.png?width=24&height=25&name=Network%201%20(1).png){kind=small}
Hive Perform Terms of Service
These Hive Perform Terms of Service (the “Perform Terms”) (including all schedules, exhibits, addenda and other documents incorporated by reference) govern the purchase, licence and use of Hive Perform, a product provided by Hive.
"Hive", "we" or “our” means the Hive entity identified in the applicable Sales Order (being Hive Learning Limited, or Hive Learning Inc. for Customers located in North America or such other Hive group entity as specified in the Sales Order). “Customer”, “you” or “your” means the entity identified in the Sales Order that purchases the Services from Hive.
Hive and the Customer may each be referred to as a “Party” and together as the “Parties”.
1. Definitions and Interpretation
In these Perform Terms, the following capitalised terms have the meanings set out below.
"Affiliate" means, in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of an entity through at least 50% of the shares, voting rights, participation, or economic interest in such entity.
"Agreement" means the Sales Order together with these Perform Terms and any Ancillary Documents.
"Ancillary Documents" means the Hive Perform Data Processing Addendum, Acceptable Use Policy, Service Level Agreement and any other policies or schedules referenced in these Perform Terms.
“Confidential Information” means all non-public or proprietary information, documents and data (including copies, summaries and extracts) relating to a Party’s or its Affiliates’ business or services that are disclosed, directly or indirectly, under or in connection with the Agreement, whether orally, in writing or in any other form, and whether before or after the Effective Date, including trade secrets, technical, financial and business information, business processes, pricing, product plans and designs, security information, including, without limitation, Customer Data, the Services and the Documentation, and the terms of the Agreement, whether or not marked as confidential, where such information would reasonably be understood to be confidential given its nature and the circumstances of disclosure.
"Customer" means the entity identified in the Sales Order entering into this Agreement, together with its permitted Affiliates.
"Customer Data" means all data, content and information (in any form) that is submitted, uploaded, transmitted, ingested or otherwise made available to Hive via the Services by or on behalf of the Customer or its Users, including (without limitation): (a) CRM records, deal and pipeline data; (b) customer and prospect communications, including call recordings and transcripts; (c) metadata, logs and interaction data; and (d) any Outputs generated from such data. Customer Data includes Customer Personal Data.
"Customer Personal Data" means any Customer Data that constitutes Personal Data under applicable Data Protection Laws.
"Data Protection Laws" means all applicable laws and regulations relating to data protection, privacy or data security, including the UK GDPR and any implementing or successor legislation.
“Documentation” means any user guides, technical documentation or materials relating to the Services made available by Hive.
“Effective Date” means the start date of the Subscription Term as specified in the Sales Order.
"Fees" means the fees payable by the Customer for the Services as set out in the Sales Order.
"Initial Term" means the initial subscription term specified in the Sales Order.
"Integrations" means any third-party platforms, systems or services (including CRM, call recording, communications or analytics tools) that interoperate with the Services via APIs or other technical connections.
"Outputs" means insights, analytics, recommendations, scores or other information generated by the Services based on the processing of Customer Data.
"Personal Data" means information relating to an identified or identifiable natural person, as defined under applicable Data Protection Laws.
"Renewal Term" means any renewal period following the Initial Term as specified in the Sales Order.
“Representatives” means a Party’s employees, Affiliates, contractors, advisors, and consultants.
"Sales Order" means a sales order form, statement of work or other ordering document executed by the Parties which references these Perform Terms.
"Sensitive Data" means: (a) special category personal data or sensitive personal information under Data Protection Laws; and (b) any data relating to children under the age of 18, and in each case includes any data subject to enhanced consent or recording requirements under applicable laws.
"Services" means the Hive Perform platform, software, Documentation, support services and any related services provided under the Agreement.
"Subscription Term" means the Initial Term together with any Renewal Terms.
"Users" means individuals authorised by the Customer to access and use the Services.
2. Services and Subscription
2.1 Services. Hive Perform is a subscription-based revenue intelligence and sales performance platform designed to ingest Customer Data (including via Integrations) and generate Outputs to support sales execution, coaching and forecasting. Outputs are provided for informational and advisory purposes only and do not constitute business, financial or legal advice.
