Last Modified: 30 Aug 2024
These Terms and Conditions of Service (“Terms of Service”) (including all exhibits, addenda, and amendments which are properly attached or incorporated by reference) shall govern the purchase, licence and use of Hive Learning’s Services. “Hive Learning”, “our” and “we” refers to the Hive Learning entity defined in the Sales Order. “Customer”, “You”, or “Your” means the entity stated on the Sales Order that purchases Services from Hive Learning. Each of Hive Learning and the Customer may be referred to in these Terms as a “Party” or collectively as the “Parties”.
2.1. Services. Hive Learning offers learning and performance subscription based Services. Hive Learning may modify or update the Services from time to time, provided such changes will not materially reduce the Customer’s use of the Services.
2.2. Subscription. The Customer may subscribe to the Services by executing a Sales Order and, once executed, these Terms of Service and the applicable Sales Order shall constitute a binding agreement between the Customer and Hive Learning (the “Agreement”). Each Sales Order will include a description of the ordered Services, the Initial Term, and the associated Fees. If use of the Services is extended to an Affiliate of the Customer pursuant to a Sales Order, then the term “Customer” shall be deemed to include that Affiliate and the provisions of the Sales Order and these Terms of Service shall also apply to the Affiliate.
3.1. Hive Learning commits to the following in its performance of the Services:
3.1.1. Service Availability. The Services shall be made generally available 24/7/365 except for interruptions due to support and maintenance or circumstances beyond Hive Learning’s reasonable control.
3.1.2. Support. Technical support shall be provided during the Subscription Term. Access to online support resources (help.hivelearning.com) are available 24/7/365 to all Users. Access to live technical support is provided by support administrators Mon – Fri, 8am – 5pm (GMT).
3.1.3. Compliance with Laws. Hive Learning will comply with all laws and governmental regulations which are applicable to the Services.
3.1.4. Personnel. Hive Learning may engage subcontractors for the performance of the Services and any other obligations under the Agreement. Hive Learning will at all times be responsible for the performance of its personnel (including employees and subcontractors).
3.1.5. Security Measures and Security Certification. Hive Learning will maintain the appropriate administrative, physical, and technical safeguards necessary for the protection of the security and integrity of the Services (the “Security Measures”) and consistent with industry-standard practices. Hive Learning’s Security Measures may be viewed via its Trust Centre. Hive Learning will ensure an independent audit is performed of its operations and information security controls in line with ISO 27001 (and/or or a similar standard). Hive Learning’s security certifications may be viewed via its Trust Centre.
3.1.6. Data Protection and Privacy. Hive Learning will comply with all Data Protection Laws which are applicable to its processing and storage of Personal Data in connection with the provision of the Services. Hive Learning will process and protect Personal Data in its capacity as Data Processor in accordance with the Data Processing Agreement, incorporated into this Agreement by reference. In limited circumstances, Hive Learning will also process the Customer’s representative(s)/account holder(s)’ Personal Data for its own business purposes, in its capacity as Data Controller, in accordance with its Privacy Notice.
3.1.7. Insurance. Hive Learning will maintain appropriate insurance throughout the performance of the Services. Details of Hive Learning’s insurance cover may be viewed via its Trust Centre.
3.2. Service Level. Hive Learning may offer further availability and support obligations for Services. Such service level agreement (“SLA”) will be made available by Hive Learning at the applicable URL for such SLA or as otherwise communicated to the Customer.
4.1. The Customer commits to the following in its use of the Services:
4.1.1. Use of the Services. Customer agrees to use the Services strictly in accordance with these Terms of Service for its internal business purposes only.
4.1.2. Compliance with Laws. The Customer shall, and shall ensure that its Users shall, follow all applicable laws, guidelines, and recommendations for the Services.
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4.1.3. Customer Content. The Customer is responsible for all Customer Content and for compliance with all applicable laws pertaining to that Customer Content. The Customer hereby represents and warrants that the Customer has the right to upload the Customer Content to the Services and that use of such Customer Content does not violate or infringe on any rights of any third party. In no circumstances will Hive Learning be liable in any way for any (i) Customer Content that is transmitted or viewed whilst using the Services, (ii) errors or omissions in the Customer Content, or (iii) any loss or damage of any kind incurred because of the use of, access to, or denial of access to Customer Content. Although Hive Learning is not responsible for any Customer Content, Hive Learning may delete Customer Content, at any time and without notice, if Hive Learning becomes aware that it violates a provision of this Agreement, or an applicable law or regulation.
