HiveMQ Inc., headquartered in Delaware, United States (hereinafter referred to as “HiveMQ”) provides server-based software solutions in the field of data transmission and exchange between various devices over existing connections in the form of an internet-accessible managed SaaS-Solution to its business customers (hereinafter referred to as the “Customer(s)"). Depending on the services booked by the Customer on basis of an individual contract, the contractual performance comprises the SaaS-based provision of HiveMQ-functionalities for a certain period according to these HiveMQ SaaS-Terms (hereinafter referred to as the “SaaS-Terms”). HiveMQ and the Customer (each a “Party” and together the “Parties”) act as companies that are independent from each other. No Party has the right to give instructions to the employees of the other Party or to represent the other Party in legal transactions.
Part 1 General Provisions
HiveMQ: HiveMQ GmbH, headquartered in D-84030 Landshut, Germany, registered at registered at Munich Local Court under HRB 8906.
HiveMQ Platform means a standard software owned by HiveMQ by means of which data can be transmitted and exchanged between various devices over existing connections including the Extensions - if any - as described in the terms of the relevant SaaS Agreement.
SaaS Agreement means the agreement concluded between Customer and HiveMQ which allows the Customer to use certain SaaS Services. These SaaS-Terms form an integral part of the SaaS Agreement.
SaaS Contract Documents means the Quote, these SaaS-Terms and any further documents referenced in the Quote.
Extensions mean applications which provide additional functionalities to HiveMQ Platform. Extensions are provided by HiveMQ as part of the HiveMQ Cloud Plans. For the purposes of these SaaS-Terms, Extensions are considered part of the HiveMQ Platform.
Quote means the document with which HiveMQ offers the Customer the conclusion of an SaaS Agreement. The Quote contains, in particular, information on the SaaS Services, the contractual Term, and the applicable fees.
SaaS Services means the properties of the applicable “HiveMQ Cloud Plan". The HiveMQ Cloud Plan comprises the SaaS-based provision of certain HiveMQ Platform functionalities and Extensions (if any) as well as managed services (if any) according to the description in the SaaS Contract Documents. HiveMQ Control Center means the protected area of the HiveMQ cloud service that is accessible via browser over the internet. It provides an overview of the SaaS Services and allows the Customer to manage certain SaaS Services.
SaaS Fees means the prices to be paid by the Customer for the SaaS Services as specified in the Quote.
Text Form: Text Form in the sense of these SaaS-Terms includes electronic communication via e-mail.
Affiliate: Any person or entity that controls, is controlled by, or is under common control with such Party, where “control” means ownership of more than fifty percent (50%) of the outstanding shares and voting securities (but only as long as such person or entity meets these requirements).
2 Conclusion of SaaS-Agreement
- An SaaS Agreement comes into existence (conclusion of a contract) between HiveMQ and the Customer when the Customer accepts HiveMQ’s Quote. In the case of doubt, the payment of the SaaS Fees be paid initially by the Customer shall be deemed as acceptance of the Quote.
- All SaaS Contract Documents constitute binding parts of the SaaS Agreement. They shall apply to all SaaS Services and all associated performances, rights and obligations of HiveMQ and the Customer.
- In the event of any conflict between the provisions of (1) the Quote, (2) the SaaS-Terms Terms and (3) further documents referenced in the Quote, the provisions of the higher-ranking document shall prevail.
3 Subject Matter of these SaaS-Terms
- The subject matter of these SaaS-Terms comprises the conclusion of the SaaS Agreement between the Parties and performance of the SaaS Services incl. provision of managed services.
- The subject matter of these SaaS-Terms does particularly not comprise the following:
- The granting of any IP-rights to the HiveMQ Platform;
- Customisation and configuration services for the HiveMQ Platform;
- Training and Communication services.
4 Contractual Term, Termination
- The SaaS Agreement shall continue for the period specified in the SaaS Contract Documents (the “Term”). Unless expressly defined otherwise in the SaaS Contract Documents, the Term of the SaaS Agreement will be extended for another Term of the same duration at the end of each Term until it is terminated by either Party with three months prior notice before the end of the then-current Term.
