CyberHive terms of service

CYBERHIVE TERMS OF SERVICE

THESE CYBERHIVE TERMS OF SERVICE GOVERN ORDERS MADE FOR CYBERHIVE SERVICES.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE CYBERHIVE TERMS OF SERVICE SHALL BE DEEMED ACCEPTED BY CLICKING “ACCEPT” OR BY SIGNING THE CLIENT ORDER FORM (AS THE CASE MAY BE).

WHERE AN INDIVIDUAL IS ACCEPTING THE CLIENT ORDER FORM, THE CLIENT CONFIRMS THAT THE INDIVIDUAL IS DULY AUTHORISED TO ACCEPT THE CLIENT ORDER FORM ON BEHALF OF THE CLIENT AND BIND THE CLIENT AS A PARTY TO IT.

 

Agreed terms

1. Interpretation
1.1 The following definitions and rules of interpretation apply in the CyberHive Terms of Service:
Agreement: the agreement between the parties comprising the Client Order Form, the CyberHive Terms of Service and any Schedules references in the Client Order Form.
Applicable Laws: all applicable laws, statutes and regulations from time to time in force.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm (GMT) on any Business Day.
Client: the party identified as such in a Client Order Form.
Client Data: any information that is provided by or on behalf of the Client to CyberHive as part of the Client’s use of the Services, including any information derived from such information.
Client’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services.
Client Materials: all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to CyberHive in connection with the Services, including the items provided pursuant to clause 4.1(d).
Client Order Form: a document setting out the order for specific Services (including the supply of any Hardware or Software) which incorporates the CyberHive Terms of Service.
Client’s Operating Environment:  the Client’s computing environment (consisting of hardware, software and telecommunications networks) that is to be used by the Client or any Client staff who ‘work from home’ or work remotely in connection with its use of the Services.
Data Protection Schedule: The Schedule 3 of this Agreement (as may be updated by CyberHive from time to time) which sets out the data protection obligations of the parties.
Deliverables: any output of the Services to be provided by CyberHive to the Client as specified in a Client Order Form and any other documents, products and materials provided by CyberHive to the Client in relation to the Services.
Fees: the sums payable for the Services pursuant to a Client Order Form for the amount specified in the same Client Order Form.
Hardware: the hardware which CyberHive has agreed to sell or otherwise supply to the Client as set out in the Client Order Form in accordance with the Supply Terms.
Initial Period: the initial period for which Services are provided pursuant to a Client Order Form as specified in the same Client Order Form, or where no such period is specified a period of 12 months.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Offer Validity Period: the period during which the offer in a draft Client Order Form is valid, as specified in the Client Order Form.
On-Site Services: Services provided by CyberHive at the Client’s premises (or any other place requested by the Client).
Order Effective Date: has the meaning given to it in clause 2.6(a).
Services: the services which are provided by CyberHive as agreed pursuant to a Client Order Form, including services which are incidental or ancillary to the Services.
CyberHive: CyberHive Ltd, company number 03974231, with its registered office at 2nd Floor Newmarket House, Market Street, Newbury, England, RG14 5DP.
CyberHive’s Equipment: any equipment, including tools, systems, cabling or facilities, provided (but not sold) by CyberHive to the Client and used directly or indirectly in the supply of the Services.
VAT: value added tax chargeable in the UK.

1.2 Headings. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 Person. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 Schedules. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.

1.5 Company. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Singular and plural. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7 Gender. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 Successors and assigns. This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

1.9 Legislative references. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.

1.10 Legislative references and subordinate legislation. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time.

1.11 Writing. A reference to writing or written includes e-mail.

1.12 “Including”. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.13 Clauses and schedules. References to clauses and Schedules are to the clauses and Schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule.

2. Basis of Contract

2.1 The CyberHive Terms of Service set out the terms on which Clients may request and CyberHive will provide Services to the Client.

2.2 Where the Client wishes to purchase Services from CyberHive, the parties shall enter into individual Client Order Forms pursuant to the process set out in this clause 2.

