Enterprise Solution License Agreement

Declaration

This Agreement governs Customer’s access to and use of the Solutions. Capitalized terms have the definitions set forth herein.
If Customer registers for a free trial of an Enterprise Solution, the applicable provisions of this Agreement will also govern that free trial.
By accepting this Agreement, by (1) clicking a box indicating acceptance, (2) executing an Order that references this Agreement, or (3) using a free trial, Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority or does not agree with the terms of this Agreement, such individual must not accept this Agreement and may not use the Solutions.
This Agreement was last updated 13 April 2020. It is effective between Customer and Hive Pro Inc. (“Hive Pro”, “HP”) as of the date of Customer’s acceptance of this Agreement.

1. Definitions

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  For the purposes of this Agreement, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or the legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Orders.

Documentation” means the technical specification and/or user documentation provided by Hive Pro for the applicable Solution, which may be updated from time to time by Hive Pro.

Customer Content” means all data and materials: uploaded to or stored on the Hive Pro Platform by the Customer; transmitted by the Hive Pro Platform at the instigation of the Customer; supplied by the Customer to Hive Pro for uploading to, transmission by or storage on the Hive Pro Platform; or generated by the Hive Pro Platform as a result of the use of an Enterprise Solution by the Customer (but excluding analytics data relating to the use of the Platform and server log files)

Enterprise Solution” means the software made available by Hive Pro in downloadable object code form and/or as a cloud-based service offering, including updates and interfaces.

Hive Pro Platform” means the online platform that, among other things, permits third parties (including Customer) to purchase and manage Enterprise Solutions.

Order” means, collectively: (i) the quotation provided by Hive Pro to Customer in contemplation of Customer’s purchase of Enterprise Solution(s); and (ii) Customer’s purchase order or similar documentation, demonstrating its intention to purchase the Enterprise Solution(s) in accordance with the quotation.

Privacy Policy” means Hive Pro’s Privacy Policy as set out at https://www.hivepro.com/privacy-policy/ that may be updated from time to time.

Solution” means, individually and collectively, the Hive Pro Platform, the Enterprise Solutions and Technical Support.

Technical Support” means the support services provided by Hive Pro to Customer in connection with purchased Enterprise Solutions, which support shall be provided in accordance with the applicable Documentation.

Third Party Items” means Customer or third party software (including applications), data, files, messages or other digital information or material, services (such as internet connectivity, systems, airtime services, wireless networks), devices, equipment, servers or other hardware products.

User” means Customer’s employees and independent contractors.

Warranty Period” means, in the case of: (a) an Enterprise Solution made available as a cloud-based service offering, the applicable subscription term; and (b) all other Enterprise Solutions, ninety (90) days from the date the Enterprise Solution was first made available for use.

2. HIVE PRO PLATFORM AND ENTERPRISE SOLUTIONS

2.1 Grant of Rights.

(a) Hive Pro Platform: Subject to the terms of this Agreement, Hive Pro grants to Customer a personal, revocable, non-exclusive, non-transferrable license to access and use the Hive Pro Platform solely for the purpose of: (i) creating and maintaining User accounts; (ii) purchasing Enterprise Solutions; (iii) accessing, downloading, using and managing purchased Enterprise Solutions; and (iv) receiving Technical Support in connection with purchased Enterprise Solutions.

(b) Enterprise Solutions: Subject to the terms of this Agreement and Customer’s payment of all applicable fees, Hive Pro grants to Customer a personal, revocable, non-exclusive, non-transferrable license to access, download and/or use (as applicable) the Enterprise Solutions solely for the purpose specified in the Documentation and subject to the usage and time limitations based on the quantity and type of licenses and term of licenses purchased by Customer pursuant to an Order.

(c) Trial Licenses: Where Hive Pro makes available an Enterprise Solution to Customer on a trial basis for internal testing purposes (“Trial”), then the license set out in subsection (b) above shall apply solely to the extent necessary to perform the Trial and have a term of thirty (30) days (unless otherwise expressly agreed in writing by Hive Pro) (“Trial Period”). Such Trial license shall immediately terminate (i) at the end of the Trial Period or (ii) in the case of Customer’s breach of any term of this Agreement. Hive Pro may extend or terminate the Trial license at any time in its sole discretion by providing written notice to Customer.

(d) Customer may grant Users all or a portion of the rights set out in subsections (a), (b) and/or (c) above, provided Customer is responsible for such Users.

