Hive Terms And Conditions Of Use For Brands

These Terms and Conditions set out the terms on which TicketLabs Inc. operating as Hive (Hive) will provide marketing tools and services for customer or Audience engagement to the Brand identified on the Cover Sheet.

1. DEFINITIONS

Agreement means these Terms and Conditions and its Appendices, the Cover Sheet and any documentation incorporated by reference;
Audience means a Brand’s customers, followers or fan-base who are users of the Website or who have been identified as engaging with or following said Brand across their Brand Properties;
Brand or You means the entity or individual customer who has been verified and approved as a customer of the Hive Platform for use of the Services;
Brand Content has the meaning given in Section 2.3.2 below;
Brand Properties means the Brand’s blogs, forums, websites and social media pages on social media sites including but not limited to Twitter, Instagram, Facebook, YouTube, SoundCloud and Spotify which are owned or operated by Brand;
Confidential Information means any business, marketing, technical, scientific or other information disclosed by either party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential;
Services means the provision of access to custom web-pages on the Website through which Brand will be able to: (i) connect with its Audience; (ii) broadcast content to its Audience including new Brand content, details of upcoming events, products, and related news and features; (iii) access to analytics based on interactions with those Audience members; and (iv) access other features offered by Hive to Brands through the Website from time to time (collectively the Brand Features);
Term means the term of this Agreement which shall continue in full force and effect for the subscription period indicated on the Cover Sheet
Website means the Hive website located at URL www.hive.co.

2. SERVICE TERMS

2.1 License Grant. Subject to compliance with the terms of this Agreement, Hive hereby grants Brand the non-exclusive, royalty-free right to access and use the Website and the Brand Features (described in Section 2.3 below) based on the subscription that Brand have purchased. This license is for internal use by Brand only (with the right to sublicense only to those service providers of Brand who need access to use the Services on Brand’s behalf).

2.2 Service Use Guidelines. Brand shall use the Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Services available to any third party. Brand shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Website or its underlying technology; (b) circumvent any user limits or other use restrictions that are built into the Services; (c) remove any proprietary notices, labels, or marks from the Services or Hive materials; or (d) access the Services in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.

2.3 Brand Features.

2.3.1 Connecting with Audience. Through the Services, Brand will be able to transmit messages including personalised messages to its Audience through the Website and to the Brand Properties. The Audience will not be able to initiate contact with Brand but will be able to respond to any messages once Brand has opened communication with them. Hive is not responsible for and accepts no liability in relation to Brand’s communications with any Audience members, the identities of which are not verified or vetted by Hive. Hive reserves the right, but has no obligation, to monitor or become involved in disputes between users of the Website and Services.
2.3.2 Broadcasting Content to Audience. Brand can share content with its Audience through the Services. Such content may include data, text, files, information, images, graphics, photos, profiles, audio and video clips, sound recordings, musical works, links and other content or materials (collectively, Brand Content) that Brand submit, post or display on or via the Services. Brand Content must adhere to the rules for posting content as further described in Appendix A. Hive reserves the right but has no obligation to screen Brand Content to review, flag, filter, modify, refuse or remove any or all of Brand Content or not publish or otherwise distribute Brand Content through the Services at any time with no liability to Brand or any other person.
2.3.3 Analytics. Brand’s engagement with its Audience will be visible to Brand through the dashboard provided as part of the Services. Audience members who engage with Brands online will be displayed in said dashboard and will be segmented and sorted based on various factors, including but not limited to their online influence, engagement level, interests, demographic characteristics and geographic location. The Brand will be able to see Audience names (or usernames), ages, location and level of engagement with Brand Content on the Website.

2.4 Security. Information sent or received over the Internet is generally unsecure and Hive cannot and does not make any representation or warranty concerning security of any communication to or from the Website or any representation or warranty regarding the interception by third parties of any information.