2.3 Each Client Order Form shall be agreed in the following manner:
(a) the Client shall request the Services from CyberHive and provide CyberHive with as much information as CyberHive reasonably requests in order to prepare a draft Client Order Form.
(b) Following receipt of the information requested from the Client CyberHive shall, as soon as reasonably practicable, either:
(i) inform the Client that it declines to provide the requested Services; or
(ii) provide the Client with a draft Client Order Form.
(c) if CyberHive provides the Client with a draft Client Order Form pursuant to clause 2.3 (b)(ii), CyberHive and the Client shall discuss and agree that draft Client Order Form; and

(d) once a draft Client Order Form is agreed, both parties shall sign the Client Order Form to signify their acceptance. Until the Client Order Form is signed, CyberHive shall have no obligation to provide the Services specified in the same Client Order Form.

2.4 The parties agree that:
(a) CyberHive is under no obligation to accept any request to provide the Services before the applicable Client Order Form is signed pursuant to clause 2.3(d);
(b) Where a draft Client Order Form specifies an Offer Validity Period, CyberHive is under no obligation to accept that draft Client Order Form pursuant to clause 2.3(d) after the expiry of the Offer Validity Period and CyberHive shall be entitled to propose a new draft Client Order Form;
(c) Once a Client Order Form has been agreed and signed in accordance with clause 2.3(d), no addition to, variation of, exclusion or attempted exclusion of any term of the Client Order Form shall be binding on CyberHive unless in writing and signed by a duly authorised representative of CyberHive; and
(d) Where for any reason CyberHive provides Services outside the scope of an applicable Client Order Form without following the formalities specified in clause 2.5(b), CyberHive shall be entitled to charge for such additional Services.

2.5 Each Client Order Form entered into forms a separate contract between the parties governed by and subject to the CyberHive Terms of Service.

2.6 Each Client Order Form shall:
(a) take effect from the Order Effective Date set out in the applicable Client Order Form or when CyberHive starts to provide Services requested by the Client (whichever is earlier); and
(b) unless terminated earlier in accordance with the CyberHive Terms of Service shall continue for the Initial Period and thereafter shall continue for successive 12-month periods (each a “Renewal Period”) until the either party notifies the other party of its intention to terminate the Services by giving other party at least 90 days before the end of the Initial Period or Renewal Period (as the case may be). Provided that that notice is given within the aforementioned notice period, the Client Order Form shall automatically terminate on expiry of the then current Initial Period or Renewal Period (as the case may be).

3. Provision of the Services

3.1 CyberHive shall use reasonable endeavours to:
(a) perform the Services with all reasonable skill and care;
(b) provide the Deliverables in accordance with the applicable Client Order Form in all material respects; and
(c) meet any deadlines agreed between the parties in writing, but any such dates shall be estimates only and time for performance by CyberHive shall not be of the essence.

3.2 CyberHive shall appoint a manager in respect of the Services to be performed under each Client Order Form, such person as identified in the Client Order Form. CyberHive may replace that person from time to time where reasonably necessary in the interests of CyberHive’s business.

3.3 Nothing shall not prevent CyberHive from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided to the Client.

3.4 Unless otherwise specified in a Client Order Form, the Services are provided remotely. The Client may from time-to-time request that CyberHive provides On-Site Services. If CyberHive, at its discretion, agrees to provide any On-Site Services, such On-Site Services shall be subject to additional charges on a times and materials basis. Where On-Site Services are provided, the Client must ensure that CyberHive has access to the applicable Client Equipment, data, facilities or otherwise as is reasonably required to provide the On-Site Services.

3.5 Client understands and accepts that CyberHive is reliant upon third parties to ensure the supply of some of the Services. Accordingly, CyberHive may be required to alter, restrict, suspend or terminate the Client’s access to those Services without liability. Where CyberHive takes any such action, it will use reasonable endeavours to:
(a) notify the Client; and
(b) provided that such action has not arisen from the Client’s breach of the CyberHive Terms of Service, find a replacement CyberHive to provide similar services to the affected Services.

4. Client’s obligations

4.1 The Client shall:
(a) co-operate with CyberHive in all matters relating to the Services;
(b) appoint a manager in respect of the Services to be performed under each Client Order Form, such person as identified in the Client Order Form. That person shall have authority to contractually bind the Client on all matters relating to the relevant Services. The Client shall use reasonable endeavours to ensure the continuity of the manager appointed to each Client Order Form;
(c) provide, for CyberHive, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Client Equipment, Client’s Operating Environment, Client’s premises, office accommodation, software, data and other facilities as required by CyberHive;
(d) provide to CyberHive in a timely manner all documents, information, items and materials in any form (whether owned by the Client or a third party) reasonably required by CyberHive in connection with the Services and ensure that they are accurate and complete;
(e) ensure that it has sufficient volume and type of Client’s Equipment reasonably required by CyberHive in order to provide the Services;
(f) ensure, at its own expense, that all the Client’s Equipment and/or Client’s Operating Environment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable CyberHive to provide the Services;
(h) keep, maintain and insure CyberHive’s Equipment in accordance with CyberHive’s instructions from time to time and not dispose of or use CyberHive’s Equipment other than in accordance with CyberHive’s written instructions or authorisation;
(i) comply with all applicable laws and regulations with respect to all its activities; and
(j) comply with any additional responsibilities of the Client as set out in the relevant Client Order Form.

