Terms of Service
Terms of Service
Last Updated: 4th September, 2026
Welcome to Hiver
BY ACCESSING OR USING THE SERVICES, CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF A PARTY IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PARTY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT, AND CUSTOMER AS USED HEREIN SHALL MEAN SUCH COMPANY OR LEGAL ENTITY.
IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CUSTOMER MAY NOT USE THE SERVICES. CUSTOMER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY THEM.
This Online Subscription Agreement, including any Exhibits (“OSA”) is entered into by and between Hiver, Inc. (“Company”) and the entity subscribing to the Services (“Customer”) (each referred to as a “Party” and collectively as the “Parties”). This OSA incorporates any documents or email incorporated herein by reference, and those parts of the Website that are referenced in this Agreement (collectively, the “Agreement”).
The “Effective Date” of this Agreement is the date which Customer first remits payment for Services. This Agreement will govern Customer’s initial purchase of Services, on the Effective Date, as well as any future purchases made by Customer through any renewals of the Services.
From time to time, Company may modify this Agreement. Unless otherwise specified by the Company, changes become effective for Customer upon the renewal of the Services after the updated version of this Agreement goes into effect. Company will use reasonable efforts to notify Customer of the changes through communications via email or other means. Neither the course of conduct between the Parties nor trade usage will act to modify or alter the provisions of this Agreement.
In consideration of the mutual covenants and agreements of the Parties as set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS
1.1 Defined Terms. All defined terms used in this Agreement with initial capital letters have the meaning as set forth in Exhibit A, unless defined elsewhere in this Agreement. “Section” or “Exhibit” means a section or exhibit of this Agreement. The singular meaning of a defined term will have the same meaning as the plural meaning and vice versa.
2. RIGHTS, LICENSES, AND RESTRICTIONS
2.1 Customer’s Right to Access and Use the Platform and Add-Ons. Subject to Customer’s compliance with the terms and conditions of this Agreement, the payment of Fees, and during the Subscription Term, Company grants Customer a non-exclusive, non-transferable right to access and use (a) the Platform, and (b) Add-Ons for the Platform; provided, that, such access and use is solely for internal use by Customer and their Users for Customer’s general business purposes to assist Clients. Customer and their Users will not use the Platform and/or Add-Ons for the Platform for any purposes beyond the scope of the access and use as set forth in this Agreement.
2.2 Customer’s License to Use the Software and Add-Ons. Subject to Customer’s compliance with the terms and conditions of this Agreement, the payment of Fees, and during the Subscription Term, Company grants Customer a non-exclusive, non-transferable license to internally use (a) the Software, and (b) Add-Ons for the Software; provided, that, solely for Customer’s general business purposes to assist Clients. Customer and their Users will not use the Software and/or Add-Ons for the Software for any purposes beyond the scope of the license as set forth in this Agreement.
2.3 Customer’s Right to Use the AI Features. Subject to the Customer’s compliance with the terms and conditions of this Agreement, the payment of Fees, and during the Subscription Term, Company grants Customer a non-exclusive, non-transferable right to access and use AI Features; provided, that, such access and use is solely for internal use by Customer and their Users for Customer’s general business purposes to assist Clients.
2.4 Customer’s Restrictions for Use of the Services. Customer will not, at any time, directly or indirectly, permit, authorize, or allow any Users or any third parties, to carry out any one or more of the following:
- copy, duplicate, disclose, or publish the Features, functions, or user interfaces of the Services, in whole or in part;
- rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, in whole or in part; or include the Services, in whole or in part, in any service bureau or outsourcing offering;
- modify, reverse engineer, disassemble, decompile, decode, adapt, hack, attempt to hack, or otherwise attempt to derive or gain access to any software component, underlying idea or algorithm, or the Source Code of the Services, in whole or in part;
- decipher any transmissions to or from the server running the Services;
- interfere with or disrupt the integrity or performance of the Services;
- attempt to bypass, compromise, break, or circumvent any security mechanism of the Services, and/or use the Services in any other manner that possesses a material security or service risk to the Company or any of their customers;
- attempt to gain unauthorized access to the Services or its related systems and networks;
- permit access to or use of the Services in a way that is intended to circumvent any contractual usage limits, Feature limits, and/or quotas;
- alter, deface, remove, disable, or suppress the display of any copyright, trademark, service mark, trade name, logo, or trade dress included as part of the Services;
- disclose the results of any benchmark or evaluation of the Services to any third party without Company’s written consent; or
- use the Services in any one or more of the ways specified in the Acceptable Use Policy.
2.5 Customer’s Restrictions for Use of the AI Features. Customer will not, at any time, directly or indirectly, permit, authorize, or allow any Users or any third parties, to carry out any one or more of the following:
- copy, duplicate, distribute, disclose, or publish the AI Features, in whole or in part;
- rent, lease, lend, sell, resell, license, sublicense, assign, transfer, or otherwise make available the AI Feature, in whole or in part;
- use the AI Features, in whole or in part, to damage, disable, overburden, abuse, or impair the Services, in whole or in part;
- use the AI Features in any one or more of the ways specified in the Acceptable Use Policy, as applicable.
2.6 Company’s Right to Use Customer Content. Customer grants Company, directly and indirectly, a non-exclusive, worldwide, royalty-free right and license to use, collect, store, copy, sort, reproduce, distribute, display, perform, host, retitle, archive, cache, transmit, translate, aggregate, create derivative works, and disclose Customer Content and Customer Personal Data: (a) as necessary for Company to provide Customer with access to and use of the Services; and (b) as required by law.
2.7 Company’s Right to Access Customer Accounts. To the extent necessary for Company to provide the Services, Customer grants the Company the right to access, connect to, and use Customer Accounts for any one or more of the following reasons: (a) to provide the Services, (b) to ensure proper functioning of the Services, (c) to protect the integrity of the Services, (d) to provide Support Services, (e) for Integrations, (f) to ensure compliance with the terms of this Agreement, (g) required by law, and/or (h) as otherwise set forth in this Agreement.
2.8 Company’s Other Rights. Customer grants Company, directly and indirectly, a non-exclusive, worldwide, royalty-free right and license to (a) allow the Services to use the processor, bandwidth, and storage hardware on Customer Devices, in order to facilitate the Services; (b) to provide advertising and other information to Users, unless Users opt-out; (c) to allow Company’s business partners to provide advertising and other information to Users, unless Users opt-out.
2.9 Company’s Right to Modify the Website. We reserve the right to update the content on our Website at any time, including, but not limited to, adding products and services, discontinuing products and services, modifying the terms and prices of Plans and Seat Tiers. At times, certain content on our Website may be out-of-date, and we will have no obligation to update such content.
2.10 Company Reserves Rights. The rights and licenses granted in this Agreement are subject to all terms, conditions, requirements, restrictions, and limitations set forth in this Agreement. Company and their suppliers reserve all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Company Property.
2.11 Hiver Account. Each User will create an account to access and use certain Services (“Hiver Account”). Users will be responsible for the information they provide to create the Hiver Account, the security of their passwords for the Hiver Account and any use of the Hiver Account. Each User will ensure that any information provided in the Hiver Account is accurate, complete, and updated from time to time, as needed. A Hiver Account is per User, and will not be shared or used by multiple users. Customer will be responsible and liable for ensuring that only Users are authorized to access and use the Services.
2.12 Ordering of Services. The Customer’s scope of the access to and use of the Services will be based upon the Plan, Seat Tier, and/or Add-Ons selected by Customer, requested by Customer, and/or as otherwise specified in Section 8.2 (Plans) and/or Section 8.3 (Seat Tier Pricing).
2.13 Aggregated Statistics. Company may monitor Customer’s use of the Services and collect and compile anonymized Aggregated Statistics. Company will use the Aggregated Statistics to make improvements, changes, enhancements, and updates to the Services and for any other purpose that Company deems fit; provided, that, such Aggregated Statistics do not identify Customer Content, or Customer’s Confidential Information, without Customer’s prior written consent.
2.14 Feedback. Each Party (as “Discloser”) hereby grants to the other Party (as “Recipient”), directly and indirectly, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use, reproduce, license, sublicense, distribute, disclose, transmit, publicly display, publicly perform, modify, create derivative works of, translate, reformat, and incorporate the Discloser’s Feedback into Recipient’s products, services, documentation, and/or marketing materials, as Recipient determines. During the Term and any time period thereafter (i.e. in perpetuity), Recipient will (a) have no obligation to: (i) report on any uses of the Discloser’s Feedback; (ii) keep the Discloser’s Feedback secret, (iii) compensate or credit Discloser in any way regarding the Discloser’s Feedback, or (iv) be required to restrict publishing or disclosure of the Discloser’s Feedback; and (b) be entitled to profit from, disclose, publish, or otherwise exploit the Discloser’s Feedback in any way that Recipient deems appropriate.
2.15 Open Source Software. The Open Source Software that is included in the Services is provided to Customer under separate licenses. In the event of a conflict between the licenses set forth in this Agreement and any separate licenses for the Open Source Software, the separate licenses will prevail with respect to that portion of the Services that is subject to such separate licenses.
3. COMPANY’S OBLIGATIONS
Subject to Customer’s payment of Fees for use of the Services and Customer’s compliance with all terms and conditions of this Agreement, and during the Subscription Term:
3.1 Access and Use of the Platform. Based on the Plan selected and paid for by Customer, Company will provide Customer with the necessary access credential and network links or connections needed to allow Customer to access the Platform and Add-Ons for the Platform.
3.2 License of the Software. Based on the Plan selected and paid for by Customer, Company will provide Customer with the necessary access credential and network links or connections needed to allow Customer to download the Software and Add-Ons for the Software.
3.3 Updates. Company will make available Updates of the Services, from time to time.
3.4 Support Services. Subject to Customer’s payment of Fees, Company agrees to use Commercially Reasonable Efforts to provide Customer with Support Services, pursuant to the Plan selected and paid for by Customer. Nothing in this Agreement requires that Company perform any Support Services for Customer which are not applicable to the Plan selected and paid for by Customer. Any Support Services performed by Company for Customer pursuant to the terms of this Agreement will be performed at Company’s physical premises, unless otherwise agreed in writing (email sufficient) by the Parties.
