Hive Enterprise Terms And Conditions

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Last updated: February 12, 2024

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These Enterprise Terms and Conditions (this “Agreement”), effective as of (i) the date on which you click a button or check a box (or something similar) acknowledging your acceptance of this Agreement or (ii) the date you execute with Hive a Cover Sheet that incorporates this Agreement by reference (the “Effective Date”), is by and between TicketLabs Inc., a Delaware corporation with offices located at 304-283 Duke St. West, Kitchener, ON N2H 3X7 (“Hive”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”).

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The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. Hive and Customer may be referred herein collectively as the “Parties” or individually as a “Party.”

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The Parties agree as follows:

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1. Service Terms

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1.1 License Grant. Subject to this Agreement, Hive hereby grants Customer a limited, non-exclusive, revocable, nonsublicensable and nontransferable right to access and use Hive’s website(s), products, services and applications (collectively, “Services”) based on the subscription that Customer has purchased (which may be further detailed in a Cover Sheet or otherwise through the Services). This license is for Customer’s internal use only provided, however, that service providers (“Service Providers”) reasonably necessary to Customer’s use of the Services may access and use the Services on Customer’s behalf subject to this Agreement (including, without limitation, Service Use Guidelines outlined in Section 1.2 below). Customer is responsible for all Service Provider activity in connection with Service Provider’s use or access of the Services on behalf of Customer. Any act or omission by Customer’s Service Providers that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make Service Providers aware of this Agreement’s provisions as applicable to such Service Provider’s use of the Services and shall cause Service Providers to comply with such provisions.

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1.2 Service Use Guidelines. Customer shall use the Services solely as contemplated in this Agreement and, except as expressly permitted in this Agreement, shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share, rent, loan, disclose, display or otherwise make the Services available to any third party. Customer is responsible for compliance with this Agreement. Customer shall comply with all applicable local, state, provincial, federal and federal laws in using the Services. Customer hereby acknowledges and agrees Customer will not access, use or interact with the Services in a manner that:
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(a) infringes or violates the intellectual property rights or any other rights of anyone else (including, without limitation, Hive’s intellectual property rights); violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Hive; jeopardizes the security of Customer’s Hive user account or anyone else’s (such as allowing someone else to log in to the Services as Customer except as expressly permitted by this Agreement); attempts, in any manner, to obtain the password, account, or other security information from any other user; violates the security of any computer network, or cracks any passwords or security encryption codes; runs Maillist, Listserv, any unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “chain letters,” “pyramid schemes,” or any other form of solicitation, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Customer is not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (defined below) through use of manual or automated means; copies or stores any significant portion of the Services or Content (including, without limitation, any content generated by the Customer Audience (“User Content”)) without Hive’s prior consent or, in the case of User Content, consent of the applicable Customer Audience member; adapts, merges, modifies, translates, reverse engineers, decompiles, disassembles, creates derivative works based on the Services or its underlying technology or otherwise attempts to discover any source code or re-identify any anonymized or aggregated personally identifiable information; circumvents any user limits or other use restrictions that are built into the Services; removes any proprietary notices, labels, or marks from the Services or Hive materials;

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(b) accesses the Services in order to (i) build a competitive product or service or (ii) copy any ideas, features, functions or graphics of the Services; or 

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(c) otherwise fails to comply with this Agreement including, without limitation, Hive’s Conduct Rules and Anti-Spam Policy attached hereto as Appendix A and hereby incorporated by reference. 

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1.3 Third-Party Products. For purposes of this Agreement, “Third-Party Products” shall mean any third-party products or services provided with, integrated with or incorporated into the Services. Hive may from time to time make Third-Party Products available to Customer or Hive may allow for certain Third-Party Products to be integrated with the Services to allow for transmission of Customer Submissions (defined below) to or from such Third-Party Products and the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Hive is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their responsive providers. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer shall not install or use such Third-Party Products.

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1.4 Communications. For purposes of this Agreement, the “Customer Audience” shall mean end users who have been identified as engaging with or following Customer across (i) blogs, forums, websites and social media pages which Customer owns or operates or (ii) through those end users’ use of the Services. Any information or materials displayed. performed or available on or through the Services, including, without limitation, text, graphics, data, articles, photos, images or illustrations (collectively, “Content”) publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated. Hive is not responsible for and accepts no liability in relation to communications with the Customer Audience. The identities of end users in the Customer Audience 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 Services.‍

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1.5 Customer Submissions. Customer is solely responsible for any data, information, or other material that Customer posts, uploads, shares, stores, submits or otherwise provides through the Services in the course of using the Services, including, without limitation, any Content (collectively, a “Customer Submissions”). Customer hereby represents and warrants that (i) all Customer Submissions submitted by Customer are accurate, compete, up-to-date, and in compliance with all applicable laws, rules and regulations and (ii) Customer has all rights necessary to provide the Customer Submissions as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Customer further acknowledges and agrees that Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Submissions. Hive reserves the right, but has no obligation, to review, flag, filter, modify, refuse or remove any or all Customer Submissions or not publish or otherwise distribute Customer Submissions through the Services at any time with no liability to Customer or any other person. Customer agrees that Customer will not post, upload, share, store, submit or otherwise provide through Services any Content that fails to comply with this Agreement including, without limitation, Hive’s Conduct Rules and Anti-Spam Policy as further described in Appendix A attached hereto. ‍