4.2 If CyberHive’s performance of its obligations under a Client Order Form is prevented or delayed, or if CyberHive fails to meet the applicable Service Level, as a result of any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, CyberHive shall:
(a) be allowed an extension of time to perform its obligations equal to the delay caused by the Client or shall not be liable for its failure to perform the Services (as the case may be); and
(b) be entitled to recover any additional costs, charges or losses CyberHive sustains or incurs that arise directly or indirectly from such prevention or delay, including without limitation any additional Services that must be provided to remedy any damage, deficiency or other issue caused by the Client, its agents, subcontractors, consultants or employee.

5. Fees

5.1 In consideration of the provision of the Services by CyberHive, the Client shall pay the Fees.

5.2 Where the Fees are calculated on a time and materials basis:
(a) the Fees shall be based on CyberHive’s then current rates specified from time to time;
(b) CyberHive’s daily rates are calculated on the basis of an eight-hour day, worked during Business Hours; and

(c) CyberHive shall be entitled to charge out of hours and/or overtime rates for any time worked by individuals whom it engages on the Services outside Business Hours.

5.3 Where the Fees are calculated on a fixed price basis, the amount of those charges shall be as set out in a Client Order Form.

5.4 The Fees exclude the following expenses which shall be charged separately:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom CyberHive engages in connection with the Services; and

(b) the cost to CyberHive of any materials or services procured by CyberHive from third parties for the provision of the Services as such items and their cost are agreed between the parties in writing.

5.5 CyberHive may increase the Fees on an annual basis in line with the Retail Price Index (plus 4%) which shall take effect one month after the Client has been notified of any such increase.

5.6 CyberHive may increase the Fees at any time to take effect no later than one (1) month after being notified in writing of such increase in order to reflect any increase in price of any third party CyberHive’s which contribute to the provision of the Services or for which CyberHive is dependent on in order to provide the Services.

5.7 Any existing Client Order Forms shall be deemed amended to take into account any of the increases referenced in clauses 5.5 and 5.6.

6. Payment

6.1 To enable CyberHive to charge the Client for, and receive payment of, the Fees through direct debit, or any other payment method which CyberHive at its sole discretion may agree with the Client, the Client shall on the Order Effective Date and when otherwise requested by CyberHive:
(a) provide to CyberHive valid, up-to-date and complete card details, direct debit details or (where applicable) approved purchase order information acceptable to CyberHive and any other valid, up-to-date and complete contact and billing details; and
(b) provide all necessary authorisations and agree to all required forms (including an appropriate direct debit mandate).

6.2 The Fees shall be paid for in the manner described below:
(a) in respect of any recurring Fees, the Client authorises CyberHive to charge the Client’s card using the details provided by way of direct debit or otherwise on the intervals set out in the applicable Client Order Form. Where no intervals are specified in such Client Order Form, CyberHive shall, at its reasonable discretion, charge the Client for the recurring Fees annually in advance; and
(b) in respect of any non-recurring Fees which are being provided for an amount specified in a Client Order Form, CyberHive shall charge the Client using the details provided for the Fees in advance.

6.3 Any costs or expenses incurred under:
(a) clause 5.4(a) shall be payable by the Client monthly in arrears, following submission of an appropriate invoice.
(b) clause 5.4(b) shall be payable in advance provided that CyberHive has notified the Client of such costs in advance of payment. Where no such notice has been provided the cost shall be payable by the Client monthly in arrears, following submission of an appropriate invoice.

6.4 The Client shall pay each invoice submitted to it by CyberHive under this Agreement by the date specified on such invoice to a bank account nominated in writing by CyberHive from time to time, or where no date is specified, within 7 days of the date of the invoice.

