HiveMQ GmbH, headquartered in Landshut, Germany (hereinafter referred to as “HiveMQ”) licenses HiveMQ Platform – a software by means of which, when installed on a server, data can be transmitted and exchanged between various devices over existing connections – to business customers (hereinafter referred to as the “Customer(s)"). Depending on the respective agreements between HiveMQ and its Customers, the contractual performance comprises the licensing of HiveMQ Platform for a certain period of time as well as update and support services for HiveMQ Platform according to HiveMQ’s respective Quote and these HiveMQ Subscription Terms (hereinafter referred to as the “Subscription 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: HiveMQ Platform is a standard software of HiveMQ by means of which data can be transmitted and exchanged between various devices in the form of executable code as described in the Quote and according to the Documentation in all versions made available to the Customer including any Updates and the Extensions - if any - that are subject to the Subscription according to the relevant Quote.
Extension: Extensions mean applications which provide additional functionalities to a full version of HiveMQ Platform software and, if any, are subject to a Subscription. Extensions are provided by HiveMQ only in connection with Subscription of a full version of HiveMQ Platform software. For the purposes of these Subscription Terms, Extensions are considered part of the HiveMQ Platform.
Quote: Document with which HiveMQ offers the Customer the conclusion of a Subscription. The Quote contains, in particular, information on the scope of use the HiveMQ Platform, the Subscription Period, support services and the applicable fees.
Support Policy: Support Policy of HiveMQ GmbH, which is a document that is referenced in the Quote and which HiveMQ makes available to Customers in electronic form in English, which defines the offered support services in detail.
Documentation: The Documentation published by HiveMQ describes the properties of the HiveMQ Platform and comprises installation, integration and administration guidelines. For each version of the HiveMQ Platform, only the Documentation that refers to this software version is valid.
Subscription: The Subscription is the binding agreement between HiveMQ and the Customer for the lease of the HiveMQ Platform software as well as Support Services according to the provisions of the applicable Quote, these Subscription Terms and Documentation as well as the Support Policy referenced in the Quote (hereinafter collectively the “Documents”) and these Subscription Terms.
Subscription Period: Subscription Period means each period described in the applicable Quote for which Customer is granted license rights to use HiveMQ Platform according to Part 2 below.
Subscription Fees: The prices for the Subscription as specified in the Quote
Support or Support Services: Support or Support Services means the provision of support and provision of Updates for HiveMQ Platform as further described in Part 3 below.
Cluster: Cluster is a Collection of HiveMQ nodes that are configured to act as a single logical HiveMQ Broker towards Customers. In this context, HiveMQ Broker refers to a software core of the HiveMQ Platform.
Non-Production License: Means a License granted by HiveMQ to Customer under which the HiveMQ Platform may only be used for testing purposes and in accordance with section 11 below.
Major/Feature/Maintenance and Hotfix Versions: HiveMQ regularly publishes new versions of HiveMQ Platform. These are “Major Versions”, “Feature Versions”, “Maintenance Versions” and “Hotfix Versions”. Major Versions are designated by the first number of the HiveMQ Platform version number (e.g. HiveMQ 3.x.x), Feature Versions are designated by the second number of the HiveMQ Platform version number (e.g. HiveMQ x.2.x) and Maintenance Versions are designated by the third number of the HiveMQ Platform version number (e.g. HiveMQ x.x.1). Hotfix Versions contain temporary bug fixes for deployment until the release of the next Major, Feature or Maintenance Version. “Major Versions”, “Feature Versions”, “Maintenance Versions” and “Hotfix Versions” rolled out by HiveMQ after the conclusion of a Subscription are jointly deemed to be “Updates”. The foregoing system of version numbers does not apply to Extensions.
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).
Text Form: Text Form in the sense of these Subscription Terms includes electronic communication via e-mail.
2 Conclusion of Subscriptions, Application of the Documents
- A Subscription 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 Subscription Fee to be paid initially by the Customer shall be deemed as acceptance of the Quote.
- All Documents constitute binding parts of the Subscription. They shall apply to all Subscriptions 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 Support Policy, (3) the Subscription Terms and (4) the Documentation, the provisions of the higher-ranking document shall prevail.
3 Subject Matter, Services
- The subject matter of these Subscription Terms comprises the following:
- The granting of temporary rights to use the HiveMQ Platform software (software lease) by HiveMQ to the Customer (Part 2 of these Subscription Terms); and
- Support Services for the HiveMQ Platform software (Part 3 of these Subscription Terms).
