These Terms and Conditions, as well as any applicable Order Form (collectively, the “Agreement“), is binding on Customer and governs Customer’s and its Authorized Users‘ use of the Hive Services. Accordingly, the parties agree as follows:
“Applicable Laws” means all laws, rules, and regulations, applicable to a party in connection with this Agreement.
“Authorized Users” means those users who access and use the Hive Services on behalf of Customer.
“Candidate” means the diverse community of undergraduate students and recent graduates that access and use the Hive Diversity Platform in their search for securing employment opportunities.
“Launch Date” means the date on which Hive will make the Hive Services available to Customer and/or Customer’s Authorized Users.
2. The Hive Services.
2.1. Access to the Hive Services. Beginning on the Launch Date and subject to the terms of this Agreement, Hive grants to Customer and its Authorized Users, a limited, nonexclusive, nontransferable right and license, without the right to sublicense, during the Term to access and use the Hive Services and Candidate Content solely in connection with Customer and its Authorized Users identifying Candidates in connection with potential employment opportunities offered by Customer.
2.2.1. Customer, and its Authorized Users, will not, and will not permit any third party to:
Access or use the Hive Services or Candidate Content except as permitted hereunder;
Use the Hive Services or Candidate Content in any manner that is not contemplated by this Agreement, not compliant with Applicable Law or in a manner that violates any individual Candidate rights;
Disrupt the functioning of the Hive Services;
Access or exploit the Hive Services or Candidate Content in any unauthorized way whatsoever, including, without limitation, by trespass or burdening server or network capacity or Hive Services 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);
Employ any atypical requirements in the hiring or application process (as determined in Hive’s discretion) in connection with the Hive Services, including, but not limited to, application fees, investments in the Customer’s company or business enterprise, or unpaid trial periods; and/or
Publish or provide 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 Customer is subject to; and/or
2.2.2. In addition, Customer acknowledges and agrees that:
Any jobs Customer lists through the Hive Services will be accurately described with respect to the nature, location, and compensation being offered; and
Customer is responsible and liable to Hive for all activity that occurs through or in connection with Customer’s and/or its Authorized Users’ accounts on the Hive Diversity Platform.
2.3. Liability for Authorized Users. As between Hive and Customer, Customer shall be solely responsible for any and all acts and omissions of the Authorized Users. Customer will require any and all Authorized Users to comply with the applicable terms of this Agreement.
2.5. Customer Content. Customer represents and warrants that it has and will retain all right, title and interest to all Customer Content distributed through or in connection with the Hive Services. Customer grants to Hive a fully paid-up, royalty-free, transferable, worldwide, irrevocable, nonexclusive right and license, to use the Customer Content during the Term to provide and improve the Hive Services. If Hive receives any notice or claim that any Customer Content, other information, or activities hereunder with respect to any Customer Content, may infringe or violate rights of a third party or any Applicable Laws (a “Claim”), Hive may (but is not required to) suspend activity hereunder with respect to such Claim, without limiting any other rights and remedies available to Hive. Customer acknowledges and agrees that Hive takes no responsibility and assumes no liability for Customer Content. For the avoidance of doubt, nothing in this Agreement shall prevent Hive during and after the Term from collecting, analyzing, using, and disclosing any data in de-identified and/or aggregated form for any business purpose, including, without limitation, to operate, analyze, improve, and market the Hive Services.
2.6. Customer Marks. Customer grants to Hive the limited, non-exclusive, royalty-free worldwide right to use the Customer Marks in connection with the advertising, promoting, or marketing the Hive Services. In addition, Hive may use the Customer Marks in press releases, for awards and archival purposes, and in connection with case studies related to the Hive Services.
2.7. Ownership. As between Customer and Hive, Hive alone will retain all right, title and interest in and to any intellectual property rights relating to the Hive Services, the Candidate Content, and any suggestions, ideas, enhancement requests, feedback, or recommendations, or other information provided by Customer or any Authorized User concerning or relating to the Hive Service (“Feedback”), all of which are hereby assigned to Hive.
3. Fees; Payment.
3.1. Fees. Subject to the terms and conditions of this Agreement, Customer shall pay the Fees set forth in the applicable Order Form in accordance with the payment terms set forth therein. All 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. 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 3.2, 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.
3.3. 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) is designated as proprietary and/or confidential; or (b) 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 Services 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; (iii) is or otherwise becomes known to the receiving party through no wrongful conduct of the receiving 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.
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; or (b) if the other party (i) terminates or suspends its business, (ii) becomes, insolvent or subject to any bankruptcy or insolvency, or (iii) 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, 4, 5.3, 6.3, 6.4, 7, 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.
6. Representations and Warranties.
6.1. Mutual. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) it has the power and authority to enter into this Agreement and fully perform its obligations hereunder; and (c) it has the unencumbered right to grant the rights, licenses, and privileges granted herein.
6.2. Hive Representations and Warranties; Sole and Exclusive Remedy. Hive hereby represents and warrants to Customer that during the Term the functionality of the Hive Services 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 Hive to correct the breach of this Performance Warranty.
6.4. 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 SERVICES AND CANDIDATE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND HIVE MAKES NO OTHER WARRANTY AS TO THE HIVE SERVICE, CANDIDATE CONTENT, TITLE, NON-INFRINGEMENT, AND ANY THIRD PARTY SOFTWARE.
7. No Employment Relationship or Liability.
7.1.1. Customer assumes all liability for proper classification of Candidates as independent contractors or employees based on applicable legal guidelines. Customer acknowledge that Hive does not, in any way, supervise, direct, or control the manner, means, or conditions of any work or services performed for Customer 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. Customer acknowledges and agree that Hive is not a party to the relationship or any dealings between Customer and the Candidates. Without limiting the foregoing, Customer acknowledges that it is 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 Customer and the Candidates.
7.1.2 Customer acknowledges and agrees that Hive shall have no liability with regard to or in connection with any employment relationship (actual or alleged) between Customer and any Candidate(s).
8.1. Hive Indemnity. Hive shall defend, defend and hold harmless Customer, at its own option and expense from and against any suit, claim, action, or proceeding brought against Customer by a third-party to the extent based upon a claim that the Hive Services infringe any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party,.
8.2. Hive Options. Should the Hive Services 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 Services at no cost to Customer; (ii) replace or modify, in whole or in part, the Hive Services 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 compliance with Customer’s specifications; (ii) the combination, operation or use of the Hive Services or Candidate Content with non-Hive programs or data; or (iii) 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 (iii) (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 third-party claim arising from or relating to: (a) the Customer Content and Hive’s use of the Customer Content as permitted hereunder; and/or (b) Customer’s or its Authorized Users’: (i) use of and access to the Hive Services 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, (iii) Customer’s negligence or willful misconduct, or (iii) any claim resulting from Customer’s interaction with (including interviewing and/or employment of) any Candidate(s).
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 SERVICES, 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. 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) either party’s breach of its confidentiality obligations under Section 4; (b) either party’s indemnification obligations under Section 8; and (c) the gross negligence or willful misconduct of either party or its agents.
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 10.1, 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. Publicity. Other than as set forth herein, neither party will issue any press releases regarding this Agreement without the other party’s prior written consent.
10.4. 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.
10.5. 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.
10.6. 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 email@example.com 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.
10.7. 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.
10.8. 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.
10.9. No Third Party Beneficiaries. The Terms are an agreement between Customer and Hive. No other third party has any rights or remedies under the Agreement.
10.10. 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. 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. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT CUSTOMER WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY HIVE OR A LICENSOR OF HIVE.