6.5 Without prejudice to any other right or remedy that it may have, if the Client fails to pay CyberHive any sum due by the due date:
(a) CyberHive may charge additional admin, processing or other similar fees associated with any failure to collect the payment using the agreed payment method;
(b) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time; and
(c) CyberHive may suspend part or all of the Services without liability until payment has been made in full.

6.6 All sums payable to CyberHive under the CyberHive Terms of Service:
(a) are exclusive of VAT, and the Client shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding. Where the Client is required by the law of any non-UK jurisdiction to make a withholding, the Client shall pay to CyberHive such sum as will, after the making of any withholding, leave CyberHive with the same amount as it would have received had no withholding been made.

7. Intellectual property rights

7.1 The Client acknowledges and agrees that, as between the parties, CyberHive and/or its licensors own all Intellectual Property Rights in the Deliverables and in all other materials developed or produced in connection with a Client Order Form by CyberHive, its officers, employees, sub-contractors or agents. Except as expressly otherwise stated, the CyberHive Terms of Service does not grant the Client any rights to such Intellectual Property Rights.

7.2 CyberHive acknowledges and agrees that the Client owns and retains all rights, title and interest in and to:
(a) the Client Data; and
(b) the Client Materials.

7.3 The Client grants to CyberHive a sub-licensable, non-transferable, non-exclusive, royalty-free, worldwide licence to use all of the Client’s Intellectual Property Rights in the Client Data and Client Materials to enable CyberHive’s provision of the Services.

7.4 The Client:
(a) warrants that the receipt and use in the provision of the Services by CyberHive, its agents, subcontractors or consultants of the Client Data and/or Client Materials shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify CyberHive against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by CyberHive arising out of or in connection with any claim brought against CyberHive, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s rights, including without limitation their Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Client Data and/or Client Materials.

8. Client Data and Data Protection

8.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.

8.2 The parties shall comply with their obligations under the Data Protection Schedule.

9. Non-solicitation of employees

9.1 The Client shall not, without the prior written consent of CyberHive, at any time from the date on which any Services commence to the expiry of twelve months after the completion of such Services, solicit or entice away from CyberHive or engage or attempt to engage any person who is, or has been, engaged as an employee, worker, contractor or consultant of CyberHive in the provision of such Services.

9.2 Any consent given by CyberHive in accordance with clause 9.1 shall be subject to the Client paying to CyberHive a sum equivalent to 50% of the then current annual remuneration of CyberHive’s employee, worker, contractor or consultant or, if higher, 50% of the annual remuneration to be paid by the Client to that employee, worker, contractor or consultant.

10. Confidentiality

10.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or CyberHives of the other party , except as permitted by clause 10.2(a).

10.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the CyberHive Terms of Service. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with a Client Order Form.

11. Limitation of liability

11.1 Background to the limits and exclusions on CyberHive’s liability. CyberHive has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 (one million GBP) on aggregate. The limits and exclusions in this clause reflect the insurance cover CyberHive has been able to arrange, and the Client is responsible for making its own arrangements for the insurance of any excess loss.

11.2 Scope of this clause. References to liability in this clause 11 include every kind of liability arising under or in connection with each Client Order Form including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

11.3 No limitation of the Client’s payment obligations. Nothing in this clause 11 shall limit the Client’s payment obligations under the CyberHive Terms of Service.

11.4 Liability under indemnity clause. Nothing shall limit the Client’s liability in respect of any indemnities given under the CyberHive Terms of Service.

11.5 Liability caused by third parties. The CyberHive shall not be liable for any actions or omissions of third parties including where such third-party actions cause the termination, suspension, alteration or restriction of Services.

11.6 Liability caused by the Client. The CyberHive shall not be liable for any actions or omissions of the Client including any failure to comply with its obligations in the CyberHive Terms of Service or where the Client does not follow the CyberHive’s recommendations.

11.7 Liabilities which cannot legally be limited. Nothing in the CyberHive Terms of Service limits any liability which cannot legally be limited.

11.8 Cap on the CyberHive’s liability. Subject to clause 11.7, the CyberHive’s total and aggregate liability to the Client under each Client Order Form shall not exceed the lower of:
(a) The total Fees paid by the Client under the Client Order Form under which the cause or action arose; or
(b) £1,000,000 (one million GBP).

11.9 Specific heads of excluded loss. Subject to clause 11.7, the CyberHive shall not be liable for the following types of losses: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.

11.10 Client Data. CyberHive shall not be responsible for any loss, destruction, alteration or unauthorised access to, or disclosure of Client Data.