4. CUSTOMER’S OBLIGATIONS
4.1 Protected Passwords. Customer and their Users will treat passwords and network links or connections to the Services as Confidential Information, and will use Commercially Reasonable Efforts to prevent unauthorized access to or use of the Services. Customer will notify Company promptly if they learn or become aware of any such unauthorized access or use of the Services.
4.2 Internal Use. Customer understands and agrees that use of the Services is limited to Customer’s internal use for their general business purposes to assist Clients.
4.3 Connections. Customer agrees to only use authorized Connectors (a) for Customer to connect to the Software, and (b) to connect to the Platform.
4.4 Customer Content. Customer will be responsible and liable for the accuracy, quality, and legality of Customer Content, including, but not limited to, the means by which Customer acquired the Customer Content, and Customer’s use of the Customer Content for use within the Services.
4.5 Actions of Users for Access and Use of the Services. Customer will be responsible and liable for the actions, activities, and omissions of their Users, including, but not limited to, access and use of the Services, in accordance with the terms and conditions of this Agreement, breach of this Agreement, and compliance with applicable laws and regulations, including, without limitation, any Data Protection Laws. Customer will use Commercially Reasonable Efforts to make all Users aware of the relevant terms and conditions of this Agreement, as applicable to such User’s access to and use of the Services, and will cause Users to comply with such relevant terms and conditions.
4.6 Updates. Customer’s use and access to Updates to the Services is subject to the same rights, obligations, and limitations set forth in this Agreement for the Services.
4.7 Fair Usage. The limits set by the Company will apply to Customer’s access to and usage of the Features and Seat Tiers associated with the Plan selected and paid for by Customer. The quotas for Features, and/or usage of the Features, and Seat Tiers can be found on the Website.
If Customer exceeds the Features and/or usage of the Features of the Plan selected and paid for by Customer, or if Customer exceeds the Seats of the Seat Tier selected by Customer, beyond the quotas set forth on the Website, then Company reserves the right to charge Customer for the additional usage, as set forth in Section 8 (Fees and Payment Terms).
4.8 DPA. To the extent required by Data Protection Laws with respect to the Processing of Personal Data, then the terms of the DPA will be applicable, and are incorporated herein by reference.
4.9 Internet Access. Customer and Users are responsible for obtaining and maintaining internet access for the devices that Customer uses to access and use the Services; and any internet connection and telecommunications fees and charges that Customer or User incurs when using such devices to access and use the Services.
4.10 Customer Accounts. Customer and Users, as applicable, are responsible for obtaining and maintaining Customer Accounts with Third Party Services, which may include the downloading of applicable software; and any fees and charges that Customer or Users incur when using Customer Accounts in connection with the Services.
5.THIRD PARTY SERVICES
The Services may support Integrations with Third Party Services based upon the Plan selected and paid for by Customer. To allow use of the Integrations with Third Party Services, Customer agrees to the following:
5.1 Third Party Services. Customer’s use of the Third Party Services is not governed by the terms and conditions of this Agreement, the Company’s DPA, or the Company’s privacy policy. Customer understands and agrees that the terms of the Third Party Services Agreements will be applicable. Customer is responsible for (a) reviewing the terms of the Third Party Services Agreements; and (b) complying with the terms of the Third Party Services Agreements.
5.2 Authorization. Customer will be required to grant Company access through the Third Party Services secure authorization mechanism to allow Integrations.
5.3 Disconnection and Revocation. Customer may revoke Company’s access to Third Party Services at any time through the relevant Third Party Services account settings. Once authorization has been revoked, there will be no further synchronization between the Services and Third Party Services. Features for relevant Integrations will no longer be available. Revocation of Company access to a Third Party Services will only impact the Services associated with that Integration.
6. AI FEATURES
6.1 AI Features. Based upon the Plan selected and paid for by Customer, Company will make available certain AI Features.
6.2 Third Party Subprocessor Agreements. Customer’s use of the AI Tools is not governed by the terms and conditions of this Agreement, the Company’s DPA, or the Company’s privacy policy. Customer understands and agrees that the terms of the Third Party Subprocessor Agreements will be applicable. Customer is responsible for (a) reviewing the terms of the Third Party Subprocessor Agreements; and (b) complying with the terms of the Third Party Subprocessor Agreements.
6.3 Monitoring and Compliance. Third Party Subprocessors may monitor Customer’s use of the AI Tools to prevent, debug, and address any abusive, unlawful, harmful, or unauthorized use of the AI Tools. Further, Company may monitor Customer’s use of the AI Features to prevent, debug, and address any abusive, unlawful, harmful, or unauthorized use of the AI Features.
6.4 Processing and Storing of Customer Content. Customer and their Users may input, create, rewrite, or share Customer Content within the AI Features. Customer understands and acknowledges that any Output may not be unique, and other users may receive similar results.
The AI Features may process and store Customer Content as necessary to provide Outputs. If Customer does not wish for Customer Content to be stored for AI processing, Customer may disable AI Features by contacting Company support at support@hiverhq.com (or successor URL) to explore available options.
6.5 Use of Customer Content. Company will not use Customer Content for AI model training.
6.6 Responsibility for Outputs. Customer is solely responsible for ensuring that Customer and their Users test, review, and verify any Outputs generated by the AI Features before using and/or implementing the Outputs. Further, Customer is solely responsible for evaluating the accuracy of the Outputs, and determining whether the Outputs are appropriate for Customer’s use, including where human review and oversight are appropriate, before using and/or implementing the Outputs.
7. MARKETING ACTIVITIES
7.1 Marketing Events. During the Term the Parties may agree to participate in certain events and activities, as set forth in writing (email sufficient). Unless otherwise agreed to in writing (email sufficient) in advance, each Party will be responsible for their own expenses associated with such events or activities, including but not limited to, Personnel’s time, registration fees, booth rental and other costs, meeting room rentals, and travel expenses.
7.2 Press Releases. Each Party will obtain the other Party’s prior written consent (email sufficient) before making any press release, official public statement, or other announcement concerning this Agreement via any website pages, news groups, mailing lists, or similar communications media.
7.3 Use of Marks. During the Term, each Party (as “Licensor”) hereby grants to the other Party (as “Licensee”) a non-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide, royalty-free license to use Licensor’s Marks to identify Customer as a customer of Company on each Party’s website; presentations with prospective customers and customers; and for marketing activities such as references, case studies, event participation, etc.
Licensee’s use of the Licensor’s Marks will be in accordance with Licensor’s usage policies then in effect, as updated from time to time, and provided by Licensor to Licensee upon request. Licensee has not paid any consideration for the use of Licensor’s Marks, and nothing contained in this Agreement will give Licensee any right, title, or interest in any of the Licensor’s Marks. Licensee will not take any action that jeopardizes the proprietary rights or acquire any rights in the Licensor’s Marks, except the limited use rights specified in this Section 7.3 (Use of Marks).
Except as otherwise agreed in writing by Licensor, Licensee will not register, directly or indirectly any trademark, service mark, trade name, copyright, company name or other proprietary or commercial right which is identical or confusingly similar to the Licensor’s Marks or which are considered translations in any other language(s). All goodwill associated with and use of the Licensor’s Marks will inure to the benefit of Licensor.
8. FEES AND PAYMENT TERMS
8.1 Fees and Payment Terms. When signing up for Services, Customer will be required to provide a valid method of payment (a “Payment Method”). Customer may update the Payment Method at any time through Customer’s Hiver Account. Payment of Fees that are due and payable by Customer to Company will be made in United States currency.
By placing an order through the Website or Hiver Account for Services (“Order”), Customer also agrees and authorizes: (a) the Payment Method provided to be immediately charged for all Fees and taxes applicable to Customer’s Order; (b) to share payment information and fulfill the instructions required by Company’s third-party payment processor or service provider (“Service Provider”) to complete the payment transactions; and (c) no additional notice or consent is required for the foregoing authorizations. If the Payment Method is declined or no longer available and there is no alternative payment method, then Company will not process Customer’s Order or any renewal thereof, and Company will notify Customer accordingly via email. If Customer does not provide an alternative payment method for payment of the Services prior to the Effective Date or any renewal thereof, Company may suspend Customer’s access and use of the Services, or Company may terminate Customer’s access and use of the Services, as set forth in Section 14 (Term, Termination, and Suspension).
When Customer makes payment through the Service Provider, the terms and policies (including, but not limited to use policies and privacy policies) of the Service Provider will be applicable. Customer should review the applicable terms and policies, including privacy and data gathering practices, of the Service Provider. Company does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) Customer might be requested to provide to the Service Provider, and Customer irrevocably waives any claim against Company with respect to such Service Provider.
Customer is responsible for all activities and charges that occur under Customer’s Hiver Account. Customer’s liability for such charges will continue after termination of this Agreement.
All amounts paid by Customer to Company are non-refundable. This no-refund policy will apply at all times, regardless of Customer’s decision to terminate access to or use of the Services, any disruption to the Services, or any other reason whatsoever.
8.2 Plans. Company offers various subscription Plans for the Services, each which may include different Features, Add-Ons, usage limits, and pricing. Customer may select the Plan that best aligns with Customer’s needs, desired Features, and budget. Details of each Plan, including pricing, Features, available Add-Ons, usage limits can be found on the Website (“Plan Details”). Plan Details are subject to change. See Website for up-to-date Plan Details. All Plans are subject to the Fair Use Policy, as set forth in Section 4.7 (Fair Usage).
If Customer needs additional Features, and/or additional usage limits of the Features, beyond the quotas set forth in the current Plan selected and paid for by Customer, then Customer must pay Company for (a) such additional Features and/or additional usage of Features, (b) a Plan that offers those additional Features and/or usage of Features. Company reserves the right to move Customer to a Plan that includes additional Features and/or additional usage limits of the Features if Customer usage exceeds the limits as set forth under the current Plan selected and paid for by Customer, and invoice Customer for the associated additional Fees.
