General Terms and Conditions

Hivebuy offers its own customers web-based access in the area of procurement and eProcurement (“SaaS solution”) as part of a software-as-a-service solution. The SaaS solution enables the customer to control and simplify the entire procurement process, from the procurement decision to the selection of and contact with potential suppliers through to the execution and management of orders, including the subsequent filing and management of order documentation. This Software-as-a-Service contract including its annexes (“Contract”) governs the contractual relationship between Hivebuy and the customer regarding the use of the SaaS solution.

 

1) Subject matter and conclusion of the contract; General Terms and Conditions of the customer

1.1) The SaaS solution is only aimed at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Entrepreneurs are natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the contract. Hivebuy reserves the right to request suitable information and proof that the customer is not a consumer in accordance with § 13 BGB. There is no entitlement to the conclusion of a contract.

1.2) Unless otherwise agreed, this contract also applies accordingly for the duration of a free provision of the SaaS solution (“Trial Period”) in the form of a test version (“Trial Version”) by Hivebuy. The provision of the Trial Version is intended to enable the Customer to test the use of the SaaS Solution and its range of functions during the Trial Period and to provide a basis for deciding whether the Customer wishes to use the SaaS Solution for a fee following the Trial Period.

1.3) The contract can be concluded either by completing the order form in written or text form (“offline conclusion of contract”) or by registering the customer within the SaaS solution (“online conclusion of contract”). Both the offline conclusion of the contract and the online conclusion of the contract must be carried out by an authorized employee or representative of the customer.

1.4) Der Kunde erhält zunächst auf Anfrage (im Falle eines Offline-Vertragsschlusses) oder auf Registrierung innerhalb der SaaS-Lösung (im Falle eines Online-Vertragsschlusses) Zugangsdaten zur Nutzung der Trial-Version für eine zwischen den Parteien vereinbarte Trial-Periode.

1.4) Upon request (in the case of an offline contract) or upon registration within the SaaS solution (in the case of an online contract), the customer shall initially receive access data for the use of the trial version for a trial period agreed between the parties.

1.6) In the case of an online contract conclusion, the customer fills in all the requested information marked as necessary by Hivebuy within the registration process of the SaaS solution and clicks on the “Subscribe now” button to complete the registration process. Until the “Subscribe now” button is clicked, the customer can cancel the conclusion of the online contract at any time or change the information provided by deleting, supplementing or correcting the information provided in the various fields or by closing their web browser or tab. After completing the registration process, the customer can change the information provided at any time in the customer account provided by Hivebuy within the SaaS solution.

1.7) By sending the order form to Hivebuy (in case of an offline contract conclusion) or by completing the registration process (in case of an online contract conclusion), the customer submits a legally binding request to Hivebuy to conclude the contract for the fee-based use of the SaaS solution (“offer”). In the case of an online conclusion of contract, Hivebuy will send the customer a confirmation of receipt of the Offer to the e-mail address provided by the customer during the registration process immediately after receipt of the Offer by Hivebuy. However, this order confirmation does not constitute acceptance of the customer’s offer.

1.8) A contract between Hivebuy and the customer for the fee-based use of the SaaS solution is only concluded when Hivebuy has accepted the offer. The declaration of acceptance by Hivebuy is made by sending an order confirmation in paper form or as an electronic copy (e.g. by e-mail) to the customer (“conclusion of contract”).

1.9) Hivebuy does not save the contract text after conclusion of the contract. Upon conclusion of the contract, the customer receives a copy of the order confirmation in paper form or as an electronic copy (e.g. by e-mail). The contract can be concluded in German.

1.10) The customer’s general terms and conditions shall only become part of the contract if Hivebuy expressly agrees to them in writing.

2) Services from Hivebuy

2.1) Hivebuy provides the customer with access to the SaaS solution via the Internet for the term of the contract. The exact scope of the services to be provided by Hivebuy is specified in the order form and the provisions of this contract. Beyond the agreed services, the customer has no claim to a specific design or specific functionalities of the SaaS solution.

2.2) The Customer has the possibility to initiate orders and other transactions with third parties via the SaaS Solution and to manage different order processes within the SaaS Solution. The customer acknowledges that in the case of orders and other transactions or order processes that the customer initiates or manages via the SaaS solution or using the SaaS solution, it is not Hivebuy but the respective third party that becomes the contractual partner of the order or other transaction and the underlying procurement contract and the customer has no rights against Hivebuy from such a procurement contract. If Hivebuy transmits declarations of intent of the customer in this context with regard to the initiation or management of orders or other transactions or the conclusion of procurement contracts, Hivebuy merely acts as a messenger; the contractual partner of the customer with regard to such orders or transactions and the underlying procurement contracts is also the respective third party in these cases. Hivebuy is therefore not responsible for the proper fulfillment of the orders, transactions and the respective underlying procurement contract, any reversal as well as all claims arising from or in connection with the respective concluded procurement contract, but the respective third party.