11.11 Exclusion of statutory implied terms. CyberHive has given commitments as to compliance of the Services with relevant specifications in clause 3.1. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the CyberHive Terms of Service.

11.12 Indemnity. The Client shall indemnify CyberHive against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by CyberHive arising out of or in connection with the Client’s breach of the CyberHive Terms of Service.

12. Termination

12.1 Without affecting any other right or remedy available to it, either party may terminate all Client Order Forms entered into pursuant to the CyberHive Terms of Service or otherwise with immediate effect by giving written notice to the other party if:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(c) the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 28 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(a) to clause 12.1(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(k) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the CyberHive Terms of Service is in jeopardy.

12.2 Without affecting any other right or remedy available to it, CyberHive may suspend or terminate (at its option) all Client Order Forms entered into pursuant to the CyberHive Terms of Service or otherwise with immediate effect by giving notice to the Client if:
(a) the Client is in material breach of any term of the CyberHive Terms of Service and if such breach is remediable fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
(b) the Client fails to pay any amount due to CyberHive on the due date for payment and remains in default not less than 14 days after being notified to make such payment.

12.3 Where CyberHive has the right to terminate all Client Order Forms pursuant to clause 12.2, it may instead choose to only terminate the applicable Client Order Form which gave rise to the right to terminate, keeping the remaining Client Order Form(s) in force.

13. Obligations on termination and survival

13.1 Obligations on termination or expiry
On termination or expiry of each Client Order Form:
(a) the Client shall immediately pay to CyberHive all of CyberHive’s outstanding unpaid invoices and interest and, without limiting clause 15.1(c) and clause 15.1(d), in respect of the Services supplied but for which no invoice has been submitted, CyberHive may submit an invoice, which shall be payable immediately on receipt;
(b) the Client shall immediately pay to CyberHive any costs already incurred or costs which CyberHive had already committed to pay in connection with the Services;
(c) in respect of Services which the parties agreed would be supplied for a fixed period of time, CyberHive may submit an invoice for the remaining period as if the Services were to be supplied for the rest of that period;
(d) the Client shall not be entitled to a refund on any of the Fees paid in advance for any Services;
(e) the Client shall, within a reasonable time, return all of CyberHive’s Equipment. If the Client fails to do so, then CyberHive may enter the Client’s premises and take possession of CyberHive’s Equipment. Until CyberHive’s Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping; and
(f) CyberHive shall on request return any of the Client Materials not used up in the provision of the Services; and
(g) the provision of all Services shall immediately cease.

13.2 Survival
On termination or expiry of each Client Order Form:
(a) any provision of the Client Order Form that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Client Order Form shall remain in full force and effect; and
(b) termination or expiry of the Client Order Form shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Client Order Form which existed at or before the date of termination or expiry.

14. Force majeure

14.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); non-performance by CyberHives or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and interruption or failure of utility service.

14.2 If a party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

15. Other important terms

15.1 No partnership or agency between the parties. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

15.2 No agency on behalf of third party. Save for as otherwise set out in this Agreement, each party confirms it is acting on its own behalf and not for the benefit of any other person.

15.3 Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.4 No reliance on matters outside Agreement. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

15.5 Misrepresentation and misstatement.  Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

15.6 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15.7 Assignments and other dealings. This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

15.8 No automatic waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.9 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

15.10 Notices.  Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address that either party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier, or email to the email address that either party may specify to the other party.

15.11 Deemed receipt of notices. A notice or other communication shall be deemed to have been received:
(a) if delivered personally, when left at the address referred to in clause 15.10;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed;
(d) or, if sent by email, one Business Day after transmission.

15.12 Exclusions from notice provisions. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

15.13 Third party rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

15.14 Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

15.15 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

Schedule 1

Schedule 1 Subscription Terms
1. Interpretation
1.1 In addition to the definitions and rules of interpretation set out in the main body of the CyberHive Terms of Service, the following definitions apply in this Schedule 1:
Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Subscription Services in accordance with the terms of this Agreement.
Documentation: the document made available to the Client by CyberHive online www.cyberhive.com/or such other web address notified by CyberHive to the Client from time to time which sets out a description of the Subscription Services and the user instructions for the Subscription Services.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Client or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Subscriptions: the account and/or Subscriptions purchased by the Client which entitle Authorised Users to access and use the Subscription Services and the Documentation in accordance with this Agreement.
Subscription Fees: the fees payable for the Subscription Services as specified in the Subscription Order Form.
Subscription Order Form: an Order Form which relates to the provision of the Subscription Services.
Subscription Services: the subscription services provided by CyberHive to the Client under this Agreement via www.cyberhive.com/tos/or any other website notified to the Client by CyberHive from time to time which is supported by the Software.
Software: the software application identified in the Subscription Order Form provided by CyberHive as part of the Subscription Services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