2.2 Subscription. The Customer may subscribe to the Services by executing a Sales Order. Upon execution, the Sales Order and these Perform Terms together form a binding Agreement.
2.3 Affiliates. Subject to the terms of the applicable Sales Order, the Customer may permit its Affiliates, as listed in the Sales Order, to access and use the Services, provided that the Customer shall remain fully responsible for all acts and omissions of its Affiliates and Users.
2.4 Service Changes. Hive may modify or update the Services from time to time, provided that such changes do not materially reduce the core functionality of the Services.
3. Hive’s Obligations
3.1 Service Availability and Support. Hive shall make the Services generally available in accordance with the applicable Service Level Agreement, except for interruptions due to support and maintenance or circumstances beyond Hive’s reasonable control, and it shall provide support in accordance with the terms set out therein.
3.2 Security. Hive shall maintain appropriate technical and organisational measures designed to protect the security, confidentiality and integrity of Customer Data, consistent with industry standards. Details of Hive’s security measures and certifications (including ISO 27001 or equivalent) are available via Hive’s Trust Centre.
3.3 Personnel and Subcontractors. Hive may engage subcontractors in the performance of the Services and remains responsible for their acts and omissions.
3.4 Compliance with Laws. Hive shall comply with all applicable laws in its provision of the Services.
3.5 Data Protection and Privacy. Hive will process Customer Personal Data solely as a processor on behalf of the Customer in accordance with the Data Processing Addendum. Except as expressly set out in the Agreement, the Customer determines the purposes and means of processing of all Customer Data, and Hive does not determine such purposes or means.
3.6 Insurance. Hive will maintain appropriate insurance throughout the performance of the Services. Details of Hive’s insurance cover may be viewed via its Trust Centre.
4. Customer Obligations
4.1 Use of the Services. The Customer shall use the Services solely for its internal business purposes and in accordance with the Agreement. The Customer remains solely responsible for the legality, accuracy and quality of all Customer Data.
4.2 Customer Data. The Customer represents and warrants that it has all necessary rights, permissions and consents to provide Customer Data to Hive and to permit Hive to process such Customer Data in accordance with the Agreement, and that use of such Customer Data does not violate or infringe on any rights of any third party. In no circumstances will Hive be liable in any way for any (i) Customer Data that is transmitted or viewed whilst using the Services, (ii) errors or omissions in the Customer Data, or (iii) any loss or damage arising from the Customer’s use of, access to, or inability to access Customer Data. Although Hive is not responsible for any Customer Data, Hive may delete Customer Data, at any time and without notice, if Hive becomes aware that it violates a provision of this Agreement, or an applicable law or regulation.
4.3 Communications Data. The Customer represents and warrants that it has provided all required notices and obtained all necessary consents, permissions and lawful bases in relation to the collection, recording, transcription, analysis and processing of communications data (including call recordings and transcripts) and that such processing complies with all applicable laws. Hive shall not be responsible for verifying such compliance.
4.4 Sensitive Data. The Customer shall not intentionally submit Sensitive Data to the Services and shall promptly remove any Sensitive Data upon becoming aware of it. Hive shall have no liability for any Sensitive Data submitted in breach of this clause.
4.5 Customer Affiliates. The Customer may enter into the Agreement for and on behalf of those of its Affiliates that are to make use of the Services. In such circumstances, the Customer will remain responsible for the acts and omissions of its Affiliates and the Customer will have the sole right to enforce this Agreement against Hive.
4.6 Users. The Customer is responsible for its Users and their use of the Services. The Customer will specify the Users that are authorised to use the Services by inviting them to sign up to the Services and if an individual is no longer authorised to use the Services, then the Customer will immediately remove their access. The Customer is also required to follow any written instructions which Hive may provide from time to time for the proper use of the Services and to ensure that its Users abide by Hive’s Acceptable Use Policy when using the Services, as updated from time to time. The Customer shall indemnify Hive (and its Affiliates) for all losses, liabilities and reasonably incurred expenses (including reasonable attorney’s fees) which Hive (or its Affiliates) may suffer arising out of a breach of the Acceptable Use Policy.