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1.6 Privacy and Security. Hive and Customer agree that Personal Data (as such term is defined in the DPA) shall be processed in accordance with the data processing addendum attached hereto as Appendix B (“DPA”). Hive shall use commercially reasonable efforts to maintain the security and integrity of the Services in accordance with the DPA. Although Hive works to maintain the security of Customer’s account and Customer Submissions (defined below), Customer hereby acknowledges and agrees that no method of transmitting information over the internet is completely secure and Hive cannot and does not make any representation or warranty concerning security of any communication to or from the Services. Customer agrees to (i) safeguard login details provided for access to the Services, (ii) prevent unauthorized access to or use of the Services and (iii) promptly notify Hive upon becoming aware of any unauthorized access or use of the Services.‍

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1.7 Availability and Changes to the Services. Although it is Hive's intention for the Services 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 the Services at any time and for any reason or no reason without any liability to Customer. In such cases, Hive will endeavour to give notice of such changes. The Services 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 Services without notice.  ‍

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

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2. Proprietary Rights

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2.1 Reservation of Rights. Except for the rights and licenses expressly granted in this Agreement, Customer acknowledges and agrees that Hive owns and retains 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 Services and any materials provided by Hive. Hive grants Customer no further licenses of any kind hereunder, whether by implication, estoppel or otherwise. Customer acknowledges that only Hive shall have the right to maintain, enhance or otherwise modify the Services. ‍

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2.2 Ownership and Use of Customer Submissions. As between Hive and Customer, Customer exclusively owns and retains 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 Customer Submissions. Customer acknowledges and agrees that Hive and its subcontractors may (i) internally use and modify Customer Submissions for the purposes of (A) providing the Services to Customer, (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for Hive’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Hive’s products and services). For the avoidance of doubt, Customer shall not be named in any market research, case studies or other initiatives which make use of Aggregated Anonymous Data, unless Customer consents to the same, which consent shall not be unreasonably withheld or delayed. “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Hive in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. 

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2.3 Suggestions. Customer may provide Hive with comments, suggestions, ideas, enhancement requests, feedback, recommendations or other information or feedback concerning the Services (collectively, “Suggestions”). Customer hereby grants to Hive a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and exploit the Suggestions for any purpose.

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3. Fees and Payment Terms

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3.1 Fees. As applicable, Customer shall pay Hive the fees specified on the Cover Sheet or otherwise indicated via the Services. Base fees include monthly or annual subscription fees payable for Customer’s use of the Services (“Paid Services”). Fees are non-refundable. Transactional emails and SMS text messages transmitted through the Services will be charged by volume as indicated on at www.hive.co/pricing irrespective of the account type. Please note that any additional payment terms presented to Customer in the process of using or signing up for Paid Services are deemed part of this Agreement and hereby incorporated by reference.

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3.2 Payment Terms. Applicable fees for the Services will be billed on a monthly basis for the upcoming month or on an annual basis for the upcoming year.  Hive uses a third-party payment processor (the “Payment Processor”) to bill Customer through a payment account linked to Customer’s account on the Services (Customer’s “Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Currently, we use Chargebee, Inc. as Hive’s Payment Processor. Customer can access Chargebee’s Terms of Service at https://www.chargebee.com/company/terms and their Privacy Policy at www.chargebee.com/privacy. Hive is not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use Paid Services, Customer agrees to pay Hive, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and Customer authorizes Hive, through the Payment Processor, to charge Customer’s chosen payment provider (Customer’s “Payment Method”). Customer agrees to make payment using that selected Payment Method. Hive reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

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3.3 Payment Method. The terms of Customer’s payment will be based on Customer’s Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of Customer’s chosen Payment Method. If Hive, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on Customer’s Billing Account upon demand.

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3.4 Recurring Billing. Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledges that such Services have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. HIVE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY HIVE) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE CUSTOMER’S PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE HIVE REASONABLY COULD ACT. TO TERMINATE CUSTOMER’S AUTHORIZATION OR CHANGE CUSTOMER’S PAYMENT METHOD, GO TO ACCOUNT SETTINGS.

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3.5 Current Information Required. CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR CUSTOMER’S BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP CUSTOMER’S BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY HIVE OR HIVE’S PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT HIVE MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER CUSTOMER’S BILLING ACCOUNT UNLESS CUSTOMER HAS TERMINATED CUSTOMER’S PAID SERVICES AS SET FORTH ABOVE.