2. Subscriptions
2.1 Subject to the Client purchasing the Subscriptions in accordance with paragraph 3.3, the  restrictions set out in this paragraph 2 and the other CyberHive Terms of Service of this Agreement, CyberHive hereby grants to the Client a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Subscription Services during the term of the Subscription Order Form solely for the Client’s internal business operations.

2.2 In relation to the Authorised Users, the Client undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Subscription Services shall not exceed the number of Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Subscription Services;
(c) each Authorised User shall keep a secure password for their use of the Subscription Services and that each Authorised User shall keep their password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to CyberHive within 5 Business Days of CyberHive’s written request at any time or times;
(e) it shall permit CyberHive or CyberHive’s designated auditor to audit the Subscription Services in order to establish the name and password of each Authorised User and the Client’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at CyberHive’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;
(f) if any of the audits referred to in paragraph 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to CyberHive’s other rights, the Client shall promptly disable such passwords and CyberHive shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in paragraph 2.2(e) reveal that the Client has underpaid the Subscription Fees to CyberHive, then without prejudice to CyberHive’s other rights, the Client shall pay to CyberHive an amount equal to such underpayment as calculated in accordance with CyberHive’s then current rates within 10 Business Days of the date of the relevant audit.

2.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property.
CyberHive reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this paragraph 2.3.

2.4 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Subscription Services in order to build a product or service which competes with the Subscription Services;
(c) use the Subscription Services to provide services to third parties;
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party except the Authorised Users,
(e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under this paragraph 2.4; or
(f) introduce, or permit the introduction of, any Virus or Vulnerability into CyberHive’s network and information systems.

2.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and, in the event of any such unauthorised access or use, promptly notify CyberHive.

3. Additional Subscriptions

3.1 Subject to this paragraph 3, the Client may, from time to time purchase additional Subscriptions in excess of the number set out in the Subscription Order Form and CyberHive shall grant access to the Subscription Services to such additional Authorised Users in accordance with the provisions of this Agreement.

3.2 If the Client wishes to purchase additional Subscriptions, the Client shall notify CyberHive in writing. CyberHive shall evaluate such request for additional Subscriptions and respond to the Client with approval or rejection of the request. Where CyberHive approves the request, CyberHive shall activate the additional Subscriptions within a reasonable period of time of the Client’s request provided that the Client has paid the relevant Subscription Fees payable for such additional Subscriptions. If such additional Subscriptions are purchased by the Client part way through the Initial Period or then current Renewal Period of the Subscription Order Form (as applicable), such Subscription Fees shall be pro-rated from the date of activation by CyberHive for the remainder of the Initial Period or then current Renewal Period (as applicable).

3.3 If CyberHive approves the Client’s request to purchase additional Subscriptions, the Client shall, within 30 days of the date of CyberHive’s invoice, pay to CyberHive the relevant fees for such additional Subscriptions as set out in the Subscription Order Form, if such additional Subscriptions are purchased by the Client part way through the Initial Period or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by CyberHive for the remainder of the Initial Period or then current Renewal Period (as applicable).

4. Services

4.1 CyberHive shall, during the term of the Agreement, provide the Subscription Services and make available the Documentation to the Client on and subject to the terms of this Agreement.

5. CyberHive’s obligations

5.1 CyberHive:
(a) does not warrant that:
(i) the Client’s use of the Subscription Services will be uninterrupted or error-free;
(ii) that the Subscription Services, Documentation and/or the information obtained by the Client through the Subscription Services will meet the Client’s requirements;
(iii) the Software or the Subscription Services will be free from Vulnerabilities or Viruses; or
(iv) the Software, Documentation or Subscription Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.2 CyberHive warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

5.3 CyberHive shall follow its archiving procedures for Client Data as set out in its Back-Up Policy as may be notified to the Client from time to time, as such document may be amended by CyberHive in its sole discretion from time to time. A copy of the Back-Up Policy can be provided to the Client upon written request to CyberHive In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against CyberHive shall be for CyberHive to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by CyberHive in accordance with the archiving procedure described in its Back-Up Policy. CyberHive shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by CyberHive to perform services related to Client Data maintenance and back-up for which it shall remain fully liable).