2.2 Technical Support. Unless otherwise specified in the Documentation, fees for the Enterprise Solutions include a subscription to Technical Support. Hive Pro agrees to provide Technical Support services to Customer in connection with purchased Enterprise Solutions with reasonable skill and care for the duration of its purchased subscription, in accordance with the applicable Documentation.  For the avoidance of doubt, Technical Support is not available for Trial licenses.

2.3 Updates. Hive Pro may, from time to time, make available updates to the Solutions. Where Customer maintains an active subscription to a purchased Enterprise Solution, updates to such Enterprise Solution may be available

2.4 Maintenance. Hive Pro may, without liability to Customer or any third party claiming through Customer, periodically suspend or limit access to a Solution for the purpose of performing routine and/or emergency maintenance. Hive Pro shall, where practicable, provide Customer with at least ten (10) days’ prior written notice of any scheduled maintenance that is likely to affect the availability of the Solutions, or are likely to have a material negative impact upon the same.

2.5 Audit. Hive Pro may, no more than once per year, audit Customer’s records to ensure compliance with the terms of this Agreement. Hive Pro shall conduct any such audit during regular business hours. Customer shall cooperate reasonably in the conduct of such audits. Additionally, Hive Pro may at any time audit Customer’s access to or use of the Enterprise Solutions through any functionality contained in the Enterprise Solutions to verify Customer’s compliance with the terms of the Agreement. Any reasonable and actual costs incurred by Hive Pro for such audit shall be paid by Customer if the audit results indicate usage in excess of the permitted quantities or levels, underpayment of any fees, or breach of the Agreement.

2.6 Source Code. For the avoidance of doubt, Customer has no right to access the software code (including object code and source code) of any Solution at any time.

3. Usage Rules and Restrictions

3.1 Subscriptions. Except as otherwise provided in an Order or the applicable Documentation, (a) access to and use of the Enterprise Solutions are purchased on a subscription license basis for the term specified in the Order, (b) additional licenses may be added during a subscription term, prorated for the portion of the subscription term remaining at the time the additional licenses are added, and (c) any additional licenses will terminate on the same date as the underlying subscription licenses.  Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public commitments made by Hive Pro regarding future features or functionality.

3.2 Usage Limitations. Customer’s access to and/or use a Solution may be limited based on the quantity of licenses, type of license and/or subscription term acquired. Access to and/or use of a Solutions in excess of the purchased license rights may be subject to the payment by Customer of additional fees.

3.3 Customer Responsibilities. Customer will:

(a) use the Solutions, and ensure each User makes use of the Solutions, in compliance with this Agreement, the applicable Documentation, the Order and applicable laws and government regulations;

(b) ensure any appropriate backups are in place prior to use of the Solutions;

(c) be responsible for the interoperability of any Third Party Items with which Customer uses the Solutions;

(d) use commercially reasonable efforts to prevent unauthorised access to or use of the Solutions, and notify Hive Pro promptly of any such unauthorised access or use;

(e) maintain reasonable security standards for use of the Solutions by the Users;

(f) comply with the applicable terms of any Third-Party Items with which Customer uses the Solutions; and

(g) Ensure its hardware meets the minimum hardware requirements set out in the Documentation.

Breach of the foregoing by Customer or its Users that Hive Pro deems to threaten the security, integrity or availability of a Solution may result in the immediate suspension of Customer’s right to use the Solutions; however, Hive Pro will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

3.4 Usage Restrictions.  Except as expressly permitted under this Agreement or as required by applicable law on a non-excludable basis, Customer shall not:

(a) sell, resell, license, sublicense, rent, lease, loan, supply, publish, distribute or redistribute the Solutions, or purport to do any of the foregoing, except as expressly permitted by Hive Pro in writing;

(b) make any Solution available to anyone other than Customer or Users, or use the Solutions for the benefit of anyone other than Customer or its Users, unless expressly permitted by Hive Pro in an Order;

(c) alter, edit or adapt the Solutions;

(d) decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Solutions;

(e) conduct or request that any other person conduct any penetration or similar testing on the Solutions without the prior written consent of Hive Pro;

(f) access or use the Solutions for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;

(g) use the Enterprise Solutions in any way that causes, or may cause, damage to the Solutions or impairment of the availability or accessibility of the Solutions;

(h) attempt to gain unauthorised access to any Solution or its related systems or networks; or

(i) permit direct or indirect access to or use of the Hive Pro Platform or any Solution in a way that circumvents a contractual usage limit, or use any Solution to access or use any Hive Pro intellectual property except as permitted under this Agreement, an Order or the Documentation.