4.7 Telecommunications and Connections. The Customer is responsible for any telecommunications, computer hardware, software, internet connectivity, and firewalls that it may require in order to use the Services. The Customer is also responsible for the communication point or points where the Customer connects the Services to its end points.
4.8 Security. The Customer will ensure that all log-in information, security methods, and other information that Hive provides for secure access to the Services is kept confidential. The Customer shall notify Hive immediately in the event of unauthorised access to such information. The Customer shall not interfere with nor disrupt the integrity or performance of the Services or any third-party technology contained therein. The Customer shall not permit direct or indirect access to or use of the Services in a way that circumvents a usage or capacity limit of the Services nor use the Services to access or use any Hive Property (as defined in Section 12.3) except as permitted under the Agreement.
4.9 Viruses and other Malware. The Customer will not deliberately introduce viruses, trojans, worms or other harmful software or code into the Services.
4.10 Licence Restrictions. The Customer shall not, nor will the Customer permit others to, sell, resell, licence, sublicence, transfer, market, distribute, redistribute, rent, lease or otherwise encumber the Services except as integrated with its own offerings that provide additional functionality to Users. And except as permitted by applicable laws or governmental regulations, the Customer shall not reverse engineer, decompile, translate, disassemble, alter, modify, translate, or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Services, or (ii) to extract any or all of the source code of the Services, either in whole or in part. The Customer shall not access the Services to develop a competitive product or service. The Customer must not use the Services for any unlawful purpose.
5. Integrations and Third-Party Services
5.1 The Customer authorises Hive to access, process and transmit Customer Data from Integrations as necessary to provide the Services.
5.2 Any third-party software, applications, platforms, services, tools, or other products ("Third-Party Services") that the Customer uses in connection with the Services (via an integration or otherwise) are subject to their own terms, and the Customer is solely responsible for complying with all terms and conditions governing its use of Third-Party Services, including provisions applicable to permission for Hive to integrate and interoperate with such Third-Party Services (including, if applicable, the exchange and transmission of Customer Data).
5.3 Hive does not warrant the accuracy, completeness or availability of data obtained from Integrations and shall not be liable for any errors, interruptions, schema changes or downtime arising from Third-Party Services or the Customer’s configuration thereof.
5.4 Any service levels, recovery objectives or availability commitments apply solely to Hive-hosted components of the Services and expressly exclude Integrations and Third-Party Services.
6. Analytics and Reporting. As part of the Services, Hive may provide the Customer with analytics, insights, reports and aggregated statistics relating to the Customer’s use of the Services, including metadata, usage patterns and performance indicators (“Analytics Data”). Analytics Data will not include individually identifiable personal data. Hive may use Analytics Data to operate, maintain and improve the Services.
7. Generative Artificial Intelligence. The Services may include features that use generative artificial intelligence or machine-learning models to generate Outputs based on Customer Data. Outputs are generated using probabilistic processes and are provided for informational purposes only. The Customer remains solely responsible for all decisions made in reliance on Outputs.
8. Beta Services. Hive may make certain features and functionality available to the Customer that are subject to further testing and development (collectively, “Beta Services”). The Customer acknowledges that Beta Services might not function as intended, are experimental, and do not create any obligation for Hive to continue to develop, support, repair, or offer for sale the Beta Services. The Beta Services are provided “as is” without any express or implied warranty. In no event shall Hive be liable for any damages whatsoever arising out of the use of or inability to use Beta Services. Hive’s indemnity obligations under Section 16 (Indemnification) do not apply to Beta Services.
9. Term & Termination
9.1 Term. The Agreement shall commence on the Effective Date and shall remain in force for the Subscription Term. For the purposes of this Agreement, the "Current Term" means the then-current Initial Term or Renewal Term, as applicable. Unless terminated by either Party by giving no less than sixty (60) days’ written notice prior to the end of the Current Term, the Agreement shall automatically renew for a Renewal Term of equivalent duration to the Current Term. Notices shall be given in accordance with Section 17.10 (Notices).
