Terms of Service

Terms of Service

HIVE TERMS OF SERVICE

Last Updated: September 28, 2020

TERMS OF SERVICE

Acceptance of Agreement.  Hive Technology, Inc. (“Hive,” “we” or “us”) provides this website and certain online and offline products and services (collectively, the “Platform”).  These Terms of Service (“Agreement”) govern your (“Customer,” “you,” or “your”) access to and use or attempted use of the Platform. Your access to or use or attempted use of the Platform shall be deemed to constitute your consent to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement. If you do not agree with the terms of this Agreement, you may not use the Platform.

Order Form.  An “Order Form” is an order form or similar document executed by you and Hive that references this Agreement and includes any relevant details such as pricing and the specific portions of the Platform being licensed.  Upon mutual execution, each Order Form will be deemed to have been incorporated by reference into this Agreement. In the event of any conflict between an Order Form and this Agreement, this Agreement shall govern, unless otherwise specifically noted in the Order Form.

CLASS ACTION WAIVER NOTICE.  THIS AGREEMENT CONTAINS A CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY, AS IT AFFECTS YOUR RIGHTS.

THE PLATFORM

Permitted Use & License.  Subject to your payment of all fees and full compliance with this Agreement, Hive hereby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license during the term to access and use the portions of the Platform indicated in an Order Form.  You may only use the Platform for your internal business purposes, and not for the benefit of any other person or entity.  You may not access the Platform if you are a competitor of Hive, except with Hive’s prior written consent. 

Updates.  Hive may modify or update the Platform at any time, in its discretion.  All updates provided to Hive’s customers generally shall also be made available to you and shall be subject to this Agreement and any additional terms provided to you at the time of the update’s release.  After the effective date of such update, Hive shall bear no obligation to run, provide or support legacy versions of the Platform.  In the event that any modification or update materially decreases the Platform functionality available to you, you shall have the right to terminate this Agreement for material breach pursuant to the TERM & TERMINATION Section below.

Registration.  As part of the registration and account creation process, you will provide Hive with certain registration information, all of which must be accurate, truthful, and updated.   In consideration for your use of the Platform, you represent and warrant that (i) you are over the age of eighteen (18) and not barred from receiving Platform under the laws of the United States or any other applicable jurisdiction, (ii) your use of the Platform does not violate any applicable law or regulation, and (iii) you access the Platform through one or more humans rather than through automated means.  Hive reserves the right to deny creation of or suspend your account based on Hive’s inability to verify the authenticity of your registration information or for any violation of this Section.

Access & Accounts.  Hive may update, refresh or change the manner of accessing the Platform in its discretion.  Hive shall provide you with non-transferable access credentials for the Platform as detailed in your Order Form.  You agree not to (i) misrepresent or mask identities when using the Platform or seeking access credentials; (ii) select or use as a username a name subject to any rights of a person or entity without appropriate authorization; (iii) select or use, as your username, a name that is offensive, vulgar or obscene; or (iv) exceed any access permitted by Hive.  You shall safeguard all access credentials provided by Hive and shall ensure the confidentiality and security thereof.

Hive only offers accounts on behalf of business entities and does not offer personal accounts on behalf of individuals. You agree to (i) immediately notify Hive of any unauthorized use of your password or account or any other breach of security; and (ii) ensure that you exit from your account at the end of each session.  You agree that (i) only your employees and contractors (“Personnel”) may use the Platform; (ii) you shall require your Personnel to comply with all applicable laws and the use restrictions set out in the Agreement or otherwise prescribed by Hive; (iii) you represent and warrant that your Personnel have the capacity and authority to enter into this Agreement; and (iv) you will be fully responsible for any acts or omissions of your Personnel, whether authorized or unauthorized.   

Accessibility.  If you are having any trouble accessing this Agreement or the Platform, please contact us at support@hive.com on weekdays (Monday through Friday) between 9am and 5pm Eastern.

FEES & PAYMENT

Fees.  You agree to pay the subscription fees set forth in Order Form.  This subscription fee for the current term is non-cancellable once paid and non-refundable.  In the event you elect to upgrade your Platform level or otherwise add any paid component or feature, we will pro-rate the amount due based on the number of days remaining in your billing cycle.  For the avoidance of doubt, there are no refunds or credits for partially used periods, or where you have elected to downgrade Platform levels or otherwise remove any paid component or feature.  Please note that if you downgrade your Platform level or otherwise remove any paid component or feature, you may cause the loss of Content or features for your account. Hive does not accept any liability for such loss.