- The subject matter of these Subscription Terms or any Subscription does particularly not comprise the following (unless expressly described in a Quote):
- Customization and configuration services for HiveMQ Platform;
- The installation of HiveMQ Platform;
- The provision of the needed data connections for the communication of HiveMQ Platform with devices; and
- The provision of the software applications needed for the communication of HiveMQ Platform with devices on these devices.
Under no means, the provision of the source code or the granting of any rights with respect to the source code of HiveMQ Platform will be subject to a Subscription.
- Where employees of HiveMQ provide guarantees or other assurances or warranties prior to the conclusion of a Subscription, these shall become a binding component of the Subscription only if formally confirmed to the Customer in writing by the management of HiveMQ.
4 Prices, Electronic Invoice, Late Payment
- The prices for the Subscription (hereinafter referred to as “Subscription Fee(s)") as well as the due dates for the payment shall be governed by the Quote. Unless agreed otherwise, Subscription Fees shall be paid on a yearly basis in advance (the time of receipt of the full Subscription Fee to be paid at the beginning of a Subscription Period is hereinafter referred to as “Receipt of the Initial Payment”).
- All fees and other amounts payable under the 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 prices are subject to the statutory value-added tax applicable when the invoice is issued.
- HiveMQ may modify the prices of Subscriptions or Professional Services at any time up to an amount of eight (8) percent of the annual aggregate pricing of the preceding Contract Year, unless otherwise expressly agreed in an Order Form explicitly mentioning this Section. HiveMQ will notify Customer at least 30 days in advance of any such price increases. If HiveMQ notifies Customer of any price increase for a Subscription or Professional Services that Customer has used prior to receipt of such notification, Customer may terminate the respective Order Form on 30 days’ prior written notice to HiveMQ on condition that Customer provides such notice within 30 days of being informed of the respective price increases by HiveMQ. Customer’s payment commitments (if any) are not affected by such termination.
- The costs of making HiveMQ Platform and the Documentation accessible on the Internet shall be borne by HiveMQ; the costs of the access and download 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.
- If Customer fails to pay an invoice in a timely manner, HiveMQ will give Customer written notice. If such notice has been provided and payment has not been made within 5 (five) 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 5 (five) days, HiveMQ may suspend the Support Services. Further rights of HiveMQ, including but not limited to termination rights under section 5 below, shall remain unaffected.
5 Subscription Period, Termination, Return
- Unless expressly defined otherwise in the Quote, the initial Subscription Period shall be 3 (three) years. The Subscription will automatically be renewed for additional Subscription Periods of 1 (one) year each unless the Subscription is terminated in Text Form by either Party with three months’ notice prior to the end of the then-current Subscription Period. Ordinary termination with effect during an ongoing Subscription Period is not possible.
- The initial Subscription Period shall begin on the date specified in the Quote or, if no date is specified, as of the conclusion of the Subscription, irrespective of the Receipt of the Initial Payment. However, HiveMQ shall NOT be under the obligation to render performance for the Customer (including but not limited to the services pursuant to sections 7, 10, 14 and 15) with respect to every Subscription Period until after the Receipt of the Initial Payment for the respective Subscription Period.
- Both Parties’ right to termination a Subscription for cause shall remain unaffected. From the perspective of HiveMQ, good cause is on hand especially if the Customer uses the Licensed Item (as defined in section 10 below) in breach of section 10 or 11 of these Subscription Terms or if he is in default of payment of Subscription Fees and does not fully settle such even after a reminder by HiveMQ with a grace period of four weeks.
- In the event of termination by HiveMQ for good cause, any Subscription Fees already paid will not be refunded to the Customer.
- Notices of termination must always be given in Text Form. The Customer can send his notice of termination by e-mail to firstname.lastname@example.org.
- The Subscription ends with termination for cause or the end of the Subscription Period, which is followed by no further Subscription Period due to an ordinary termination by either Party, and in all cases of mutual termination of the Subscription (hereinafter “End of Subscription”).
- Upon the End of Subscription, Customer shall destroy all copies of the HiveMQ Platform and all copies of the Documentation in its possession, unless Customer is required by law to retain them, and shall uninstall the HiveMQ Platform. At the request of HiveMQ, the Customer shall confirm the performance of the aforesaid obligations in writing.