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3.6 Change in Amount Authorized. If the amount to be charged to Customer’s Billing Account varies from the amount Customer preauthorized (other than due to the imposition or change in the amount of sales taxes), Customer has the right to receive, and Hive shall provide, notice of the amount to be charged and the date of the charge. Any agreement Customer has with Customer’s payment provider will govern Customer’s use of Customer’s Payment Method. Customer acknowledges and agrees that Hive may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

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3.7 Auto-Renewal for Paid Services. Unless Customer opts out of auto-renewal, which can be done by contacting support@hive.co , any Paid Services Customer have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. To change or resign Customer’s Paid Services at any time, go to account settings or email support@hive.co. If Customer terminates a Paid Service, Customer may use Customer’s subscription until the end of Customer’s then-current term, and Customer’s subscription will not be renewed after Customer’s then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF CUSTOMER DOES NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, CUSTOMER MUST CANCEL THE APPLICABLE PAID SERVICE BY CONTACTING support@hive.co OR TERMINATE CUSTOMER’S HIVE ACCOUNT BEFORE THE END OF THE RECURRING TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH CUSTOMER HAS ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, HIVE WILL NOT REFUND ANY FEES THAT CUSTOMER HAS ALREADY PAID.

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3.8 Reaffirmation of Authorization. Customer’s non-termination or continued use of a Paid Service reaffirms that Hive is authorized to charge Customer’s Payment Method for that Paid Service. Hive may submit those charges for payment and Customer will be responsible for such charges. This does not waive Hive’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the Paid Service.‍

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3.9 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 Customer’s net income. Any such taxes that are imposed shall be Customer’s sole responsibility.‍

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3.10 Overdue Payments. Any payment not received from Customer by the due date will accrue late charges at the rate of one and one half 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.‍

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3.11 Suspension of Service. If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Hive reserves the right to (i) suspend the Services provided to Customer, until such amounts are paid in full or (ii) terminate the Services and this Agreement.‍

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3.12 Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. Customer must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If Customer cancels prior to the end of the trial period and are inadvertently charged for a Paid Service, please contact Hive at support@hive.co.

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4. Term and Termination

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4.1 Term. This Agreement shall commence upon the Effective Date, and, unless earlier terminated in accordance herewith, shall last until the expiration of the subscription period indicated on the Cover Sheet or as otherwise indicated via the Services.‍

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4.2 Termination. Customer can deactivate Customer’s Hive account by contacting Hive and requesting that a representative do so.‍

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4.3 Termination by Hive. Hive is free to terminate (or suspend access to) Customer’s use of the Services. Grounds for termination in the foregoing sentence including, without limitation, (i) breaches or violations of this Agreement, (ii) requests by law enforcement or other government agencies, (iii) Customer’s request, (iv) discontinuance or material modification to the Services, (v) unexpected technical, security or legal issues or problems, and/or (vi) Customer’s participation, directly or indirectly, in fraudulent or illegal activities (including falsification of Customer’s identity); (vii) non-payment of fees for the Services (if applicable); or (viii) at any time upon thirty (30) days written notice to Customer. Customer acknowledges and agrees that all terminations may be made by Hive in Hive’s sole discretion and that Hive shall not be liable to Customer or any third-party for any termination of Customer’s access to the Services or for the removal of any Customer Submissions from the Services. Any termination of this Agreement by Hive shall be in addition to any and all other rights and remedies that Hive may have.‍

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4.4 Survival. The following Sections 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: Section 2 (Proprietary Rights), Section 5 (Representations, Warranties and Disclaimers), Section 6 (Liability Terms), Section 7 (General Provisions), this sentence, 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.

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4.5 Effect of Termination. Upon termination of this Agreement, the Services and Customer’s right to access and use the Services will immediately terminate. Customer Submissions and all other data (including, without limitation, analytics on the Customer Audience) will no longer be accessible through Customer’s account and the Customer Audience will not be able to navigate to Customer’s username and view Customer Submissions. However, some Customer Submissions may persist and appear within the Services (e.g., if Customer Submissions have been re-shared by others).

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5. Representations, Warranties, and Disclaimers

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5.1 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 enter into, 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. ‍

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5.2 Disclaimer. EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION 5 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 CUSTOMER 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.

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6. Liability Terms

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6.1 Hive Indemnification.

(a) Hive shall indemnify, defend, and hold harmless Customer from and against any and all third party losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) finally awarded against Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Customer alleging that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies Hive in writing of the claim, cooperates with Hive, and allows Hive sole authority to control the defense and settlement of such claim.

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(b) If such a claim is made or appears possible, Customer agrees to permit Hive, at Hive’s sole discretion: to (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Hive determines that neither alternative is reasonably commercially available, Hive may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

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(c) This Section 6.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in violation of this Agreement or in combination with data, software, hardware, equipment, or technology not provided by Hive or authorized by Hive in writing; (ii) modifications to the Services not made by Company; (iii) Customer Submissions; or (iv) Third-Party Products.

