HIVE DIVERSITY TERMS AND CONDITIONS
OPPORTUNITY POSTING FORM AND AGREEMENT
This Posting Form (“Order Form”) is effective from the date this form is submitted (“Effective Date”) by and between HIVE DIVERSITY, Inc., a Delaware Corporation with an address at 287 Park Avenue South, Suite 631, New York, NY 10010 (“Hive”), and the Customer set forth below. This Order Form, the attached Hive Terms and Conditions (the “Terms and Conditions”), and any and all attachments thereto shall be collectively referred to as the “Agreement.” Any and all terms used, but not defined in this Order Form shall have the meaning given to them in the Terms and Conditions. In the event of any inconsistency between this Order Form and the Terms and Conditions, this Order Form shall control.
For multiple positions, please complete the information for one below and contact HIVE for additional positions.
WHEREAS, Hive provides the service set forth on the Order Form, which it makes available on a hosted basis; and
WHEREAS, Customer desires to engage the hosted service on behalf of its Authorized Users as set forth on the Order Form to which these Enterprise Terms and Conditions are attached, and Hive desires to grant a license to use such hosted services in accordance with the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements in this Agreement, the parties hereby agree as follows:
1.1. “Authorized Users” means those users who access and use the Hive Service on behalf of Customer.
1.2. “Hive Service” means the hosted service described on the Order Form.
1.3. “Site” means the virtual recruiting platform which is currently available at hellohive.com
1.4. “Customer Content” means text, images, profile information, data, video, audiovisual content, works of authorship or other types of materials, or hyperlinks to any of the foregoing, Customer or Customer’s Authorized Users provide, post, upload, publish, transmit, or distribute on or through the Hive Service.
1.5. “Candidate” means the diverse community of undergraduate students and recent graduates that access and use the Site.
1.6. “Candidate Content” means text, images, profile information, employment information, personal demographics, data, video, audiovisual content, works of authorship or other types of materials, or hyperlinks to any of the foregoing, that Hive or Candidates provide, post, upload, publish, transmit, or distribute on or through the Hive Service.
1.7. “Launch Date” means the date on which Hive will make the Hive Service available to Customer’s Authorized Users and on which the Authorized Users may begin accessing the Hive Service.
1.8. “Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof, or any court of competent jurisdiction, that apply to a party.
2. Provision of the Hive Service.
2.1. Access to the Hive Service. Beginning on the Launch Date and subject to the terms and conditions of this Agreement (including, without limitation, any Authorized User limitations set forth in the Order Form), Hive hereby grants to Customer during the Term, exercisable through its Authorized Users, a limited, nonexclusive, nontransferable right and license, without the right to sublicense, to access and use the Hive Service and Candidate Content solely as permitted by the features of the Hive Service. The parties agree that the Hive Service shall be made available solely on a hosted basis and is licensed, not sold, to Customer.
2.2. Restrictions. Customer (including, without limitation, its Authorized Users) will not, and will not permit any third party to: (a) access or use the Hive Service or Candidate Content except as permitted hereunder; (b) use the Hive Service as a service bureau or otherwise for the benefit of a third party; (c) use the Hive Service or Candidate Content in any manner that is not compliant with Applicable Law or violates any individual Candidate rights; (d) rent, lease, loan or otherwise in any manner provide or distribute the Hive Service or Candidate Content, or any copy of either, to any third party; (e) misappropriate any Candidate Content, data, or information from the Hive Service; (f) disrupt the functioning of the Hive Service; (g) act in a manner that interferes with Hive’s operation of the Hive Service or with the use of the Hive Service by others; (h) gain or grant any unauthorized access to the Hive Service or Candidate Content; (i) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Hive Service or any security technology, software, or rights management information contained within the Hive Service or in any software used to enable the Hive Service; (j) modify or remove any copyright, trademark or other proprietary rights notice on any Candidate Content, software, or other materials contained within the Hive Service; (k) access or use the Hive Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (l) exploit the Hive Service or Candidate Content in any unauthorized way whatsoever, including, without limitation, by trespass or burdening server or network capacity or Hive Service infrastructure (including, but not limited to, transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Hive Service infrastructure); (m) employ any atypical requirements in the hiring or application process (as determined in Hive’s discretion) including, but not limited to, application fees, investments in the Customer’s company or business enterprise, or unpaid trial periods; (n) post any Customer Content that is fraudulent, false, misleading, defamatory, slanderous, libelous, obscene, threating, unlawful, intimidating, inflammatory, or in violation of any agreements or policies that you are subject to, and any jobs you list through this Site will be accurately described with respect to the nature, location, and compensation being offered, or (o) attempt, or encourage or assist any third party to do, any of the foregoing. Customer is responsible and liable to Hive for all activity that occurs through or in connection with Customer’s accounts.