- HiveMQ may make changes to this Subscription Terms from time to time subject to the following conditions:
- Unless noted otherwise, material changes to the Agreement will become effective 30 days after they are communicated to Customer.
- If the changes will apply to new features or functionalities or the changes are required by a court order or applicable law, they will be effective immediately.
- HiveMQ shall have the following objection right in connection to changes to the Subscription Terms as set forth in Sec. 5 para. 8):
- If a change to the Subscription Terms (other than as described in Sec. 5 para 8) bullet point 2) has a material adverse impact on Customer, then Customer may object to the change by notifying HiveMQ within 30 days after HiveMQ provides notice.
- If Customer so notifies HiveMQ, then Customer, in case a Subscription Period was agreed between the Parties, will remain governed by the Subscription Terms in effect immediately before the change until the earlier of: (a) the end of the then-current Subscription Period; or (b) 12 months after the notice was given.
6 Modification and Deprecation of Services
- Discontinuance of Service. Subject to Sec. 6 para 2) and para. 3, HiveMQ may discontinue any of the Service feature or functionality for any reason at any time without liability to Customer.
- Deprecation Announcement. In the event that HiveMQ intends to discontinue or make backwards incompatible changes to the Service, HiveMQ will notify Customer of such intention in advance. HiveMQ will then use commercially reasonable efforts to continue to operate those affected versions, features or functionalities without the noted changes for at least three months after that announcement, unless (as HiveMQ determines in its reasonable good faith judgment) (i) required by law or third-party relationship (including if there is a change in applicable law or relationship), or (ii) such continued operation could create a security risk or substantial economic or material technical burden.
- Modification of the Service.
- The development, provision and operation of the Service is work in progress. In order to maintain a uniform product and allocate resources commercially reasonable and in favor of a progressive and modern product experience and/or in order to keep up with good industry standards regarding security, reliability or regulatory compliance of the Service, only with respect to certain features, functions or parts of HiveMQ Software, HiveMQ reserves the right from time to time to modify HiveMQ Software and correspondingly amend the product definition as set forth in the Documentation, if (i) HiveMQ determines that an unusual low level of use across its customers of the respective function, feature or part, (ii) such unusual low level of use is disproportionate to the costs and efforts occurring from the provision of the respective function, feature or part to Customer and (iii) such function, feature or part does not form an essential part of the product for the performance of the fundamental contractual obligations.
- Notification Period: HiveMQ will give timely notice to Customer at least twelve months prior to such modification.
- Termination Right: If such modification to the Service comes effective during an Initial Term or Renewal Term and if such modification to the HiveMQ Software results in a material impact on the commercial balance between the Subscription and Subscription Fees, Customer may terminate the Subscription Term upon a prior documented notice of thirty (30) days. To clarify, such a termination shall have the effect set forth in Sec. 5 para. 4.
Part 2 Special Provisions for the Software License
7 Ownership of the HiveMQ Platform
- As a condition for the granting of the rights to use HiveMQ Platform under the terms of the Subscription, 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. Unless expressly specified in this Subscription, the Customer is not permitted to use, present, disclose or sub- license HiveMQ Platform to third parties.
- The Customer agrees not to challenge, infringe or otherwise limit the IP rights of HiveMQ 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 these Subscription Terms or any Subscription waives or limits remedies or causes of action available to HiveMQ to protect its intellectual property rights in HiveMQ Platform. Customer acknowledges that 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.
8 Provision of HiveMQ Platform Files and Documentation
At the beginning of the term of the Subscription, as of the Receipt of the Initial Payment, HiveMQ will make the following information and files available to the Customer:
- The HiveMQ Platform software will be made available to the Customer for download. If the software has not already been downloaded by the Customer, HiveMQ will e-mail the Customer a link to a web page (URL) from which the software can be downloaded.
- The Documentation will be made available by e-mailing a link to a web page (URL) on which the documentation is publicly accessible.
- The HiveMQ Platform license data according to the respective Quote and the license key that is needed to use HiveMQ Platform will be sent to the Customer in the form of an electronic file (hereinafter referred to as “License File").
9 Properties of HiveMQ Platform
- The properties of HiveMQ Platform are governed conclusively by the Documentation in the version made available to the Customer. HiveMQ shall not owe any further/exceeding properties of HiveMQ Platform. In particular, other presentations of HiveMQ Platform, public statements or advertising of HiveMQ or third parties shall not be construed as assured or else warranted or guaranteed properties, unless HiveMQ expressly confirms the additional properties to the Customer in writing. Sec. 3 para. 3) applies.