9.2. Termination for Cause. Each Party may terminate the Agreement for cause: (i) upon thirty (30) days’ written notice to the other Party specifying a material breach, if the breach remains uncured at the expiration of the thirty (30) day notice period (during which period Hive may suspend access to the Services), or immediately if such breach is irremediable; or (ii) if the other Party: (a) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (b) goes out of business, or (c) ceases its operations.
9.3. Effects of Termination. Upon expiry or earlier termination of the Agreement: (i) the Customer’s right to use the Services shall terminate and the Customer shall promptly return or, if instructed by Hive, destroy any Confidential Information of Hive; (ii) all outstanding Fees shall become immediately due and payable; and (iii) subject to applicable law, Hive shall have no obligation to retain Customer Data and may permanently delete or destroy all copies of Customer Data in its possession or control after a reasonable period following termination.
10. Fees and Payment.
10.1. Fees and Invoicing. The Customer shall pay the Fees for the Services as set out in the Sales Order. Depending on the route taken by the Customer to procure the Services (either directly with Hive or via the Marketplace), the Customer will either be invoiced by Hive or by Microsoft. If the latter, then Microsoft will invoice and charge the Customer under the Microsoft Commercial Marketplace Terms of Use and the applicable Sales Order, where these Perform Terms shall continue to govern the Customer’s use of the Services. Where Services are procured directly from Hive, then Hive will invoice the Customer either annually in advance or according to the billing frequency stated in the Sales Order. The Fees payable under the Agreement shall be paid in the currency specified in the Sales Order and payment is due net thirty (30) days from the invoice date. If no currency is specified, the Fees are payable in GBP£. Hive reserves the right to change the Fees applicable to the next Renewal Term by giving at least ninety (90) days' notice by email or other electronic form of notification (including notifications sent via the Marketplace (if applicable)). If the Customer does not agree to the increase, it may terminate the Agreement by giving the notice required at Section 9.1 (Term).
10.2. Up-to-date Information. The Customer is responsible for ensuring its billing and contact information is complete and accurate during the Subscription Term and the Customer should notify accounts@hivelearning.com to advise of any updates.
10.3. Delayed Payment. If any invoiced amount is not received by Hive by the due date then, without limiting Hive's other rights or remedies, Hive may (i) charge late interest at the rate of 4% per annum above the Bank of England base rate (or the maximum rate permitted by law, if lower) on the outstanding balance, whether before or after any judgment, and (ii) suspend provision of Services until the overdue amounts are paid in full.
10.4. Refund or Payment upon Termination. If the Customer terminates for cause, then Hive will refund any prepaid but unused Fees covering the use of the Services after the date of termination. If the Customer terminates the Agreement other than for cause prior to the end of the Current Term, then the Customer shall be immediately liable for the balance of the Fees for the remainder of the Current Term. In no event will termination relieve the Customer of its obligation to pay any Fees payable for the period prior to the effective date of termination. If Hive terminates for cause, then the Customer will promptly pay all unpaid Fees due until the end of the Current Term. If Hive terminates without cause prior to the end of the Current Term, then Hive shall refund the balance of the Fees prepaid but unused for the remainder of the Current Term.
10.5. Taxes. Fees for Services do not include any applicable taxes. The Customer is responsible for paying all taxes associated with the Agreement. If Hive is obligated by law to pay or collect any taxes for which the Customer is responsible, Hive will invoice Customer and Customer will pay that amount unless Customer can provide a valid tax exemption certificate authorized by the appropriate taxing authority. The Customer will provide Hive with any information Hive reasonably requests to determine whether Hive is obligated to collect taxes.
10.6. No set off. The Customer must pay all sums owed to Hive under this Agreement free and clear without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
11. Confidentiality.
11.1. Confidential Information. Each Party agrees that it shall use the other Party’s Confidential Information solely in accordance with the Agreement and shall not disclose, or permit it to be disclosed, directly or indirectly, to any third party without the disclosing Party's prior written approval. Each Party agrees to exercise due care in protecting the Confidential Information from unauthorised use and disclosure. However, neither Party bears any responsibility for safeguarding information that is: (i) publicly available; (ii) already in the receiving Party's possession prior to execution of this Agreement and is not subject to confidentiality obligations; (iii) obtained by the receiving Party from independent third parties without restrictions on disclosure; (iv) independently developed by the receiving Party without reference to the Confidential Information; or (v) required to be disclosed by law, an order of a court or other governmental authority.