2.3. Liability for Authorized Users. The Customer shall be solely responsible for any and all acts and omissions of the Authorized Users and hereby represents that Customer has the right to transfer any Customer Content or Authorized User information to Hive under Applicable Law. The Customer will require any and all Authorized Users to comply with the applicable terms of this Agreement. ANY ACTS OR OMISSIONS OF AN AUTHORIZED USER (INCLUDING, WITHOUT LIMITATION, ANY BREACH BY AN AUTHORIZED USER OF ANY TERMS OR CONDITIONS OF THIS AGREEMENT) SHALL BE DEEMED AN ACT, OMISSION, OR BREACH BY THE CUSTOMER AND SHALL BE ENFORCEABLE BY HIVE AGAINST THE CUSTOMER.
2.4. Independent Businesses. The parties agree that, unless otherwise agreed upon between the parties, under this Agreement both Hive and Customer will be considered independent Businesses in relation to the use and Processing of Personal Information (as such terms are defined in Applicable Laws). Each of Hive and Customer is responsible for its handling, Processing, and use of Personal Information in accordance with an appropriate lawful basis and in accordance with all Applicable Laws.
2.5. Third-Party Software. All or some portions of the Hive Service may be subject to additional and/or separate terms and conditions, including, but not limited to, open source software license and other third-party software license terms and conditions (“Third-Party Software”). Notwithstanding anything in this Agreement to the contrary, to the extent that any such Third-Party Software is distributed by Hive to Customer, all such Third-Party Software is made available on an “as is” basis without warranty of any kind. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Software and this Agreement, the Third-Party Software terms and conditions shall control.
2.7. Ownership; License. Hive alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Hive Service, the Candidate Content, and any suggestions, ideas, enhancement requests, feedback, or recommendations, or other information provided by Customer or any third party or Authorized User concerning or relating to the Hive Service (“Feedback”), all of which are hereby assigned to Hive. As between Hive and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Content; and (b) Hive owns all right, title and interest in and to the Hive Service and Candidate Content, including, but not limited to, all intellectual property and other proprietary rights therein and thereto including any Feedback as assigned to Hive in accordance with the Agreement.
3. Authorized User Fees; Payment.
3.0.1. Payment. Customer will pay Hive a fee of $300.00 for a basic posting (the “Fee”) for each job description furnished to Hive for manual posting on the Hive platform (a “Posting”). A Posting will remain on the Hive platform until the earlier of (i) the Posting Expiration Date or (ii) the date on which Customer hires one (1) applicant for the position in the Posting (a “Posted Position”) from potential applicants furnished to Customer by Hive (each a “Hive Candidate”) for the initial Fee (the earlier of such dates being referred to herein as the “Expiration Date”). In the event Customer wishes to keep a Posting on the Hive platform for an additional 30 days following the Expiration Date, Customer shall notify Hive in writing (by email) and shall pay an additional $300.00 per extended Posting to Hive within five (5) days following such notification.
Customer shall promptly notify Hive in writing (by email) in the event that Customer hires a Hive Candidate for any position, whether for a Posted Position or any other position. In the event that Customer hires a Hive Candidate for a position that is not a Posted Position, Customer shall pay Hive an additional $300.00 within five (5) days of such notification.
All payments due under this Agreement to Hive shall be paid in United States dollars and shall be made by credit card on Hive’s website or by invoice sent by Hive for the total due, immediately following execution of this Order Form. Payments are due within five (5) business days following invoice.
3.1. Fees. Subject to the terms and conditions of this Agreement and the applicable Order Form, Customer shall pay the Authorized User Fees set forth in the applicable Order Form in accordance with the payment terms set forth therein. All Authorized User Fees are deemed earned by Hive upon receipt of payment and are nonrefundable except as otherwise set forth in this Agreement or required by Applicable Laws.
3.2. Late Payments. Overdue payments by Customer will be subject to interest at the rate of 1-1/2% per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Hive harmless from and against any costs incurred in connection with its collection of any Authorized User Fees or interest properly due hereunder.
3.3. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including, but not limited to, value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Hive’s net income. If Hive has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Hive with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4. Fee Modifications. Hive may, in its sole discretion, increase or otherwise modify the Fees for each Renewal Term by providing Customer notice of changes to the Fees at least ninety (90) days prior to the end of the then-current term. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.
4.1. Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which: (a) if disclosed in writing, is designated in writing as proprietary and/or confidential; (b) if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure; or (c) should reasonably be understood to be confidential by the recipient given the nature of the information and/or the circumstances of disclosure (the “Confidential Information”). Notwithstanding any failure to so designate them, the Hive Service, Candidate Content, and the terms and conditions of the Agreement shall be Hive’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party created at the time of such independent development; (iii) is or otherwise becomes known to the receiving party through no wrongful conduct of the receiving party, as demonstrated by written records in existence prior to such disclosure by the disclosing party; and (iv) required to be disclosed by Applicable Laws or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
5. Term and Termination.
5.1. Term. Unless earlier terminated in accordance with this Section 5, this Agreement shall be effective as of the Effective Date listed in the Order Form and shall continue through the Term set forth on the Order Form.