8.3 Seat Tier Pricing. Fees for access and use of the Services is on a per User basis (“Seat”). The number of Seats are sold in bundles rather than individually, as defined on the Website (“Seat Tier”). For each payment period, Customer will pay the Fees per Seat multiplied by the number of Seats in the Seat Tier. Company reserves the right to modify the number of Seats in each Seat Tier. Seat Tiers are subject to the Fair Usage Policy, as set forth in Section 4.7 (Fair Usage).
If Customer adds Seats during a payment period and the number of Seats is below the maximum number of Seats in the Seat Tier, then Customer will not pay any additional Fees for the additional Seats. However, if Customer adds Seats during a payment period and the number of Seats is above the maximum number of Seats in the Seat Tier, then Customer will pay for the number of Seats at the next Seat Tier level during the next payment period, and pay a prorated fee for the additional Seats at the next Seat Tier level for the remainder of the current payment period.
If Customer reduces the number of Seats during a payment period and the number of Seats is below the maximum number of Seats in the Seat Tier, then Customer will pay Fees for the number of Seats at the lower Seat Tier level during the next payment period. Customer will not receive a refund for the reduced number of Seats below the maximum number of Seats in a Seat Tier during any payment period.
The following examples are provided for clarification:
- Example 1: If Customer has 7 Users, they would pay fees at the 5 Seat Tier level. If the Customer adds 1 User during the current payment period, then they would not pay any additional fees. However, if the Customer adds 4 Users during the current payment period, then they would pay at the 10 Seat Tier level during the next payment period, and would be charged an additional prorated fee for the additional Seats for the remainder of the current payment period.
- Example 2: If Customer has 11 Users, they would pay fees at the 10 Seat Tier level. If the Customer reduces the number of Users to 8 Users during the current payment period, then they would pay at the 5 Seat Tier level during the next payment period.
8.4 Currency. All amounts as specified in this Agreement will be in United States currency. Any fees for the conversion of such amounts into another currency will be the responsibility of Customer.
8.5 Non-Payment. In addition to any other rights or remedies Company may have under this Agreement or as a matter of law, if Customer fails to pay any amounts due under this Agreement by the due date then such failure to pay will be deemed a Material Breach of this Agreement, and Company reserves the right to:
- suspend Customer and their Users’ access and use of the Services pursuant to Section 14.5 (Suspension of Services); or
- charge Customer interest at a rate equal to the greater of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, until such time as Customer makes payment of the amount due. Further, Customer will reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
8.6 Taxes, Payment Processing Fees, and Conversion Fees. All Fees are exclusive of any (a) local, federal, state, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added, use, or withholding, excluding any taxes based on Company’s net income or property tax (collectively, “Taxes”); (b) payment processing fees; and/or (c) cost associated with the conversion of amounts due and payable under this Agreement into United States currency, as applicable. Customer is responsible for paying (a) all Taxes, (b) payment processing fees, and (c) costs associated with the conversion of amounts due and payable under this Agreement into United States currency.
9. OWNERSHIP
9.1 Company Property. Company and their suppliers, as applicable, own all right, title, and interest in and to Company Property. Except as expressly set forth in this Agreement, Customer will have no right to (nor the right to permit, allow or authorize any third party to) sell, assign, lease, transfer, use, encumber, or otherwise suffer to exist any lien or security in the Company Property.
9.2 Customer Property. Customer and their suppliers, as applicable, own all right, title, and interest in and to Customer Property. Except as expressly set forth in this Agreement, Company will have no right to (nor the right to permit, allow or authorize any third party to) sell, assign, lease, transfer, use, encumber, or otherwise suffer to exist any lien or security in the Customer Property.
10. CONFIDENTIALITY
10.1 Protection of Confidential Information. The Receiving Party shall (a) maintain the confidentiality of the Confidential Information using the same degree of care they employ to maintain the confidentiality of their own confidential information, but no less than a reasonable degree of care; (b) disclose only to those Personnel who have a need to know and who have signed an agreement with the Receiving Party to protect the Confidential Information of the Disclosing Party under terms at least as restrictive as the confidentiality terms of this Agreement; (c) not disclose to any third party the Confidential Information except to their legal and financial advisors who have a need to know and who have signed an agreement with the Receiving Party or have a fiduciary duty to the Receiving Party to protect the Confidential Information of the Disclosing Party; and (d) use the Confidential Information only to fulfill their obligations and exercise their rights under the terms of this Agreement.
10.2 Disclosure to Third Parties. Except as set forth in Section 10.1 (Protection of Confidential Information), the Receiving Party will not disclose, provide, or otherwise make available the Confidential Information to any third parties, including but not limited to (a) artificial intelligence tools and/or platforms; and/or (b) machine learning tools and/or platforms; without the Disclosing Party’s prior written consent (email sufficient); provided, that, in the case of written consent from the Disclosing Party, such third parties will be subject to an agreement with the Receiving Party to protect the confidentiality of the Confidential Information under terms at least as restrictive as the terms of this Agreement.
10.3 Non-Confidential Information. This Agreement imposes no obligation upon the Receiving Party with respect to Confidential Information that: (a) is known at the time of disclosure by the Receiving Party, without breach of an obligation of confidentiality; (b) is, or becomes publicly known, through no fault of the Receiving Party; (c) is developed by the Receiving Party independent of, and without use, access to, or reference to the Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without breach of an obligation of confidentiality.
10.4 Request for Disclosure. In the event that the Receiving Party is requested or required in a court or administrative proceeding or subpoena to disclose the Disclosing Party’s Confidential Information, the Receiving Party will give the Disclosing Party prompt notice of such request or requirement and the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.
11. REPRESENTATIONS AND WARRANTIES AND DISCLAIMERS
11.1 General Representations and Warranties. Each Party represents, warrants, and covenants that:
- they have and will have the power and authority to enter into and perform their obligations under this Agreement;
- when executed, their responsibilities and obligations under this Agreement will be binding on them;
- the execution, delivery, and performance by them of their obligations under this Agreement does not and will not (i) result in a violation of any law, regulation, judgment, or order applicable to such Party, or (ii) conflict with or breach any contract or other obligation to which such Party is bound;
- they hold and will hold all licenses, approvals, registrations, permits, and certifications required under applicable law to conduct their business, including without limitation, all necessary business licenses, tax registrations, and import and export licenses; and
- they comply and will comply with all applicable country, federal, state, and local laws and regulations, applicable to their performance and obligations under this Agreement.
11.2 Export Representation and Warranties. Each Party represents and warrants that they and their Personnel were not, are not, and will not be included on any list of entities or individuals maintained and updated by (a) the Department of Commerce, Bureau of Industry and Security, or any successor or replacement agency (“BIS”) and the United States Department of Treasury’s Office of Foreign Assets Control, or any successor or replacement agency (“OFAC”) to whom the export of certain types of technology, materials and information is prohibited by United States laws; and (b) any other countries (other than the United States) to whom the export and/or import of certain types of technology, materials, and information is prohibited by such other countries.
11.3 Company’s Representations and Warranties. Company represents and warrants that:
- Company Property does not, to the best of Company’s knowledge, and will not violate any Intellectual Property Rights or other rights of any third party; and/or Company has secured, to the best of Company’s knowledge, or will secure the right, title, and interest in and to the Intellectual Property Rights in Company Property;
- they have not and will not knowingly incorporate any Viruses in the Services;
- they have and will have an agreement with Company’s Personnel with confidentiality terms at least as restrictive as the terms set forth in this Agreement; and
- they are and will be responsible and liable for the actions or inactions of Company’s Personnel, and any breach of this Agreement by Company’s Personnel.
11.4 Customer’s Representations and Warranties. Customer represents and warrants that:
- Customer Property does not and will not violate any Intellectual Property Rights or other rights of any third party; and/or they have secured or will secure the right, title, and interest in and to the Intellectual Property Rights in Customer Property;
- they have all necessary rights and permissions to upload, import, post, and/or include Customer Content and Customer Personal Data to the Services;
- Customer Content does not and will not infringe upon any third-party rights (including intellectual property and privacy rights) or violate any laws by using, uploading, importing, posting and/or including such Customer Content to the Services;
- they have not and will not upload, import, post, and/or include any Prohibited Content to the Services;
- they have not and will not incorporate any Viruses in Customer Content, Customer Personal Data, and/or the Services;
- they have all necessary rights and licenses to the Third Party Services and Third Party Subprocessors, as applicable, and paid all fees for such rights and licenses to the Third Party Services and Third Party Subprocessors, as applicable;
- they do and will comply with all the terms and conditions of the Third Party Services Agreements;
- they do and will comply with all the terms and conditions of the Third Party Subprocessor Agreements;
- they are and will be informed regarding all applicable laws and regulations (whether United States federal, state, local, and/or country or jurisdiction), including but not limited to, Telephone Protection Laws, Data Protection Laws, and export laws, applicable to their performance and obligations under this Agreement;
- they do and will comply with Telephone Protection Laws when accessing and using the Services;
- they will comply with the Acceptable Use Policy;
- they will comply with the Fair Use Policy;
- they will obtain all necessary consents for call recording, monitoring, and communications activities in their use of the Services, as set forth in this Agreement;
- they will not use the Services to engage with any other parties other than Clients and potential Clients;
- they will conduct human review and oversight of Outputs before use and implementation of Outputs;
- they have or will have an agreement with Customer’s Personnel with confidentiality terms at least as restrictive as the terms set forth in this Agreement;
- they are and will be responsible and liable for the actions or inactions of Customer’s Personnel, and any breach of this Agreement by Customer’s Personnel; and
- they are and will be responsible and liable for the actions (whether authorized or unauthorized) within Customer’s Hiver Accounts, and any breach of this Agreement by Customer’s Hiver Accounts.