When initiating or managing an order, transaction or underlying procurement contract with a third party, the customer is responsible for checking the accuracy of the orders and other transactions initiated via the SaaS solution, the order processes managed within the SaaS solution and the declarations of intent transmitted by Hivebuy and for ensuring that they are correct.

2.3) Hivebuy is responsible for the operation and maintenance of the SaaS solution. The place of service delivery is the router exit of the data center. The customer is responsible for providing Internet access and any hardware (e.g. router, smart device) or software (e.g. browser) required for access to the SaaS solution at the customer’s premises. The customer is not entitled to access to the source codes of the SaaS solution provided by Hivebuy.

2.4) Unless otherwise agreed, the average availability of the SaaS solution is 98% on an annual average. Excluded from this are necessary planned maintenance work and disruptions that are beyond Hivebuy’s control (in particular force majeure). Where possible, Hivebuy will inform the customer of planned maintenance work in good time in text form to the contact person named to Hivebuy. However, Hivebuy expressly reserves the right to carry out unannounced maintenance work if necessary, in particular if this is necessary for data and operational security.

2.5) Hivebuy enables the customer to store data and content (within the meaning of clause 4.2.1) as part of the SaaS solution. Hivebuy performs daily data backups of the SaaS solution and of the data and content stored by the customer and retains such data backups for the entire term of the contract plus the time specified in clause 10.5, unless Hivebuy is obliged by law or by the authorities (in particular for commercial or tax law reasons) to retain them for a longer period. An individual check of the correctness and completeness of the data backups does not take place and is not owed. A data backup carried out by Hivebuy does not release the customer from compliance with his own legal obligations, in particular the obligation to carry out proper bookkeeping.

2.6) For the entire term of the contract, the customer is entitled to download from the SaaS solution the data and content (within the meaning of clause 4.2.1) stored by it as part of the SaaS solution.

2.7) Hivebuy provides the customer with documentation of the SaaS solution as well as instructions for its use in electronic form in German for online retrieval. The customer is not authorized to edit, distribute or make publicly available the documentation or instructions for use.

2.8) Hivebuy is entitled to commission subcontractors as vicarious agents for the provision of services at its own discretion.

2.9) Hivebuy may make changes to the SaaS solution in the following cases:

2.9.1) Enhancements and further developments

Hivebuy is entitled to add additional functions to the services to be provided at any time. Unless otherwise agreed, functions introduced by Hivebuy after the conclusion of this contract are deemed to be additional services provided free of charge. Hivebuy is entitled to discontinue these after weighing up the interests of both parties. Hivebuy also reserves the right to offer optional extensions and further developments only against payment of an additional fee and by concluding a supplementary agreement. If the customer books an extension or further development or a functionality not already booked as part of the conclusion of the contract for a fee by means of a corresponding supplementary agreement to this contract, the provisions of this contract apply accordingly to this booking.

2.9.2) Reasonable and insignificant changes

Hivebuy is entitled to change, limit or discontinue the functional scope of the SaaS solution and the services to be provided to a reasonable extent for the customer. Such a change is particularly reasonable if it only affects insignificant components of the services to be provided by Hivebuy (such as mere design or presentation changes that do not or only slightly impair the functionality of the SaaS solution or the services to be provided) or becomes necessary for good cause. Good cause shall be deemed to exist in particular if

a) there are disruptions to the provision of services by Hivebuy’s subcontractors,

b) the change is necessary for safety reasons,

c) the change is necessary due to changes in legislation or case law, or

d) there are similar important reasons which, when weighed against the interests of the customer, make the change in question reasonable for the customer.

Subject to clause 2.9.3, the performance features defined in the respective order form and the main performance obligations of Hivebuy must be maintained in full for each change to the scope of functions.

If a change does not exclusively concern time-critical security updates, extensions of the functions or not only insignificant components of the SaaS solution or the services to be provided by Hivebuy, Hivebuy will inform the customer of the change in writing or in text form at least four (4) weeks before it comes into effect.