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6.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Hive’s option, defend Hive from and against any Losses resulting from any Third-Party Claim alleging that the Customer Submission, or any use of the Customer Submission in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customer’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Hive or authorized by Hive in writing; (iv) interactions with the Customer Audience through the Services; or (v) unsolicited commercial electronic messages; in each case provided that Customer may not settle any Third-Party Claim against Hive unless Hive consents to such settlement, and further provided that Hive will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 

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6.3 LIMITATIONS OF LIABILITY. IN NO EVENT WILL HIVE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER HIVE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL HIVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO HIVE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

7. General Provisions

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7.1 Publicity. Customer hereby grants Hive a royalty-free non-exclusive, right to Customer’s name and logo, and mutually agreed upon screenshots and any intellectual property rights (including, without limitation, trademarks) contained therein, for inclusion in Hive’s list of brands and related-marketing purposes. No other use of either Party’s name or logo, any other trademark or trade-name of such Party is permitted without the other Party’s express prior written consent.‍

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7.2 Assignment. This Agreement shall not be assigned or transferred by Customer, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of Hive and any such attempted assignment shall be void. Notwithstanding the foregoing, Hive may freely assign this Agreement in whole or in part without prior written consent of Customer. Any assignment in violation of this Section 7.2 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.‍

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7.3 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.‍

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7.4 Dispute Resolution. This Agreement, and all matters arising out of or relating to this Agreement, will be governed and construed in accordance with laws of the State of Delaware (irrespective of choice of law principles).  Unless prohibited by applicable law, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration (to be held in English) ), on an individual basis and not on a class basis, in the State of Delaware in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each Party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction.  The prevailing Party will be entitled to receive from the non-prevailing Party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing Party will be that Party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. ‍

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7.5 Notices. Except as otherwise provided in this Agreement, all notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to (i) the addresses provided on the Cover Sheet; (ii) the addresses otherwise specified through the Services; or (iii) a notice placed on Hive’s website located at www.hive.co. Notice shall be considered delivered and effective when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail or a notice placed on Hive’s website; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.‍

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7.6 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.‍

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7.7 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.‍

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7.8 Force Majeure. Except for obligations to pay any fees under this Agreement, neither Party shall be liable for any failure or delay to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including, without limitation, to the elements; fire; flood; severe weather; acts of God and the public enemy; earthquakes; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; internet failure; acts of war; acts of terrorism; riots; civil or public disturbances; communication failures; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgements of courts (collectively, a “Force Majeure Event”). 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.‍

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

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7.10 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.‍

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7.11 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 this Agreement and the body of this Agreement, the terms of the Cover Sheet shall prevail.

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7.12 Updates to Agreement. Changes to this Agreement may be made by Hive at any time on provision of at least thirty (30) days prior notice (in accordance with Section 7.5 of this Agreement) to Customer before such changes will take effect. Customer’s continued use of the Services in any way means that Customer agrees to any changes to this Agreement. If Customer does not agree to any changes, Customer will have the right to object to Hive by written notice before such changes go into effect, in which case the terms of this existing Agreement will continue to apply for the Term of this Agreement, except as may be required by law.

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1. Definitions

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1.1 “Affiliate” means (i) an entity of which a party directly or indirectly owns fifty percent (50%) or more of the stock or other equity interest, (ii) an entity that owns at least fifty percent (50%) or more of the stock or other equity interest of a party, or (iii) an entity which is under common control with a party by having at least fifty percent (50%) or more of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

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1.2 “Authorized Sub-Processor” means a third-party who has a need to know or otherwise access Customer’s Personal Data to enable Company to perform its obligations under this DPA or the Agreement, and who is either (1) listed in Exhibit B or (2) subsequently authorized under Section 4.2 of this DPA.

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1.3 “Company Account Data” means personal data that relates to Company’s relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer’s account,  billing information of individuals that Customer has associated with its account or the Services in connection with Customer’s account. Company Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.

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1.4 “Company Usage Data” means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse.

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1.5 “Data Exporter” means Customer.

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1.6 “Data Importer” means Company. 

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1.7 “Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of Personal Data including: (i) the California Consumer Privacy Act, as amended by the California Privacy Rights Act of 2020 (“CCPA”), (ii) the General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”) and the EU GDPR as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”) (together, collectively, the “GDPR”), (iii) the Swiss Federal Act on Data Protection, (iv) the UK Data Protection Act 2018, (v) the Privacy and Electronic Communications (EC Directive) Regulations 2003, (vi) the Virginia Consumer Data Protection Act (“VCDPA”), (vii) the Colorado Privacy Act (“CPA”), (viii) the Connecticut Data Privacy Act (“CTDPA”), and (ix) the Utah Consumer Privacy Act (“UCPA”); in each case, as updated, amended or replaced from time to time. The terms “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing”, “processor,” “controller,” and “supervisory authority” shall have the meanings set forth in the GDPR.  

