.
- Contractual software: All extensions to the HiveMQ platform and developments of the HiveMQ platform created by HiveMQ itself on behalf of customers in executable form, which are the subject matter of the respective project. The source and/or object code as well as any commentary on the code are only part of the contractual software if their creation and provision has been expressly agreed between the parties.
- Documentation: HiveMQ shall only be obliged to prepare documentation of services rendered under this agreement if this has been expressly agreed between the parties. Unless otherwise agreed, the documentation shall include installation and integration documentation of the contractual software.
Sec. 2 Conclusion of contract, application of these project GTC
- A contract between HiveMQ and the customer is concluded when the customer accepts the offer submitted by HiveMQ. In case of doubt, payment by the customer of the amount indicated in the offer by HiveMQ is to be considered as the customer’s acceptance of this offer on the basis of these project GTC.
- Under no circumstances shall the mere receipt or the failure to expressly reject a customer’s order, which does not itself constitute acceptance of an offer by HiveMQ, constitute an acceptance of the contract on the part of HiveMQ.
- These Project GTC apply to all offers of HiveMQ defined at the beginning and are a binding part of these offers.
- In the event of contradictions between offers and these Project GTC, the provisions in HiveMQ’s offers shall prevail.
Sec. 3 Subject matter of the contract
- The contractual services are exclusively services provided by HiveMQ in connection with extension development and certification, sponsored development, as well as consulting and training of the customer. Unless otherwise expressly agreed upon, the services refer exclusively to the HiveMQ platform including developments and extensions as well as their application and further development.
- The services do not include any kind of consulting or assurance by HiveMQ regarding the legal conformity of the concrete application of the HiveMQ platform including certain developments and extensions by the customer or other third parties.
- The service relationships between HiveMQ and the customer do not constitute any kind of working relationship nor any other kind of relationship between the parties which would bind one party to follow the other’s instructions. In particular, employees and other vicarious agents of HiveMQ are not bound to instructions by the customer. HiveMQ and the customer act as independent companies.
Sec. 4 Intellectual property rights to the HiveMQ platform
- As part of the contractual terms and conditions agreed between the parties, the customer acknowledges and agrees that HiveMQ holds all intellectual property rights to the HiveMQ platform and all versions thereof, including copyrights and copyright usage rights, trademark rights, company name or other trademark rights, patents, designs, and related proprietary rights, including know-how and expertise (collectively referred to as “IP”), and that the customer shall have no right or claim the IP or data covered by the IP from HiveMQ, nor shall the customer gain any shared ownership of such rights, unless expressly granted to the customer by HiveMQ. HiveMQ reserves all rights not expressly granted to the customer in the offer and/or in these project GTC.
- The customer agrees not to assert any claims or rights against HiveMQ or current or future direct or indirect licensees or sublicensees, authorized dealers and/or resellers (collectively “rightsholders”) that affect, infringe or otherwise restrict the IP of HiveMQ or the rightsholders to the HiveMQ platform, nor to sue for such claims or rights, or support third parties who assert or sue for such claims or rights in any other way.
Sec. 5 Service provision by HiveMQ
- HiveMQ will always provide its services with care by using qualified employees and according to the current state of the art. A certain result is only owed if this has been expressly agreed between the parties.
- HiveMQ shall generally determine the working time and place for all services to be rendered to the customer on the basis of contracts and agreements, taking into account the express agreements made with the customer.
- Unless expressly agreed otherwise between the parties, HiveMQ will transmit all contractual software and documents electronically and provide services via the Internet from its own offices (e.g., via remote access or presentation software). The customer must provide HiveMQ with appropriate access options to the extent necessary for the provision of services.
- HiveMQ is entitled to use third parties (subcontractors, freelancers) to provide services, whereby it is to safeguard the legitimate interests of the customer. HiveMQ will ensure that such subcontractors have the necessary professional qualifications and will require the them to maintain confidentiality in accordance with the agreements made with the customer. HiveMQ itself shall always remain obligated to the customer with respect to the performance of the contract.
Sec. 6 Prices, electronic invoicing
- The prices for the contractual services as well as the due date(s) are based on the offer sent to the customer.