6. Client’s obligations

6.1 The Client shall:
(a) ensure that the Authorised Users use the Subscription Services and the Documentation in accordance with the CyberHive Terms of Service of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(b) obtain and shall maintain all necessary licences, consents, and permissions necessary for CyberHive, its contractors and agents to perform their obligations under this Agreement, including without limitation the Subscription Services;
(c) ensure that its network and systems comply with the relevant specifications provided by CyberHive from time to time; and
(d) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to CyberHive’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

7. Proprietary rights

7.1 The Client acknowledges and agrees that CyberHive and/or its licensors own all intellectual property rights in the Subscription Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Subscription Services or the Documentation.

7.2 CyberHive confirms that it has all the rights in relation to the Subscription Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

8. Consequences of termination

8.1 On termination of this Agreement for any reason CyberHive may destroy or otherwise dispose of any of the Client Data in its possession unless CyberHive receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. CyberHive shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by CyberHive in returning or disposing of Client Data.

 

Schedule 2 Hardware Terms

1. Interpretation
1.1 In addition to the definitions and rules of interpretation set out in the main body of the CyberHive Terms of Service, the following definitions apply in this Schedule 2:
Delivery Location: the delivery location for the Hardware as specified in the Hardware Order Form.
Hardware Fee: the fees payable for the Hardware as specified in the Hardware Order Form.
Hardware Order Form: an Order Form which relates to the provision of Hardware.

2. Sale of Hardware

2.1 The Hardware is as described in the Hardware Order Form.

3. Delivery

3.1 Delivery is completed once the Hardware is unloaded at the Delivery Location. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.

3.2 If CyberHive fails to deliver the Hardware for any reason, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement equipment of similar description and quality in the cheapest market available, less the price of the Hardware.

3.3 CyberHive shall not be liable for any delay or failure in delivery of the Hardware that is caused by a Force Majeure Event or the Client’s failure to provide CyberHive with adequate delivery instructions or any other instructions that are relevant to the supply of the Hardware.

3.4 If the Client fails to accept delivery of the Hardware, then:
(a) the Customer shall remain liable to pay the Hardware Fee as and when it falls due as specified in the Hardware Order Form;
(b) delivery of the Hardware shall be deemed to have been completed at 9.00 am on the day on which the Hardware were made ready for delivery; and
(c) CyberHive shall store the Hardware until actual delivery takes place, and charge the Client for all related costs and expenses (including insurance) or shall be entitled to cancel the sale of the Hardware and resell the Hardware to another third party without liability.

4. Cancellation

4.1 The Client is granted a cooling off period, where it is entitled to cancel the purchase of the applicable Hardware for any reason provided that:
(a) it pays to CyberHive a restocking fee for processing the cancellation at such rates as notified to the Client from time to time;
(b) the Hardware remains in the same condition on which it was provided and in the same packaging;
(c) it returns such Hardware  to CyberHive (at a location nominated by CyberHive in writing) within 7 days of delivery of the Hardware to the Client in accordance with paragraph 3.1 and paragraph 3.4(b); and
(d) it accepts full responsibility for the secure return of the Hardware to CyberHive in accordance with CyberHive’s written instructions at the Client’s expense. For the avoidance of doubt, such Hardware will be at the Client’s sole risk until CyberHive confirms secure return of the Hardware in writing.

5. Quality

5.1 Some of the Hardware we sell to you comes with a manufacturer’s guarantee. For details of the applicable terms and conditions, please refer to the manufacturer’s guarantee provided with the Hardware.

5.2 CyberHive warrants that on delivery, the Hardware shall:
(a) conform with their description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose expressly held out by CyberHive.

5.3 Subject to clause 5.3, CyberHive shall, at its option, repair or replace the defective Hardware, or refund the price of the defective Hardware in full where:
(a) the Client gives notice in writing to CyberHive within 2 Business Days of discovery (such timing of discovery to be supported by evidence) that the Hardware does not comply with the warranty set out in paragraph 5.1;
(b) CyberHive is given a reasonable opportunity of examining such Hardware; and
(c) the Client (if asked to do so by CyberHive) returns the Hardware to CyberHive’s place of business at the Client’s cost.