11.2. Protection of Confidential Information. Except as provided in Section 11.3 (Compelled Disclosure) the receiving Party shall not use Confidential Information of the disclosing Party for any purpose other than the exercise if its rights or performance of its obligations under the Agreement, nor disclose or otherwise make such Confidential Information available to anyone except to its Representatives who: (i) have a need to know such Confidential Information for the purposes of the Agreement, and (ii) are bound by confidentiality obligations no less stringent than those set out in the Agreement. Each Party shall safeguard the other Party’s Confidential Information with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information.
11.3. Compelled Disclosure. If the receiving Party is compelled by law to disclose Confidential Information of the disclosing Party, then, to the extent legally permitted, the receiving Party shall provide the disclosing Party with prior notice of the compelled disclosure and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, and the disclosing Party is not contesting the disclosure, the disclosing Party shall reimburse the receiving Party for its reasonable costs of compiling and providing secure access to that Confidential Information.
11.4. Duration of Confidentiality Obligations. These obligations apply: (i) in respect of Customer Data, for as long as Hive retains such Customer Data in accordance with the Agreement and applicable law; and (ii) in respect of all other Confidential Information, for a period of five (5) years from the date of disclosure.
12. Ownership and Rights.
12.1. Customer Property. The Customer remains the owner of all rights (including Intellectual Property Rights), title, and interest in and to all “Customer Property”, which is comprised of (i) Customer Data, (ii) all other information, materials, specifications, instructions, and other data that the Customer may share with Hive in relation to or in connection with its use of the Services, (iii) Customer Acquired IP (defined in Section 12.5 below), (iv) any Intellectual Property that was created by or licensed to the Customer prior to or independently from Hive’s provision of Services (referred to as “Customer Pre-existing IP”).
12.2. Licence to Use Customer Property. The Customer hereby grants to Hive a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, royalty-free, fully paid-up, enterprise-wide (covering Hive’s relevant Affiliates), worldwide (subject to applicable laws) right and license during the Subscription Term to use such Customer Property and interoperate with any Third-Party Services as necessary in order for Hive to provide the Services. Subject to this limited licence, Hive shall acquire no right, title, or interest from Customer under the Agreement in or to Customer Property.
12.3. Hive Property. Hive is the owner of all rights (including Intellectual Property Rights), title and interest, or has a right to, in and to all “Hive Property”, which is comprised of the Services, Documentation, and any other information, materials, specifications, instructions, and other data (including Analytics Data) that Hive may share with the Customer in relation to its delivery of any Services (referred to as “Hive Pre-existing IP”). Hive Property also includes any Hive New IP (as defined in Section 12.5 below).
12.4. Licence to use Hive Property. Subject to these Perform Terms, Hive grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable, enterprise-wide (covering Customer Affiliates, where applicable) right during the Subscription Term to access and use the Services for the Customer’s internal business purposes and subject to the licence restrictions at Section 4.10. Subject to this limited licence, the Customer shall acquire no right, title, or interest from Hive under the Agreement in or to Hive Property.
12.5. New IP. In general, any bespoke deliverables that Hive agrees to provide to the Customer as part of the Services consist of modifications to the Services, and Hive does not engage in projects that result in the creation of Intellectual Property not owned by Hive. Accordingly, any new intellectual property created or reduced to practice in relation to the provision of the Services under these Perform Terms (“New IP”) shall be owned exclusively by Hive, unless the Parties explicitly agree otherwise in the relevant Sales Order and specifically identify such New IP as “Customer Acquired IP”. For the avoidance of doubt, any deliverables that include any Customer Confidential Information remain subject to the confidentiality obligations under Section 11 (Confidentiality), and the Customer retains all ownership rights in such Confidential Information.
12.6. Feedback. Hive encourages customers to provide ideas, suggestions, input, comments or know-how relating to the Services (“Feedback”). Unless otherwise agreed in writing, all Feedback shall be non-Confidential Information and Hive may use and incorporate such Feedback into the Services without payment or attribution.