2.9.3) Other changes

Hivebuy is also entitled to make changes to the functional scope of the services in cases other than those specified in sections 2.9.1 and 2.9.2. In this case, Hivebuy will inform the customer about the planned changes two (2) months prior to the introduction of the changes. During this period, the customer has the right to declare whether he accepts the planned changes or not. If the customer does not comment during this period, the changes are considered approved. Hivebuy will inform the customer of this legal consequence of his silence in the notification of change. If the customer objects to the changes in due time, Hivebuy has the right, at its discretion, either to continue to provide the service concerned without the planned changes or to terminate the contract with a notice period of one (1) month from receipt of the customer’s objection.

2.9.3) Other changes

3) Rights of use

3.1) Upon commencement of the contract, Hivebuy grants the customer the non-exclusive, worldwide, non-transferable right, limited in time to the term of the contract, to use the SaaS solution in accordance with the contract. The right of use can only be sublicensed to the extent that this is absolutely necessary for the intended use of the SaaS solution by the customer. Further statutory rights of the customer remain unaffected.

3.2) Excluded from the granting of rights are components of the SaaS solution that are recognizably subject to third-party rights and, in particular, open source licenses. In particular, components that are disclosed by Hivebuy within the SaaS solution or in supplied text files as third-party content are considered recognizable.

4) Obligations of the customer

4.1) Access and data security; cooperation; contact information

4.1.1) The Customer warrants that it uses the SaaS Solution exclusively as an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB).

4.1.2) The customer must provide Internet access and the hardware (e.g. router, smart device) or software (e.g. browser) required to use the SaaS solution for the entire term of the contract.

4.1.3) The customer must keep the access data to the SaaS solution safe and may only make them accessible to authorized employees. The customer undertakes to oblige its employees to handle the access data confidentially and to inform Hivebuy immediately if there is any suspicion that the access data may have become known to unauthorized persons. Furthermore, the customer undertakes to comply with all security precautions, functional and other restrictions of the SaaS solution. In particular, the customer may not remove, overcome, deactivate or otherwise circumvent protection or authentication mechanisms.

4.1.4) If the parties have agreed in the order form to connect a customer system to the SaaS solution via interfaces, the customer must ensure that the interfaces of the respective customer system are up to date.

4.1.5) A transfer of the SaaS solution by the customer to third parties is prohibited, unless expressly agreed otherwise.

4.1.6) The customer must back up the data and content stored, processed and otherwise transmitted to Hivebuy as part of the SaaS solution (within the meaning of section 4.2.1) itself as far as possible, regularly and in accordance with the risks involved. This applies in particular to content that the customer is legally or regulatory obliged to store.

4.1.7) The customer is responsible for the operation and configuration of the SaaS solution. If Hivebuy provides the customer with hints, recommendations, tips or advice within the SaaS solution or provides information or analysis results generated by means of the SaaS solution, these are automated and non-binding support services in the customer’s decision-making process, which do not release the customer from checking the correctness of the respective support service and taking into account all other circumstances relevant to the decision-making process. The customer undertakes to carefully check the respective support services as part of his decision-making process.

4.1.8) The customer designates a contact person in his company to Hivebuy who is authorized to receive and submit declarations of intent in connection with the contract with Hivebuy.
4.1.9) The customer is obliged to keep the information provided during registration up to date and to notify Hivebuy immediately of any changes.This includes in particular data on the customer’s contact and business information.
4.1.10) Hivebuy is entitled to block the customer’s access to the SaaS solution if:

a) there are indications that the customer’s access data has been or is being misused or the access data has been or is being provided to an unauthorized third party or access data is being used by more than one natural person;

b) there are indications that third parties have gained access to the SaaS solution provided to the customer by other means;
c) the blocking is necessary for technical reasons

d) Hivebuy is legally, judicially or officially obliged to block access;
e) the customer is more than two (2) weeks in arrears with the payment of the agreed fee within the meaning of clause 5 of the contract;

f) the customer has provided incorrect or invalid contact details and communication between Hivebuy and the customer is no longer possible;

g) the customer has provided incorrect bank account, credit card or other payment details and regular fulfillment of the customer’s performance obligations is not guaranteed.

Hivebuy shall notify the customer of the blocking, including the reasons for the blocking, in text or written form no later than one (1) working day before the blocking comes into effect and allow the customer to comment on the blocking, provided that the announcement and/or waiting for the comment is reasonable and compatible with the purpose of the blocking, taking into account the interests of both parties. Hivebuy will unblock the customer’s use of the SaaS solution if the reason for the blocking no longer applies.