4.1.4. Data Protection. The Customer will ensure that all necessary and appropriate consents and/or notices are in place to enable the lawful carrying out of Hive Learning’s processor activities.
4.1.5. Sensitive Personal Information. The Customer acknowledges that the Services are neither designed nor intended to transmit, store, or otherwise process Sensitive Personal Information (“SPI”). The Customer is responsible for any SPI contained in Customer Content. Hive Learning shall not be liable for non-compliance with a law or regulation where such non-compliance is attributable to the Customer’s or its Users’ use or provision of SPI in Customer Content.
4.1.6. 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 Learning.
4.1.7. 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.
4.1.8. Security. The Customer will ensure that all log-in information, security methods, and other information that Hive Learning provides for secure access to the Services is kept confidential. And the Customer will notify Hive Learning 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 Learning Property (as defined in Section 14.3 except as permitted under the Agreement.
4.1.9. Viruses and other Malware. The Customer will not deliberately introduce viruses, trojans, worms or other harmful software or code into the Services.
4.1.10. 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 Learning may provide from time to time for the proper use of the Services and to ensure that its Users abide by Hive Learning’s Terms of Use when using the Services, as updated from time to time. The Customer shall indemnify Hive Learning (and its Affiliates) for all losses, liabilities and reasonably incurred expenses (including reasonable attorney’s fees) which Hive Learning (or its Affiliates) may suffer arising out of a breach of the Terms of Use .
4.1.11. 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.
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9.1. Term. The Agreement will commence on the Effective Date and will remain in force for the Subscription Term. “Subscription Term” means, collectively, the initial term of the Customer’s subscription to the Service, as specified on the Sales Order (the “Initial Term”); and each subsequent renewal period (if any) (each a “Renewal Term”). The “Current Term” is the then-current committed period of Services, as either an Initial Term or Renewal Term. Unless terminated by either Party with no less than sixty (60) days’ written notice before the end of the Current Term, the Agreement shall automatically renew for a Renewal Term, equivalent to the length of 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 of a material breach if the breach remains uncured at the expiration of the notice period, 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 return or, if instructed by Hive Learning, destroy any Confidential Information of Hive Learning, (ii) All outstanding Fees are immediately due and payable, (iii) Hive Learning shall have no obligation to retain Customer Content and shall be entitled, unless legally prohibited from doing so, to permanently delete or destroy all copies of Customer Content in its possession or control.
10.1. Fees and Invoicing. The Customer shall pay the Fees for the Services (“Fees”) as set out in the Sales Order. Depending on the route taken by the Customer to procure the Services (either directly with Hive Learning or via the Marketplace), the Customer will either be invoiced by Hive Learning 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 services are procured directly from Hive Learning, then Hive Learning will invoice the Customer either annually in advance or according to the billing frequency stated in the Agreement. 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 Learning reserves the right to change the Fee applicable on the coming 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 Learning by the due date then, without limiting Hive Learning’s other rights or remedies, Hive Learning may (i) charge late interest at the rate of 4% per annum (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 Learning will refund any prepaid but unused Fees covering the use of the Service after the date of termination. If the Customer terminates without 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 Learning terminates for cause then the Customer will promptly pay all unpaid Fees due until the end of the Current Term. If Hive Learning terminates without cause prior to the end of the Current Term then Hive Learning 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 Taxes. The Customer is responsible for paying all Taxes associated with the Agreement. If Hive Learning is obligated by law to pay or collect Taxes for which Customer is responsible, Hive Learning 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 Learning with any information Hive Learning reasonably requests to determine whether Hive Learning is obligated to collect Taxes.
10.6. No set off. The Customer must pay all sums owed to Hive Learning under this Agreement free and clear without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
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11.1. Confidential Information. Each Party acknowledges that the Confidential Information is valuable and each Party agrees that it shall use the other Party’s Confidential Information solely in accordance with the provisions of the Agreement and will not disclose, or permit to be disclosed, the same, 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 for any other purpose other than for its obligations or rights under the Agreement nor disclose or otherwise make available any Confidential Information of the disclosing Party to anyone except those of its Representatives who: (i) need to know the Confidential Information in connection with the purpose of the Agreement and (ii) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each Party shall safeguard all Confidential Information of the other Party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (iii) not use any Confidential Information of the other Party for any purpose outside the scope of the Agreement.