12.7. Metadata. Metadata (i.e., anonymous, aggregated, non-personal, technical data) may be generated through the Customer’s use of the Services. Hive may develop, modify, and improve the Services based on such metadata and Hive reserves the right to use, publish, or otherwise exploit the metadata at its discretion.
12.8. No other rights. No rights are granted to the Customer except as expressly set forth in the Agreement and no rights are granted to Hive except as expressly set forth in the Agreement.
13. Limitations of Liability.
13.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES UNDER THE AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT SHALL NOT LIMIT (i) THE CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 10 (FEES AND PAYMENT), (ii) EITHER PARTY’S LIABILITY UNDER SECTION 16 (INDEMNIFICATION), SUBJECT TO ANY APPLICABLE CAPS EXPRESSLY SET OUT THEREIN; (iii) EITHER PARTY’S LIABILITY FOR FRAUD OR WILFUL MISCONDUCT, (iv) EITHER PARTY’S LIABILITY FOR CLAIMS RELATING TO, OR BASED ON, A BREACH OF SECTION 11 (CONFIDENTIALITY), WHICH SHALL BE LIMITED TO £500,000 IN THE AGGREGATE, OR (v) HIVE’S LIABILITY FOR CLAIMS RELATING TO, OR BASED ON, PERSONAL DATA PROCESSING, WHICH SHALL BE LIMITED TO £500,000 IN THE AGGREGATE.
13.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
13.3. Time-Limited. Any claim arising out of or relating to the Agreement must be brought within twelve (12) months of the date on which the circumstances giving rise to the claim first arose, and in any event no later than six (6) months after the expiration or termination of the Agreement.
13.4 Customer Data. Claims relating to misuse or unauthorised disclosure of Customer Data (other than Customer Personal Data) shall be treated as claims for breach of confidentiality for the purposes of this clause.
14. Warranties.
14.1. Mutual Representations and Warranties. Each Party hereby represents and warrants that: (i) it is duly organised, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has the legal right and authority and all licences necessary to enter into and perform its obligations under the Agreement; (iii) the Agreement, when executed and delivered, constitutes a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms; and (iv) it will comply with all applicable laws and regulations in connection with its performance of the Agreement.
14.2. Hive Warranties. Hive represents and warrants that: (i) the Services, when used by Customer in accordance with the Agreement, will operate in all material respects in substantial conformity with their description (as updated from time to time); (ii) Hive will maintain the security measures as described in Section 3.2 in all material respects; (iii) Hive will not materially decrease the overall functionality of the Services during the Subscription Term. Should the Customer determine that the Services have not met the foregoing warranty, the Customer shall give notice of the deficiency including details sufficient to allow Hive to remedy the deficiency. As the Customer’s sole and exclusive remedy for any breach of this Section 14.2, Hive will use commercially reasonable efforts to correct the non-conformity within a reasonable period of time, and the Customer shall have no other remedy in respect of such breach.
15. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUSTOMER AGREES THAT HIVE HAS MADE NO EXPRESS WARRANTIES EXCEPT FOR THE WARRANTIES SET FORTH IN CLAUSE 14 OF THIS AGREEMENT AND, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, HIVE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
16. Indemnification
16.1. Indemnification by Hive. Hive will defend the Customer, Customer Affiliates, and their officers, directors, employees, agents, and contractors (“Customer Indemnified Parties”) from and against any Claims alleging that the Customer’s authorised use of the Services infringes such third party’s valid patent, copyright, or trademark. Hive will indemnify and hold Customer Indemnified Parties harmless from and against any liability, damages, and costs (including, without limitation, reasonable legal fees) incurred in connection with such Claims. Notwithstanding the foregoing, if Hive reasonably believes that Customer’s use of any portion of the Services is likely to be enjoined by reason of a claim of infringement, violation, or misappropriation of any third party Intellectual Property Rights then Hive may, at Hive’s expense and in its sole discretion: use commercially reasonable efforts to (i) procure for Customer the right to continue using the Services; (ii) replace the same with other non-infringing software or services of substantially equivalent functions; or (iii) modify the applicable software or services so that there is no longer any infringement, violation, or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Hive’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Hive may, in its sole discretion, terminate this Agreement and refund to the Customer a prorated amount equal to the pre-paid fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination. The foregoing indemnification obligation will not apply if: (a) the Services are modified by any party other than Hive, to the extent the alleged infringement is caused by such modification; (b) the Services are combined with other products, applications, or processes not provided by Hive, to the extent the alleged infringement is caused by such combination; (c) to Claims arising out of any unauthorised use of the Services; (d) to Claims arising out of any Third Party Services; or (e) to Claims arising out of Customer Data.