Renewals. Your Platform subscription will be automatically renewed at the end of your subscription period and will automatically renew for successive subscriptions of the same length, without prior notice to you, unless and until you cancel your membership, or we terminate it. You must cancel your subscription thirty (30) days before it renews in order to avoid the next period’s subscription fees.

Taxes.  All fees and other amounts payable under this Agreement are exclusive of all sales tax, excise tax, value added tax (VAT), goods and services tax (GST), consumption tax and similar taxes which are applicable to Hive under this Agreement.  Hive shall itemize all such taxes as a separate line item and/or on a separate invoice, and you shall be responsible for payment of the same.  Notwithstanding the foregoing, each party shall be responsible for payment of applicable taxes in respect of its employees and net income.

Payment.  Unless otherwise noted in your Order Form, your subscription fees will be invoiced at the beginning of your subscription period and are due within thirty (30) days’ after the date of said invoice, through one of the payment methods accepted by Hive at that time.  Hive may suspend access to or use of the Hive Products if any payments come past due.

YOUR CONTENT

Ownership & License.  As between you and us, you are the owner of all right, title and interest in and to your Content.  By uploading, posting, emailing, transmitting, submitting or otherwise making available Content to or through the Platform, you grant Hive the irrevocable, non-exclusive, worldwide, transferable, royalty-free, fully paid up right and license during the term to use the Content to provide the Platform to you or as otherwise contemplated by this Agreement. “Content” means any and all information, data, code, video, images, text, documents or other materials of any type that you upload, post, email, transmit, submit or otherwise make available to or through the Platform, regardless of whether it is publicly posted or privately transmitted.

Content Warranties.  You represent and warrant that (i) you own, or have acquired the express license and written authority to use, all of the Content as contemplated herein; (ii) the Content and the receipt, collection, use and provision thereof shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (iii) the Content was received, collected, used and provided to Hive in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions; (iv) you have obtained all necessary consents, approvals or other authorizations or permissions for, and have complied with your posted privacy policies and all third-party terms and conditions or privacy policies in connection with your receipt, use and/or provision of the Content hereunder; (v) none of the Content contains any personally identifiable information or persistent identifiers from individuals under 13; and (vi) none of the Content contains viruses or other malicious code.

Prohibited Content & Behaviors.  You agree to not use the Platform to:

  • monitor its performance, availability, or functionality, or for any other benchmarking or competitive purposes;
  • upload, post, email, transmit, submit or otherwise make available any Content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable;
  • harm minors in any way;
  • impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • disguise the origin of any Content transmitted through the Platform;
  • upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other form of solicitation;
  • act in a manner that negatively affects other users’ ability to use the Platform;
  • interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform;
  • violate any applicable local, state, national or international law;
  • provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act; or
  • attempt to override or circumvent any of the usage rules embedded into the Platform.

Digital Millennium Copyright Act (“DMCA”) Notice.  You acknowledge that Hive does not pre-screen Content, but that Hive shall have the right in its sole discretion to pre-screen, refuse, move or remove any Content that is available via the Platform. Without limiting the foregoing, Hive shall have the right to remove any Content that violates the Agreement or is otherwise objectionable or illegal as determined in Hive’s reasonable discretion, and Hive bears no liability or responsibility for the same.

Hive respects the copyright and intellectual property rights of others. It is therefore Hive’s policy not to permit Content known by us to infringe another party’s copyright to remain on the Platform. In addition, Hive may terminate access by users who appear to infringe the copyright or other intellectual property rights of others.  If you believe any Content on the Platform infringes a copyright or other intellectual property right, you should provide us with written notice that at a minimum contains:

(i)         A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(ii)        Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;

(iii)       Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;

(iv)       Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

(v)        A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(vi)       A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

All DMCA notices should be sent to our designated agent as follows: DMCA Takedown Agent, dmca@hive.com.

Content Disclaimers.  All Content is the sole responsibility of the person from whom such Content originated. This means that you, and not Hive, are entirely responsible for all Content that you upload, post, email, transmit, submit or otherwise make available via the Platform. As such, Hive does not and cannot guarantee or endorse the accuracy, integrity or quality of such Content. You understand that by using the Platform, you may be exposed to Content that is offensive, indecent, objectionable or illegal in your jurisdiction. Under no circumstances will Hive be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content uploaded, posted, emailed, transmitted, submitted or otherwise made available via the Platform.

Legal Process.   You acknowledge, consent and agree that Hive may access, preserve and disclose your account information and Content if required to do so by any applicable law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with any applicable legal process; (ii) enforce the Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests on the Platform; or (v) protect the rights, property or personal safety of Hive, its users and the public. If we receive a subpoena which requests disclosure of information contained in your account you agree that we may disclose any such requested information contained in the account.