- All prices are subject to the statutory value added tax applicable at the time of invoicing.
- Unless a fixed price for the services of HiveMQ has been expressly agreed, remuneration shall be based on the hours worked. A remuneration based on man-days worked assumes 8 (eight) working hours. Work performed over and above 8 hours per manday shall be additionally remunerated at 1/8 of this man-day price per hour worked. If a remuneration per man-day or per hour is contractually agreed, invoicing shall be made on this basis. If a daily or hourly rate has not been expressly agreed, the basis for calculating the remuneration shall be an hourly rate of EUR 225.00 (plus the applicable VAT).
- Unless otherwise expressly agreed, the customer shall pay the remuneration in advance directly after conclusion of the contract upon invoicing by HiveMQ.
- Invoices are issued electronically only and sent by e-mail.
- The customer shall reimburse HiveMQ for the costs of travel undertaken by HiveMQ in the course of rendering services to the customer with the customer’s prior express consent in a proven amount, travel times at 50% of the respective fixed hourly rate, expenses in accordance with the maximum tax-deductible rates immediately after the end of the trip, and upon invoicing by HiveMQ listing the individual items. Unless expressly agreed otherwise, travel expenses are not included in an agreed flat-rate fee.
Sec. 7 Data protection, data backup
- HiveMQ will comply with applicable German data protection legislation in the performance of the contractual services. However, if HiveMQ gains access to personal data stored by the customer in the course of performing the contractual services, the customer shall remain the sole controller for this data. In this case, the parties are obliged to conclude legally required data protection contracts with each other. If the customer refuses to enter into such a contract, HiveMQ is entitled to discontinue all services related to personal data without the customer being able to derive any rights against HiveMQ from this. Further rights remain unaffected.
- Unless the customer expressly points this out in advance, HiveMQ may assume that all customer data with which HiveMQ may come into contact during the execution of update and support services have a backup. The customer may not assert any claims against HiveMQ for damages resulting from a violation of the customer’s duties and obligations regulated in the preceding provisions, and shall bear the disadvantages and additional costs resulting therefrom.
Sec. 8 General cooperation obligations of the customer
- The cooperation of the customer is of decisive importance for the success of the cooperation between the parties. In particular, HiveMQ needs the comprehensive and timely provision of all performance-related information, documents and access rights by the customer in order to provide its services properly.
- If the customer has third parties perform tasks required for the cooperation obligation incumbent upon it, the respective third party’s actions in this regard vis-à-vis HiveMQ shall be attributed to the customer.
- HiveMQ shall not be liable for delays, damages, and any deviations from the contract that are due to the customer’s failure to perform, late performance or poor performance of its cooperative actions.
Sec. 9 Contact person, communication
- The parties shall each appoint at least one professionally suitable contact person as a permanent point of contact for all matters relating to the contractual cooperation and shall provide the other party with their contact details including telephone number and e-mail address. Each party shall ensure that the contact persons appointed by it can effectively make or transmit and receive on its behalf all declarations relating to the cooperation covered by this agreement.
- When replacing contact persons, both parties shall ensure that the new contact persons are equally qualified and that the replacement does not cause any delays. Each party is to notify the respective other party of a replacement in text form, giving the names and contact details of the newly appointed person, in good time before the intended replacement.
- All declarations of intent and other notifications to be made to the other party under this contract shall be made in text form, unless the written form is expressly prescribed. The receipt of a declaration by the recipient is decisive for compliance with deadlines.
Sec. 10 Reporting errors, elimination of defects, warranty, limitation period
- HiveMQ guarantees that it is the owner of all rights required for the granting of rights in accordance with these project GTC and that the granting of rights does not violate any third-party rights. If the exercise of the rights of use under this agreement by the customer is opposed by third-party rights, HiveMQ is obligated to provide remedy by, at its own discretion, either acquiring the necessary rights in favor of the customer at its own expense, or modifying the licensed object within a reasonable period of time in such a way that the violation of rights is eliminated while maintaining the existing contractual agreements with the customer.