16.2. Indemnification by Customer. The Customer will defend Hive and its Affiliates, and their officers, directors, employees, agents, and contractors (“Hive Indemnified Parties”), from and against any Claims arising from or relating to Customer Data or misuse of the Services and will indemnify and hold Hive Indemnified Parties harmless from and against any liability, damages, costs, and expenses (including but not limited to reasonable attorney fees) incurred in connection with such Claims, including any claims, fines or regulatory actions arising from the Customer’s failure to obtain required consents or comply with applicable recording, privacy or communications laws.
16.3. Procedures. Each Party’s indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of the applicable Claim; (ii) the indemnifying Party will have sole control of the defence and all related settlement negotiations with respect to the Claim, provided that the indemnifying Party may not settle any Claim unless it unconditionally releases the indemnified Party of all liability and receives indemnified Party written approval (not to be unreasonably withheld or delayed) of any conditions imposed by the settlement, if applicable; and (iii) the indemnified Party will cooperate fully to the extent necessary and as requested in the Claim investigation, defence, and trial (including any appeal arising therefrom), and execute all documents necessary for the defence of such Claim.
16.4. Sole and Exclusive Remedy. This Section 16 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section 16.
16.5 Indemnity Cap. Hive’s total aggregate liability under Section 16.1 (Indemnification by Hive) shall not exceed the greater of: (a) the liability cap set out in Section 13.1; or (b) £500,000.
17. General.
17.1. Verifying Compliance. The Customer must keep records relating to the Services it and its Affiliates use. At Hive’s expense, Hive may verify the Customer’s and its Affiliates’ compliance with this Agreement by directing an independent auditor (subject to appropriate confidentiality obligations) to conduct an audit on reasonable prior notice and during normal business hours, or by asking the Customer to complete a self-audit process. The Customer must promptly provide any information and documents that Hive or the auditor reasonably requests related to the verification and access to systems running the Services. If verification or self-audit reveals any unlicensed use, the Customer must order sufficient licenses to cover the period of its unlicensed use. Audits shall not be conducted more than once in any twelve (12) month period unless required by applicable law or a regulator. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance. Upon request, Hive will make available to the Customer all information necessary to conduct an audit and demonstrate compliance with applicable data protection laws (including the GDPR). The Customer may request information through a security questionnaire or self-attestation.
17.2. Export Compliance. Each Party shall comply with all applicable export control laws and regulations. Neither party shall export, re-export, or transfer any part of the Services, or any related technical information or materials, directly or indirectly, to any country or individual restricted by such laws, without obtaining the necessary licenses or approvals. The Customer represents and warrants that it is not a prohibited or sanctioned entity, nor acting on behalf of any such entity, as defined under applicable export control and sanctions laws (including U.S., UK and EU regimes).
17.3. Anti-Bribery and Anti-Corruption. Each Party shall comply with all applicable anti-bribery and anti-corruption laws. Neither party shall offer, give, receive, or solicit any bribes or improper payments in connection with the Services provided under this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Each Party will notify the other Party or its representatives or agents immediately upon becoming aware of any breach under this Section 17.3.
17.4. Anti-Slavery and Human Trafficking. Each Party commits to ensuring that modern slavery and human trafficking does not take place in any part of its business or its supply chain. This includes, without limitation, strictly prohibiting forced labour, slavery, and human trafficking in any form and requiring that its partners, vendors, and contractors to uphold the same standards and comply with applicable laws. Each Party shall notify the other immediately in writing if it becomes aware, or has reason to believe, that it is or may be in breach of this clause. A breach of this clause shall constitute a material breach.