4.2) Contents
4.2.1) All rights to information, images, texts, documents, files and other content transmitted to Hivebuy or stored within the SaaS solution (“content”) by the customer in the course of using the SaaS solution remain with the customer. However, the customer grants Hivebuy a non-exclusive right to use this content to the extent necessary to fulfill the contract with the customer. Hivebuy is entitled to grant sublicenses to its vicarious agents insofar as this is necessary for the fulfillment of the contract. Otherwise, the right of use is not transferable. Hivebuy is entitled to retain the customer’s content beyond the term of the contract if this is technically or legally necessary. In particular, Hivebuy is authorized to keep backup copies of the content provided by the customer and to temporarily or permanently store such information as is required for accounting, documentation and billing purposes.

4.2.2) The customer guarantees that the content transmitted by him does not violate any rights of third parties (e.g. personal rights, rights to one’s own image, copyrights, trademark rights, etc.) or otherwise violate applicable law (e.g. data protection regulations) (“Prohibited Content”).
4.2.3) Hivebuy is entitled to block or remove Prohibited Content immediately; the same applies if Hivebuy is obliged to do so due to a complaint by a third party, a court judgment, an official order or by law.

4.2.4) The customer warrants that he will comply with all applicable legal provisions, in particular copyright and data protection law, when using the SaaS solution. The customer indemnifies Hivebuy from all claims of third parties asserted against Hivebuy due to the use of the SaaS solution by the customer. Hivebuy will inform the customer immediately about claims asserted by third parties and provide the information and documents necessary for the defense upon request. In addition, Hivebuy will either leave the defense to the customer or undertake it in consultation with the customer. In particular, Hivebuy will neither acknowledge nor dispute claims asserted by third parties without consulting the customer. The provisions of this clause apply accordingly to contractual penalties as well as official or judicial fines and administrative fines, insofar as the customer is aware of them.

4.2.5) The customer undertakes to refrain from all measures that endanger or disrupt the functioning of the SaaS solution and not to access or process data that it is not authorized to access. In particular, the customer may not use any scripts that query the confidential data of other customers or automatically forward other customers to other Internet offerings outside the SaaS solution. Furthermore, the customer must ensure that the information and data transmitted via the SaaS solution is not infected with harmful computer programs such as viruses, worms, Trojan horses or other malware.

5) Fees

5.1) The customer shall pay Hivebuy the fee agreed in the order form for the use of the SaaS solution.

5.2) Unless expressly agreed otherwise, the fees are monthly and net plus applicable VAT.

5.3) Unless expressly agreed otherwise, invoicing is monthly and all amounts are due upon invoicing.

6) Warranty

6.1) Hivebuy provides a warranty for free services in accordance with the statutory provisions.

6.2) Otherwise, Hivebuy warrants for defects in the provision of the SaaS solution exclusively in accordance with the following provisions.

6.3) Defects are significant deviations from the contractually agreed functional scope of the SaaS solution.

6.4) If the services to be provided by Hivebuy under this contract are defective, Hivebuy will, at its discretion, either rectify the defects or provide the services again within a reasonable period of time and after receipt of a written or text notification of defects from the customer. When using third-party software that Hivebuy has licensed for use by the customer, the rectification of defects consists of the procurement and installation of generally available upgrades, updates or patches. Rectification also includes the provision of usage instructions with which the customer can reasonably circumvent the defects that have occurred in order to use the SaaS solution in accordance with the contract.

6.5) If the defect-free provision of the services fails for reasons for which Hivebuy is responsible, even within a reasonable period set by the customer in writing or text form, the customer may reduce the agreed remuneration by a reasonable amount. The right to a reduction is limited to the amount of the monthly fixed price relating to the defective part of the service.

6.6) If the reduction pursuant to Section 6.5 reaches the maximum amount specified in Section 6.5 in two (2) consecutive months or in two (2) months of a quarter, the customer may terminate the contract without notice.

6.7) The customer shall notify Hivebuy immediately in writing or text form of any defects that may occur. Furthermore, the customer shall support Hivebuy in the rectification of defects free of charge in a reasonable manner and in particular provide Hivebuy with all information and documents that Hivebuy requires for the analysis and rectification of defects.

6.8) In addition to reduction or termination according to the above clauses, the customer may claim damages in accordance with the statutory provisions and the limitations of liability in clause 7.

6.9) Further warranty claims are excluded.

6.10) The limitation period for warranty claims is one (1) year, unless they are based on intent or gross negligence or relate to damages resulting from injury to life, limb or health.

7) Compensation and liability

7.1) Hivebuy is liable for free services in accordance with the statutory provisions.