- If services provided by HiveMQ establish legal warranty rights for the customer, the following shall apply:
- The elimination of software defects under warranty shall primarily be performed by remote diagnosis and correction. For this purpose, the customer shall enable HiveMQ, upon request, to access the defective software to the extent necessary for error correction via the Internet from HiveMQ's offices, provided that this does not involve unreasonable effort or risk for the customer.
- The customer shall always notify HiveMQ of defects immediately upon their discovery in a reproducible form and with all technical information required to isolate the exact defect and to recognize its consequences. In addition, the customer is to support HiveMQ within reason in eliminating defects, in particular in implementing corrective measures or replacement deliveries provided by HiveMQ. HiveMQ may also choose to have the defect remedied by means of a replacement delivery or software updates, provided that this does not result in an unreasonable disadvantage for the customer (e.g. due to increased system requirements).
- The warranty period for services rendered by HiveMQ is limited to 1 (one) year from the start of the statutory limitation period. This does not apply to liability for intent or gross negligence or to claims based on personal injury and claims under the German Product Liability Act.
- If the customer or third parties have made changes to the contractual software that go beyond its intended use, any warranty rights against HiveMQ for the software in question will be excluded, unless the customer proves that a defect would have occurred in exactly the claimed form even without the aforementioned changes.
Sec. 11 Disclaimer
HiveMQ is expressly not liable for such damages incurred by the customer due to properties of the contractual software that are directly caused by the implementation of the customer’s specifications.
Sec. 12 General limitation of liability
HiveMQ’s liability, regardless of the legal grounds, shall be governed exclusively by the following provisions.
- HiveMQ is only liable for intent and gross negligence. HiveMQ shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the fulfillment of which the customer may regularly rely (cardinal obligation). HiveMQ shall only be liable for foreseeable damage that can typically be expected to occur. This also applies to loss of profit and savings. Liability for other consequential damages caused by a defect is excluded.
- The limitation of HiveMQ’s liability shall not apply in the event of injury to life, body and/or health and in the event of liability under the German Product Liability Act.
- HiveMQ shall not be liable for events of force majeure that make the contractual services impossible or even significantly impede or temporarily hinder the proper execution of the contract. Force majeure shall be deemed to be all circumstances that are independent of the will and influence of the parties to the contract, such as terrorist attacks, embargo, seizure, natural disasters, strikes, decisions of public authorities or other serious and unforeseeable circumstances beyond the control of the parties to the contract. A circumstance shall only be considered an event of force majeure if it occurs after the conclusion of the contract.
- Furthermore, HiveMQ is not liable for disruptions and loss of quality of data transmission on the Internet for which HiveMQ is not responsible and which impede or prevent the use of the contractual services. Furthermore, HiveMQ is not liable for malfunctions of the HiveMQ platform that occur solely due to malfunctions of programs not covered by the contract, such as VPN software, encryption programs, etc., or of software applications installed on the terminal devices communicating with the HiveMQ platform.
- To the extent that the liability of HiveMQ is excluded or limited, this shall also apply to the liability of the employees, other staff members, representatives, and vicarious agents of HiveMQ.
Sec. 13 Secrecy, referencing
- The customer undertakes to treat all confidential information and trade secrets of HiveMQ obtained in the course of the preparation and execution of the contract as well as knowledge gained therefrom (collectively “trade secrets”) as strictly confidential for an unlimited period of time and to use them only for the purposes of executing this contract.
- The customer shall only make trade secrets available to employees and other third parties if this is necessary for the execution of this contract. The customer shall instruct all persons to whom it grants access to trade secrets about the rights of HiveMQ and the duty of confidentiality, and shall oblige such persons to sign a written confidentiality agreement to the extent permitted by law and to the extent set forth in paragraph 1, unless the persons in question are already bound to confidentiality for other legal reasons at least to the above-mentioned extent.
- The above obligations do not apply to trade secrets which (i) were already in the public domain at the time of their disclosure by HiveMQ; (ii) have become public after their disclosure by HiveMQ through no fault of the customer; (iii) have been made available to the customer by third parties in a lawful manner and without restriction as to confidentiality or exploitation after their disclosure by HiveMQ; (iv) have been developed independently by the customer without use of HiveMQ’s trade secrets; (v) which must be published pursuant to the law, official order or a court decision – provided that the customer informs HiveMQ immediately and supports HiveMQ in defending against such orders or decisions; or(vi) to the extent that the customer is permitted to use or disclose the trade secrets by mandatory legal provisions or under this agreement.