5.2. Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; (b) if the Hive Service becomes, in its entirety, subject to the circumstances described in Section 7.2(iii); or (c) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
5.3. Effect of Termination. Upon the expiration or termination of this Agreement: (a) except as expressly set forth herein, all rights and licenses granted by a party to the other party shall terminate; (b) any and all unpaid amounts due to Hive shall become immediately due and payable; (c) each party shall return or destroy the other party’s Confidential Information; and (d) Sections 1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 3.2, 3.3, 4.1, 5.3, 6.2, 6.3, 7, 7.1, 7.2, 8.1 (solely with respect to claims arising during the Term), 8.2, 8.3, 8.4, 8.5, 8.6, 9, and 10 shall survive expiration or termination of this Agreement. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.
6. Representations and Warranties.
6.1. Performance Warranty; Sole and Exclusive Remedy. Hive hereby represents and warrants to Customer that during the Term the functionality of the Hive Service will not be materially decreased from the functionality of the Hive Service available as of the Effective Date of the Order Form (the “Performance Warranty”). Customer’s sole and exclusive remedy for Hive’s breach of its Performance Warranty will be for Customer to correct the breach of this Performance Warranty.
6.3. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (I) EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) THE PARTIES AGREE THAT THE HIVE SERVICE AND CANDIDATE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND HIVE MAKES NO OTHER WARRANTY AS TO THE HIVE SERVICE, CANDIDATE CONTENT, TITLE, AND NON-INFRINGEMENT.
7. Releases. You hereby irrevocably release any claims you may have against Hive, its affiliates, and the directors, officers, managers, partners, employees, members, owners, shareholders, agents, and representatives of the foregoing (the “Hive Released Parties”) that are related to: (a) the Site, the Hive Services or your use of Candidate Content, including any representations, recommendations or referrals you may receive or make as a result of this Agreement or the Terms; (b) misstatements, inaccuracies, misrepresentations, incompleteness, or omissions in Candidate Content, and your reliance on the quality, accuracy or reliability of any profile information, recommendations and metrics used on or available through the Site or Hive Services; (c) any employment or contractual relationship between you and a Candidate which relationships you expressly acknowledge that Hive shall not be considered a party to and shall not be considered a joint employer therein; (d) violations of the Terms, including through the posting of Candidate Content or the content posted by other Hive customers that is fraudulent, false, misleading, defamatory, slanderous, libelous, profane, obscene, invasive, threatening, harassing, bullying, intimidating, unlawful, infringing, or inflammatory; (e) any use by a third party of Customer Content obtained from the Site or Hide Services, including any misappropriation, infringement, or other unlawful activity that a third party may undertake after obtaining Customer Content in contravention of the Terms or applicable laws, rules, or regulations; and (f) your inability to use or access the Site, the Hive Services, or any Candidate Content, including, without limitation, as a result of (i) any suspension or termination of your Services; (ii) viruses, malicious code, bugs, glitches, or errors in the Site or the Hive Services; or (iii) delays, outages, or disruptions that effect the Site or the Hive Services.
7.1 No Employment Relationship or Liability. You, along with the Candidate, assume all liability for proper classification of Candidates as independent contractors or employees based on applicable legal guidelines. You acknowledge that Hive does not, in any way, supervise, direct, or control the manner, means, or conditions of any work or services performed for you by a Candidate. Hive does not set work hours, location or any work pursuant to any contractual relationship. Hive will not provide either the Candidates the Customer with training or any equipment, labor, or materials needed, or supervision of a Candidate for any engagement. Hive will not set the rate or method of payment, process invoices, nor will it provide benefits or deduct any amount for withholding, unemployment, Social Security, or other taxes. Customers and Candidates will be solely responsible for all tax returns and payment required to be filed with or made to any federal, state, or local tax authority, with respect to any engagement resulting from their use of the Site or the Hive Services. You acknowledge and agree that Hive is not a party to the relationship or any dealings between you and the Candidates. Without limiting the foregoing, you acknowledge that you are solely responsible for: (i) verifying and ensuring the accuracy, completeness and legality of any Candidate Content; (ii) determining the suitability of any Candidate for any job or opportunity posted though the Hive Services, including, but not limited to, by way of interviews, vetting, references, background checks (where and when permissible by law), and other similar actions; and (iii) negotiating and executing any applicable employment offers, letters, or agreement between you and the Candidates.