- Both Parties’ right to termination for cause shall remain unaffected. From the perspective of HiveMQ, good cause is on hand especially (but not limited to) if the Customer (i) is in default with payments due by more than 30 (thirty) days despite a prior reminder or (ii) violates his obligations under section 6 para. (2) or section 9 para. (1) or (2).
- Notices of termination must always be given in Text Form.
5 Scope of SaaS Services, Data Storage
- The SaaS Services subscribed to by the Customer by conclusion of the SaaS Agreement are governed conclusively by the SaaS Contract Documents. HiveMQ shall not owe any further/exceeding functionalities or services. In particular, other presentations of HiveMQ Platform, public statements or advertising of HiveMQ or guarantees or other assurances or warranties provided by employees of HiveMQ prior to the conclusion of this SaaS Agreement shall not be construed as assured or else warranted or guaranteed properties, unless HiveMQ expressly confirms the additional properties to the Customer in writing.
- The SaaS Services explicitly do not include the storage of any data. Data is stored exclusively for buffering in the train of transmission and is not the subject of backups or the technical possibility to make it available to the Customer on request.
- HiveMQ does not guarantee or warrant the legal or actual usability of HiveMQ Platform or the SaaS Services in the field of application intended by the Customer. The Customer himself shall be responsible for complying with any applicable laws and obtaining permits or other documents required by law. This does not affect HiveMQ’s obligation to comply with the data protection legislation applicable to HiveMQ.
6 Ownership of the HiveMQ Platform
- As a condition for the granting access to the HiveMQ Control Center and the provision of SaaS Services, the Customer acknowledges and agrees that HiveMQ is the owner of the copyrights, associated property rights, know-how and expertise as well as any and all trademark rights, patent rights and designs with regard to all versions of HiveMQ Platform (hereinafter collectively referred to as “IP”) and that the Customer does not have any claims, rights or other interests in or to the IP unless HiveMQ expressly grants such to the Customer.
- The Customer agrees not to challenge, infringe or otherwise limit the IP rights of HiveMQ relating to the HiveMQ Platform or of the current or future direct or indirect licensees or sub-licensees, authorized dealers and/or resellers of HiveMQ (collectively referred to as the “Holders of the Rights”) on the basis of alleged ownership of IP rights to HiveMQ Platform or to otherwise support third parties that assert such alleged claims or rights or take legal action for such alleged claims or rights against HiveMQ or the Holders of the Rights.
- Nothing in the SaaS Agreement and its annexes waives or limits remedies or causes of action available to HiveMQ to protect its intellectual property rights in the HiveMQ Platform. Customer acknowledges that the HiveMQ Platform contain certain trade secrets and proprietary information owned by HiveMQ and the Holders of the Rights and that, in the event of a threatened or actual unauthorized disclosure of such information, HiveMQ will be entitled to such equitable or injunctive relief as may be deemed proper by a court of competent jurisdiction.
7 Prices and Payment
- All SaaS Fees and other amounts payable under the SaaS Contract Documents are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority an any amounts payable by Customer hereunder, other than taxes payable on HiveMQ’s income. All SaaS Fees are subject to the statutory value-added tax applicable – if any – when the invoice is issued.
- The due date of the SaaS Fees are specified in the SaaS Contract Documents. Unless otherwise expressly agreed, SaaS Fees are always payable upfront upon invoicing by HiveMQ.
- The costs of the access to the SaaS Services via the internet shall be borne by the Customer.
- Invoices are payable within 30 days of the date of issue of the invoices.
- Invoices will exclusively be issued electronically and be sent by e-mail.
- HiveMQ will give Customer notice in Text Form. If such notice has been provided and payment has not been made within 10 (ten) days of the receipt of the notice by Customer, then at HiveMQ’s sole discretion interest will accrue on all amounts payable from the original date due to the date paid, at the lesser of the rate of 12% per year or the highest rate allowed by applicable law plus collection costs. In addition, if, after receipt of the late payment notice, Customer does not pay the applicable invoice within 10 (ten) days, HiveMQ may suspend all SaaS Services subject to the affected Subscription(s). Further rights of HiveMQ, including but not limited to termination rights under section 4, shall remain unaffected.