11.5 AS IS. THE SERVICES, OUTPUT, SUPPORT SERVICES, AI FEATURES, AND OPEN SOURCE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
11.6 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED ABOVE IN THIS SECTION 11 (REPRESENTATIONS AND WARRANTIES; AND DISCLAIMERS), COMPANY (A) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH REGARD TO THE SERVICES, OUTPUTS, SUPPORT SERVICES, AI FEATURES, AND/OR OPEN SOURCE SOFTWARE; (B) DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED OR EXPRESS WARRANTIES, INCLUDING WITHOUT LIMITATION, (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY WITH REGARD TO THE SERVICES, OUTPUTS, SUPPORT SERVICES, AI FEATURES, AND/OR OPEN SOURCE SOFTWARE; (II) ARISING OUT OF, RESULTING FROM, CAUSED BY, AND/OR RELATED TO ANY COURSE OF DEALING OR USAGE OF TRADE WITH REGARD TO THE SERVICES, OUTPUTS, SUPPORT SERVICES, AI FEATURES, AND/OR OPEN SOURCE SOFTWARE; (III) THAT THE SERVICES, OUTPUTS, SUPPORT SERVICES, AI FEATURES, AND/OR OPEN SOURCE SOFTWARE WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, LATENCY, DEGRADATION, QUALITY, OMISSIONS OR ERRORS, OR IN A SECURE MANNER; (IV) THAT THE OUTPUTS WILL BE UNIQUE, ACCURATE, RELIABLE, USEABLE, OR WILL NOT INFRINGEMENT THE RIGHTS OF ANY THIRD PARTY; (V) THAT THE OUTPUTS WILL BE FREE OF ANY ONE OR MORE OF THE FOLLOWING: (1) ERRORS, (2) MISLEADING INFORMATION, (3) FALSE INFORMATION, (4) INCOMPLETE INFORMATION, (5) BIASES; (6) HALLUCINATIONS; OR (VI) THAT ANY CUSTOMER CONTENT AND/OR OUTPUTS WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
11.7 ADDITIONAL DISCLAIMER. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, THAT CUSTOMER’S USE OF THE SERVICES WILL COMPLY WITH TELEPHONE PROTECTION LAWS, DATA PROTECTION LAWS, OR ANY OTHER APPLICABLE LAWS. FURTHER, COMPANY PROVIDES NO LEGAL ADVICE, INFORMATION, OR RECOMMENDATIONS WITH REGARD TO CUSTOMER’S USE OF THE SERVICES TO COMPLY WITH TELEPHONE PROTECTION LAWS, DATA PROTECTION LAWS, OR ANY OTHER APPLICABLE LAWS.
12. INDEMNIFICATION
12.1 Company’s Indemnification Obligations. Company shall defend and indemnify Customer and their Representatives from or against any and all third party claims, actions, and demands, in each case including any related liabilities, losses, damages, judgements, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Third Party Claims”) that are awarded against Customer and their Representatives, or agreed in settlement by Company insofar as such Third Party Claims were caused by or resulted from one or more of the following: (a) a breach by Company of the provisions of Section 2 (Rights, Licenses, and Restrictions); (b) a breach by Company of the provisions of Section 3 (Company’s Obligations); (c) a breach by Company of any of their representations and warranties, as set forth in Section 11 (Representations and Warranties; and Disclaimers); (d) the gross negligent or willful acts or omissions of the Company; (e) the unfair or deceptive acts or practices of the Company; and (f) the infringement of any Intellectual Property Rights or other right of any third party of any one or both of the following: (i) the Services; and (ii) Company’s Marks.
Section 12.1(f) (Company’s Indemnification Obligations) will not apply to the extent that the Third Party Claim of infringement of any Intellectual Property Rights were caused by, result from, arising from, or related to one or more of the following: (i) use of the Services in combination with any data, software, hardware, equipment, or technology not provided by Company; (ii) use of any AI Tools; (iii) unauthorized use of the Services by Customer, their Representatives, or Users; (iv) non-compliance with the terms of this Agreement by Customer, their Representatives, or Users; (v) unauthorized use of the Company’s Marks by Customer, their Representatives, or Users; (vi) use of Company’s Marks in combination with any data, software, hardware, equipment or technology not provided by Company.
12.2 Customer’s Indemnification Obligations. Customer shall defend and indemnify Company and their Representatives, from or against any and all Third Party Claims that are awarded against Company and their Representatives, or agreed in settlement by Customer insofar as such Third Party Claims allege or relate to or arising from one or more of the following: (a) a breach by Customer of the provisions of Section 2 (Rights, Licenses, and Restrictions); (b) a breach by Customer of the provisions of Section 4 (Customer’s Obligations); (c) a breach by Customer of any of their representations and warranties, as set forth in Section 11 (Representations and Warranties; and Disclaimers); (d) Customer and their Users use of AI Features and Output; (e) the gross negligent or willful acts or omissions of Customer; (f) the unfair or deceptive acts or practices of Customer; and (g) the infringement of any Intellectual Property Rights or other rights of any third party of any one or both of the following: (i) Customer’s Marks; (ii) Customer Content.
Section 12.2(g) (Customer’s Indemnification Obligations) will not apply to the extent that the Third Party Claim of infringement of any Intellectual Property Rights allege or relate to or arise from use of the Customer’s Marks in combination with any data, software, hardware, equipment, or technology not provided by Customer.
12.3 Indemnification Procedures. Each Party’s obligation to defend and indemnify will apply only if the Party to be indemnified (“Indemnified Party”) has given the Party providing the indemnity (“Indemnifying Party”) prompt written notice of the Third Party Claim (such that the Indemnifying Party suffers no prejudice of their rights), provides reasonable information and assistance to the Indemnifying Party for the Indemnifying Party to defend and settle such Third Party Claim, and grants the Indemnifying Party the sole authority to control the defense and settlement of the Third Party Claim. The Indemnifying Party will not settle any Third Party Claim that would bind the Indemnified Party to any obligations (other than payment covered by the Indemnifying Party) or require any admission of fault by the Indemnified Party, without the Indemnified Party’s prior written consent. Further, any indemnification obligations under this Section 12 (Indemnification) will not apply if the Indemnified Party settles or makes any admission with respect to the Third Party Claim, without the Indemnifying Party’s prior written consent.
13. LIMITATION OF LIABILITY
13.1 CAVEATS. THE LIABILITIES LIMITED BY SECTION 13.2 (INDIRECT DAMAGES), SECTION 13.3 (LOST PROFITS), SECTION 13.4 (DIRECT DAMAGES), SECTION 13.5 (NO LIABILITY OF COMPANY), AND SECTION 13.6 (NO LIABILITY FOR USE OF OPEN SOURCE SOFTWARE) APPLY TO ONE OR MORE OF THE FOLLOWING: (A) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE; (B) EVEN IF THE PARTY TO BE CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (C) EVEN IF A PARTY’S REMEDIES FAILS OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 13 (LIMITATION OF LIABILITY), EACH PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.2 INDIRECT DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO EACH OTHER OR ANY THIRD PARTY FOR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST REVENUE, DAMAGES TO REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF INFORMATION, AND THE LIKE INCURRED BY EITHER PARTY ARISING OUT OF, RESULTING FROM, CAUSED BY, RELATED TO, AND/OR IN CONNECTION WITH THIS AGREEMENT.
13.3 LOST PROFITS. EVEN IF CONSIDERED AS DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, EXEMPLARY DAMAGES, OR SPECIAL DAMAGES, IN NO EVENT WILL EITHER PARTY BE LIABLE TO EACH OTHER OR ANY THIRD PARTY FOR DAMAGES WHICH ARE LOST PROFITS, LOST REVENUE, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF INFORMATION, AND THE LIKE INCURRED BY EITHER PARTY ARISING OUT OF, RESULTING FROM, CAUSED BY AND/OR RELATED TO THIS AGREEMENT.