- HiveMQ does not guarantee or warrant the legal or actual usability of HiveMQ Platform in the territory of deployment or 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 the statutory warranty with respect to defects in title, which is provided by HiveMQ.
- Any properties assured by HiveMQ apply to HiveMQ Platform only, not to the system or system environment in which the Customer wants to deploy HiveMQ Platform.
10 Technical Requirements at the Customer
- The Customer shall be responsible for meeting the technical requirements for the use of HiveMQ Platform in the latest version. The technical requirements are specified in the Documentation in the version made available to the Customer under “System Requirements”.
- The Customer is informed that the system requirements only pertain to HiveMQ Platform itself. The Customer shall take care of any deviating or additional system requirements for the purposes intended by him, e.g. sufficient server resources, an adequate Internet connection etc. and, on his own responsibility, obtain professional advice in the case of doubt. The Customer is aware that he may incur additional costs for this.
11 HiveMQ Platform License, Scope of Utilization
As of the Receipt of the Initial Payment (or, in the case of Updates, as of the download of such Updates by the Customer), HiveMQ grants the Customer a non-exclusive right to use HiveMQ Platform without any territorial restrictions in all versions made available to him including the Updates and Documentation (hereinafter collectively referred to as the “Licensed Item") according to the following provisions until the end of the Subscription Period. All software elements of HiveMQ Platform that are subject to an open source license and that are listed in the file „licenses” in the folder „third-party- licenses“ (which will be made available as part of HiveMQ Platform) are not part of the Licensed Item. The right to use these software elements is governed exclusively by the applicable open source license terms that are made available to the Customer.
- All rights of use that are granted to the Customer for the Licensed Item are limited in time from the Receipt of the Initial Payment to the end of the applicable Subscription Period.
- The use of HiveMQ Platform is limited to the following scope of utilization (hereinafter referred to as “Contractual Use”):
- The use of the HiveMQ Platform is limited to the manner and permitted use cases described in the applicable Quote. By way of example, the Quote may set forth the permitted number of CPUs and/or Clusters, with which the software may be used and/or the maximum number of concurrent connections managed by HiveMQ Platform and/or the locations at which the HiveMQ Platform may be used.
- Moreover, the use shall be limited to the utilization according to any possible further specifications described in the applicable Quote.
HiveMQ reserves the right (but is under no obligation) to restrict the use of HiveMQ Platform to the Contractual Use by means of technical measures that prevent any use exceeding the Contractual Use by the Customer. 3) Copying of the Licensed Item (including backup copies) is only permitted to the extent required for the Contractual Use of HiveMQ Platform. Backup copies on removable storage media shall be designated as such and shall be marked with a copyright mark. The Customer shall keep record of the copies of the Licensed Item that he creates on storage media in accordance with the Subscription as well their whereabouts and shall, on request, give HiveMQ information on such and grant access to such. 4) In the event of excess use of HiveMQ Platform beyond the Contractual Use without the prior approval of HiveMQ, the Customer shall retroactively purchase the required license(s) on HiveMQ’s request. Any further rights and claims of HiveMQ shall remain unaffected. 5) The Customer is NOT entitled to decompile the HiveMQ Platform. 6) Publication or reworking of the Licensed Item is not permitted. No rights are granted for types of use not known at the conclusion of the Subscription. 7) The Customer is ONLY permitted to sub-license the Licensed Item to (i) hosting/service providers and/or to (ii) Affiliates by way of a direct mandate insofar as this takes place for the operation of HiveMQ Platform on servers for the Contractual Use of HiveMQ Platform by the Customer. These sub-licenses shall not exceed the rights of use granted to Customer under consideration of the limitation to the Contractual Use and the other restrictions (especially in terms of time and scope) applicable under the Subscription. For technical reasons, it is not possible for the Customer to create separate License Files or to receive separate License Files from HiveMQ for his sub-licensees. Apart from the aforesaid exceptional constellations, the Customer is not permitted to grant sub-licenses or in any other way make HiveMQ Platform available to any third parties against payment or free of charge, also not by way of application service providing or software as a service. 8) The Customer is responsible and liable to HiveMQ with regard to the compliance with the license terms. In this connection, it is expressly agreed that the Customer shall also be responsible and liable to HiveMQ for his sub-licensees’ compliance with the license terms of the Subscription 9) The aforesaid restrictions shall also apply to all software versions that the Customer receives in the course of HiveMQ’s Support Services. If HiveMQ Platform is fully replaced by a new software version and the Customer starts using the new version, the right to use the replaced software version shall expire, provided that the new version is compatible. 10) HiveMQ grants all rights to use the Licensed Item subject to the condition of the Customer’s compliance with the terms under this section 10.