7.2 Release of Unknown Claims. IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST AS A CONDITION OF THE TERMS, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY.”
8.1. Hive Indemnity. Hive shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third-party to the extent based upon a claim that the Hive Service infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Hive may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
8.2. Hive Options. Should the Hive Service become, or in the opinion of Hive be likely to become, the subject of such an infringement claim, Hive may, at its option: (i) procure for Customer the right to use the Hive Service at no cost to Customer; (ii) replace or modify, in whole or in part, the Hive Service to make it non-infringing; or (iii) if neither (i) nor (ii) are, in Hive’s sole and absolute discretion, commercially practicable, accept return of the Hive Service, or remove the allegedly offending module thereof, and, refund the Fees paid for such Hive Service or module by Customer, less an amount determined by multiplying the Fees paid for such Hive Service or such module during the then-current subscription term by a fraction, the numerator of which is the number of months during the then-current subscription term during which Customer had use of the Hive Service and the denominator of which is the total number of months during the then-current subscription term.
8.3. Exclusions from Hive Indemnity. Hive assumes no liability hereunder for: (i) any method or process in which the Hive Service may be used; (ii) any compliance with Customer’s specifications; (iii) the combination, operation or use of the Hive Service or Candidate Content with non-Hive programs or data; or (iv) Customer’s or Customer’s Authorized Users’ use of the Candidate Content in a discriminatory manner or in any way that violates Applicable Laws or individual rights, and Customer shall indemnify and hold harmless Hive and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (i) through (iv) (inclusive) above.
8.4. Customer Indemnification. Customer shall defend, indemnify, and hold harmless Hive and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, attorneys’ fees and expenses incurred by Hive in connection with any claim arising from or relating to: (a) Hive’s ingestion, commingling, processing, use, or distribution of the Customer Content as permitted hereunder; (b) Customer’s or its Authorized Users’: (i) use of and access to the Hive Service and Candidate Content in a manner inconsistent with this Agreement and any documentation provided in connection with the Hive Service; (ii) breach (or alleged breach) of this Agreement or (iii) Customer’s negligence or willful misconduct and (c) any claim brought by a third-party alleging a violation by Customer of any federal, state or municipal employment law.
8.5. Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
8.6. Sole Remedy for Infringement. THIS SECTION 8 SETS FORTH HIVE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE HIVE SERVICE, THE CANDIDATE CONTENT, AND THIS AGREEMENT.
9. Limitation of Liability.
9.1. Liability Caps. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO HIVE HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
9.2. Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 6, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 2 or 6.2; (b) either party’s breach of its confidentiality obligations under Section 4; (c) either party’s indemnification obligations under Section 8; and (d) the gross negligence or willful misconduct of either party or its agents. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
10.1. Assignment. No party may assign any of its rights under this Agreement or delegate its performance under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld; except that either may assign its rights and delegate its performance under this Agreement to (i) an entity that acquires all or substantially all of its assets, (ii) any corporation or other business entity controlled by, controlling, or under common control with that party, or (iii) the successor in a merger, acquisition, or reorganization. Subject to this Section 9.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
10.2. Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, pandemic, government shut-down orders due to epidemics or pandemics, destruction of production facilities, riot, insurrection, material unavailability, denial of services and other malicious cyberattacks, power outages, failure of public utilities or common carriers and the like. or any other cause beyond the reasonable control of the party invoking this Section 10.2 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
10.3. Governing Law; Venue. In all respects this Agreement will be governed by the Laws of the State of New York, without regard to its conflict of Law principles. Other than petitions for injunctive or equitable relief, which may be brought in any court of competent jurisdiction, any claim or cause of action in connection with this Agreement will only be brought into a court of competent jurisdiction within New York City, New York. The parties hereby irrevocably consent to the exclusive jurisdiction of such courts.
10.4 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
10.5 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), when delivered by electronic mail to the electronic email address set forth on the Order Form for Customer or to firstname.lastname@example.org for Hive, or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified on the Order Form or such other address or electronic email address as either party may specify in writing.
10.6 Export Law Assurances. Customer understands that the Hive Service is or may be subject to export control Laws. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE HIVE SERVICE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE HIVE SERVICE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
10.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
10.8 Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
10.9 Costs. If any action at Law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
10.10 Statute of Limitations. You and Hive agree that regardless of any statute or law to the contrary but only to the extent permissible by law in each relevant jurisdiction, any claim or cause of action arising out of or related to the Hive Services, the Site, or the Terms must be filed within ONE (1) YEAR after such claim or cause of action arose or be forever barred,
10.11 No Third Party Beneficiaries. The Terms are an agreement between you and Hive. No other third party has any rights or remedies under the Terms.
10.12 Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. No online (click wrap, browse wrap, or other) posted terms, nor any ordering documents, apply. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.