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1.8 “Data Privacy Framework” means, as applicable, EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework, and/or the Swiss-U.S. Data Privacy Framework.  

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1.9 “EU SCCs” means, as applicable, the standard contractual clauses approved by the European Commission in Commission Decision 2021/914 dated 4 June 2021, for transfers of personal data to countries not otherwise recognized as offering an adequate level of protection for personal data by the European Commission (as amended and updated from time to time), as modified by Section 6.2 of this DPA. 

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1.10 “ex-EEA Transfer” means the transfer of Personal Data, which is processed in accordance with the GDPR, from the Data Exporter to the Data Importer (or its premises) outside the European Economic
Area (the “EEA”), and such transfer is not governed by an adequacy decision made by the European Commission in accordance with the relevant provisions of the GDPR. 

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1.11 “ex-UK Transfer” means the transfer of Personal Data covered by Chapter V of the UK GDPR, which is processed in accordance with the UK GDPR and the Data Protection Act 2018, from the Data Exporter to the Data Importer (or its premises) outside the United Kingdom (the “UK”), and such transfer is not governed by an adequacy decision made by the Secretary of State in accordance with the relevant provisions of the UK GDPR and the Data Protection Act 2018. 

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1.12 “Services” shall have the meaning set forth in the Agreement.

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1.13 “Standard Contractual Clauses” means the EU SCCs and the UK SCCs.   

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1.14 “UK SCCs” means, as applicable, the EU SCCs, as amended by the UK Addendum.

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2. Relationship of the Parties; Processing of Data

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2.1 The parties acknowledge and agree that with regard to the processing of Personal Data, Customer may act either as a controller or processor and, except as expressly set forth in this DPA or the Agreement, Company is a processor. Customer shall, in its use of the Services, at all times process Personal Data, and provide instructions for the processing of Personal Data, in compliance with Data Protection Laws. Customer shall ensure that the processing of Personal Data in accordance with Customer’s instructions will not cause Company to be in breach of the Data Protection Laws.  Customer is solely responsible for the accuracy, quality, and legality of (i) the Personal Data provided to Company by or on behalf of Customer, (ii) the means by which Customer acquired any such Personal Data, and (iii) the instructions it provides to Company regarding the processing of such Personal Data. Customer shall not provide or make available to Company any Personal Data in violation of the Agreement or otherwise inappropriate for the nature of the Services, and shall indemnify Company from all claims and losses in connection therewith. 

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2.2 Company shall not process Personal Data (i) for purposes other than those set forth in the Agreement and/or Exhibit A, (ii) in a manner inconsistent with the terms and conditions set forth in this DPA or any other documented instructions provided by Customer, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Supervisory Authority to which the Company is subject; in such a case, the Company shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest, or (iii) in violation of Data Protection Laws.  Customer hereby instructs Company to process Personal Data in accordance with the foregoing and as part of any processing initiated by Customer in its use of the Services.

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2.3 The subject matter, nature, purpose, and duration of this processing, as well as the types of Personal Data collected and categories of Data Subjects, are described in Exhibit A to this DPA.

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2.4 Following completion of the Services, at Customer’s choice, Company shall return or delete Customer’s Personal Data, unless further storage of such Personal Data is required or authorized by applicable law. If return or destruction is impracticable or prohibited by law, rule or regulation, Company shall take measures to block such Personal Data from any further processing (except to the extent necessary for its continued hosting or processing required by law, rule or regulation) and shall continue to appropriately protect the Personal Data remaining in its possession, custody, or control. If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the certification of deletion of Personal Data that is described in  Clause 8.1(d) and Clause 8.5 of the EU SCCs (as applicable) shall be provided by Company to Customer only upon Customer’s request. 

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2.5 U.S. State Privacy Law Language. The Parties acknowledge and agree that the processing of personal information or personal data that is subject to the CCPA, VCDPA, CPA, CTDPA, or UCPA shall be carried out in accordance with the terms set forth in Exhibit E.

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3. Confidentiality

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Company shall ensure that any person it authorizes to process Personal Data has agreed to protect Personal Data in accordance with Company’s confidentiality obligations in the Agreement. Customer agrees that Company may disclose Personal Data to its advisers, auditors or other third parties as reasonably required in connection with the performance of its obligations under this DPA, the Agreement, or the provision of Services to Customer.  

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4. Authorized Sub-Processors

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4.1 Customer acknowledges and agrees that Company may (1) engage its Affiliates and the Authorized Sub-Processors listed in Exhibit B to this DPA to access and process Personal Data in connection with the Services and (2) from time to time engage additional third parties for the purpose of providing the Services, including without limitation the processing of Personal Data. By way of this DPA, Customer provides general written authorization to Company to engage sub-processors as necessary to perform the Services.