3.5 Feedback. If Customer provides feedback, ideas or suggestions to Hive Pro in connection with the Solutions (“Feedback”), Customer acknowledges that the Feedback is not confidential and Customer authorizes Hive Pro to use that Feedback without restriction and without payment to Customer.

3.6 Customer is solely responsible for determining the suitability of the Solutions for Customer’s business processes and for complying with all applicable legal requirements regarding Customer Content. Customer will provide all reasonable assistance required in connection with the provision of the Solutions by Hive Pro. Customer acknowledges and agrees that Customer’s reasonable assistance is a necessary precondition for Hive Pro’s correct performance of its obligations under the Agreement. Customer bears all consequences and costs resulting from breach of its duties.

4. PAYMENT

4.1 Fees. Customer will be responsible for paying the fees specified in an Order.  For the avoidance of doubt and except as expressly set out in an Order: (a) fees are based on the Enterprise Solution subscription purchased and not actual usage; (b) upon acceptance of an Order by Hive Pro, payment obligations are non-cancellable and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant subscription term.

4.2 Invoicing & Payment. Customer shall furnish a valid purchase order or alternative document reasonably acceptable to Hive Pro. All subscription charges shall be billed in advance, either annually or at the frequency agreed in the applicable Order.  Unless otherwise stated in the Order, invoiced fees are due net thirty (30) days from invoice date.  Customer is responsible for providing complete and accurate billing and contact information to Hive Pro and notifying Hive Pro without undue delay of any changes to such information.

4.3 Taxes.  Fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer is responsible for payment of all Taxes associated with its purchases hereunder. If Hive Pro has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Hive Pro will invoice Customer and Customer will pay that amount unless Customer provides Hive Pro with a valid tax exemption certificate authorised by the appropriate taxation authority.  For clarity, Hive Pro is solely responsible for taxes assessable against it based on its income, property and employees.

4.4 Remedies for Non-Payment. If an invoiced amount is not received by Hive Pro when due, then without limiting any other remedy available to Hive Pro in connection with the said amounts, Hive Pro shall be entitled to charge interest on overdue invoices from the date when payment becomes due until the date of payment at the rate of twelve percent (12%) per annum.  Further, Hive Pro reserves the right to reject Orders and/or suspend access to the Solutions if any invoiced amount payable by Customer under this Agreement is past due, and Hive Pro has provided Customer with at least fifteen (15) days’ notice of its intention following the amount becoming past due.

5. Representations, Warranties, exclusions and disclaimers

5.1 Subject to the terms hereof, Hive Pro warrants that during the Warranty Period, the Enterprise Solutions: (a) will conform to the features and functions generally described in the Documentation; and (b) will be supplied free from material defects, known viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs.

5.2 Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the terms of this Agreement, Hive Pro gives no warranty or representation that Enterprise Solutions will be wholly free from defects, errors and bugs.

5.3 Customer further acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the terms of this Agreement, Hive Pro gives no warranty or representation to that the Enterprise Solutions will be entirely secure.

5.4 In the event of a breach of warranty under Section 1, Hive Pro shall use reasonable endeavours to provide a fix or work around, at Hive Pro’s option and sole discretion, and such fix or work around shall be Customer’s sole remedy in connection with such breach.

5.5 Hive Pro’s obligations set out under this Section 5 shall not apply to Trial licenses or where the breach of warranty results from: (a) use of the Enterprise Solution not in accordance with this Agreement, the Order or the applicable Documentation; (b) a defect or malfunction of a Third Party Item used in conjunction with the Enterprise Solution; (c) any cause external to the Enterprise Solution; or (d) Customer’s failure or refusal to implement software updates recommended by Hive Pro.In the event any maintenance, repairs, services or replacements are required as a result of the foregoing, all costs associated therewith shall be paid for by Customer.

5.6 Except as specifically set forth, the Hive Pro Platform and Enterprise Solutions are each provided “as is”.Hive Pro makes no representations or warranties of any kind, whether express, implied, statutory or otherwise, and Hive Pro specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, non-infringement or error-free operation, to the maximum extent permitted by applicable law.  Hive Pro expressly disclaims any representation or warranty that the Hive Pro Platform or the Enterprise Solutions provided hereunder will be error-free, timely, secure or uninterrupted. No oral advice or written information given by Hive Pro, its employees, licensors or agents will create a warranty; nor may Customer rely on any such information or advice.