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 will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
11.4. Duration of Confidentiality Obligations. These obligations apply: (i) for Customer Content, until it is deleted by Hive Learning; and (ii) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
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 Content, (ii) all other information, materials, specifications, instructions, and other data that the Customer may share with Hive Learning in relation to its use of the Services, (iv) Customer Acquired IP (defined in Section 12.5 below), (v) any Intellectual Property that was created by or licened to the Customer prior to or independently from Hive Learning’s provision of Services (referred to as “Customer Pre-existing IP”).
12.2. Permission to Use Customer Property. Hive Learning may need access to Customer Property to provide Services to the Customer. The Customer hereby grants to Hive Learning a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, royalty-free, fully paid-up, enterprise-wide (covering Hive Learning’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 Learning to provide the Services. Subject to this limited licence, Hive Learning shall acquire no right, title, or interest from Customer under the Agreement in or to Customer Property.
12.3. Hive Learning Property. Hive Learning is the owner of all rights (including Intellectual Property Rights), title and interest, or has a right to, in and to all “Hive Learning Property”, which is comprised of the Services, Documentation, and any other information, materials, specifications, instructions, and other data (including Analytics Data) that Hive Learning may share with the Customer in relation to its delivery of any Services (referred to as “Hive Learning Preexisting IP”). Hive Learning Property also includes any Hive Learning New IP (as defined in Section 12.5 below).
12.4. Permission to use Hive Learning Property. Subject to these Terms of Service, Hive Learning grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable, revocable, 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 4.1.11. Subject to this limited licence, the Customer shall acquire no right, title, or interest from Hive Learning under the Agreement in or to Hive Learning Property.
12.5. Hive Learning New IP. In general, any bespoke deliverables that Hive Learning agrees to provide to the Customer as part of the Services consist of modifications to the Services, and Hive Learning would not engage in projects that may result in the creation of Intellectual Property not owned by Hive Learning. Therefore, if any new intellectual property is created or reduced to practice in relation to the provision of Services to the Customer under these Terms of Service (referred to as “New IP”), it will be owned exclusively by Hive Learning, unless the Parties explicitly agree otherwise in the relevant Sales Order and specifically identify any New IP as being “Customer Acquired IP” (and, as a result, being owned by the Customer). For the avoidance of doubt, any deliverables that include any Customer Confidential Information shall remain subject to the confidentiality obligations under Section 11 (Confidentiality) and the Customer shall retain all ownership rights to such Confidential Information.
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12.6. Feedback. Hive Learning encourages all customers to comment on the Services, and to provide ideas, suggestions, input, comments, or know-how, in any form, for improving it (collectively “Feedback”) all such Feedback will be non-Confidential Information and Hive Learning owns all rights to use and incorporate Feedback into the Service, without payment or attribution to the Customer.
12.7. Metadata. Metadata (i.e., anonymous, aggregated, non-personal, technical data) may be generated by the Customer in its use of the Services. Hive Learning may develop, modify, and improve the Services based on such metadata and Hive Learning 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 Learning except as expressly set forth in the Agreement.
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 HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT (i) THE CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 10 (FEES AND PAYMENT), (II) EITHER PARTY’S LIABILITY UNDER SECTION 16 (INDEMNIFICATION), (III) EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE, (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, AND (B) HIVE LEARNING’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 CLAIMS FOR DAMAGES SHALL BE SUBMITTED NO LATER THAN TWELVE (12) MONTHS FROM THE TIME THE CIRCUMSTANCES GIVING RISE TO THE CLAIM OCCURRED, HOWEVER NO LATER THAN SIX (6) MONTHS AFTER THE EXPIRATION OR TERMINATION OF THE AGREEMENT.
14.1. Mutual Representations and Warranties. Each Party hereby continuously 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 will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms; (iv) it will comply with all applicable laws and regulations.