- For the duration of the contractual relationship between the parties, HiveMQ shall have the right to display the customer’s company name and logo on the HiveMQ website, in presentations, and in print media such as flyers as a reference. Subject to prior written consent of the customer, HiveMQ is additionally permitted to announce the contractual relationship and the customer’s company name in press releases. A combination of the naming of the customer with a statement of content that goes beyond the naming as a customer of HiveMQ is only permitted with the prior written consent of the customer. If a prohibition of reference naming was issued by the customer prior to the conclusion of this agreement, this provision shall be deemed to be a cancellation of this prohibition.
2 Teil: Special provisions for extensions
Sec. 14 Subject matter of extension projects
- The subject matter of extension projects is the customer’s engagement of HiveMQ for the development and/or certification of one or more extensions. The scope and content of extension projects is based on the terms and conditions of the HiveMQ offer. Unless otherwise expressly agreed between the parties, modification of third-party software shall not be part of the services provided by HiveMQ in any way whatsoever.
- A check of the customer’s specifications regarding extensions to be developed by HiveMQ (e.g. for completeness, technical feasibility, conclusiveness, cost-effectiveness, etc.) shall not be part of the extension projects, unless this has been explicitly agreed between the parties.
Sec. 15 Extension development by HiveMQ
Extension developments by HiveMQ as the subject matter of a project (“extension development projects”) shall be carried out under the following terms and conditions:
- The customer is to communicate to HiveMQ the qualitative and functional requirements of the extension to be developed in electronic form. In addition, the customer shall provide HiveMQ, within the scope of the contractual obligations to cooperate, with all information necessary for the contractual extension development in response to any queries, comprehensively and without delay.
- Unless otherwise expressly agreed, the development is to be agile. Accordingly, priority is given to the creation of executable software modules and code components as well as continuous and intensive communication between the parties. In doing this, the requirements shall be continuously adapted in a dynamic process, taking into account the findings in the development process. The customer’s contact person must therefore be available at all times and will be involved in the development and, above all, in the creation of specifications.
- Insofar as no specifications are made by the customer, HiveMQ owes a development in line with general market standards. In case of doubt, extensions must be created in such a way that they can interact with and are compatible with the version of the HiveMQ platform software that is current at the start of the project.
- Unless otherwise expressly stipulated in the contract, HiveMQ is entitled to use third-party software (especially open source licensed software elements) in the course of development. HiveMQ shall inform the customer about the third-party software used and its license terms.
- The customer is aware that, due to the lack of detailed technical specifications at the start and due to the agile development approach with constantly modified specifications, fixed time and cost frames cannot be bindingly determined at the beginning of the project. Deadlines and milestones are therefore expressly recognized by HiveMQ as binding and are considered to be time milestones only if they have been expressly agreed upon as binding in relation to specific services between the parties.
Sec. 16 Change requests
If the customer requests changes and/or additions to the agreements made at the time of the conclusion of the contract for an extension development project, these are change requests which shall be carried out in accordance with the procedure described below, unless the parties mutually agree on a different procedure:
- HiveMQ shall review change requests as soon as possible after their receipt and inform the customer of any additional costs that may arise as a result and, in the case of existing binding time milestones, of the changed time scope of processing in the form of a binding offer in text form. HiveMQ may set a reasonable period of time for accepting the offer.
- If the review of change requests would already entail additional costs, significant time expenditure and/or changes of implementation services, HiveMQ shall notify the customer of this after receipt of the change request in the form of a review offer and shall only begin this review after express acceptance of the review offer in text form.
- The customer will examine the offer in terms of paragraph (1). If it accepts the offer in text form, the changes become part of the contract. Until the acceptance of the offer and if the customer does not accept the offer, the parties will continue their activities unchanged.
Sec. 17 Granting of rights
The object of the granting of rights for extension development projects are the extensions developed by HiveMQ for the customer, excluding all third-party software used and known or communicated to the customer, such as all open source licensed software components used (hereinafter “subject matter of the license”).