12 Non-Productions Licenses
Where the Licensed Item is subject to a Non-production License, it may only be used in accordance with the terms of the Subscription whereby the provisions of the aforementioned section 10 shall be amended as follows:
- The usage rights granted according to the Non-production License are limited in time to the duration/period mentioned in the respective Quote. The provisions relating to the Subscription Period shall apply accordingly.
- The Contractual Use of the Licensed Item shall be limited as follows: The Licensed Item may ONLY be used by the Customer for testing purposes within its own business environment and must not be used on production systems. The Licensed Item is expressly not meant for any production or live-system use and HiveMQ shall not be liable for any damages arising out of or in connection with such use.
The following shall apply to Extensions:
- Extensions always refer to a full version of the HiveMQ Platform software and can only be used in conjunction with that full version. There is no stand-alone capability of the Extensions.
- Extensions may only be used within the framework of Contractual Use of the full version of HiveMQ Platform software, which they functionally extend.
- In case of doubt (unless otherwise provided for in the Quote), rights of use to the Extension are granted for the Subscription Period applicable to the full version of the HiveMQ Platform software which they functionally extend.
14 Defects in Quality and Title, Maintenance, Cooperation of the Customer
HiveMQ warrants that it will maintain the contractually agreed properties of HiveMQ Platform during the Subscription Period according to the following provisions:
- HiveMQ warrants that the Contractual Use of HiveMQ Platform by the Customer for the purposes as described in the Documentation in accordance with the system requirements outlined therein does not conflict with any third-party intellectual property rights.
- HiveMQ further warrants that the HiveMQ Platform meets the contractually agreed specifications and shall eliminate any defects that may arise in the quality of HiveMQ Platform within a reasonable period. The following shall apply:
- A defect will be deemed to be on hand if HiveMQ Platform does not have the properties and functions described in the Documentation, provided that the system requirements outlined therein have been complied with and the suitability of HiveMQ Platform for the Contractual Use is impaired to an extent that is not merely insignificant. Malfunctions including but not limited to the following reasons will not be regarded as defects in the meaning of these Subscription Terms:
- Intentional or negligent modification outside the granted usage rights or abuse or damage of HiveMQ Platform by the Customer or his representatives, agents or sub-licensees;
- Use of HiveMQ Platform in an operating environment or in combination with servers, mobile hardware or software applications not expressly approved by HiveMQ in the Documents;
- Errors that occur due to defects or deficiencies of servers, mobile hardware or software interacting with HiveMQ Platform.
- Furthermore, the Customer shall not have any claims for defects if HiveMQ Platform was fully or partially modified by the Customer or by third parties in breach of these Subscription Terms or any Subscription, unless the Customer can demonstrate that the alleged defect is not related to the respective modification. Moreover, the Customer shall not have any claims for defects if software errors or malfunctions are caused by the fact that the Customer did not install and deploy HiveMQ Platform according to the Documentation.
- The strict liability for damages for defects that already existed at the conclusion of a Subscription is excluded.
- In the event of defects of HiveMQ Platform, the following shall apply:
- The Customer shall always report 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.
- The customer shall do everything that can reasonably be expected to assist HiveMQ in the elimination of defects, especially by installing corrective measures or replacement provided by HiveMQ. Additionally, the Customer shall grant HiveMQ access to the HiveMQ Platform software insofar as this is necessary for the elimination of errors via the Internet, unless this would involve unacceptable effort and/or costs for him.
- At the discretion of HiveMQ, the troubleshooting may take place by way of modification of the HiveMQ Platform software, replacement or software updates, provided that this would not result in any unacceptable disadvantage (e.g. due to higher system requirements) for the Customer.