14.2. Hive Learning Warranties. Hive Learning represents and warrants that: (i) the Services, when used by Customer as expressly permitted in accordance with the terms of the Agreement, will operate in substantial conformity with their description (as updated from time to time); (ii) the overall effectiveness of the Security Measures will not be decreased; (iii) it will not materially decrease the overall functionality of the Services. 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 Learning to replicate the deficiency. For any breach of such warranty, as the Customer’s sole remedy, Hive Learning will endeavor to correct the non-conformity within a reasonable period of time.
15.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUSTOMER AGREES THAT HIVE LEARNING HAS MADE NO EXPRESS WARRANTIES EXCEPT FOR THE WARRANTIES SET FORTH IN CLAUSE 16 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 LEARNING DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
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16.1. Indemnification by Hive Learning. Hive Learning 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 Learning 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 Learning 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 Learning may, at Hive Learning’s expense and in Hive Learning 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 Learning’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Hive Learning 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 Learning, 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 Learning, 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 Content.
16.2. Indemnification by Customer. The Customer will defend Hive Learning and its Affiliates, and their officers, directors, employees, agents, and contractors (“Hive Learning Indemnified Parties”), from and against any Claims arising from or relating to Customer Content or misuse of the Services and will indemnify and hold Hive Learning 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.
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 (which will not be unreasonably withheld) 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.
17.1. Verifying Compliance. The Customer must keep records relating to the Services it and its Affiliates use. At Hive Learning’s expense, Hive Learning may verify the Customer’s and its Affiliates’ compliance with this Agreement by directing an independent auditor (under nondisclosure obligations) to conduct an audit or ask the Customer to complete a self-audit process. The Customer must promptly provide any information and documents that Hive Learning or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, the Customer must order sufficient licenses to cover the period of its unlicensed use. The audits may be conducted more frequently, if required by the party’s auditors and/or regulators, of books and records related to this Agreement. 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 Learning will make available to the Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. 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. Customer affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations).
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 shall include, but not be limited to, strictly prohibiting the use of forced labor, slavery, and human trafficking in any form and requiring that its partners, vendors, and contractors similarly uphold these commitments and comply with all applicable laws and regulations regarding anti-slavery and human trafficking. 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 be a material breach.
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17.5. Anti-Facilitation of Tax Evasion. Each Party commits to preventing the facilitation of tax evasion in any form. Each Party shall ensure that its employees, partners, vendors, and customers act with integrity and comply with all applicable tax laws and regulations. A breach of this clause shall be 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 material solely to identify the Customer as a Hive Learning customer or Hive Learning as the Customer’s service provider (as the case may be).
17.7. No Sale. Hive Learning will not sell, lease, rent or otherwise share for consideration any Personal Data contained in Customer Content which it may process under this Agreement. For purposes of clarity, the term “sell” as used within this Section 17.7 will be used in accordance with, and as the term is defined under, the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and any subsequent regulations.
17.8. Force Majeure. Except for payment obligations under the Agreement, neither Party will be liable for failure to perform or inadequate performance under the Agreement to the extent caused by a condition that was beyond the Party’s reasonable control and which substantially affects the Party’s or its sub-suppliers’ or subcontractors’ performance, including, for example, an act of god, natural disaster, epidemic or pandemic, act of war or terrorism, riot or civil arrest, labor conditions such as boycott, strike, lock-out, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services. If the performance of the Services in substantial respects is prevented for a period exceeding thirty (30) days due to a circumstance stated herein, either Party shall have the right to terminate the Agreement immediately on notice (in accordance with Section 17.10), without liability.
17.9. Assignment. No rights or duties may be assigned or delegated, 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 prior written notice, to an Affiliate of the assigning party or as part of a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets of the assigning party. Notwithstanding the immediately preceding sentence, if a Party is acquired by, sells all or substantially all assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may, but is not required to, terminate the Agreement upon written notice.
17.10. Notices. All notices (including notices to terminate the Agreement) given to Hive Learning shall be in writing and shall be sent by email to the email address provided in the Sales Order (or other email subsequently notified to the Customer) with copy to accounts@hivelearning.com and shall be deemed provided when sent. All notices given to the Customer shall be in writing and shall be sent by email to the email address provided in the Sales Order (or other email subsequently notified to Hive Learning) OR by using another electronic method of notice and shall be deemed provided when sent. This clause does not apply to notices given in legal proceedings.
17.11. Survival. Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including but not limited to all indemnity obligations and procedures.