- HiveMQ irrevocably grants the customer all known rights of use in the subject matter of the license in a non-exclusive form, unrestricted in terms of time, space (territory), and content, including the unlimited right to modify and redesign the subject matter of the license, including the unrestricted right not requiring prior approval to reproduce, pass on, sublicense, and otherwise exploit the rights of use, and gives the customer its consent in accordance with section 34 of the UrhG (German Act on Copyright and Related Rights).
- Exclusive rights of use shall only be granted to the Customer in respect of such works in respect of which the parties have explicitly agreed to this in writing.
- The customer is not obliged to exploit the rights granted to it in the subject matter of the license.
- The right to decompile is not granted to the customer, with the exception of the mandatory statutory rights under copyright law.
- Copyright notices, serial numbers and other features serving to identify the program may not be removed from the subject matter of the license nor changed.
- The rights will be granted at the time of payment of the full price determined for the development of the extension within the scope of the respective extension development project. In case of doubt, this is the complete project price. Until the time of payment pursuant to sentence 1, the customer shall be granted the provisional right to use the subject matter of the license for testing purposes, which may be revoked by HiveMQ in the event of default of payment; this expressly does not include the right to sublicense.
- Payment of the project price shall be deemed to constitute payment for the rights granted under this provision.
Sec. 18 Acceptance
- Software or code components approved by the customer within the scope of agile development shall be deemed (partially) accepted.
- When the extension is ready for acceptance, HiveMQ will notify the customer of this and request the customer to accept the extension, setting a reasonable deadline for it to do so. If the extension is free of substantial defects, the customer shall be obliged to declare the acceptance immediately in text form. Acceptance may not be refused due to insignificant defects.
- If the customer finds defects, it shall notify HiveMQ thereof without delay in text form in a reproducible form or with all technical information required to isolate the exact defect and to identify its consequences, and to complete the acceptance tests as far as possible. In the event of minor defects, the acceptance tests shall not be interrupted or repeated. HiveMQ shall remedy material defects immediately and notify the customer of the remedy. The acceptance tests shall then be repeated in accordance with this section 18.
- If the declaration of acceptance is delayed despite the work/service being ready for acceptance and for reasons for which HiveMQ is not responsible, or if the customer refuses acceptance despite the readiness for acceptance, HiveMQ may set a reasonable deadline, after expiry of which acceptance shall be deemed to have been granted.
- If the customer operates or uses the extension without notification of a significant defect for a period of at least 10 (ten) calendar days (“operating period”) and without having declared acceptance, the aforementioned operation or use shall be deemed to be a declaration of acceptance at the end of the operating period.
Sec. 19 Termination provisions
- Terminations of extension development projects must always be made in writing.
- The parties are entitled to terminate the contract for good cause. In the view of HiveMQ, good cause is deemed to exist in particular if the customer
- is in default with the payment of an agreed compensation or parts of the agreed compensation by at least 4 (four) weeks and does not pay in full even after a reminder from HiveMQ, or
- infringes HiveMQ's rights of use by using IP beyond what is permitted under this agreement and by failing to remedy the infringement immediately upon receiving a warning.
Sec. 20 Extension certification
If an extension certification is the subject matter of a project (“extension certification project”), the following applies:
- The certification process for customer-built extensions includes testing whether the extensions scale with the customer’s HiveMQ platform in the version current at the time of certification (according to best practices for high-throughput extension development) and whether the HiveMQ platform is stable even in the customer’s target load scenarios.
- Certifications by HiveMQ only apply to the state of the extensions at the point in time of the test. No statement is made regarding future changes of extension, HiveMQ platform or system environment.
- If HiveMQ makes adaptations to extensions on behalf of the customer in order to achieve certification, the provisions of this second part of the terms and conditions regarding extension developments shall apply mutatis mutandis.
- The customer grants HiveMQ the simple, nonexclusive right to save and store, reproduce, edit, and modify the extensions developed by the customer, as well as to load, display, run, and transfer them, as far as this is necessary for the certification process. The granting of rights is limited to the duration of the project. HiveMQ is not permitted to use the extensions for any purpose other than the provision of services to the customer. The customer warrants that the aforementioned granting of rights as well as the use of the extensions by HiveMQ in accordance with the contract does not violate the rights of third parties.