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4.2 A list of Company’s current Authorized Sub-Processors (the “List”) will be made available to Customer, either attached hereto, at a link provided to Customer, via email or through another means made available to Customer.  Such List may be updated by Company from time to time.  Company may provide a mechanism to subscribe to notifications of new Authorized Sub-Processors and Customer agrees to subscribe to such notifications where available.  At least ten (10) days before enabling any third party other than existing Authorized Sub-Processors to access or participate in the processing of Personal Data, Company will add such third party to the List and notify Customer via email. Customer may object to such an engagement by informing Company within ten (10) days of receipt of the aforementioned notice by Customer, provided such objection is in writing and based on reasonable grounds relating to data protection. Customer acknowledges that certain sub-processors are essential to providing the Services and that objecting to the use of a sub-processor may prevent Company from offering the Services to Customer.

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4.3 If Customer reasonably objects to an engagement in accordance with Section 4.2, and Company cannot provide a commercially reasonable alternative within a reasonable period of time, Customer may discontinue the use of the affected Service by providing written notice to Company.  Discontinuation shall not relieve Customer of any fees owed to Company under the Agreement. 

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4.4 If Customer does not object to the engagement of a third party in accordance with Section 4.2 within ten (10) days of notice by Company, that third party will be deemed an Authorized Sub-Processor for the purposes of this DPA.

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4.5 Company will enter into a written agreement with the Authorized Sub-Processor imposing on the Authorized Sub-Processor data protection obligations comparable to those imposed on Company under this DPA with respect to the protection of Personal Data.  In case an Authorized Sub-Processor fails to fulfill its data protection obligations under such written agreement with Company, Company will remain liable to Customer for the performance of the Authorized Sub-Processor’s obligations under such agreement.

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6. Transfers of Personal Data

4.6 If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), (i) the above authorizations will constitute Customer’s prior written consent to the subcontracting by Company of the processing of Personal Data if such consent is required under the Standard Contractual Clauses, and (ii) the parties agree that the copies of the agreements with Authorized Sub-Processors that must be provided by Company to Customer pursuant to Clause 9(c) of the EU SCCs may have commercial information, or information unrelated to the Standard Contractual Clauses or their equivalent, removed by the Company beforehand, and that such copies will be provided by the Company only upon request by Customer.

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5. Security of Personal Data 

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Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Company shall maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing Personal Data. Exhibit C sets forth additional information about Company’s technical and organizational security measures.

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6.1 The parties agree that Company may transfer Personal Data processed under this DPA outside the EEA, the UK, or Switzerland as necessary to provide the Services. Customer acknowledges that Company’s primary processing operations take place in the United States and Canada, and that the transfer of Customer’s Personal Data to the United States is necessary for the provision of the Services to Customer. If Company transfers Personal Data protected under this DPA to a jurisdiction for which the European Commission has not issued an adequacy decision, Company will ensure that appropriate safeguards have been implemented for the transfer of Personal Data in accordance with Data Protection Laws.

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6.2 Ex-EEA Transfers. The parties agree that ex-EEA Transfers will be made (i) pursuant to the Data Privacy Framework, or (ii) if the Data Privacy Framework does not apply or ceases to be available, pursuant to the EU SCCs, which are deemed entered into (and incorporated into this DPA by this reference) and completed as follows:

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6.2.1 Module One (Controller to Controller) of the EU SCCs apply when Company is processing Personal Data as a controller pursuant to Section 9 of this DPA.  

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6.2.2 Module Two (Controller to Processor) of the EU SCCs apply when Customer is a controller and Company is processing Personal Data for Customer as a processor pursuant to Section 2 of this DPA.

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6.2.3 Module Three (Processor to Sub-Processor) of the EU SCCs apply when Customer is a processor and Company is processing Personal Data on behalf of Customer as a sub-processor.

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6.3 For each module, where applicable the following applies: 

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6.3.1 The optional docking clause in Clause 7 does not apply.

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6.3.2 In Clause 9, Option 2 (general written authorization) applies, and the minimum time period for prior notice of sub-processor changes shall be as set forth in Section 4.2 of this DPA.

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6.3.3 In Clause 11, the optional language does not apply. 

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6.3.4 All square brackets in Clause 13 are hereby removed. 

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6.3.5 In Clause 17 (Option 1), the EU SCCs will be governed by the law of Ireland.

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6.3.6 In Clause 18(b), disputes will be resolved before the courts of Ireland.

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6.3.7 Exhibit B to this DPA contains the information required in Annex I and Annex III of the EU SCCs.

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6.3.8 Exhibit C to this DPA contains the information required in Annex II of the EU SCCs. 

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6.3.9 By entering into this DPA, the parties are deemed to have signed the EU SCCs incorporated herein, including their Annexes. 

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6.4 Ex-UK Transfers. The parties agree that ex-UK Transfers will be made (i) pursuant to the Data Privacy Framework, or (ii) if the Data Privacy Framework does not apply or ceases to be available, pursuant to the UK SCCs, which are deemed entered into and incorporated into this DPA by reference, and amended and completed in accordance with the UK Addendum, which is incorporated herein as Exhibit D of this DPA. 