7.2) Otherwise, Hivebuy is liable without limitation for intent and gross negligence as well as for damages resulting from injury to life, body or health.

7.3) In cases of simple negligence, Hivebuy is liable for breach of a material contractual obligation. A material contractual obligation within the meaning of this clause is an obligation whose fulfillment makes the execution of the contract possible in the first place and on whose fulfillment the customer may therefore regularly rely.

7.4) In the case of clause 7.3, Hivebuy is not liable for lack of economic success, loss of profit and indirect damages.

7.5) The liability according to the above clause 7.3 is limited to the typical, foreseeable damage at the time of the conclusion of the contract.

7.6) The liability for damages due to data loss (including the loss of content within the meaning of section 4.2.1) is limited in the case of section 7.3 to the amount of the recovery of the data that would have been incurred even if the customer had backed up the data regularly and in accordance with the risks involved.

7.7) The limitations of liability apply accordingly in favor of Hivebuy’s employees, agents and vicarious agents.

7.8) Any liability of Hivebuy for guarantees given (which must be expressly designated as such) and for claims based on the Product Liability Act remains unaffected.

7.9) Any further liability of Hivebuy is excluded. In particular, strict liability for initial defects according to § 536a para. 1, 1st Alt. BGB is excluded.

8) Confidentiality and non-disclosure

8.1) The parties undertake to treat confidential information and documents (“confidential information”) of the respective other party, which are to be regarded as confidential either due to the nature of the information or the circumstances of their disclosure or which have been designated or marked as confidential by the disclosing party, as business and/or trade secrets, to use them exclusively for the purposes of this software contract and not to make them accessible to third parties. The receiving party shall take appropriate technical and organizational measures to prevent unauthorized access or unauthorized disclosure of confidential information. For the purposes of this agreement, third parties shall also include companies affiliated with the respective receiving party in which the receiving party does not hold a majority of the capital or voting rights. The employees of the receiving party and other third parties commissioned by it (including subcontractors and freelancers) shall be obligated accordingly.

8.2) Confidential information on the part of Hivebuy includes in particular the software of the SaaS solution and all technologies of Hivebuy, information that Hivebuy provides about the SaaS solution or in the context of support requests or cooperation for the purpose of troubleshooting, as well as this contract including the annexes, the order form and the agreed conditions.

8.3) The receiving party is entitled to pass on the information and documents made available to it to third parties if and to the extent that this is indispensable for the fulfillment of this contract or the exercise of contractual rights or if this is mandatory for legal or regulatory reasons. In the event of inquiries from third parties, judicial or administrative authorities regarding the disclosure of confidential information, the receiving party must inform the disclosing party of this immediately in writing or in text form. The receiving party shall furthermore support the disclosing party in its efforts to prevent the disclosure of the confidential information.

8.4) The confidentiality obligation shall not apply if the confidential information was already known to the receiving party prior to disclosure, is generally known or becomes known through no fault of the receiving party or with regard to confidential information that was developed by the receiving party itself without access to the confidential information of the disclosing party or that is brought to the attention of the receiving party by a third party acting in good faith and authorized to do so. The mandatory statutory duties of disclosure remain reserved. If the receiving party invokes one or more of the aforementioned reasons, it must substantiate them by submitting suitable evidence.

8.5) The duty of confidentiality begins with the receipt of the confidential information and continues for the entire term of this contract. In addition, the confidentiality obligation shall continue for a period of three (3) years from termination or the end of the contract term, unless statutory provisions provide for a longer confidentiality obligation. In particular, any business secrets shall be treated confidentially for as long as they remain business secrets.

8.6) During the period of validity of this confidentiality obligation, confidential information must be returned immediately, undamaged and in full at Hivebuy’s first request. Hivebuy may also order that certain confidential information is to be destroyed, deleted or placed in safe custody and that the customer confirms this in writing. The above provisions in this clause shall only apply insofar as this does not significantly impair the use of the contractual service in accordance with the contract.

8.7) Unless otherwise agreed in the order form, Hivebuy is entitled to name the customer as a reference customer, stating the full company name and using the company logo in marketing materials (including websites).

8.8) With the exception of clause 8.7, the above provisions do not establish any rights of use under intellectual property law. All rights of use granted under this contract shall remain unaffected by the above provisions.

9) Data protection

With regard to the personal data that Hivebuy processes on behalf of the customer under this contract, the parties conclude the Data Processing Agreement (“DPA”). In the event of contradictions between this contract and the DPA, the provisions of the DPA shall prevail.

Status: February 2024