- Upon request, the customer shall provide HiveMQ with all information required for certification with respect to the extensions. When certifying extensions that have been modified compared to previous certifications, the customer will notify HiveMQ of the changes using a checklist provided by HiveMQ.
3 Teil: Special provisions for “sponsored development
Sec. 21 Subject matter of sponsored development projects
- HiveMQ continuously develops the HiveMQ platform at its own discretion. Such further developments (“developments”) can be e.g. bug fixes, functional extensions, compatibility extensions or usability optimizations. Further developments are generally rolled out to all users of the HiveMQ platform versions on which the respective further developments are based. HiveMQ is expressly not obligated vis-à-vis its contractual partners to perform or not to perform specific further developments of the HiveMQ platform or to perform them in a certain order.
- In the context of a sponsored development, the customer pays a certain amount to HiveMQ and HiveMQ prioritizes a specific further development of the HiveMQ platform described in the offer in accordance with the following provisions of this section. Unless the parties expressly agree otherwise, the following shall apply:
- Changes to the description of the further development can only be made after acceptance of the offer by mutual agreement of the parties.
- It is possible and expressly permitted that further developments be sponsored by several customers.
- HiveMQ undertakes vis-à-vis the customer to give high priority to the further development which is the subject matter of the project within the scope of its own planning and taking into account software security and the overall development status.
- HiveMQ expressly does not guarantee any specific development success at a specific date. HiveMQ merely assures that it will generally strive to achieve the sponsored further developments with increased priority and will only give preference to other further developments that, in the best judgment of HiveMQ, should be carried out prior to the sponsored developments for technical, economic and/or security reasons. There is no concrete time planning regarding the sponsored developments or a prioritization over all other developments.
- HiveMQ undertakes to inform the customer about the status of the sponsored development upon request.
- The amount paid to HiveMQ for the project by the customer can be freely used by HiveMQ; it is not earmarked for a specific (sponsored) development.
- HiveMQ will make the further development available to all HiveMQ platform customers who hold license rights for the respective HiveMQ platform version as part of the regular rollout. The customer has no claim to preferential delivery. However, the customer will receive the further development free of charge, regardless of the HiveMQ platform license agreement it has with HiveMQ.
- On request, the customer may receive a snapshot (test) version before the rollout of the sponsored further development. The customer shall be granted the right to use this test version on its own test system exclusively for testing purposes. Snapshot (test) versions are trade secrets of HiveMQ. The customer is expressly not entitled to sublicense, make publicly accessible, change, or decompile snapshot (test) versions.
- Sponsored development projects are not any kind of joint development or any other form of cooperation based on a common interest. In particular, such projects are not intended to create joint ventures or other structures under company law.
Sec. 22 Further development of the HiveMQ platform
- All further developments of the HiveMQ platform are the sole responsibility of HiveMQ. This applies both to overall prioritization as well as to the planning and implementation of further developments in terms of content. All further development activities are carried out by HiveMQ on its own initiative and without the customer having any rights of influence in terms of content or organization.
- The sponsored developments are explicitly not carried out on behalf of the customer, but on the own initiative and in the own interest of HiveMQ in a development strategy that is as effective and economical as possible and which generates added value for its customers.
- The developments that are the subject of the project expressly do not require the customer to accept them nor do they require being checked by the customer.
Sec. 23 Rights and granting of rights
- All works created by HiveMQ as part of a sponsored development project are the sole property of HiveMQ. In particular, the customer does not acquire any intellectual property rights to protectable sponsored works created by HiveMQ outside the regular rollout.
- The license terms of the customer’s HiveMQ platform (see the License, Update, and Support Terms of HiveMQ GmbH) apply to the works made available to the customer in the context of the rollout of the developments under the project.
4 Teil: Special provisions for consulting and training
Sec. 24 Subject matter of the service, payment
- If and to the extent agreed between the parties, HiveMQ shall provide consulting and training services. Details regarding the subject matter of the services are governed by the provisions in the offers submitted by HiveMQ. Unless otherwise expressly regulated, the services provided relate exclusively to the use and application of the HiveMQ platform, the MQTT architecture, and project-related extensions or further developments.