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6.5 Transfers from Switzerland. The parties agree that transfers from Switzerland will be made (i) pursuant to the Data Privacy Framework, or (ii) if the Data Privacy Framework does not apply or ceases to be available, pursuant to the EU SCCs with the following modifications:

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6.5.1 The terms “General Data Protection Regulation” or “Regulation (EU) 2016/679” as utilized in the EU SCCs shall be interpreted to include the Federal Act on Data Protection of 19 June 1992 (the “FADP,” and as revised as of 25 September 2020, the “Revised FADP”) with respect to data transfers subject to the FADP.

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6.5.2 The terms of the EU SCCs shall be interpreted to protect the data of legal entities until the effective date of the Revised FADP. 

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6.5.3 Clause 13 of the EU SCCs is modified to provide that the Federal Data Protection and Information Commissioner (“FDPIC”) of Switzerland shall have authority over data transfers governed by the FADP and the appropriate EU supervisory authority shall have authority over data transfers governed by the GDPR. Subject to the foregoing, all other requirements of Clause 13 shall be observed. 

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6.5.4 The term “EU Member State” as utilized in the EU SCCs shall not be interpreted in such a way as to exclude Data Subjects in Switzerland from exercising their rights in their place of habitual residence in accordance with Clause 18(c) of the EU SCCs. 

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6.6 Supplementary Measures. In respect of any ex-EEA Transfer or ex-UK Transfer made pursuant to the Standard Contractual Clauses, the following supplementary measures shall apply:

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6.6.1 As of the date of this DPA, the Data Importer has not received any formal legal requests from any government intelligence or security service/agencies in the country to which the Personal Data is being exported, for access to (or for copies of) Customer’s Personal Data (“Government Agency Requests”). 

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6.6.2 If, after the date of this DPA, the Data Importer receives any Government Agency Requests, Company shall attempt to redirect the law enforcement or government agency to request that data directly from Customer. As part of this effort, Company may provide Customer’s basic contact information to the government agency. If compelled to disclose Customer’s Personal Data to a law enforcement or government agency, Company shall give Customer reasonable notice of the demand and cooperate to allow Customer to seek a protective order or other appropriate remedy unless Company is legally prohibited from doing so. Company shall not voluntarily disclose Personal Data to any law enforcement or government agency. Data Exporter and Data Importer shall (as soon as reasonably practicable) discuss and determine whether all or any transfers of Personal Data pursuant to this DPA should be suspended in the light of the such Government Agency Requests.

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6.6.3 The Data Exporter and Data Importer will meet regularly to consider whether:

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(i) the protection afforded by the laws of the country of the Data Importer to data subjects whose Personal Data is being transferred is sufficient to provide broadly equivalent protection to that afforded in the EEA or the UK, whichever the case may be;

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‍The parties acknowledge and agree that with respect to Company Account Data and Company Usage Data, Company is an independent controller, not a joint controller with Customer. Company will process Company Account Data and Company Usage Data as a controller (i) to manage the relationship with Customer; (ii) to carry out Company’s core business operations, such as accounting, audits, tax preparation and filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to Customer; (iv) for identity verification purposes; (v) to comply with legal or regulatory obligations applicable to the processing and retention of Personal Data to which Company is subject; and (vi) as otherwise permitted under Data Protection Laws and in accordance with this DPA and the Agreement. Company may also process Company Usage Data as a controller to provide, optimize, and maintain the Services, to the extent permitted by Data Protection Laws. Any processing by the Company as a controller shall be in accordance with the Company’s privacy policy set forth at hive.co/privacy.   

(ii) additional measures are reasonably necessary to enable the transfer to be compliant with the Data Protection Laws; and 

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(iii) it is still appropriate for Personal Data to be transferred to the relevant Data Importer, taking into account all relevant information available to the parties, together with guidance provided by the supervisory authorities. 

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6.6.4 If Data Protection Laws require the Data Exporter to execute the Standard Contractual Clauses applicable to a particular transfer of Personal Data to a Data Importer as a separate agreement, the Data Importer shall, on request of the Data Exporter, promptly execute such Standard Contractual Clauses incorporating such amendments as may reasonably be required by the Data Exporter to reflect the applicable appendices and annexes, the details of the transfer and the requirements of the relevant Data Protection Laws. 

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6.6.5 If either (i) any of the means of legitimizing transfers of Personal Data outside of the EEA or UK set forth in this DPA cease to be valid or (ii) any supervisory authority requires transfers of Personal Data pursuant to those means to be suspended, then Data Importer may by notice to the Data Exporter, with effect from the date set out in such notice, amend or put in place alternative arrangements in respect of such transfers, as required by Data Protection Laws.