6. Intellectual property

6.1 The Solutions are licensed to customers, and not sold.Subject to the limited rights expressly granted hereunder, Hive Pro, its Affiliates and its licensors reserve all of their right, title and interest in and to the Solutions, including all of their related intellectual property rights.  No rights are granted to Customer hereunder other than as expressly set forth herein.

7. Confidentiality

7.1 Confidential Information. The parties acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire knowledge, material, data, systems and other information concerning the operation, business, projections, market goals, financial affairs, Products, services, customers and Intellectual Property Rights of the other party that may not be accessible or known to the general public (“Confidential information”). Confidential information includes: (a) terms of this Agreement; (b) information which concerns technical details of the operation of any of the Products or related services; and (c) any information that is identified as confidential (or a similar designation) at the time of disclosure; or otherwise understood by the parties, exercising reasonable business judgement, to be confidential.

7.2 No Disclosure. Each party receiving Confidential Information (the “Receiving Party”) shall keep all such Confidential Information received from the other party (the “Disclosing Party”), both orally and in writing, confidential and shall not disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing party; provided however that the Receiving Party may disclose Confidential Information to its directors, officers, Affiliates, subsidiaries, legal and business advisors and to potential investors, and Hive Pro may disclose to its third party service providers the terms of this Agreement relating to the service provided by such providers, if such third parties agree to maintain the confidentiality of such Confidential Information. The Receiving Party further shall use the Confidential Information only for the purpose of performing this Agreement.  In addition, the Receiving Party shall not reverse engineer, disassemble or decompile any software or other tangible objects which embody Confidential Information, and which are provided to the Receiving Party hereunder.  Upon termination or expiration of this Agreement, the Receiving Party shall immediately return to Disclosing Party all manifestations of the Confidential Information or, at the Disclosing Party’s option, shall destroy all such Confidential Information as the Disclosing Party may designate; provided that such action may be delayed for so long as, and to the extent that, such Confidential Information relates to outstanding payment obligations or is subject to audit, reporting or retention requirements under this Agreement or applicable law.

7.3 Exclusions. The Receiving Party’s obligations under Sections 1 and 7.2 above shall not apply to Confidential Information which: (a) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party; (b) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (c) subsequent to disclosure, is rightfully obtained by the Receiving Party through a third party who is lawfully in possession of such Confidential Information and is permitted to disclose such information; (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (e) is required by law or judicial order, provided that prior written notice of such required disclosure is furnished to the Disclosing Party as soon as practicable, and prior to disclosure occurring, in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent such disclosure, and that if such order or remedy cannot be obtained, disclosure may be made without liability.

7.4 Injunctive Relief. Both parties acknowledge that the restrictions contained in this Section 7 (Confidentiality) are reasonable and necessary to protect their legitimate interests and that any violation of these restrictions will cause irreparable damage to the other party.  Each party agrees that damages are not an adequate remedy for any such violation and that the other party will be entitled to seek injunctive relief against each violation

7.5 Time Period. The confidentiality provisions of this Agreement shall survive the termination or expiration of this Agreement and Receiving Party’s duty to hold Confidential Information in confidence shall remain in effect: (a) in respect of trade secrets, until the Confidential Information no longer qualifies as a trade secret; and (b) in all other cases, for a period of twelve (12) months after Customer ceases to use the Hive Pro Platform or any Enterprise Solution.

8. Indemnities

8.1 Indemnification by Customer. Customer will indemnify, hold harmless and defend Hive Pro and its Affiliates and their directors, officers, agents, employees, successors and assigns from and against any and all claims, proceedings, demands, liabilities, losses, damages, costs and expenses (including reasonable attorney fees and expenses) based on or arising directly or indirectly from any breach of this Agreement by Customer or User (each a “Claim Against Hive Pro”). Subject to the limitations set forth herein, Customer, at its own expense, shall: (i) defend, or at its option settle, a Claim Against Hive Pro; and (ii) pay any final judgement entered or settlement against Hive Pro in a Claim Against Hive Pro; so long as Hive Pro gives Customer prompt written notice of a Claim Against Hive Pro and the right to control and direct the investigation, preparation, defence and settlement of such claim.  Hive Pro shall reasonably corporate with Customer, who shall not take any action to settle or defend a Claim Against Hive Pro that would in any manner impose obligations (monetary or otherwise) on Hive Pro without Hive Pro’s written consent, not to be unreasonably withheld.  Hive Pro has the right to participate in the defence of a Claim Against Hive Pro with its own counsel and is responsible for all costs associated therewith.