HIVE INTELLECTUAL PROPERTY

Ownership.  Except for the limited license rights set forth herein, you do not acquire any rights in or to the Platform.  Hive and its licensors own, and shall continue to own, all right, title and interest in and to the Platform and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof.

Feedback.  To the extent you submit any ideas, feedback, suggestions, or opinions relating to Hive or the Platform (collectively, “Feedback”), you understand and acknowledge that such Feedback is not submitted in confidence and Hive assumes no obligation, express or implied, by considering it. You further understand that Hive shall exclusively own all known or hereafter existing rights to the Feedback everywhere in the world, and that such Feedback is hereby irrevocably assigned to Hive. Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, and/or to the extent necessary for Hive to utilize such Feedback, you hereby grant Hive an irrevocable, perpetual, worldwide license to use the Feedback and any associated intellectual property in any manner, in any medium now known or hereafter developed, without compensation.

License Restrictions. You may not (i) use any Hive Confidential Information to create any services, product, software, documentation or data that is competitive with, substantially similar to or confusingly similar to any aspect of the Platform; (ii) use, modify, display, perform, copy, disclose or create derivative works of the Platform; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the Platform, or use any other means to attempt to discover their source code; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the Platform to any third party; (v) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the Platform or related systems, including via robots, spiders and other electronic methods; (vi) use the Platform in violation of applicable law, rule or regulation, including without limitation laws, rules and regulations concerning privacy and data security; (vii) use the Platform in any manner that intentionally damages, disables, overburdens, or impairs any the Platform or interferes with any other party’s use of the Platform, including without limitation by using or launching any automated system that sends more request messages to Hive servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (viii) attempt to gain unauthorized access to the Platform, including without limitation by breaching, disabling, tampering with, or developing or using (or attempting to do the same) any workaround for the Platform or any security measure related thereto; (ix) set, read, write, modify or delete any cookie on an Hive-owned or operated web domain; and/or (x) obscure, remove or alter any proprietary rights or other notices on the Platform.  Notwithstanding anything to the contrary herein, Hive may, in its sole discretion, immediately revoke the grant of rights contemplated in the previous paragraph if you breach the restrictions in this Section or create other security or legal concerns.  You hereby agree that Hive will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of your obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.

Third Party Materials.  Platform may link to, make available or provide third party products, services, websites, data, software or source code, including without limitation third party websites or social media platforms and open source software (collectively, “Third Party Materials”).  Hive has no control over Third Party Materials.  Accordingly, Hive is not responsible or liable for any Third Party Materials and makes no representation as to the accuracy, usefulness, safety, or intellectual property rights in or relating to such Third Party Materials.  While Hive has no obligation to monitor Third Party Materials, Hive may remove or modify such Third Party Materials in its discretion, including without limitation to comply with applicable law.  You agree to comply with all terms and conditions and privacy policies related to any Third Party Materials.

Trademarks.  Hive grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use Hive’s names, logos, designs, and other trademarks (“Hive Marks”) during the term and solely for the purposes of displaying notices as part of the Platform.  You recognize the validity of the Hive Marks and Hive’s ownership and title thereto.  Any goodwill derived from the use of the Hive Marks by you shall inure to the benefit Hive.  You will not challenge the Hive Marks, or Hive’s ownership and title thereto, or the USPTO application or registration thereof, either during or subsequent to the term of this Agreement.  You shall execute such documents as may be reasonably requested by Hive, or required by law, to establish Hive’s sole and exclusive ownership and rights in the Hive Marks, or to obtain registration thereof.  You agree to use the Hive Marks consistent with the highest standards of quality so as to protect and maintain the Hive Marks and Hive’s rights therein.  To this end, Hive shall have the right to review and approve the manner of use of the Hive Marks, and you agree to modify use of any Hive Marks which do not meet Hive’s standards.  You may not use any Hive Marks in any manner implying any partnership with, sponsorship by, or endorsement by Hive.

CONFIDENTIALITY & DATA

Confidentiality.  Each party agrees that its business, technical and financial information that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of the disclosing party (“Confidential Information”).  Each party shall use a reasonable degree of care to safeguard the other party’s Confidential Information in its possession or control.  Confidential Information does not include information that (i) was previously rightfully known to the receiving party without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of the receiving party; (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; (iv) was independently developed by the receiving party; or (v) is required to be disclosed pursuant to a judicial order or third party subpoena provided the receiving party provides written notice to the disclosing party in order for the disclosing party to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena.  Neither party shall disclose the terms of this Agreement, except as required by law, or to its attorneys, professional advisors, investors and potential investors bound to obligations of confidentiality substantially similar to those contained herein.  The parties hereby agree that the disclosing party will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.