2.5 Availability and Changes to the Services or Website. Although it is Hive's intention for the Services and Website to be available as much as possible, there will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Hive reserves the right to alter, suspend, or discontinue this Website and/or the Services at any time and for any reason or no reason without any liability to Brand (except for a pro-rata refund of any pre-paid unapplied fees for the remaining Term). In such cases, Hive will endeavour to give notice of such changes on the Website. The Website may also be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Hive may periodically add or update the information and materials on the Website without notice.

2.6 Brand Responsibilities. Brand is responsible for any and all Brand Content and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Brand Content to be made available through the Services. Brand shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Brand Content; (ii) safeguard the login details provided for access to the Website and Services and prevent unauthorized access to or use of the Service, and shall notify Hive promptly upon becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using the Services.

2.7 Professional Services. Hive may provide technical development, consulting and other professional services on request to Brand. Any request for such services shall be provided in writing and the parties will negotiate and agree a separate agreement to govern such services.

3. PROPRIETARY RIGHTS

3.1 Reservation of Rights. Except for the rights and licenses granted in this Agreement, Brand acknowledges and agrees that Hive owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Website and any materials provided by Hive. Hive grants Brand no further licenses of any kind hereunder, whether by implication, estoppel or otherwise. Brand acknowledges that only Hive shall have the right to maintain, enhance or otherwise modify the Website and Services.

3.2 Brand Content. As between Hive and Brand, Brand exclusively owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Brand Content. For greater certainty, nothing in this Agreement shall restrict Hive’s right to compile and use Data (including use on a worldwide, royalty-free, perpetual basis for market research, case studies and other similar initiatives). For the avoidance of doubt, Brand shall not be named in any market research, case studies or other initiatives which make use of the Data, unless Brand consents to the same, which consent shall not be unreasonably withheld or delayed. For the purposes of this Section 3.2, the term Data means aggregated and statistical data and other information including (but not limited to) data relating to the number of user downloads, page views, return visits, bounce rates and time spent on content. For the avoidance of doubt Data does not include raw Brand Content.

3.3 Non-Exclusive License Granted to Hive. Brand grants to Hive and its subcontractors a non-exclusive, non-transferable right and license to access and use the Brand Content to the extent necessary to perform the Services as contemplated by this Agreement, provided always that such license will be for such purposes only.

3.4 Suggestions. Hive shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Brand or its users relating to the operation of the Services.

4. FEES AND PAYMENT TERMS

4.1 Fees. Brand shall pay Hive the fees specified on the Cover Sheet. Base fees include monthly or annual subscription fees payable for use of the Services unless Brand has signed up to use the Free Hive account to which access is granted at no subscription cost. Fees are non- refundable. Transactional emails transmitted through the Services will be charged by volume as indicated on the Website at www.hive.co/pricing irrespective of the account type (Hobby; Pro; Unlimited).

4.2 Payment Terms. Applicable fees for the Services will be invoiced on a monthly basis for the upcoming month or on an annual basis for the upcoming year. Unless otherwise stated, all payments shall be made to Hive within thirty (30) calendar days after receipt of the invoice.

4.3 Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Brand. Any such taxes that are imposed shall be the sole responsibility of Brand.

4.4 Overdue Payments. Any payment not received from Brand by the due date will accrue late charges at the rate of one percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid.

4.5 Suspension of Service. If Brand account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Hive reserves the right to suspend the Services provided to Brand, until such amounts are paid in full or terminate the Services and this Agreement.

5. TERM AND TERMINATION.

5.1 Termination by Brand. Brand can deactivate the Brand’s Hive account by contacting Hive and requesting that a representative do so.

5.2 Termination by Hive. Hive may, under certain circumstances and with 14 days prior notice, immediately terminate Brand’s ability to access the Website or portions thereof. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this Agreement), (b) requests by law enforcement or other government agencies, (c) a request by Brand, (d) discontinuance or material modification to the Website (or any part thereof), (e) unexpected technical, security or legal issues or problems, and/or (f) participation by Brand, directly or indirectly, in fraudulent or illegal activities (including falsification of Brand identity); or (g) non-payment of fees for the Services (if applicable). Brand acknowledge and agree that all terminations may be made by Hive in its sole discretion and that Hive shall not be liable to Brand or any third-party for any termination of Brand access to this Website or for the removal of any Brand content or other materials uploaded by Brand to the Website. Any termination of this User Agreement by Hive shall be in addition to any and all other rights and remedies that Hive may have.