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 is intended to, nor shall be deemed to, establish any partnership or joint venture between the Parties, nor constitute either Party to be the agent of the other for any purpose. Neither Party shall have authority to act as agent for, or to bind, the other Party in any way.
17.14. Non-Waiver and Severability. A Party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the Parties’ intent with respect to such provision.
17.15. Modifications to these Terms of Service. Hive Learning may modify these Terms of Service from time to time. Any term or condition stated in a Customer purchase order or other Customer order document (excluding the Sales Order in the Agreement) is void. Any and all changes to these Terms of Service will be posted via http:/hivelearning.com (or another designated URL) and the Terms of Service will indicate the date they were last updated. Hive Learning may also (but is not obliged to) notify the Customer that updated Terms of Service have been posted. The modifications will become effective thirty (30) days after posting. The Customer is deemed to accept and agree to be bound by any modifications when it continues to use the Service after the effective date of those modifications. If the Customer does not agree to the modifications then it must notify Hive Learning in writing within thirty (30) days of the date of posting. If such notice is received then the Agreement will continue to be governed by the Terms of Service of the prior to the modification until the next renewal date, whereupon the terms posted at http:/hivelearning.com (or another designated URL) shall apply. However, if Hive Learning can no longer reasonably provide the subscription to the Customer under the Terms of Service prior to modification (for example, if the modifications are required by law or result from general service changes), then the Agreement and/or the affected Services will terminate upon our notice to you and Hive Learning will promptly refund any prepaid but unused fees covering use of the Service after termination in accordance with Section 10.4 (Refund or Payment Upon Termination).
17.16. Changes to the Services. The Parties may agree to amend the Services by agreeing a new Sales Order or other written form of amendment (“Amendment”). Once validly executed by both Parties, the Amendment shall form part of the Agreement.
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17.17. Conflicts. In the event of a conflict between the Terms of Service of this Agreement, the following order of priority shall apply in descending order: (i) DPA (and its schedules), (ii) Sales Order, (iii) these Terms of Service (iv) documents incorporated by reference these Terms of Service.
17.18. Entire Agreement. The Agreement contains the entire agreement of the Parties with respect to its subject matter and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties. Hive Learning and Customer each represent that it has validly entered into or accepted the Agreement and has the legal power and authority to do so.
17.19. Governing Law and Jurisdiction. Unless otherwise specified in the Sales Order, the Agreement will be interpreted and construed in accordance with the laws of England and Wales and all disputes arising out of or in connection with the Agreement, its subject matter, or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction and venue of the courts of England and Wales.
| Affiliate | means, for a Party, any other entity that controls, is controlled by, or under common control with the 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 applicable Sales Order (or other ordering document), these Terms of Service (including all exhibits, addenda, and amendments which are properly attached or incorporated by reference); |
| Anti-Bribery and
Anti-Corruption Laws |
means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act; |
| BuzzAI | means Hive Learning’s Generative AI-based “Knowledge Assistant” which may be used by the Customer as part of the Services; |
| Claims | means any third party-initiated claims, demands, suits, or proceedings; |
| Confidential Information | means all non-public or proprietary information, documents,and data (including copies, summaries, and extracts) about the disclosing Party’s (and its Affiliates’) business or services which has been or may hereafter be disclosed under this Agreement, either directly or indirectly, to the receiving Party, including trade secrets, data. technical information, financial information, business information, business processes, the terms and conditions of the Parties’ Agreement, including pricing, product plans and designs, and any information either clearly marked as “confidential information”, or which would reasonably be understood to be Confidential Information, ideas, and know-how, either orally, in writing or in any other form pursuant to or in connection with this Agreement. Customer’s Confidential Information includes Customer Content; Hive Learning’s Confidential Information includes the Services; |
| Customer | means the entity entering into the Agreement with Hive Learning and identified in the Sales Order, including, as applicable, the Customer’s Affiliates; |
| Customer Content
Data Processing Agreement (“DPA”) |
means all files, materials, information, content, Input, User Data, and data (including audio, video, text, or images)(including Personal Data) belonging to or controlled by the Customer, which is provided, posted, uploaded, Input or otherwise submitted to Hive Learning via the Services;
means the Data Processing Agreement that shall govern Hive Learning’s processing of any Personal Data in the delivery of the Services; |
| Data Protection Laws | means any law applicable to Hive Learning or the Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted. |