- With respect to any defects in title of HiveMQ Platform, the following provisions shall apply additionally:
- If third parties assert claims against the Customer in court or outside court due to the Contractual Use of HiveMQ Platform, the Customer shall without delay inform HiveMQ of this and, on request, grant HiveMQ all powers of attorney and authorizations 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 (a) may, at its own discretion, (i) take legitimate measures to acquire the third-party rights that impair the Contractual Use of HiveMQ Platform (ii) or prevent them from being asserted or (iii) modify or replace HiveMQ Platform in such a way that the software no longer infringes any third-party rights if and insofar as this does not materially impair the owned functionality of HiveMQ Platform and (b) is under the obligation to reimburse the Customer for any incurred damages.
- 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 13 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 event be obligated to pay any amount of any settlement or compromise of a claim made without its written consent.
- Notwithstanding section 13 para. 6) above, HiveMQ will not indemnify the Customer
- if Customer modifies HiveMQ Platform through improper or unauthorized use (which is the sole cause of the infringement) or uses it outside the Contractual Use; or if the Customer uses a version of HiveMQ Platform which has been superseded, if the infringement claim could have been avoided by using a current version of HiveMQ Platform which was provided to the Customer for purposes of the Subscription; and
- to the extent that an infringement claim is based upon the combination of HiveMQ Platform with any products or services not provided by HiveMQ where such combination is outside the recommended scope of use.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 13, 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 13, 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, OR ERROR FREE.
15 HiveMQ’s Right to Information and to Conduct Audits
- At any time in the event of justified suspicion and, even if no suspicion is on hand, once in every 6 months period, HiveMQ may request the Customer to provide information in Text Form about (i) the scope of the use of HiveMQ Platform with regard to the parameters concerning which the use is limited pursuant to section 10 para. 2) or section 11 and (ii) any HiveMQ Platform sub- licenses granted by the Customer pursuant to section 10 para. 8). The Customer shall provide HiveMQ with the information requested according to sentence 1 within 15 (fifteen) days.
- Should the Customer delay or fail to comply with his information obligation pursuant to the preceding para. (1), HiveMQ may conduct an audit at the Customer’s business premises and IT locations on weekdays during normal office hours. While doing so, HiveMQ shall disturb the Customer’s operations as little as possible and announce audits no later than 5 (five) days in advance.
- If license infringements of the Customer with respect to the Licensed Item are identified within the scope of audits, the Customer shall reimburse HiveMQ for reasonable costs of the audits. In all other cases, each Party shall bear its own costs.
Part 3 Special Provisions for Support Services
16 General Regulations for Updates and Support Services
- Within the scope and for the Subscription Period, HiveMQ will perform Support Services. As part of the Support Services, HiveMQ will provide the Customer with Updates that it rolls out for HiveMQ Platform for download during the Subscription Period. However, HiveMQ is under no obligation to further develop HiveMQ Platform in certain ways or to comply with specific update schedules, and the Customer does not have any rights to specific further developments.
- Support for each version of HiveMQ Platform is limited in accordance with the terms of the Support Policy.
- The Updates provided to and downloaded by the Customer shall be governed by the provisions of the Subscription and these Subscription Terms.
- The contractual obligations of HiveMQ towards the Customer with respect to the maintenance of HiveMQ Platform pursuant to section 13 of these Subscription Terms remain unaffected.
17 HiveMQ Support Policy
The details of the Support Services as well as the terms and conditions for the support levels mentioned in the Quote are governed by the Support Policy of HiveMQ GmbH, which is referred to in the applicable Quote.
18 Customer Obligations, Export Regulations, Extra Expenses
- 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 without delay provide HiveMQ will all required documents, log files, and other information that are necessary for the performance of the Support Services and that are requested by HiveMQ in connection with a support request. If the Customer does not or not fully comply with his aforesaid obligations, he cannot derive any rights against HiveMQ due to non-performance, late performance or insufficient performance of Support Services. HiveMQ’s own rights shall remain unaffected.
- If HiveMQ renders services for error detection or troubleshooting purposes or following Customer’s support request(s) without being under any obligation to do so within the scope of the contractually agreed Support Services, HiveMQ may charge its reasonable hourly rates for this. HiveMQ will notify the Customer beforehand.
19 Representation, Communication
The Customer shall make sure that the contractually agreed persons on his side (“Named Contact”) and the other persons of the Customer who request support services from HiveMQ are authorized to do. HiveMQ may assume that all update and support requests that it receives from these persons are made on behalf of the Customer.