5.3 Survival. The following Sections shall survive the termination or expiration of this Agreement for any reason: Section 1, 3.1, 3.4, 5.3, 6-9 and all terms related to payment (until payments have been made in full) and any other terms herein which expressly state that such terms will survive or which by their nature are required to survive to give effect to the surviving terms stated to survive, shall survive the termination or expiration of this Agreement for any reason and will continue in full force and effect subsequent to and notwithstanding such termination, until such provisions are satisfied or by their nature expire.

5.4 Effect of Termination. Upon termination of this Agreement, the Services and Brand’s right of access and use the Services will immediately terminate. Brand Content and all other data (including analytics on Audience engagement) will no longer be accessible through Brand account and Audience will not be able to navigate to Brand username and view Brand Content. However, some Brand Content may persist and appear within the Services (e.g., if Brand Content has been re-shared by others).

6. CONFIDENTIALITY

6.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, Brands, consultants, legal advisors and Brand Group members who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section (Third Party Disclosees). Each party shall be fully responsible and liable to the other party for any breach of confidentiality by their respective Third Party Disclosees. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.

6.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.

6.3 Other Exemptions. Notwithstanding the foregoing provisions in this Section 6, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of the Agreement; (v) in confidence, to auditors, accountants and their advisors; (vi) in confidence, in connection with a change of control or potential change of control of a party or an affiliate of a party or Brand Group member; and (vii) to any Brand Group members, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure of this Agreement. For greater certainty, nothing in this Section 6.3 will diminish a receiving party’s obligations under this Agreement to comply with applicable privacy and personal information protection laws.

7. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

7.1 Representations and Warranties by Each Party. Each party represents, warrants to the other party that: (i) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.

7.2 Hive Warranties. Hive represents and warrants to Brand that during the Term it will provide the Services in a professional, workmanlike manner.

7.3 Brand Warranties. Brand represents and warrants that: Brand has the legal power to enter into this Agreement and that during the Term: (a) Brand has all rights necessary to provide Hive with Brand Content for use in accordance with the terms of this Agreement; (b) Brand will not use the Services to send any communications in breach of applicable data protection, privacy and anti-spam laws; and (c) Hive’s transmission and use of the Brand Content in accordance with the terms of this Agreement will not violate the rights of any third party. Brand shall be responsible for the accuracy of the Brand Content and Hive shall not be liable to Brand, any user or any third party for any use of or inaccuracy in any Brand Content under this Agreement.

7.4 Disclaimer. EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION 7 THE INFORMATION, MATERIALS AND SERVICES ARE PROVIDED AS IS, WITHOUT ANY REPRESENTATION AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES OR ANY DELIVERABLES PROVIDED UNDER THIS AGREEMENT AND HIVE SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, HIVE DOES NOT REPRESENT, WARRANT OR OFFER ANY CONDITIONS THAT: (I) THE INFORMATION OR MATERIALS ON THE WEBSITE ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE FUNCTIONS CONTAINED ON THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, OR (IV) THIS WEBSITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. HIVE ALSO DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE WEBSITE OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE WEBSITE, AND HIVE SHALL NOT BE A PARTY TO ANY TRANSACTION THAT BRAND MAY ENTER INTO WITH ANY SUCH THIRD PARTY. HIVE MAKES NO GUARANTEE OF ANY RESULTS FROM USE OR RELIANCE ON ANY ANALYTICS GENERATED THROUGH THE SERVICES.

8. LIABILITY TERMS

8.1 INDEMNIFICATION. EACH PARTY SHALL INDEMNIFY AND HOLD THE OTHER PARTY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, OBLIGATIONS, COSTS AND EXPENSES INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF A PARTY’S BREACH OF ITS WARRANTIES OR A PARTY’S VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, PERSONALITY OR PRIVACY OF ANYONE.