8.2 Indemnification by Hive Pro.

(a) Hive Pro will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any purchased Enterprise Solution infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will pay any damages, attorney fees and costs finally awarded to such third party by a court of competent jurisdiction to the extent based on such claim or that are agreed to in settlement by Hive Pro. Customer shall: (i) promptly give Hive Pro written notice of the Claim Against Customer; (ii) give Hive Pro sole control of the defence and settlement of the Claim Against Customer; and (iii) give Hive Pro all reasonable assistance, at Hive Pro’s expense.  Hive Pro shall not settle a Claim Against Customer in a manner that requires Customer to admit any liability.  If Hive Pro receives information about, an infringement or misappropriation claim related to an Enterprise Solution, or in its discretion believes one is likely to occur, Hive Pro may in its discretion and at no cost to Customer: (1) replace the Enterprise Solution or modify the infringing portion; (2) obtain a license for Customer’s continued use of that Enterprise Solution in accordance with this Agreement; or (3) terminate Customer’s subscription for that Enterprise Solution and refund Customer any prepaid fees covering the unused portion of the term of the terminated subscriptions.

(b) Hive Pro’s indemnification obligations shall not apply where: (i) the allegation does not state with specificity that the Enterprise Solutions are the basis of the claim; (ii) the claim arises from use or combination of the Enterprise Solution or any part thereof with software, hardware, data or processes not provided by Hive Pro, if the Enterprises Solution or use thereof would not infringe without such combination; (iii) Customer continues to access and/or use the allegedly infringing Enterprise Solution after being notified; (iv) Customer fails to use updates made available by Hive Pro; (v) the claim arises from Enterprise Solutions under an Order for which there is no charge; or (vi) the claim arises from Customer’s breach of this Agreement, the Documentation or applicable Order.The remedies set forth in this Section 2constitute Customer’s sole and exclusive remedies, and Hive Pro’s entire liability, with respect to infringement or violation of third party intellectual property rights.

9. Limitations and Exclusions of Liability

9.1 Notwithstanding anything to the contrary in this Agreement, Hive Pro’s total liability to Customer or to any third party for damages arising from any cause of action is, in the aggregate, limited to the fees actually paid by Customer during the prior one month period from the date of the event giving rise to the claim.The limitation liability provisions of this Agreement reflect an informed voluntary allocation of the risks (known and unknown) that may exist in connection with the Solutions and that such voluntary risk allocation represents a fundamental part of the Agreement between the parties.

9.2 To the maximum extent permitted by law, in no event shall Hive Pro be not liable for, and Customer hereby waives, all of the following damages directly or indirectly arising out of or in connection with this Agreement, the Solutions: all special, indirect, incidental, economical, consequential, exemplary, punitive or any similar or other damages of any nature whatsoever, including but not limited to damages for loss or corruption of data, goodwill, profits, revenue, earnings, investments or other commercial loss, use of money, use of facilities; business interruption, stoppage of other work or impairment of other assets; or labour claims.

9.3 The limitations, exclusions and disclaimers set out in this Agreement shall apply, whether an action, claim or demand arises from breach of express or implied warranty, breach of contract, strict liability in tort (including negligence), statutory liability or any other theory of liability, and whether or not such damages could reasonably be foresee or their possibility has been disclosed to Hive Pro.

9.4 Nothing in this Agreement will limit or exclude any liabilities that may not be limited or excluded under applicable law.

10. TERM AND TERMINATION

10.1 Term. This Agreement shall commence on the date Customer first accepts it and shall continue until all subscriptions hereunder have expired or have been terminated.

10.2 Termination. Either party may terminate this Agreement for cause: (a) upon thirty (30) day’s written notice to the other party of a material breach if such breach remains uncured at the end of such period; or (b) if the other party becomes subject to bankruptcy, insolvency, receivership or reorganisation proposal, arrangement or proceeding.

10.3 Effect of Termination. Upon termination or expiration of this Agreement, each party’s rights and obligations hereunder shall cease immediately, except termination or expiration of this Agreement (howsoever caused) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provisions of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination.

10.4 Survival. The provisions of this Agreement, which by their nature survive termination or expiration, shall survive termination or expiration of this Agreement.