8 Price Adjustments
HiveMQ is entitled to adjust the Subscription Fees on the basis of the currently valid prices listed in the SaaS Contract Documents, which take into account the cost structure of HiveMQ. Price reductions are permitted at any time. Price increases, however, will be subject to the following provisions:
- Price increases are only possible with effect from the contractually agreed termination dates and no more than once per year.
- HiveMQ will inform the Customer in Text Form three months before the price increase takes effect (“Announcement Period”). The Customer is free to terminate the SaaS Agreement during the Announcement period by written or textual statement. If the Customer does not terminate the SaaS Agreement, the price increase will be deemed accepted by the Customer and the increased prices shall apply after the end of the Announcement Period. HiveMQ will inform the Customer in each case of the effect of the expiry of the Announcement Period.
9 Customer Obligations, Export Regulations, Technical Requirements
- Customer shall comply with all applicable U.S. federal laws, regulations, and rules that prohibit or restrict the export or re-export of IP or Customer data outside the U.S., including the Export Administration Regulations issued by the U.S. Department of Commerce under the Export Control Reform Act.
- The Customer shall select secure login details for the HiveMQ Control Center and change such data on a regular basis. Moreover, Customer is obliged to keep the login details of the HiveMQ Control Center secret and shall take state-of-the-art measures to protect them from unauthorised access. Should the Customer learn of abusive access to the login details or to HiveMQ Control Center or if the facts give rise to suspicion in this regard, he shall without delay inform HiveMQ of this.
- Customer shall not perform any actions that may harm HiveMQ’s software or hardware or that violates the applicable laws and may not use the SaaS-Services for any illegal actions or violation of any third-party rights.
- The Customer shall be liable to HiveMQ for the actions of the users whom he informs about the login data of his HiveMQ Control Center or whom he grants access to his HiveMQ Control Center or else enables him/her to use the SaaS-Services. Breaches of Customer obligations from these SaaS-Terms by such users will be attributed to the Customer.
- The Customer is aware and agrees that in order to use the SaaS Services he may have to provide certain technical resources on his own and/or make use of third-party services (e.g. an adequate Internet connection). Moreover, the Customer is aware that he may incur additional costs for this.
10 Rights of HiveMQ in the Event of Breach of Customer Obligations, Indemnification
Notwithstanding its other rights, HiveMQ may block the HiveMQ Control Center and suspend SaaS-Services if,
- pursuant to the terms of the SaaS Agreement, HiveMQ is entitled to terminate the SaaS Agreement with immediate effect;
- the Customer is in default with payments due by more than 30 (thirty) days despite a prior reminder;
- the Customer breaches one or several of his obligations from Section 9 para. (1) or (2); or
- the HiveMQ Control Center is used by unauthorised third-parties without any fault of HiveMQ.
The HiveMQ Control Center and SaaS Services will be blocked until the reason for the blocking no longer applies or the Term of the SaaS Agreement ends. The Customer cannot derive any rights against HiveMQ due to the blocking according to this subsection. 2. The Customer shall indemnify HiveMQ against any and all third-party claims that are based on a culpable breach of his obligations from Section 9 para. (1) and/or (2) of these SaaS-Terms. This includes the assumption of the costs of legal defense of HiveMQ (including court and legal counsel costs in a reasonable amount). If the Customer notices or must notice the danger of a breach that establishes the claim to indemnification, he shall without delay inform HiveMQ of this. The Customer has to indemnify HiveMQ against payment obligations arising from settlements with third parties only if the Customer had expressly approved the underlying settlement beforehand. 3. In case third parties assert claims against HiveMQ, the Customer shall – upon first demand – comprehensively, truthfully and without delay provide HiveMQ with all information that is required for the review of the claims, also with respect to indemnity and defense. 4. HiveMQ reserves the right to assert further claims and rights against the Customer.
11 Defects, Cooperation of the Customer
- HiveMQ warrants that the contractual use of the SaaS Services by the Customer does not conflict with any third-party intellectual property rights.