17.5. Anti-Facilitation of Tax Evasion. Each Party commits to preventing the facilitation of tax evasion in any form and shall ensure that its employees, partners, vendors, and customers comply with all applicable tax laws and regulations. A breach of this clause shall constitute a material breach.
17.6. Marketing. Each Party grants to the other the right to use its logos, names, trademarks, and quotes as reference material for marketing and public relations purposes solely to identify the Customer as a Hive customer or Hive as the Customer’s service provider (as applicable), provided that Hive shall not disclose specific deal-level data, pipeline information or performance metrics without the Customer’s prior written consent.
17.7. No Sale. Hive will not sell, lease, rent or otherwise share for consideration any Customer Personal Data which it processes under this Agreement. Where applicable, the term “sell” as used within this Section 17.7 shall have the meaning given to it under the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and any implementing regulations.
17.8. Force Majeure. Except for payment obligations, neither Party shall be liable for failure or delay in performing its obligations under this Agreement to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, epidemic or pandemic, acts of war or terrorism, riots or civil unrest, labour disputes, governmental action, internet or telecommunications disruption, or failure of utilities or essential services. If performance of the Services is prevented in material respects for a continuous period exceeding thirty (30) days due to a circumstances, either Party may terminate the Agreement on written notice (in accordance with Section 17.10), without liability.
17.9. Assignment. Neither Party may assign or transfer this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement on written notice to an Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. If a Party is acquired by, or undergoes a change of control in favour of, a direct competitor of the other Party, the non-acquiring Party may terminate the Agreement on written notice.
17.10. Notices. All notices (including notices to terminate the Agreement) to Hive shall be in writing and sent by email to the address specified in the Sales Order or such address as Hive may notify from time to time, and shall be deemed given upon transmission of such email. Notices to the Customer shall be sent by email to the address specified in the Sales Order or by another address subsequently notified to Hive, and shall be deemed given upon transmission of such email. This clause does not apply to service of legal proceedings.
17.11. Survival. Any provision by its nature is intended to survive termination or expiry of the Agreement shall survive, including without limitation provisions relating to confidentiality, intellectual property, indemnities, and limitation of liability.
17.12. No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
17.13. No Partnership or Agency. Nothing in this Agreement creates any partnership, joint venture or agency relationship between the Parties. Neither Party has authority to bind the other.
17.14. Non-Waiver and Severability. A delay or failure by either Party to exercise any right or remedy shall not constitute a waiver of that right or remedy. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and be construed to best to reflect the Parties’ original intent.
17.15. Modifications to these Terms of Service. Hive may modify these Perform Terms from time to time. Any terms stated in a Customer purchase order or similar document (other than the Sales Order) shall be void. Updated terms will be posted at [insert URL] and will indicate the date of last update. Modifications shall become effective thirty (30) days after posting. The Customer’s continued use of the Services after the effective date constitutes acceptance of the updated Perform Terms. No modification shall materially reduce the Customer’s rights or materially increase its obligations during a Current Term. If the Customer does not agree to the modifications, it must notify Hive in writing within thirty (30) days of the date of posting, in which case the prior version shall continue to apply until the next renewal, unless Hive cannot reasonably continue to provide the Services under the prior terms, in which case Hive may terminate and refund prepaid but unused Fees in accordance with Section 10.4.
17.16. Changes to the Services. The Parties may amend the Services by entering into a new Sales Order or other written amendment executed by both Parties, which shall form part of the Agreement.
17.17. Conflicts. In the event of a conflict, the following order of precedence shall apply: (i) the DPA (and its schedules); (ii) the Sales Order; iii) these Perform Terms; and (iv) any documents incorporated by reference into these Perform Terms.
17.18. Entire Agreement. The Agreement constitutes the entire agreement between the Parties and supersedes all prior communications, representations, understandings and agreements, either oral or written, relating to its subject matter.
17.19. Governing Law and Jurisdiction. Unless otherwise specified in the Sales Order, this Agreement shall be governed by and construed in accordance with the laws of England and Wales, and the courts of England shall have exclusive jurisdiction over all disputes arising out of or in connection with this Agreement.