13.4 DIRECT DAMAGES. EXCEPT FOR LIABILITY ARISING OUT OF, RESULTING FROM, CAUSED BY, AND/OR RELATED TO ANY ONE OR MORE OF THE FOLLOWING: (A) EITHER PARTY’S BREACH OF SECTION 2 (RIGHTS, LICENSES AND RESTRICTIONS); (B) EITHER PARTY’S BREACH OF SECTION 9 (OWNERSHIP); (C) EITHER PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY); (D) EITHER PARTY’S BREACH OF SECTION 11 (REPRESENTATIONS AND WARRANTIES; AND DISCLAIMERS); (E) EITHER PARTY’S BREACH OF AND/OR OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION); (F) CUSTOMER’S BREACH OF SECTION 15 (NON-DISPARAGEMENT); (G) EITHER PARTY’S MALICIOUS MISCONDUCT; (H) EITHER PARTY’S WILLFUL MISCONDUCT; (I) EITHER PARTY’S GROSS NEGLIGENCE; (J) EITHER PARTY’S FRAUD, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY UNDER ANY AND ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE PAYMENTS MADE BY CUSTOMER TO COMPANY DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
13.5 NO LIABILITY OF COMPANY. COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES (DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR ANY OTHER FORM OF DAMAGES), LOSSES (INCLUDING DATA AND PROFITS), AND/OR LIABILITIES UNDER ANY CAUSE OF ACTION ARISING OUT OF, RESULTING FROM, CAUSED BY, AND/OR RELATED TO CUSTOMER AND THEIR USERS, FOR ANY ONE OR MORE OF THE FOLLOWING: (A) UPLOADING, IMPORTING, POSTING, AND/OR INCLUDING CUSTOMER CONTENT TO THE SERVICES; (B) UPLOADING, IMPORTING, POSTING, AND/OR INCLUDING PROHIBITED CONTENT TO THE SERVICES; (C) ACTIONS OR INACTIONS THAT CAUSES THE CUSTOMER CONTENT THAT IS CONFIDENTIAL TO BECOME NON-CONFIDENTIAL; (D) ACTIONS OR INACTIONS RESULTING FROM THE DELETION, MODIFICATION, CORRUPTION, DAMAGE, LOSS, REASSIGNMENT, OVERWRITING, RECLASSIFICATION, UNINTENDED CHANGES, AND/OR ANY OTHER CHANGES TO CUSTOMER CONTENT ARISING FROM, RESULTING FROM, CAUSED BY, AND/OR RELATED TO THE USE OF ANY (I) THIRD PARTY SERVICES AND/OR (II) THIRD PARTY SUBPROCESSORS; (E) THE OUTAGES, ERRORS, SERVICE CHANGES, LIMITATIONS, OR DISCONTINUED FEATURES AND FUNCTIONS OF ANY: (I) THIRD PARTY SERVICES, AND/OR (II) THIRD PARTY SUBPROCESSORS; (F) ANY UNAUTHORIZED ACCESS TO: (I) THIRD PARTY SERVICES THROUGH INTEGRATION WITH THE SERVICES, AND/OR (II) THIRD PARTY SUBPROCESSORS SERVICES; (G) ANY ADVERSE BUSINESS DECISIONS MADE BY CUSTOMER BASED UPON CUSTOMER’S USE OF OUTPUTS; (H) ACTIONS OR INACTIONS RESULTING FROM THE SUSPENSION OF THE SERVICES; (I) ACTIONS OR INACTIONS RESULTING FROM THE DELETION OF CUSTOMER CONTENT UPON TERMINATION OF THIS AGREEMENT; (J) CUSTOMER’S NON-COMPLIANCE WITH TELEPHONE PROTECTION LAWS; (K) CUSTOMER’S USE OF AI TOOLS; (L) ISSUES RELATED TO INTERNET OR COMMUNICATIONS PROVIDED BY ANY THIRD PARTY PROVIDER, INCLUDING, BUT NOT LIMITED TO, NON-DELIVERY, TRANSMISSION FAILURES, SPEED OF DELIVERY; (M) ANY REGULATORY FINES OR PENALITES INCURRED BY CUSTOMER FOR NON-COMPLIANCE WITH LAWS OR REGULATIONS (WHETHER UNITED STATES FEDERAL, STATE, OR LOCAL, OR COUNTRY OR JURISDICTIONAL), INCLUDING, BUT NOT LIMITED TO, TELEPHONE PROTECTION LAWS, DATA PROTECTION LAWS; (N) REPORTING TO LAW ENFORCEMENT AUTHORITIES ANY VIOLATIONS OF THE AUP.
13.6 NO LIABILITY FOR USE OF OPEN SOURCE SOFTWARE. COMPANY AND OPEN SOURCE DEVELOPERS WILL NOT BE LIABLE FOR ANY DAMAGES (DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR ANY OTHER FORM OF DAMAGES) LOSSES (INCLUDING CUSTOMER CONTENT, PROFITS, AND REVENUE), AND/OR LIABILITIES UNDER ANY CAUSE OF ACTION ARISING OUT OF, RESULTING FROM, CAUSED BY, AND/OR RELATED TO THE OPEN SOURCE SOFTWARE MADE AVAILABLE THROUGH CUSTOMER’S USE OF THE SERVICES.
13.7 FUNDAMENTAL ELEMENTS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS FOR THE BARGAIN BETWEEN THE PARTIES AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS.
14. TERM, TERMINATION, AND SUSPENSION
14.1 Term of the Agreement. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms (“Term”).
14.2 Termination without Cause. Either Party may terminate this Agreement with thirty (30) calendar days written notice (email sufficient). Customer can terminate their Hiver Accounts either (a) through the admin panel within the Software and/or Platform; or (b) contacting Company via email at support@hiverhq.com (or its successor email).
14.3 Termination with Cause. Either Party may terminate this Agreement for a Material Breach of this Agreement by the other Party; provided, that, the breaching Party has first been notified in writing of the breach and has been given fifteen (15) calendar days to cure and fails or refuses to cure within such fifteen (15) calendar day period, unless the Parties agree, in writing, to a longer cure period.
If the Material Breach of this Agreement is due to non-payment, Company has the right to terminate this Agreement, with or without notice.
14.4 Termination due to Bankruptcy. Either Party will have the right to terminate this Agreement with immediate effect in the event that bankruptcy, insolvency, dissolution, or liquidation proceedings of any nature are instituted by or against either Party or either Party discontinues all or significant part of their business operations.
14.5 Suspension of Services. Company may, without limiting their other rights and remedies, suspend Customer and their Users’ access to and use of Services in the event of: (a) Material Breach of this Agreement by Customer; (b) threatened Material Breach of this Agreement by Customer; and/or (c) Customer and/or their Users’ access to and use of the Services: (i) pose a security risk to the Services or any third party; (ii) could adversely impact the Services, the systems that run the Services, and/or the content of another user or customer; (iii) subject Company or any third party to liability; (iv) could be or are fraudulent.
Suspension of the Services will continue until the violation is cured by Customer. If possible, Company agrees to provide Customer with one (1) calendar days written notice (email sufficient) prior to the suspension of Services where such notice may include (a) the date of the suspension, (b) reason for the suspension, and (c) the cure for the suspension (“Suspension Information”). If Company must immediately suspend Customer’s access and use of the Services, Company agrees to provide Customer with the Suspension Information as soon as reasonably possible. Suspension of the Services will have no impact on the duration of the Subscription Term or the associated Fees. For purposes of clarification, the Subscription Term will not be extended for the period of time that the Services are unavailable to Customer because of such suspension, and Customer will not be entitled to any refund for any period that the Services were unavailable to Customer because of such suspension.
14.6 Obligations upon Termination. Upon termination of this Agreement for any reason:
- all Fees owed by Customer to Company prior to the date of termination of this Agreement will be immediately due and payable, unless otherwise agreed by the Parties in writing (email sufficient);
- access to and use of the Services, to Customer and their Users will be terminated;
- as relates to the Platform: Customer will have fourteen (14) calendar days from the date of termination for use of the Platform to export Customer Content. After fourteen (14) calendar days, Company will have no obligation to maintain any of Customer Content, unless otherwise legally required. If Customer needs assistance in exporting Customer Content, Customer may contact Company via email at support@hiverhq.com (or its successor email). For purposes of clarification, once Company deletes Customer Content, Company cannot recover it. Company will not be responsible for transferring Customer Content to another provider;
- as relates to the use of Software: Customer will delete the “Hiver Extension” from Customer’s browser. Customer’s email data will remain in Customer’s Gmail account, however Company’s specific data, including but not limited to internal notes, assignments, tags and other data created by use of the Software and or any Features of the Software will be permanently deleted and no longer be available to Customer in Customer’s Gmail account; and
- both Parties will cease to use the other Party’s Marks.
14.7 Destruction, and Retention of Confidential Information. Within fourteen (14) calendar days of the termination date of this Agreement, the Receiving Party will destroy the Disclosing Party’s Confidential Information (including, but not limited to, any and all copies, records, notes, and other materials in the Receiving Party’s possession). With respect to the destruction by the Receiving Party of Confidential Information, this Section 14.7 (Destruction, and Retention of Confidential Information) will not be applicable to: (a) Confidential Information that the Receiving Party is required by applicable law, including, but not limited to, securities and regulatory laws, to retain a copy of such Confidential Information; and (b) Confidential Information that is retained in any of Receiving Party’s computer systems, hard drives, and other electronic media storage devices as a result of automatic archiving and back-up procedures. Regardless of the destruction, or retention of the Confidential Information, the Receiving Party will continue to be bound by the obligations of confidentiality as set forth in this Agreement. Further, any Confidential Information retained by the Receiving Party will not be accessible by the Receiving Party and their Personnel (other than Personnel whose functions are primarily information technology, legal and/or compliance in nature) for as long as such Confidential Information is retained.
14.8 Survival Provisions. The following provisions of this Agreement will survive termination of this Agreement: Section 2.13 (Aggregated Statistics); Section 2.14 (Feedback); Section 8 (Fees and Payment Terms), Section 9 (Ownership); Section 10 (Confidentiality); Section 11 (Representations and Warranties; and Disclaimers); Section 12 (Indemnification); Section 13 (Limitation of Liability); Section 14.6 (Obligations upon Termination); Section 14.7 (Destruction and Retention of Confidential Information); Section 14.8 (Survival Provisions); Section 15 (Non-Disparagement); Section 16 (General); Exhibit A (Definitions); Exhibit C (Tiered Dispute Resolution and Arbitration); and any other provisions by its nature that would survive the termination of this Agreement.
15. NON-DISPARAGEMENT
15.1 Non-Disparage. At any time, Customer agrees that they will not engage, directly or indirectly, in any form of conduct, make any statements, or representations, either oral or written, in any form (including, without limitation, via social media, press releases, websites, and other means), that defames, disparages, impugns, criticizes, sullies, maligns, compromises, denigrates, or otherwise impairs the reputation, integrity, goodwill, brand, and/or interest (including, without limitation, the repetition or distribution of derogatory rumors, allegations, misleading, negative, and/or false statements and/or comments) of the Company and/or Company’s products and Services.
15.2 Truthful Statements. Nothing in this Section 15 (Non-Disparagement) however will prevent Customer from providing truthful testimony or information: (a) in any processing or in response to any request from any governmental agency, judicial, or arbitral; or (b) as otherwise required by law.
16. GENERAL
16.1 Governing Law. Any disputes or claims (including non-contractual disputes or claims) arising out of, resulting from, caused by and/or related to this Agreement, its subject matter, or its formation will be governed by and construed in accordance with (a) the laws of the state which has venue and jurisdiction, without reference to its conflicts of laws and choice of law rules or principles, and (b) any controlling United States federal laws. The Parties irrevocably agree that the federal and state courts located in Santa Clara County, California will have exclusive venue and jurisdiction to adjudicate and settle any disputes or claims (including non-contractual disputes or claims) arising out of, resulting from, caused by, and/or related to this Agreement, its subject matter, or its formation. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement.