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7. Rights of Data Subjects

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7.1 Company shall, to the extent permitted by law, notify Customer upon receipt of a request by a Data Subject to exercise the Data Subject’s right of: access, rectification, erasure, data portability, restriction or cessation of processing, withdrawal of consent to processing, and/or objection to being subject to processing that constitutes automated decision-making (such requests individually and collectively “Data Subject Request(s)”). If Company receives a Data Subject Request in relation to Customer’s data, Company will advise the Data Subject to submit their request to Customer and Customer will be responsible for responding to such request, including, where necessary, by using the functionality of the Services. Customer is solely responsible for ensuring that Data Subject Requests for erasure, restriction or cessation of processing, or withdrawal of consent to processing of any Personal Data are communicated to Company, and, if applicable, for ensuring that a record of consent to processing is maintained with respect to each Data Subject.

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7.2 Company shall, at the request of the Customer, and taking into account the nature of the processing applicable to any Data Subject Request, apply appropriate technical and organizational measures to assist Customer in complying with Customer’s obligation to respond to such Data Subject Request and/or in demonstrating such compliance, where possible, provided that (i) Customer is itself unable to respond without Company’s assistance and (ii) Company is able to do so in accordance with all applicable laws, rules, and regulations. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.

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8. Actions and Access Requests; Audits

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8.1 Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance where necessary for Customer to comply with its obligations under the Data Protection Laws to conduct a data protection assessment and/or to demonstrate such compliance, provided that Customer does not otherwise have access to the relevant information. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.

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8.2 Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance with respect to Customer’s cooperation and/or prior consultation with any Supervisory Authority or regulatory agency, where necessary and where required by the Data Protection Laws. Customer shall be responsible to the extent legally permitted for any costs and expenses arising from any such assistance by Company.

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8.3 Company shall maintain records sufficient to demonstrate its compliance with its obligations under this DPA, and retain such records for a period of three (3) years after the termination of the Agreement.  Customer shall, with reasonable notice to Company, have the right to review, audit and copy such records at Company’s offices during regular business hours.

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8.4 Upon Customer’s written request at reasonable intervals, and subject to reasonable confidentiality controls, Company shall, either (i) make available for Customer’s review copies of certifications or reports demonstrating Company’s compliance with prevailing data security standards applicable to the processing of Customer’s Personal Data, or (ii) if the provision of reports or certifications pursuant to (i) is not reasonably sufficient under Data Protection Laws, allow Customer’s independent third party representative to conduct an audit or inspection of Company’s data security infrastructure and procedures that is sufficient to demonstrate Company’s compliance with its obligations under Data Protection Laws, provided that (a) Customer provides reasonable prior written notice of any such request for an audit and such inspection shall not be unreasonably disruptive to Company’s business; (b) such audit shall only be performed during business hours and occur no more than once per calendar year; and (c) such audit shall be restricted to data relevant to Customer. Customer shall be responsible for the costs of any such audits or inspections, including without limitation a reimbursement to Company for any time expended for on-site audits.  If Customer and Company have entered into Standard Contractual Clauses as described in Section 6 (Transfers of Personal Data), the parties agree that the audits described in Clause 8.9 of the EU SCCs shall be carried out in accordance with this Section 8.4. 

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8.5 Company shall immediately notify Customer if an instruction, in the Company’s opinion, infringes the Data Protection Laws or Supervisory Authority.

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8.6 In the event of a Personal Data Breach, Company shall, without undue delay, inform Customer of the Personal Data Breach and take such steps as Company in its sole discretion deems necessary and reasonable to remediate such violation (to the extent that remediation is within Company’s reasonable control).

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8.7 In the event of a Personal Data Breach, Company shall, taking into account the nature of the processing and the information available to Company, provide Customer with reasonable cooperation and assistance necessary for Customer to comply with its obligations under the Data Protection Laws with respect to notifying (i) the relevant Supervisory Authority or regulatory agency and (ii) Data Subjects affected by such Personal Data Breach without undue delay.

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8.8 The obligations described in Sections 8.6 and 8.7 shall not apply in the event that a Personal Data Breach results from the actions or omissions of Customer. Company’s obligation to report or respond to a Personal Data Breach under Sections 8.6 and 8.7 will not be construed as an acknowledgement by Company of any fault or liability with respect to the Personal Data Breach.

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9. Company’s Role as a Controller

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This Data Processing Addendum (“DPA”) supplements the Enterprise Terms and Conditions (the “Agreement”) TicketLabs Inc. (“Company”) and the customer entity that is a party to the Agreement (“Customer”). Company may update this Addendum from time to time, and Company will provide reasonable notice of any such updates. Any terms not defined in this DPA shall have the meaning set forth in the Agreement.

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10. Conflict

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‍In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable terms in the Standard Contractual Clauses; (2) the terms of this DPA; (3) the Agreement; and (4) the Company’s privacy policy. Any claims brought in connection with this DPA will be subject to the terms and conditions, including, but not limited to, the exclusions and limitations set forth in the Agreement.

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