- Consulting and training services are provided exclusively in the form of services. In particular, no consulting or training success is guaranteed or owed to the customer.
- HiveMQ is free to choose the persons providing the services and will always ensure their professional qualification.
- Unless otherwise expressly agreed, payment for consulting and training services shall be made in advance directly after conclusion of the contract upon invoicing by HiveMQ. If service contingents to be called up by the customer are booked, which are then held by HiveMQ, services not called up expire 12 months after the order is placed; whereby this shall not establish any claim for repayment of the remuneration paid for this.
Sec. 25 Rights
If documents and data, including drafts and presentations (collectively “consultancy documents”), handed over to the customer or otherwise made available to the customer by HiveMQ in the course of consulting or training services are copyright-protected, the following shall apply: Unless otherwise expressly agreed between the parties, the customer is granted the spatially unlimited, non-exclusive right to store, change and reproduce the aforementioned consultancy documents for an unlimited period of time. Sublicensing is only permitted free of charge and for the benefit of companies with which the customer is affiliated under group law in accordance with section 15 of the AktG (German Stock Corporation Act). Further rights of use, in particular the right to make publicly accessible, to process and sublicense such documents for a fee are not granted.
Sec. 26 Service provision, scheduling
- Unless otherwise expressly agreed between the parties, HiveMQ will provide consulting and training services via the Internet from its own offices using telecommunications or contractually agreed suitable transmission and/or presentation software.
- The scheduling of consulting or training dates and periods between the parties shall be made by e-mail or by post, unless the dates have already been determined within the scope of contractual agreements.
- HiveMQ may replace instructors and consultants with equally qualified personnel at any time, without this entitling the customer to any rights.
5 Teil: Final provisions
Sec. 27 Offsetting
The customer may only offset claims of HiveMQ against the customer with undisputed or legally established claims against HiveMQ. This does not apply to claims that are synallagmatically opposed within the scope of this contract.
Sec. 28 Contractual rights and obligations
- HiveMQ grants rights under this contract exclusively to the customer and provides services exclusively to the customer, unless otherwise expressly agreed. HiveMQ has no obligation to perform towards third parties.
- Any transfer or assignment of rights or obligations arising from contracts existing between the parties requires the prior written consent of the other party.
Sec. 29 Applicable law, place of jurisdiction, contractual language
- These project GTC shall be governed by German law to the exclusion of the UN CISG.
- If the customer is a merchant, a legal entity under public law, or a special fund under public law, or if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, disputes arising from or in connection with these project GTC are subject to the exclusive jurisdiction of the courts at the location of HiveMQ’s registered office (currently Landshut, Germany).
- The German version of these project GTC alone is binding. Any versions of these project GTC in other languages serve only as nonbinding translations.
Sec. 30 Conflicting general terms and conditions, collateral agreements
- Any conflicting terms and conditions of the customer or any other contractual provisions that deviate from these project GTC are expressly not recognized unless HiveMQ expressly agrees to their application in writing. This shall also apply if the customer, when accepting the offer of HiveMQ, refers in its order or other communication to its own deviating contractual provisions and HiveMQ does not reject these. Even if HiveMQ makes reference to a document received from the customer in which the general terms and conditions of the customer or third parties are laid down, or if HiveMQ refers to such terms and conditions, this does not constitute an agreement on the applicability of such terms and conditions. HiveMQ hereby objects to the inclusion of such terms and conditions of the customer in the contract and these project GTC.
- There are no collateral agreements. They require the text or written form to be valid.
Sec. 31 Severability clause
Should individual provisions of the contract or these project GTC be invalid or unenforceable in whole or in part or become invalid or unenforceable after conclusion of the contract, the validity of the remaining provisions shall remain unaffected. Instead, the parties shall endeavor to agree on a replacement provision which comes as close as possible to the invalid or unenforceable provision in a legally permissible and economic manner. The above provisions shall apply mutatis mutandis in the event that a contract or these project GTC prove to have any loopholes.