Data.  Notwithstanding anything to the contrary herein, Hive may collect, use and retain registration data and data derived from performance of the Platform, your use of the Platform, and the Content for the performance of its obligations hereunder, for its business purposes or as otherwise permitted by applicable law.  Such uses will be accordance with Hive’s Privacy Policy, which is which is incorporated by reference herein in its entirety and made part of this Agreement.  By accessing, using or attempting to use the Platform, you agree to our Privacy Policy.

Platform Communications.  You understand and agree that the Platform may include certain communications from Hive, such as Platform announcements and administrative messages, and that these communications are considered part of Hive membership and that you will not be able to opt out of receiving them.

Data Security.  You shall (i) implement industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the Content and Platform; (ii) not do anything that will make the platform subject to any open source or similar license which creates an obligation to grant any rights in the Platform; (iii) not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Platform; (iv) in the event of any security breach or unauthorized access to any Content or the Platform, immediately investigate such breach and notify Hive, and, unless otherwise informed by Hive, take all corrective action necessary to remedy such breach, and perform such remediation (with all consumer notifications and credit monitoring undertaken by Hive), all at your cost.

Customer Data. If the data that our Customers provide to Hive (i) includes personal data (as defined by EU Regulation 2016/679 (the General Data Protection Regulation or “GDPR”)) and/or if such data is transferred outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, or (ii) includes personal information (as defined by the California Consumer Privacy Act (“CCPA”)), then the terms of Hive’s Data Processing Addendum shall apply to such personal data and be incorporated into this Agreement upon the execution and submission of the Data Processing Addendum by Customer to Hive in accordance with its terms. Customer agrees that it shall not use the Platform to send or store personal data subject to special regulatory or contractual handling requirements, including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personal information collected from children under the age of 13 or from online services directed toward children, real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as data on racial or ethnic origin, political opinions, or religious or philosophical beliefs).

WARRANTIES

Mutual Warranties.  Each party represents and warrants that (i) it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder and (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.

Disclaimer. WHILE HIVE USES REASONABLE EFFORTS TO INCLUDE UP-TO-DATE INFORMATION ON THE PLATFORM, HIVE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION ON THE PLATFORM.  TO THE FULLEST EXTENT PERMITTED BY LAW, YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, INCLUDING ALL CONTENT MADE AVAILABLE ON OR ACCESSED THEREON, IS PROVIDED “AS IS” AND HIVE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER WITH RESPECT TO THE PLATFORM. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, HIVE DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HIVE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

INDEMNITY & LIMITATION OF LIABILITY

Your Indemnity. You will defend, indemnify, and hold harmless Hive and its affiliates, licensors and partners, and their respective directors, officers, employees, agents, successors and assigns for any and all losses (including costs of settlement and reasonable attorneys’ fees) resulting directly or indirectly from third party claims, actions, and demands relating to: (i) your breach of this Agreement; (ii) allegations that the Content or unauthorized use of the Platform infringes a third party’s intellectual property, privacy and publicity rights; (iii) Hive’s improper incurrence of any taxes as set forth in the FEES & PAYMENT Section above; or (iv) any violation by you of any applicable law, including without limitation laws concerning privacy or data security.

Hive Indemnity.  Hive will defend, indemnify, and hold harmless you and your affiliates, licensors and partners, and their respective directors, officers, employees, agents, successors and assigns for any and all losses (including costs of settlement and reasonable attorneys’ fees) resulting directly or indirectly from third party claims, actions, and demands relating to (i) allegations that your authorized use of the Platform infringes or misappropriates any U.S. copyright or trade secret (“IP Claim”); or (ii) any violation by Hive of any applicable law, including without limitation laws concerning privacy or data security.  Notwithstanding the foregoing, Hive shall have no liability or obligation hereunder with respect to any IP Claim arising directly or indirectly from (i) the use of the Platform in combination with products, services, software, data or systems not provided by Hive; (ii) any modification or unauthorized use of the Platform or any breach of this Agreement by you; (iii) any Content or your services; (iv) instructions or directions provided by or on behalf of you; (v) any open source software or other Third Party Materials; or (vi) the failure to use corrections provided by Hive (collectively, “Infringement Exclusions”).  If the Platform becomes the subject of any IP Claim that does not fall within the Infringement Exclusions, Hive may, at its option (i) obtain for you the right to continue using the affected component of the Platform; (ii) replace or modify the affected component of the Platform; or (iii) if (i) or (ii) cannot be achieved through reasonable efforts, Hive may immediately terminate this Agreement and, notwithstanding anything to the contrary herein, refund any pre-paid fees for the infringing portion of the Platform.   This Section states Hive’s sole and exclusive liability with respect to any actual or alleged infringement of intellectual property, privacy or publicity rights by the provision or use of the Platform.