8.2 EXCLUSION OF INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES (INDIRECT DAMAGES) WHATSOEVER, UNDER THIS AGREEMENT INCLUDING, IN THE CASE OF HIVE, WITHOUT LIMITATION, ANY INDIRECT DAMAGES THAT RESULT FROM: (I) BRAND USE OF OR BRAND INABILITY TO USE, THE WEBSITE OR ANY OF THE INFORMATION OR MATERIALS CONTAINED ON THE WEBSITE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, (IV) PROPERTY DAMAGE ARISING FROM OR RELATING TO BRAND USE OF THE WEBSITE, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE WEBSITE, OR (V) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO BRAND USE OF THE WEBSITE. THESE LIMITATIONS SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

8.3 LIABILITY CAP. EXCEPT FOR BREACHES OF CONFIDENTIALITY, A PARTY’S INDEMNIFICATION OBLIGATIONS AND ANY DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILFUL MISCONDUCT, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE CAPPED AT THE FEES PAID OR PAYABLE IN THE TWELVE (12) MONTH’S PRECEDING A CLAIM.

8.4 Release. Because Hive does not supervise or control interactions between Brands and Audience and because Hive cannot guarantee the true identity, age, nationality of Audience, and because Hive has very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Website, Brand agrees that Brand bears all risk and Brand agrees to release Hive (and their officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with Brand use of the Website and Brand interactions with Audience through the Services. Brand further waives any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.

9. GENERAL PROVISIONS

9.1 Publicity. Hive may refer to Brand in Hive’s list of Brands and may use Brand’s name, logo and agreed screenshots from the Brand Site for this and related-marketing purposes. No other use of Brand’s name or logo, any other trademark or trade-name of Brand is permitted without the express prior written consent of Brand.

9.2 Assignment. This Agreement shall not be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other party, which consent shall not unreasonably be withheld, conditioned or delayed. Notwithstanding the foregoing, Hive may freely assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of the Brand. Any assignment in violation of this Section 9.2 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.

9.3 Waiver. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.

9.4 Choice of Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware and the parties irrevocably attorn to the exclusive jurisdiction of the courts in Dover, Delaware with respect to any dispute or claim arising out of or in connection with this Agreement.

9.5 Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses provided on the Cover Sheet. Notice shall be considered delivered and effective on the earlier of actual receipt or when: (a) personally delivered; (b) the day following transmission if sent by telex, telegram, electronic mail or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail.

9.6 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

9.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

9.8 Force Majeure. Except for obligations to pay any fees under this Agreement, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than thirty (30) calendar days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.

9.9 Precedence. If there is any conflict or inconsistency between the terms in the various parts of this Agreement, the sections in the body of the Agreement will prevail over those in the Schedules.

9.10 No Third Party Beneficiaries; Enurement. There are no third party beneficiaries to this Agreement. This Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

9.11 Complete Understanding. This Agreement, including all Appendices and external documents referenced herein constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal or representation (whether written or oral) concerning its subject matter. To the extent of any conflict between the Cover Sheet of this Agreement and the body of this Agreement, the terms of the Cover Sheet shall prevail.

9.12 Updates to Agreement. The current version of these Terms and Conditions was last updated on the date set out below. Changes to this Agreement may be made by Hive at any time on provision of at least 30 days prior notice to Brand before such changes will take effect. If Brand does not agree to any changes, Brand will have the right to terminate this Agreement and receive a pro-rata refund of unapplied pre-paid fees (if Brand is on a paid subscription).