Part 4 Common Provisions
20 Non-Disclosure, Mentioning as Reference
- The Customer shall take suitable measures according to the state of the art to protect the copies of the Licensed Item surrendered to him or downloaded by him against unauthorized access. The Customer shall without delay inform HiveMQ in Text Form in the event of actual or justified suspicion of unauthorized access to the Licensed Item or parts of it.
- Both Parties undertake to indefinitely treat all confidential information and business secrets of the other Party that they receive in the course of the initiation or performance of any Subscription (this includes the Licensed Item) (hereinafter collectively referred to as “Business Secrets”) as confidential, treat the confidential information with the same degree of care as the they use to protect their own information of a similar nature but in no case with less than a reasonable degree of care and to use such confidential information only for the performance of the relevant Subscription.
- The Parties shall only make Business Secrets of the other Party accessible to their employees and other third parties insofar as this is required for the exercise of the rights granted to them under the relevant Subscription (on the Customer side, especially the rights to use HiveMQ Platform). They shall brief all persons whom they grant access to Business Secrets about the non-disclosure obligation and impose non-disclosure obligations upon these persons in writing or in Text Form that at least meet the standards of the confidentiality obligations under this section 19 in the scope permitted by law (the Customer shall in any case do so in the scope according to paragraph (1) above) insofar as the respective persons have not already been committed to non- disclosure at least in the aforesaid scope for other legal reasons.
- The aforesaid obligations shall not apply to Business Secrets in respect of which the receiving Party can prove (i) that were already publicly know when they were transmitted; (ii) that became publicly known after their transmission without any fault of the receiving Party; (iii) that, after the transmission, were made accessible to the receiving Party by a third party in a way that was not unlawful and without any confidentiality or utilization restrictions; (iv) that were developed independently by the receiving Party without using the Business Secrets of the disclosing Party; (v) that must be publicly disclosed according to law, an official order or a court decision, provided that the receiving Party informs the disclosing Party of this; and (vi) that the receiving Party is permitted to use or forward on the basis of mandatory statutory provisions or on the basis of these Subscription Terms.
If HiveMQ is granted the right to reference to the Customer, the following shall apply unless the Parties have expressly agreed otherwise: HiveMQ may use Customer’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and web site listings (including links to its website) for the purpose of advertising or publicizing the Customer’s use of HiveMQ Platform. Customer may opt out of granting HiveMQ the foregoing license, or require that HiveMQ execute a separate agreement therefore, by providing written notice to HiveMQ within 5 calendar days of the date Customer enters into a Subscription. If the Customer had prohibited the mentioning as reference prior to the conclusion of this Agreement, this regulation shall be construed as cancellation of the said prohibition.
22 Data Protection
In the context of the contractual performance, the Parties shall comply with applicable data protection laws. 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.
23 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 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 13 PARA. 6), HIVEMQ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE 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 HIVEMQ BY CUSTOMER UNDER THE DOCUMENTS 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 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 a Subscription.
- 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 HiveMQ Platform that occur solely due to the malfunction of programs not covered by the relevant Subscription, such as VPN software, encryption software, etc. or of the software applications installed on the devices that communicate with 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 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 remains directly 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 24. Notwithstanding the foregoing, HiveMQ may assign a Subscription 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 Subscription.
26 Applicable Law, Jurisdiction
- All Subscriptions 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 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.
27 Conflicting Provisions
Any and all conflicting terms and conditions of the Customer or any and all other contractual provisions that deviate from the provisions of a Subscription, these Subscription Terms and its Appendices or any of the Documents are expressly rejected unless HiveMQ expressly agrees to their applicability in writing. This shall apply even if the Customer, when accepting the Quote of HiveMQ, refers to deviating contractual provisions in his order, PO or other 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.
28 General Provisions
- 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 Subscription Terms or any provision of a Subscription.
- If one party fails to enforce any provision of these Subscription Terms or any provisions under a Subscription, 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 these Subscription Terms or any of the Documents which are made in writing will be deemed effective only: (a) upon delivery; if delivered personally to a party; (b) 1 business day after deposit, if delivered to a nationally recognized courier service offering guaranteed overnight delivery; or (c) 3 business days after having been deposited in the mails, certified mail, postage prepaid, return receipt requested. All notices for each party will be sent to the addresses set forth in the preamble of these Subscription Terms.
- Should individual provisions of these Subscription Terms or any Document be fully or partially invalid or unenforceable or become invalid or unenforceable after the conclusion of a Subscription, 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 these Subscription Terms or any of the Documents turn out to have gaps.