16.2 Tiered Dispute Resolution and Arbitration. The Parties agree to resolve any disputes, as set forth in Exhibit C.
16.3 Entire Agreement. This Agreement contains the full understanding of the Parties hereto with respect to the specific subject matter hereof and supersedes and cancels all other previous agreements, negotiations, commitments, discussions, and warranties, whether oral or in writing, with respect to such subject matter. The Parties have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement. Nothing in this Section 16.3 (Entire Agreement) purports to limit or exclude any liability for fraud. In the event of any inconsistency between the provisions set forth in this Agreement and any other documents incorporated herein by reference or other sources of information, the following order of precedence governs: (a) first, those parts of the Website that are referenced in this Agreement; (b) second, the OSA; and (c) third, any other documents incorporated herein by reference.
16.4 Email Communications. The Parties agree that email will be sufficient for the purpose of obtaining written consent and written approval, as specified in this Agreement, or as otherwise set forth in this Agreement, and such emails will be deemed incorporated by reference into this Agreement.
16.5 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, assumed, delegated, novated, or transferred by either Party, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Subject to the foregoing sentence, this Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. Any purported assignment, assumption, delegation, novation, and/or transfer of rights and/or obligations under this Agreement in violation of this Section 16.5 (Assignment) will be null and void.
16.6 U.S. Federal Government End Use Restrictions. If Customer is a United States federal government department or agency, or contracting on behalf of such department or agency, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the right to access and use the Services will be pursuant to the terms and conditions as set forth in this Agreement.
16.7 Compliance with Laws. Each Party agrees to comply with all applicable country, federal, state, and local laws and regulations that apply to such Party’s performance under this Agreement, including, but not limited to, all intellectual property laws and Data Protection Laws.
16.8 Export Compliance. The Parties acknowledge that certain software and technical data in connection with this Agreement, and certain transactions contemplated hereunder, may be subject to the export laws of the United States and other countries. The Parties will not export or re-export any such items or undertake any transaction or action, nor fail to take any required action, in violation or contravention of any such export laws.
16.9 Waiver. The waiver by either of the Parties hereto of any breach of any term, provision, condition, or covenant hereof of the other Party will not be construed to be either a waiver of any succeeding breach of any term, provision, condition, or covenant, a waiver of the term, provision, condition, or covenant itself, or remedy. A waiver of any term, provision, condition, covenant, or breach of this Agreement by either Party will only be effective if given in writing and signed by both Parties, and then only in the instance and for the purpose for which it is given.
16.10 Severable. The provisions or parts of provisions of this Agreement will be fully severable and the invalidity, illegality, or unenforceability of any provision of this Agreement under any applicable present or future law will not affect the validity of the remaining provisions hereunder. If any provision of this Agreement or part of any provision is or becomes illegal, invalid, or unenforceable but would be legal, valid, and enforceable if some part of it was deleted or modified, the provision or part-provision in question will apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the Parties will negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision. If any portion of this Agreement is, for any reason, held to be excessively broad as to duration, geographical scope, activity, or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent allowed by the then applicable law.
16.11 Force Majeure. On the occurrence of a Force Majeure Event, the Non-Performing Party will (a) notify the other Party, in writing (email sufficient), and (b) be excused for as long as: (i) the Force Majeure Event continues, and (ii) the Non-Performing Party continues to use Commercially Reasonable Efforts to recommence proper and timely performance to the greatest extent possible. If any Force Majeure Event lasts for ninety (90) calendar days in the aggregate, then at either Party’s option, either Party may terminate this Agreement with thirty (30) calendar days written notice to the other Party. For purposes of clarification, on the occurrence of a Force Majeure Event, Customer will not be excused from their obligation to make payments of any amounts due and payable to Company, as set forth in this Agreement.
16.12 Reasonable Attorneys’ Fees. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing Party in such action will be entitled to reimbursement for reasonable attorneys’ fees and costs. Further, if any action at law determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the prevailing Party may be entitled to an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the action at law.
16.13 Equitable Relief. Each of the Parties hereto acknowledges and agrees that, in the event of any breach or threatened breach of any term, provision, condition, covenant, or agreement set forth in this Agreement by either Party, money damages may be inadequate with respect to any such breach or threatened breach and the non-breaching Party may have no adequate remedy at law. It is accordingly agreed that each of the Parties hereto will be entitled, in addition to any other remedy to which they are entitled by law or in equity, to seek injunctive relief, equitable relief, and/or to compel specific performance without bond to prevent breaches by the other Party thereto of any term, provision, condition, covenant, or agreement of such other Party contained in this Agreement without proof of special damages.
16.14 Non-Solicitation. The Parties acknowledge and agree that the relationship that they each have with their employees, consultants or independent contractors are valuable business assets. To the extent permitted by applicable law, the Parties agree that during the Term, and for the period of twelve (12) months after the termination of this Agreement, for any reason, neither Party will, as an officer, director, employee, consultant, owner, partner, or in any other capacity, either directly or through others, solicit, induce, encourage any person known by a Party to be an employee, consultant or independent contractor of the other Party to terminate their relationship with such Party. Accordingly, during the Term and for a period of twelve (12) months thereafter, if either Party engages or hires any employee, consultant, or independent contractor of the other Party, then the hiring Party will promptly pay to the other Party a fee equal to thirty percent (30%) of the employee, consultant, or independent contractor’s annual salary or fees, as applicable (where twenty percent (20%) will be for finding a replacement and ten percent (10%) will be for training a replacement). The provisions of this Section 16.14 (Non-Solicitation) will not restrict or preclude a Party from making generalized searches for employees, consultants or independent contractors by the use of advertisements online or in the media or by engaging search firms to engage in the searches that are not targeted or focused on the other Party’s employees, consultants, or independent contractors.
16.15 Security. Company will use Commercially Reasonable Efforts to maintain administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Personal Data.
16.16 Independent Entities. The Parties entering into this Agreement are and will continue to be independent entities and will so represent themselves in all regards. Accordingly, nothing contained herein will be deemed to constitute the Parties as a partnership, joint venture, employer/employee, principal/agent or any other type of relationship, nor to make one Party liable in whole or in part for any obligations assumed by the other Party or for any liability incurred by the other Party in carrying out any of the provisions hereof, or otherwise. Neither Party is the agent of the other, and neither Party may make commitments or enter into any agreements on the other Party’s behalf. The Parties agree that each Party’s employees will not be an employee of the other Party.
16.17 Drafting Party. This Agreement will not be construed in favor of or against either Party solely on the basis of a Party’s drafting or participation in the drafting of any portion of this Agreement.
16.18 Headings, Translation, and Communications. The headings in this Agreement are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this Agreement or any of its provisions. In the event this Agreement is translated into any language other than the English language, the meanings contained in the English language version will control and be used in any interpretation or dispute related to this Agreement. Any other documents incorporated herein by reference, notices, and any other communications related to this Agreement will be in the English language.
16.19 Notice. Any notice or other communication given to a Party under or in connection with this Agreement will be in writing, addressed to the other Party at their registered office, and delivered personally, sent by email or sent by post, express mail or commercial courier. Any notice required or permitted to be given by the provisions of this Agreement will be conclusively deemed to have been received on the day it is delivered to that Party as set forth in the foregoing with acknowledgment of receipt.
EXHIBIT A - DEFINITIONS
- “Acceptable Use Policy” or “AUP” means the Company’s acceptable use policy for the Services, as set forth in Exhibit B.
- “Add-Ons” means additional features to the Software and/or Platform, as applicable, made available by the Company for an additional Fee, including any Infographics, and Updates to the Add-Ons. The details of the functionality of the additional features can be found on the Website.
- “Aggregated Statistics” means data, information or other Content (a) derived from Company’s monitoring of Customer’s access and use of the Services; and (b) related to Customer’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile performance and usage metrics and data related to the provision and operation of the Services.
- “AI” or “Artificial Intelligence” means computer software that uses large amounts of data to solve problems, make choices, create text and images, without human intelligence.
- “AI Features” means the AI features made available to Customer through the access and use of the Software and/or Platform, as applicable, based on the Plan selected and paid for by Customer, as defined on the Website, and where such AI features include: (a) AI Tools, and (b) other AI services made available by Company, including any Updates to AI services made available by Company.
- “AI Tools” means AI tools provided by Third Party Subprocessors, and made available by Company through the access and use of the Software and/or Platform, as applicable.
- “Client” means third parties and end users that request and pay for technical assistance and helpdesk services from Customer.
- “Commercially Reasonable Efforts” means the use of reasonableness under the circumstances, without a guarantee that a particular result would be obtained, and which does not require that every conceivable effort be made by a Party, nor to the Party’s detriment.
- “Company Property” means (a) the Platform; (b) Software; (c) Add-Ons for the Platform; (d) Add-Ons for the Software; (e) Aggregated Statistics; (f) Company’s Content; (g) Company’s Marks; (h) Company’s Feedback; (i) derivative works of Customer’s Feedback, subject to Customer’s rights in Customer’s Feedback; (j) Company’s Confidential Information; (k) any and all Intellectual Property Rights therein to the foregoing part (a) through part (j) of this definition; and (l) Company’s Personal Data (including Company’s Personnel’s Personal Data).
- “Connector” means an API, plug-in, browser extension, or other software that allows the connection between the Software and/or Platform, as applicable, and a third party application, subprocessors, or Customer’s email, including any Updates to the Connectors.
- “Confidential Information” means technical, financial, marketing, commercial, legal, and any other type of information of a confidential or proprietary nature that is Disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) under this Agreement, in written or oral form, including but not limited to, reports, drawings, designs, data, manufacturing or other processes, inventory, customer lists, customer information, supplier lists, supplier information, any information that by its nature would be deemed confidential, and/or any information from third parties that the Disclosing Party has agreed to treat as confidential and is authorized to disclose under this Agreement. The Parties agree that the terms and conditions of this Agreement will be deemed Confidential Information. For purposes of clarification, Aggregated Statistics will not be deemed Confidential Information.