APPENDIX A

CONDUCT RULES AND ANTI-SPAM POLICY

1. PROHIBITED CONTENT AND CONDUCT

Brand is solely responsible for any information that Brand creates, transmits or provides using the Services and Brand represents and warrants that Brand will publish only content which is appropriate and does not breach terms set out below. In using the Website and Services, Brand agrees that Brand will not permit any person to:

copy or distribute any part of the Website (including any content generated by Audience User Content) without Hive’s prior consent or the consent of the Audience member (in relation to User Content);
alter or modify any part of the Website;
upload, post, email, transmit or otherwise make available on the Website or through the Services:

any material that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable,
any falsehoods or misrepresentations or create an impression that Brand know is incorrect, misleading, or deceptive, or any material that could damage or harm other users in any way;
any unsolicited or unauthorized advertising, solicitations for business, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any Users or visitors to the Website or that compromises an Audience member’s privacy;

impersonate any person or entity or misrepresent their affiliation with a person or entity;
interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
collect or store personal information about Audience or viewers except for information shared with Brand directly by Audience or made available to Brand as part of Brand Features; or
resell the content of the Website, the use of the Website or access to the Website or the content of the Website.

2. ANTI-SPAM POLICY

2.1 Spamming Activities. Your use of the Website and Services is subject to this Anti-Spam policy. Hive has adopted a zero tolerance stance against the sending of unsolicited commercial electronic messages, which strictly prohibits any involvement in unsolicited commercial electronic message campaigns. Hive has adopted the same definition and interpretation of commercial electronic messages as that recognized by Canada’s Anti-Spam Legislation (CASL) and its accompanying regulations. You acknowledge, warrant and agree to comply with the following anti-spam guidelines:

You will not engage in sending any unsolicited commercial electronic messages in your use of our Website and Services;
You are, and Hive is not, the sender or originator of any message to your Audience, and you are therefore solely responsible for your commercial electronic message activities using our Website and Services.

2.2 Consents.

You warrant that you will either have obtained implied consent or opt-in expressed consent, pursuant to applicable anti-spam laws, or meet the requirements to be exempt from the required consent to send commercial electronic messages to any person who has signed up to use our Website and Services.
Hive may request at any time that you provide positive, verifiable proof that all recipients of commercial electronic messages whom you contacted after obtaining their contact information through our Website or Services have agreed to receive commercial electronic messages from you.

2.3 Identifying Information. You warrant that all commercial electronic messages sent to any person who is a user of the Website or Services will contain the identifying information required by applicable laws.

2.4 Unsubscribe Mechanism.

You warrant that all commercial electronic messages sent to any Audience member through our Website or Services will contain an opt-out unsubscribe mechanism or a method for the recipient to indicate that he/she no longer wishes to receive subsequent commercial electronic messages and has withdrawn his/her consent.
You warrant that you will record the opt-out requests in a database and will not contact any persons requesting opt-outs in subsequent commercial electronic message campaigns, whether said campaigns are sent via Hive’s Platform or Services or not.
Your use of our Website and Services will comply with all relevant Canadian, foreign or international anti-spam related laws (as applicable) or regulations prohibiting or discouraging unsolicited commercial electronic messages.
You acknowledge that compliance with this Anti-Spam Policy does not imply compliance with all applicable laws and it is your obligation to ensure that you are aware of and compliant with all applicable laws, rules and regulations for the jurisdictions in which end users to whom you send messages are based.

2.5 Indemnification. You agree to indemnify Hive and its officers, directors, agents, and employees harmless from and against any and all loss, damage, claims, demands, actions and costs (including legal/attorney fees), charges, expenses and liabilities of whatsoever nature incurred directly or indirectly as a result of or in connection with any claim or cause of action related to unsolicited commercial electronic messages.

2.6 Our Role. Hive cannot and does not, monitor, censor or edit the contents of email messages sent using our Platform or Services. Your users are solely responsible for the contents of their commercial electronic messages and the consequences of any such commercial electronic messages. Hive does not assume any responsibility or liability for messages or other content that is created by our client users. If you engage in any unlawful spamming activity, Hive will report such conduct to the appropriate legal authorities and turn over any and all information, including personally identifiable information, to the appropriate law enforcement agents or entities. Hive will co-operate with legal authorities in releasing names and IP addresses of client users involved in the sending of unsolicited commercial electronic message campaigns. In the event of a complaint or investigation, Hive reserves the right to review your usage of any information acquired through our Website or Services to send commercial electronic messages. Hive reserves the right to warn you or suspend or terminate your account(s) and your use of our Services, without notice, if Hive believes your activities are not in compliance with this Anti-Spam Policy. Hive will suspend or terminate the account of anyone determined by us to have used our Website and Services in connection with any unsolicited commercial electronic message or otherwise breached this Agreement. Please be advised that Hive may also terminate your account if your mailings result in high bounce rates or if Hive receives complaints of unsolicited commercial electronic messages against you.