| Documentation | means written technical and usage documentation about the Services produced by Hive Learning and shared with the Customer; |
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| Effective Date | means the start date of the Services as set out in the Sales Order; |
| Fees | means the fees payable for the Services and which are specified in an executed Sales Order; |
| Generative AI | means machine learning algorithms and models that are capable of generating and delivering content, recommendations, or outputs based on data and parameters provided, including, but not limited to text and images; |
| Hive Learning | means: (i) Hive Learning, Inc., (for Customers located in North America); or (ii) Hive Learning Limited (for Customers located anywhere else in the world) as identified in the Sales Order; |
| Hive Learning Content | means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags (together “Content”) that Hive Learning incorporates into the Services together with all Content generated by Hive Learning in connection with the Customer’s use of the Services (including but not limited to Outputs); |
| Hive Learning Privacy Policy | means the privacy policy maintained at www.HiveLearning.com/privacy-policy, as may be updated from time to time; |
| Input (Prompts) | means the data, software, third-party services, and other content uploaded, accessed, stored, or submitted to the Services (or by other means) for the use of the Services by the Customer or its Users, including voice recordings, prompting and other interactions with the Services; |
| Intellectual Property Rights | means (i) rights in, and in relation to, any patents, registered designs, design rights, trade marks, trade and business names (including goodwill associated with any trademarks or trade and business names), copyright and related rights, moral rights, databases, domain names, semiconductor and other topography rights and utility models, and including registrations and applications for, and renewals or extensions of, such rights, and similar or equivalent rights or forms of protection in any part of the world; (ii) rights in the nature of unfair competition rights and to sue for passing off and for past infringement; and (iii) trade secrets, confidentiality and other proprietary rights, including rights to know-how and other technical information; |
| Marketplace
Output Personal Data |
means a reference to either Microsoft AppSource or Azure Marketplace, as the case may be; means the content generated by the Services in connection with an Input;
means information, taken alone or in combination with other data, which may be used to identify, directly or indirectly, a specific individual. Where specific Data Protection Law applies (e.g., the GDPR), and those laws or regulations define Personal Data or a similar term (e.g., “Personal Information”), “Personal Data” will adopt the meaning from that applicable law or regulation; |
| Platform | means the tools and the technologies used for data collection, processing, analysis and management and the API layer which provides the interface for applications and systems to interact with data stored in the Hive Learning platform that the Customer has subscribed to under a Sales Order, or that Hive Learning otherwise makes available to the Customer, and which is developed, operated, maintained, and updated by Hive Learning, and accessible via http:/hivelearning.com or another designated URL; |
| Professional Services | means any consulting, training, or implementation services provided by Hive Learning to the Customer, as set out in the Sales Order; |
| Representatives | means a Party’s employees, Affiliates, contractors, advisors, and consultants; |
| Sales Order | means a sales order form, a statement of work, or another form of ordering document used to transact the Services via the Marketplace, which details Services being procured by Customer, and which references these Terms of Service; |
| Sensitive Personal
Information (“SPI”) |
means information of a sensitive nature, including without limitation, personal financial and financial account information, sexual orientation, personal medical or health information, personal information of children under 18, personal education records, and social security, national identity, national insurance, and similar personal identifiers. Where specific Data Protection Law applies (e.g., GDPR, and those laws define Sensitive Personal Information or a similar term (e.g., “Sensitive Personal Data”), Sensitive Personal Information will adopt the meaning from the applicable law or regulation; |
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| Services | means the Platform, Hive Learning Content, Documentation, Support Services, Professional Services, and any supplemental Services identified in a Sales Order and that Hive Learning makes available to the Customer in accordance with the terms of the Agreement including the software, technology and services necessary for Hive Learning to provide the foregoing; |
| Support Services | means any technical support services provided by Hive Learning to the Customer, as set out in the Sales Order; |
| Taxes | means any local, state, provincial, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or other governmental charges or duties resulting from the Agreement, excluding income taxes on Hive Learning’s revenue; |
| User | means any individual or entity for whom a unique username and password has been created under the Customer’s instruction so that individual may access, use and otherwise interact with the Services. A “User” may be the Customer’s employee or other staff member or, where applicable, an employee or other staff member of a Customer Affiliate; |
| User Data | means content collected by Hive Learning during a User’s interactions with the Service. |