- “Content” means information, documents, texts, email, voice recordings, photos, images, videos, graphics, data, marketing materials, and other such information including but not limited to picture, music, graphics interchange format (GIF).
- “Contractor” means a person or entity who enters into a signed written agreement with a Party to perform services for such Party. Contractor includes consultants and agents.
- “Copyrights” means the exclusive legal right to reproduce, perform, display, distribute and make derivative works of a work of authorship (for example, a literary, musical, or artistic work) recognized by the laws of any jurisdiction in the world.
- “Customer Account” means the (a) accounts of the Customer and their Users with email providers; and (b) any accounts of Customer and their Users with Third Party Services.
- “Customer Content” means the Content and Data of the Customer and their Users.
- “Customer Personal Data” means the Personal Data of the Customer and their Users.
- “Customer Property” means (a) Customer Content; (b) Customer’s Feedback; (c) Customer’s Marks; (d) Customer’s Confidential Information, (e) any and all Intellectual Property Rights therein in the foregoing part (a) through part (d) of this definition; and (f) Customer Personal Data.
- “Data” means information, and data of a Party, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of a Party, or a Third Party Services or a Third Party Subprocessor, through the Services, but not including any Personal Data.
- “Data Protection Laws” means the privacy laws of the applicable countries and states of the United States to which Company and Customer are subject.
- “Disclosed” means to make known or reveal to another party, but does not include any information, data, and/or content that is Processed by accessing and/or using the Services.
- “DPA” or “Data Processing Addendum” means a document between the Customer and Company, and which sets forth the terms and conditions for the Processing of Personal Data, including but not limited to, purpose, nature, and duration of the Processing, which may be found here (or its successor URL), and deemed incorporated by reference into this Agreement.
- “Fair Use Policy” means the terms as set forth in Section 4.7 (Fair Usage).
- “Features” means the capabilities, functionalities, Integrations, AI Features, and other components of the Services that are made available to Customer based on the Plan selected and paid for by Customer. Features may vary among the different Plans. Features available under a particular Plan are specified on the Website and may be updated from time to time.
- “Feedback” means any comments, suggestions, concepts, ideas, or the like for improving, enhancing, or otherwise modifying Recipient’s products, services, documentation, and/or marketing materials, regardless of the method of communication.
- “Fees” means the fees (without offset or deduction) for the access and use of the Services and any other services provided by Company to Customer that are due and payable by Customer to Company.
- “Force Majeure Event” means a default or delay in the performance of either Party’s obligations under this Agreement (“Non-Performing Party”), if such default or delay occurs beyond the control of the Non-Performing Party, including but not limited to, caused by any one or more of the following events: (a) acts of God; (b) flood, fire, earthquake, tornado, hurricane, tsunami, other potential disasters, catastrophes, or explosions; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, insurrection, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, lockouts, labor disturbances or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages; and (i) pandemics, epidemics and any associated quarantine or shelter-in-place orders or similar orders.
- “Hallucinations” means perceived patterns or objects that are non-existent or inaccurate.
- “Hiver Account” will have the meaning as set forth in Section 2.11 (Hiver Account); which means an account created by each user to access and use certain Services.
- “Infographics” means any reports, tables, graphs, charts, and the like generated using the Services as a result of any queries made by use of the Customer Content. Infographics will be considered a component of the Services.
- “Integration” means Third Party Services or Third party Subprocessor connected to the Services through a Connector. A complete list of possible Integrations can be found on the Website.
- “Intellectual Property Rights” means all past, present, and future rights, whether registered or unregistered, of the following types, which may exist or be created under the laws of any jurisdiction in the world: trade secrets, Copyrights, trademark and trade name rights, mask work rights, patents and industrial property, and all proprietary rights in technology or works of authorship (including, in each case, any application for any such rights and any rights to apply for any such rights, as well as all rights to pursue remedies for infringement or violation of any such rights).
- “Marks” means the name and logos identifying a Party and/or their business.
- “Material Breach” means a breach of the obligations, terms and conditions or covenants of this Agreement by a Party, which materially and substantially affects the performance of the transactions contemplated by this Agreement, including, but not limited to:
- Customer’s breach of and/or non-compliance with one or more of the following: (i) Section 2 (Rights, Licenses, and Restrictions); (ii) Section 4.7 (Fair Usage); (iii) Section 8 (Fees and Payment Terms); (iv) Section 15 (Non-Disparagement); and (v) any other Section and/or Exhibit by its nature would be deemed as material; and
- either Party’s breach of and/or non-compliance with one or more of the following: (i) Section 9 (Ownership); (ii) Section 10 (Confidentiality); (iii) Section 11 (Representations and Warranties; and Disclaimers); (iv) Section 12 (Indemnification); and (v) any other Section and/or Exhibit by its nature would be deemed as material.
- “Open Source Developer” means the owner of the Copyright to the Open Source Software and any contributors and/or authors of the Open Source Software.
- “Open Source Software” means computer software, in Source Code form, made publicly available, at no charge, by the copyright holder under a license which provides the right to modify and distribute, as applicable, the software for any purpose at no charge.
- “Outputs” means the Content and/or Data resulting from response to questions or inquiries of the Customer and their Users within the Services, including but not limited to summarizations, automated categorization, response suggestions.
- “Personal Data” means the data, information, and/or content that is provided as a result of the relationship between Company and Customer, as set forth in this Agreement, and that identifies, relates to, describes, or is capable of being associated with or could reasonably be linked to an individual person, directly or indirectly.
- “Personnel” means employees and Contractors that are hired by a Party.
- “Plan” means the subscription tier, and the associated Features and usage limits, as set forth on the Website.
- “Plan Details” will have the meaning as set forth in Section 8.2 (Plans); which means Features, available Add-Ons, usage limits, and pricing for a specific Plan as defined on the Website.
- “Platform” means the Company’s Omni Hiver subscription based software-as-a-service as described on the Website, including Features, AI Features, Connectors for the Platform, Infographics, Company’s Content, and Updates to the Platform.
- “Processed” or “Processing” means any operation or set of operations which are performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment, or combination, restriction, erasure, or destruction.
- “Prohibited Content” means any data, content, or information that is one or more of the following: (a) in violation of the Acceptable Use Policy; (b) Unacceptable Data; (c) in violation of any law and/or regulation; (d) infringing or misappropriating the rights of any third party; and/or (e) in breach or violation of any of the terms and conditions of this Agreement.
- “Representatives” means the directors, officers and employees of a Party.
- “Seat” will have the meaning as set forth in Section 8.3 (Seat Tier Pricing); which means the access and use of the Service on a per User basis.
- “Seat Tier” will have the meaning as set forth in Section 8.3 (Seat Tier Pricing); which means the number of Seats are sold in bundles rather than individually, as defined on the Website.
- “Services” means the Software and/or Platform, as applicable, including the Add-Ons based on the Plan selected and paid for by Customer, as set forth on the Website.
- “Software” means the Company’s Hiver for Gmail subscription based extension to Customer’s existing Gmail account as described on the Website, including Features, AI Features, Connectors for the Software, Infographics, Company’s Content, and Updates to the Software.
- “Source Code” means the human readable form of computer software code.
- “Subscription Term” means a period of time that Customer has access to and use of the Services, including any renewal periods.
- “Support Services” means certain services provided by Company to Customer, including, but not limited to, technical assistance related to the access and use of the Services, onboarding assistance, training, and other similar support services.
- “Telephone Protection Laws” means the United States Telephone Consumer Protection Act and any similar laws or regulations in any (a) local or state in the United States, and (b) country or jurisdiction of the world, including, but not limited to, E911 requirements, call recording consent laws, anti-spam legislation, requirements related to the transmission of voice and SMS communications.
- “Term” will have the meaning as set forth in Section 14.1 (Term of the Agreement).
- “Third Party Provider” means any third party that provides internet and communications (phone, SMS) services.
- “Third Party Services” means any software, software-as-a-service, or other product or service, not provided by Company, that is integrated with the Software or Platform, as applicable, via a Connector. A list of the Third Party Services are listed on the Website (or its successor URL).
- “Third Party Services Agreements” means (a) the terms and conditions of use between Customer and the Third Party Services; (b) privacy policy of the Third Party Services; and (c) any other agreements between Customer and the Third Party Services.
- “Third Party Subprocessors” means third party providers of AI Tools; where such third parties are listed on the Website (or its successor URL).
- “Third Party Subprocessor Agreements” means (a) the terms and conditions of use between Customer and the Third Party Subprocessor; (b) privacy policy of the Third Party Subprocessor; and (c) any other agreements between Customer and the Third Party Services.
- “Unacceptable Data” means the following types of information, data, and/or content that is: (i) health or medical related and protected under the Health Insurance and Portability and Accountability Act (“HIPAA Data”); (ii) debit card, credit card, banking information, financial account information, and code or password that could be used to gain access to financial information or similar information (“Financial Data”); (iii) data and/or content that requires an export license, unless Customer has obtained the appropriate export licenses or approvals (“Export Data”); and/or (iv) individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located such as social security number, driver’s license number, other government-issued identification number, insurance identification number or account number, background check information, biometric data, digital signatures or personal data (“Identifiable Data”).
- “Updates” means any updates (including defect corrections), modifications, and/or revisions, if and when made available.
- “Users” means Customer’s current employees, consultants, contractors, and agents: (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the terms and conditions of this Agreement; and (b) for whom access to the Services has been purchased. For purposes of clarification,Customer will not allow access or use of the Services for any employees who are no longer employed by Customer; and/or any consultants, contractors and agents who no longer perform services for Customer.
- “Virus” means any code, content, programming instructions constructed with the ability or intent to damage, harm, interfere with, restrict, impede, deny service to, interrupt, disrupt, or otherwise affect information processing, operations, programs, data, systems or communications devices or files, in any manner, including, but not limited to, computer viruses, worms, disabling code, trojan horses, malware, ransomware, adware, spyware, logic bombs, time bombs, monitoring code, back doors, drop dead devices, trap doors or other access means.