Indemnification Process.  The party seeking indemnification shall promptly notify the indemnifying party of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not impact the indemnifying party’s indemnification obligations, unless the indemnifying party is materially impacted thereby.  The indemnifying party shall have sole control over the defense of a claim, provided that the indemnified party may participate in the defense, at its cost. All settlements of indemnification claims that involve an admission of guilt or equitable (as opposed to monetary) remedies require the consent of the indemnified party.

LIMITATION OF LIABILITY.  TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HIVE BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES; OR (II) DIRECT DAMAGES IN EXCESS OF (X) FOR AN INDIVIDUAL CLAIM, THE FEES PAID AND RECEIVED IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM AND (Y) IN AGGREGATE, THE FEES PAID AND RECEIVED UNDER THIS AGREEMENT.

TERM & TERMINATION

Term.  The term of this Agreement shall be set forth in an Order Form.  Your Platform subscription will be automatically renewed at the end of your subscription period and will automatically renew for successive subscriptions of the same length, without prior notice to you, unless and until you cancel your membership, or we terminate it.

Termination.  Hive may terminate or suspend this Agreement immediately in the event of your breach or threatened breach of any confidentiality or intellectual property provisions of this Agreement or in the event any fees come past due. Either party may terminate this agreement immediately for (i) material breach if such breach, to the extent curable, remains uncured ten (10) days’ after notice thereof; (ii) convenience on thirty (30) days’ advance written notice to the other party; or (iii) if a party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. For the avoidance of doubt, you understand that there will be no fees refunded for any partial terms in the event of termination of this Agreement.

Obligations on Termination.  Upon termination or expiration of this Agreement, you will immediately pay all fees and other amounts due to Hive and stop all use of the Platform.  Further, all applicable licenses and access granted to you shall automatically terminate. Notwithstanding the foregoing, terms that by their nature should survive expiration or termination of this Agreement shall so survive.

MISCELLANEOUS

Publicity. You agree to be identified as a customer of Hive and you agree that Hive may refer to you by name and may briefly describe your business in Hive’s marketing materials and website. You hereby grant Hive a royalty-free, fully-paid, irrevocable, perpetual, world-wide license to use your name and trademarks solely in connection with the rights granted to Hive pursuant to this Section. You may opt out of the publicity contemplated hereunder by sending an email to marketing@hive.com.

Force Majeure.  Except with respect to your payment obligations, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, shortage of materials, failure of transportation or communications or of suppliers of goods or services, power failures, and Internet disturbances, Third Party Materials, public health concerns and the malicious acts of third parties (e.g. cyber-attacks).

Export. You may not use or otherwise export or re-export the Platform except as authorized by United States law. In particular, but without limitation, the Platform may not be used, exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, North Korea, Sudan, and Syria) or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or Unverified List or Blocked Persons List or Debarred List on Nonproliferation Sanctions List. By using the Platform, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

Independent Contractor.  Each party is an independent contractor with respect to the other party hereunder.  This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party.  

Assignment.  Except in the event of a merger, acquisition or other change of control, neither party may transfer this Agreement, and any attempted assignment in contravention of this Section shall be void.

Governing Law; Arbitration; Class Action Waiver; Time Limit for Claims.  This Agreement shall be governed exclusively by the laws of the State of New York, irrespective of the conflict of law rules of any jurisdiction.  Any dispute arising under or related to this Agreement shall be brought in the state and federal courts located within New York County, New York.

You shall not participate in a class action or class-wide arbitration for any claims covered by this agreement.  You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Hive is a party to the proceeding. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then this paragraph will be null and void.

You agree that regardless of any statute or law to the contrary, any of your claims or causes of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim of action arose or be forever banned.

Entire Agreement.  The Agreement constitutes the entire agreement between you and Hive and govern your use of the Platform, superseding any prior agreement with respect to the Platform.

Waiver and Severability of Terms.  The failure of Hive to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid under applicable law, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions to the greatest extent possible as reflected in the provision, and the other provisions of the Agreement shall remain in full effect.

 

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