- HiveMQ further warrants that it will maintain the contractually agreed SaaS Services during the Term of the SaaS Agreement to which they apply and shall eliminate any defects that may arise in the quality of the SaaS Services within a reasonable period. A defect will be deemed to be on hand if SaaS Services do not meet the specifications as agreed upon in writing between the Parties.
- In the event of defects in meeting the above agreed specifications of SaaS Services, the Customer shall always report such defects to HiveMQ without delay after detecting such in a reproducible form and/or along with all technical information (required documents, log files, etc.) that is required for identifying the exact error and its consequences insofar as the information is known to the Customer or should be known to the Customer according to the standards of a prudent businessman.
- With respect to any defects in title of HiveMQ Platform, the following shall apply additionally: If third parties assert claims against the Customer in court or outside court due to the Customer’s contractual use of HiveMQ Platform via the SaaS Services, the Customer shall without delay inform HiveMQ of this and, on request, grant HiveMQ all powers of attorney and authorisations that are required in order to enable HiveMQ to defend HiveMQ Platform against the asserted third-party rights, provided that this does not involve any unacceptable disadvantage for Customer’s own rights.
- HiveMQ will indemnify and hold the Customer harmless from and against any and all losses, damages, costs, and expenses (including statutory legal fees) resulting from any third parties’ claims caused by HiveMQ’s breach of a warranty made under section 11 para. 1) above provided that Customer does the following:
- notifies HiveMQ promptly in writing, not later than seven (7) calendar days after the Customer receives notice of the claim (or sooner if a response is required by applicable law or court time frame);
- gives HiveMQ sole control of the defense and any settlement negotiations if requested by HiveMQ and permissible by the applicable laws; and
- gives HiveMQ the information, authority, and reasonable assistance that HiveMQ needs to defend against or settle the claim.
HiveMQ shall in no case be obligated to pay any amount of any settlement or compromise of a claim made without its written consent. Limitations of HiveMQ’s liability according to section 14 below shall apply to this indemnification obligation.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 11, THE HIVEMQ PLATFORM AND EXTENSIONS ARE PROVIDED “AS IS”, AND HIVEMQ HEREBY DISCLAIMS ALL WARANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. HIVEMQ SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, TRADE PRACTICE. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11, HIVEMQ MAKES NO WARRANTY OF ANY KIND THAT HIVEMQ’S IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATABLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- HiveMQ endeavours to continuously improve the SaaS Services in order to continually increase its benefits for its Customers. Therefore, HiveMQ expressly reserves the right to further develop the HiveMQ Control Center, HiveMQ Platform and Extensions from time to time at its sole discretion. Within the scope of the further development, HiveMQ may, for example, change the appearance of the HiveMQ Control Center, modify, add and remove functions of the HiveMQ Platform, Extensions or change other specifications of the SaaS Services (collectively referred to as “Updates”). The Customer shall not have any claim to Updates or to continued use of a certain version of HiveMQ Control Center, HiveMQ Platform or Extensions. The Customer cannot derive any claims against HiveMQ due to the performance of SaaS Services as long as (i) no functions booked by him which are contractually guaranteed in this SaaS Agreement are cancelled or impaired by the Updates and (ii) he does not suffer any unacceptable disadvantages when using the updated SaaS Services
- Development and implementation of Updates is subject to HiveMQ’s sole discretion. Customer is not entitled to claim the implementation of certain Updates.
13 Data Protection
In the context of the contractual performance, the Parties shall comply with applicable data protection law. If required by law, the Parties shall conclude data protection agreements with each other. The conclusion of such agreements constitutes a material contractual obligation. Notwithstanding other rights, HiveMQ shall, in the event of illegitimate refusal of the Customer to conclude a data protection agreement that is required by law, be exempted from the obligation to perform services that (also) establish the obligation under data protection law to conclude an agreement.
14 General Limitation of Liability
HiveMQ shall be liable exclusively according to the following regulations, no matter what the legal basis may be.
- HiveMQ shall only be liable for willful wrongdoing and gross negligence.