- “Website” means the Company’s website, https://hiverhq.com (or successor URL).
EXHIBIT B - ACCEPTABLE USE POLICY
1.0 Restrictions. Customer will not, nor permit, authorize or allow any Users or any third party, to use the Services to do any one or more of the following:
- for any illegal or fraudulent activity;
- to impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s affiliation with the Company, including but not limited to, the Company’s employees or any other persons or entities;
- for intentional disinformation or deception;
- to deceive individuals that content was human generated or original content when the content was generated through automated means (with no human interaction);
- in a manner that may create a conflict of interest or undermine the purposes of the Services, such as trading reviews with other users or writing or soliciting fake reviews;
- to provide the Company with any private information about or from any third party, including but not limited to, email addresses, personal information, unless authorized by the third party and in accordance with Company’s policies;
- to violate any laws, regulations, governmental orders, or industry standards or guidance in any applicable jurisdiction, including, but not limited to, Telephone Protection Laws, Data Protection Laws, export laws;
- to violate the rights of others (whether confidentiality, privacy or otherwise);
- to violate the privacy rights of others, including unlawful tracking, monitoring, and identification;
- to depict a person’s voice or likeness without their consent or other appropriate rights, including unauthorized impersonation, non-consensual sexual imagery;
- to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm to another;
- to include any content, data, and/or information that infringes or misappropriates the Intellectual Property Rights of others;
- accessing or using the Services from a location where the Company is unable to provide the Services due to export control laws, or economic or other sanction laws to which the Company is subject;
- to include any content or engage in any activity that promotes child sexual exploitation or abuse;
- for harm or abuse of a minor, including grooming and child sexual exploitation;
- to sell or distribute alcohol, tobacco, or illegal drugs, firearms, fireworks;
- to sell insurance or investments;
- for gambling, loans, loan forgiveness, credit repair, debt collection, unsolicited real estate inquires;
- to include any content, data, and/or information that is prohibited by Telephone Protection Laws, Data Protection Laws, Third Party Providers and/or Third Party Subprocessors;
- to include any content, data, and/or information that is defamatory, disparaging, mocking, ridiculing, libelous, slanderous, or otherwise similarly objectionable as determined by Company, in their sole discretion;
- to include any content, data, and/or information that is lewd, lascivious, filthy, obscene, pornographic, vulgar, indecent (including nudity), excessively profane, or otherwise similarly objectionable as determined by Company, in their sole discretion;
- to include any content, data, and/or information that is abusive, threatening, intimidating, harassing, hateful, violent, including attacking others based upon their race, ethnicity, national origin, religion, political belief, sex, gender, sexual orientation, disability, or medical condition, or is otherwise exploitive or abusive;
- to distribute, generate, publish, send, or facilitate the sending of unsolicited and/or illegal mass or bulk email, calls, or other messages (including SMS, voicemail) for the purposes of promotions, advertising, marketing, telemarketing, pyramid schemes, contests, sweepstakes, or solicitations, junk mail, chain letters, or spam;
- to send altered, deceptive, or false source-identifying information, including spoofing (including caller ID spoofing) and phishing;
- to distribute or incorporate any code, content, programming instructions constructed with the ability or intent to damage, harm, interfere with, restrict, impede, deny service to, interrupt, disrupt, or otherwise affect information processing, operations, programs, data, systems or communications devices or files, in any manner, including, but not limited to, computer viruses, worms, disabling code, trojan horses, malware, ransomware, adware, spyware, logic bombs, time bombs, monitoring code, back doors, drop dead devices, trap doors or other access means;
- to upload, import, post, and/or include any Unacceptable Data to the Services.
2.0 Removal of Prohibited Content. If Company reasonably believes that any Prohibited Content has been uploaded, imported, posted, and/or included in the Services, then Company will have the right to (a) remove the Prohibited Content from the Services; (b) suspend Customer’s right to use the Services as set forth in Section 14 (Term, Termination, and Suspension); and/or (c) terminate Customer’s right to use the Services, as set forth in Section 14 (Term, Termination, and Suspension). Unless prohibited by law, Company will use Commercially Reasonable Efforts to provide twenty-four (24) hour written notice (email sufficient) to Customer regarding such removal of Prohibited Content.
3.0 Investigation. Company reserves the right, but does not assume the obligation, to investigate any violation of this AUP. If Customer or their Users violate any of the terms of this AUP, the Company may suspend or terminate the Customer’s use of the Services, as set forth in Section 14 (Term, Termination, and Suspension).
4.0 Report. The Company may report any activity that they suspect violates any law or regulation to the appropriate law enforcement authorities, regulators, or other appropriate third parties. The Company’s reporting may include disclosing any Customer Personal Data, as well as network and system information, that is necessary for the investigation and prosecution of the violation, without any liability to the Company. The Company will have no obligation to notify the Customer of such reports.
5.0 Law enforcement. In the event that the Company (a) is contacted by any law enforcement authorities, regulators, or other appropriate third parties, or (b) receives a court order or subpoena for violation of any law or regulation, then the Company will cooperate fully and provide any Customer Personal Data, as well as network and system information, that is requested or necessary for the investigation and prosecution of the violation, without any liability to the Company. Company will have no obligation to notify the Customer of such requests.
6.0 Aware of violations. If Customer becomes aware of a violation of this AUP, Customer agrees to immediately notify the Company and provide the Company with assistance in stopping the violation, as applicable. To report any violation of this AUP, please contact the Company via email at support@hiverhq.com (or its successor email).
EXHIBIT C - TIERED DISPUTE RESOLUTION AND ARBITRATION
1.0 TIERED DISPUTE RESOLUTION
1.1 Resolution Between the Parties. The Parties will attempt in good faith to resolve any claim, dispute or other matter in question arising out of or relating to this Agreement (“Dispute”) promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Either Party may give the other Party written notice of any Dispute not resolved in the normal course of business. Within fifteen (15) calendar days after delivery of the notice, the receiving Party will submit to the other a written response. The notice and response will include with reasonable particularity (a) a statement of each Party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. Within thirty (30) calendar days after delivery of the notice, the executives of both Parties will meet at a mutually acceptable time and place.
1.2 First Meeting. Unless otherwise agreed in writing by the negotiating Parties, the above-described negotiation will end at the close of the first meeting of executives described above (“First Meeting”). Such closure will not preclude continuing or later negotiations, if desired.
1.3 Confidential Communications. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by either of the Parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceedings involving the Parties; provided, that, evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
1.4 Initiation of Arbitration. At no time prior to the First Meeting will either Party initiate an arbitration or litigation related to this Agreement, unless agreed by the Parties in writing.
1.5 Tolling. All applicable statutes of limitation and defenses based upon the passage of time will be tolled while the procedures specified in this Section 1 (Tiered Dispute Resolution) of this Exhibit C are pending and for thirty (30) calendar days thereafter. The Parties will take such action, if any, required to effectuate such tolling.
2.0 ARBITRATION
Within thirty (30) calendar days after the First Meeting, if the Parties cannot resolve the Dispute, as set forth in Section 1 (Tiered Dispute Resolution) of this Exhibit C, then a Party or the Parties may submit such Dispute to binding arbitration, as set forth in this Section 2 (Arbitration) of this Exhibit C.
2.1 Arbitration Services. After an informal dispute resolution process, the Parties agree that any remaining dispute, claim, or controversy between the Parties arising out of, resulting from, in connection with, or relating in any way to this Agreement (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of this Agreement), including the determination of the scope of applicability of this Agreement to arbitrate, will be determined through binding arbitration administered by JAMS.
2.2 Injunctive Relief. Notwithstanding the foregoing, either Party may seek emergency injunctive relief or other provisional relief at any time in a court of competent jurisdiction.
2.3 Rules and Procedures. Arbitration will be conducted pursuant to the Streamlined Arbitration Rules and Procedures of JAMS. Such disputes will be heard by a single arbitrator, selected by the JAMS default process for selecting arbitrators.
2.4 Governing Law and Venue. Arbitration will take place in San Jose, California or a city located near San Jose, California. The Agreement and substantive rights of the Parties will be governed by the laws of the State of California without reference to its conflict of laws or choice of law rules or principles. Notwithstanding the foregoing, the Parties acknowledge that this Agreement evidences a transaction involving interstate commerce, and the arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act.
2.5 Confidentiality. The Parties will maintain the confidential nature of the arbitration proceeding, including the information exchanged in discovery and the content or results of the Hearing (defined below) and award, unless otherwise required by law or judicial decision.
2.6 Timelines. Before the first preliminary conference, the Parties will agree in writing to a timeline for the completion of arbitration. The timeline will contain deadlines for discovery, conducting an evidentiary hearing on the merits (“Hearing”), and the issuance of the Arbitrator’s award. The Arbitrator will agree to comply with this schedule before accepting appointment.
2.7 Discovery. The Parties will complete an exchange of all relevant, non-privileged documents, including, without limitation, copies of all documents in their possession or control on which they rely in support of their positions, and names of individuals whom they may call as witnesses at the arbitration Hearing. There will be no further discovery, such as depositions or expert discovery. The Parties will promptly notify the Arbitrator if a dispute exists regarding discovery issues, and a conference will be arranged with the Arbitrator, either by telephone or in person, and the Arbitrator will decide the dispute within three (3) business days.
2.8 Costs and Fees. Each Party will bear an equal share of the administrative costs and fees of arbitration, including the Arbitrator’s fees. The Arbitrator will award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. If the Arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the Arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
2.9 Award. The award of the Arbitrator will be accompanied by a brief, reasoned written opinion. The Arbitrator is not empowered to award (a) incidental, indirect, or consequential damages including damages for lost profits; or (b) punitive or exemplary damages, except where permitted by statute, and the Parties waive any right to recover any such damages. The Parties will have no right to appeal an award from the Arbitrator. Judgment on the award finally rendered by the Arbitrator may be entered into a court having jurisdiction thereof.