This anti-spam policy may change at any time and it is your responsibility to keep up-to-date with any changes and comply with this policy. Our failure to enforce any provision of this anti-spam policy does not constitute a waiver of that provision or our rights.

APPENDIX B

PRIVACY TERMS

Personal Data. As used in this Appendix: (i) Personal Information means information about an identifiable individual or other information subject to Privacy Laws collected or accessible to Brand in the course of providing the Services; and (ii) Privacy Laws means all federal, provincial, state or other applicable statutes, laws or regulations of any governmental or regulatory authority in any jurisdiction governing the handling of information about an identifiable individual, including, but not limited to, the Personal Information Protection and Electronic Documents Act (Canada) and equivalent provincial legislation.

Hive Privacy Commitment to Audience Members. Hive makes certain privacy commitments to the individuals who join as end users of the Services and whose Personal Information is collected or processed by Hive. A copy of our current privacy policy for such individuals is available at www.hive.co/privacy. Please note that our business partners are required to only use Personal Information collected by us for internal business purposes and communicating with users who have agreed to receive messages from you (for example if they are in your Audience) unless you have agreed other uses of an individual’s Personal Information directly with that person.

Hive Privacy Commitment to Brands. Hive acknowledges and agrees that all Personal Information collected from Your personnel who sign up and use the Services and all Personal Information provided by You to Hive in respect of your business and its performance and engagement with your audience (collectively Brand Information) constitutes Your confidential information. For any Personal Information obtained from a Brand, Hive will use commercially reasonable efforts to:

receive, collect, use, store, access, process, record, disclose, transfer, retain, dispose of, destroy, manage or otherwise handle (collectively, Handle) all Brand Information in accordance with Privacy Laws;
except for disclosures required by law or disclosures in connection with a corporate transaction such as a merger or acquisition of Hives’ business or assets, not use or disclose Brand Information for any purposes other than those specifically contemplated under this Agreement and only to the extent reasonably necessary or appropriate for the performance of the Services;
protect the Brand Information, regardless of format, by security safeguards appropriate to the sensitivity of the information to protect against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification;
if Hive receives a request for access to Brand Information from the individual whose personal information is stored, refer such request to you and respond to any such request as directed by you;
notify you if Hive receives notice from any governmental or regulatory authority alleging that either you or Hive has failed to comply with Privacy Laws in connection with the performance of this Agreement; and
provide reasonable assistance to you in responding to and addressing any complaint relating to the Handling of Brand Information in the course of Hive’s performance under this Agreement.

Brand as Controller. Brand agrees that if Brand, or any Brand Content submitted by Brand to Hive, the Website or the Services, is subject to the General Data Protection Regulation (“GDPR”), or related laws including related laws of European Union member states: (i) Brand is the data controller of such data and Hive is a data processor of such data; and (ii) Brand further represents that Brand has undertaken all requirements to comply with all privacy and data protection laws including but not limited to GDPR. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities.

Legitimate purpose/consent. Brand agrees and represents to Hive that all personal data Brand collects, provides, or otherwise uses in any way in relation to the Services is necessary for Brand’s legitimate interest and is not overridden by fundamental rights of the data subject, and otherwise that Brand has all rights and obtained all necessary consents to collect, provide, manage, all personal data Brand provides to Hive for any purpose. Brand further represents and warrants that Brand will not collect, provide or otherwise use in any way in relation to the Services any special category of personal data as described in GDPR.

Last Updated: May 24, 2018