- IN NO EVENT WILL HIVEMQ BE LIABLE UNDER OR IN CONNECTION WITH THIE SAAS CONTRACT DOCUMENTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION OF VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER HIVEMQ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH DAMAGES OR LOSSES WERE OTHERWISE FORESEEABLE. WITH THE EXCEPTION OF HIVEMQ’S INDEMNIFICATION OBLIGATION PURSUANT TO SECTION 11 PARA. 5), HIVEMQ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SAAS CONTRACT DOCUMENTS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE SHALL IN NO EVENT EXCEED TWO TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER SAAS CONTRACT DOCUMENTS TO HIVEMQ IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM .
- HiveMQ shall not be liable for any events of force majeure that make the contractual performance impossible, even if such events merely impair the due performance of the contract to a significant extent or hinder it temporarily. Force majeure comprises all circumstances that are independent from the will and influence of the Parties, such as terror attacks, embargo, confiscation, natural disasters, strike, official orders, pandemics or other serious and unforeseeable circumstances for which the Parties are not responsible. In this context, a circumstance will be regarded as force majeure only if it occurs after the conclusion of the relevant agreement.
- Moreover, HiveMQ shall not be liable for malfunctions and loss of quality of the data transfer on the internet for which HiveMQ is not responsible and that impairs or prevents the use of the contractual services. Furthermore, HiveMQ shall not be liable for malfunctions of SaaS Services that occur solely due to the malfunction of programs not provided under the relevant HiveMQ Subscription, such as VPN software, encryption software, etc. or of the software applications installed on the devices that communicate with HiveMQ’s software or systems.
- 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 agents of HiveMQ.
For the performance of its contractual obligations, HiveMQ may engage sub-contractors. In this context, HiveMQ shall ensure the professional suitability of the sub-contractors and always remains responsible towards the Customer with regard to the performance of its contractual obligations.
Neither HiveMQ nor the Customer may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld) except as provided in this section 16. Notwithstanding the foregoing, HiveMQ may assign the SaaS Agreement in its entirety to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without the Customer’s consent, provided the assignee has agreed to be bound by all of the terms of the SaaS Agreement.
17 Applicable Law, Jurisdiction
- This SaaS Agreement shall be governed by the internal laws of the State of New York (without giving effect to any choice or conflict of law provision or rule that would require or permit the application of laws of any jurisdiction other than those of the State of New York), under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- Any legal suit, action, or proceeding arising out of or related to the SaaS Contract Documents will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the city of New York, and each party hereto irrevocable submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
18 Conflicting Provisions
Any and all conflicting terms and conditions of the Customer or any other contractual provisions that deviate from the provisions of the SaaS Agreement and any documents referenced therein are expressly rejected unless HiveMQ expressly agrees to their applicability in writing. This shall apply even if the Customer refers to deviating contractual provisions in his communication and HiveMQ does not object to such. Even if HiveMQ refers to a document received from the Customer in which deviating terms and conditions of the Customer or of third parties are specified or otherwise included or if HiveMQ refers to such terms and conditions, this shall not establish any agreement concerning the applicability of such terms and conditions. HiveMQ hereby objects to the inclusion of such deviating terms and conditions.
- Side agreements have not been made. To be valid, such must be made in Text Form.
- The headings and captions of the various sections hereof are for convenience only and they shall not limit, expand or otherwise affect the construction or interpretation of these SaaS Terms or any other provisions of the SaaS Agreement.
- If one Party fails to enforce any provision of the SaaS Agreement, it will not be precluded from enforcing the same provision at another time.
- All notices, requests and demands, and other communications required or permitted under the terms of the SaaS Agreement are made in Text Form. All notices for each Party will be sent to the E-Mail-addresses set forth in the registration process.
- Should individual provisions of the SaaS Agreement be fully or partially invalid or unenforceable or become invalid or unenforceable after the conclusion of this SaaS Agreement, this shall not affect the validity of the other provisions. Instead, the Parties undertake to work towards a substitute regulation that comes as close as possible to the effects of the invalid or unenforceable one in a legally permissible and economic way. The same shall apply in case the terms of the SaaS Agreement turn out to have gaps.