11. GENERAL

11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The courts of San Francisco, California, U.S. shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

11.2 Force Majeure. Neither party shall be liable for any delay or failure to perform any of its obligations under this Agreement (excluding any payment obligations) if the delay or failure results from events or circumstances outside its reasonable control, including acts of God, governmental act, war, fire, flood, explosion or civil disruption (“Force Majeure Event”), and the other party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events. Each party shall all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations; however if a Force Majeure Event prevents, hinders or delays performance for a continuous period exceeding ninety (90) days, either party may terminate this Agreement on written notice to the other party.

11.3 Export Compliance. The Solutions, and any derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions.  Hive Pro and Customer each represent that it is not named on any U.S. government denied-party list.  Customer will not permit any User to access or use any Solution in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

11.4 Data Privacy. Customer’s and/or User’s installation, access to and/or use of a Solution may result in the collection, use, processing, transfer, storage and disclosure of personally identifiable or other information about Customer and/or its Users by Hive Pro and/or any of its Affiliates or service providers.  Customer, on its own behalf and on behalf of its Users, agrees that Hive Pro, its Affiliates and its service providers may process data for the purposes set out in this Agreement and in Hive Pro’s Privacy Policy.  Further, Customer understands and agrees that Hive Pro, its Affiliates and its subcontractors may perform certain aspects of the Solution, such as (but not limited to) service administration, hosting, support, and/or disaster recovery, from data centres and other facilities located throughout the world. As such, Customer acknowledges and agrees that use of the Solutions may result in the Customer’s data (including, but not limited to, any Customer Content) being collected, transferred, processed, and/or used in any area of the world. Customer represents and warrants, on its own behalf and on behalf of its Users, that it has obtained all necessary consents to such processing, including collection of User’s personal information as may be required for the use of the Solutions as contemplated in this Agreement.

11.5 Protection of Customer Content. Hive Pro shall maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Content, as set out in the Documentation. Those safeguards will include without limitation, measures designed to prevent unauthorised access or disclosure of Customer Content (other than by Customer or Users). Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Hive Pro will make Customer Content available to Customer for export or download as provided in the Documentation. After such thirty (30) day period, Hive Pro shall have no obligation to maintain or provide any Customer Content, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Content in its systems or otherwise in its possession or control, unless legally prohibited from doing so.

11.6 Subcontracting. Hive Pro reserves the right to subcontract to third-party providers all or a portion of its obligations under this Agreement and may change or replace such subcontractors at any time in its sole discretion.

11.7 Entire Agreement; Amendments. This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any prior agreements, arrangements, undertakings or proposals, oral or written. Hive Pro may vary the terms of this Agreement from time to time and shall provide notice of such variation by posting a prominent notice on the Hive Pro Platform.

11.8 Assignment. Customer hereby agrees that Hive Pro may assign its contractual rights and obligations under this Agreement to any successor to all or a substantial part of the business of Hive Pro from time to time. Save to the extent expressly permitted by applicable law, Customer must not without the prior written consent of Hive Pro assign, transfer or otherwise deal with any of Customer’s contractual rights or obligations under this Agreement.

11.9 Notices. Any notices or other communications required or permitted to be provided pursuant to this Agreement may be provided by: (a) Hive Pro to Customer (i) on the Hive Pro Platform or (ii) by electronic mail to Customer’s email address on record in Hive Pro’s account information records; and (b) Customer to Hive Pro (i) by electronic mail to support@hivepro.com and finance@hivepro.com

11.10 Severability. If any part of this Agreement is declared illegal, unenforceable or invalid by a court of competent jurisdiction, the remainder will continue to be legal, valid and enforceable.

11.11 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

11.12 Third Party Rights. This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

11.13 Relationship of the Parties. The parties are independent contractors.  This Agreement does not create any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship between the parties.

11.14 Interpretation.  Headings are included in this Agreement for ease of reference only and do not affect the interpretation or construction of this Agreement. The words “includes”, “included” and “including” will be construed without limitation unless inconsistent with the context. A reference to the singular includes the plural and vice versa, and a reference to any gender includes all genders. A reference to any statute, enactment, order, regulation or other similar instrument, unless the context otherwise requires, shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended or re-enacted (whether in whole or in part) by any subsequent statute, enactment, order, regulation or instrument and shall include all statutory instruments or orders made pursuant to it whether in place before or after the date of this Agreement.