5.4 CyberHive shall not be liable for Hardware’s failure to comply with the warranty set out in paragraph 5.1 if:
(a) the Client orders any Hardware which is ‘used’ even where it has been refurbished;
(b) the Client makes any further use of such Hardware after giving notice in accordance with paragraph 5.2(a);
(c) the defect arises because the Client failed to follow CyberHive’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Hardware or (if there are none) good trade practice regarding the same;
(d) the Client alters or repairs such Hardware;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Hardware differs from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

6. Liability

6.1 Except as provided for in paragraph 5, CyberHive shall have no liability to the Client in respect of the Hardware’s failure to comply with the warranty set out in paragraph 5.1.

6.2 CyberHive has given commitments as to the quality of the Hardware in paragraph 5.1. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.

7. Title and Risk

7.1 The risk in the Hardware shall pass to the Client on their delivery to the Client in accordance with paragraph 3.1 and paragraph 3.4(b).

7.2 Title to the Hardware shall not pass to the Client until CyberHive receives payment in full (in cash or cleared funds) for the Hardware.

7.3 Until title to the Hardware has passed to the Client, the Client shall:
(a) store the Hardware separately from all other equipment held by the Client so that they remain readily identifiable as CyberHive’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware;
(c) maintain the Hardware in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify CyberHive immediately if it becomes subject to any of the events listed in clauses 12.1(a)- 12.1(k) of the CyberHive Terms of Service; and
(e) give CyberHive such information as CyberHive may reasonably require from time to time relating to:
(i) the Hardware; and
(ii) the ongoing financial position of the Client.

7.4 At any time before title to the Hardware passes to the Client, CyberHive may require the Client to deliver up all Hardware in its possession that have not been resold, or irrevocably incorporated into another product and if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Hardware is stored in order to recover them.

Schedule 3 Data Protection Schedule

1. Definitions
Applicable Laws: means:
(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which CyberHive is subject.
Applicable Data Protection Laws: means:
(c) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(d) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which CyberHive is subject, which relates to the protection of personal data.
Client Personal Data: any personal data which CyberHive processes in connection with this agreement, in the capacity of a processor on behalf of the Client.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Purpose: the purposes for which the Client Personal Data is processed, as set out in clause 2.7(a).
CyberHive Personal Data: any personal data which CyberHive processes in connection with this agreement, in the capacity of a controller.
UK GDPR: has the meaning given to it in the Data Protection Act 2018.

2. Data Protection

2.1 For the purposes of this clause 2, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
(a) Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 2 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

2.2 The parties have determined that, for the purposes of Applicable Data Protection Laws:
(a) CyberHive shall act as controller in respect of the personal data which it provides to the Client pursuant to providing the goods/services; and
(b) CyberHive shall process the Client Personal Data as a processor on behalf of the Client.

2.3 Should the determination in clause 2.2 change, then each party shall work together in good faith to make any changes which are necessary to this clause 2 or the related annexes.

2.4 By entering into this agreement, the Client consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by CyberHive in connection with the processing of CyberHive Personal Data, provided these are in compliance with the then-current version of CyberHive’s privacy policy available at https://www.ziaas.com/privacy-policy/ (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.

2.5 Without prejudice to the generality of clause 2.1(a), the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of CyberHive Personal Data and Client Personal Data to CyberHive and lawful collection of the same by CyberHive for the duration and purposes of this agreement.

2.6 In relation to the Client Personal Data, Annex 1 sets out the scope, nature and purpose of processing by CyberHive, the duration of the processing and the types of personal data and categories of data subject.

2.7 Without prejudice to the generality of clause 2.1(a) CyberHive shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, unless CyberHive is required by Applicable Laws to otherwise process that Client Personal Data. Where CyberHive is relying on Applicable Laws as the basis for processing Client Processor Data, CyberHive shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. CyberHive shall inform the Client if, in the opinion of CyberHive, the instructions of the Client infringe Applicable Data Protection Laws;
(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by CyberHive to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to CyberHive), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless CyberHive is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 2.7(f) Client Personal Data shall be considered deleted where it is put beyond further use by CyberHive; and
(g) maintain records to demonstrate its compliance with this clause 2.

2.8 The Client hereby provides its prior, general authorisation for CyberHive to:
(a) appoint processors to process the Client Personal Data, provided that CyberHive:
(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on CyberHive in this clause 2;
(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of CyberHive; and
(iii) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to CyberHive’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify CyberHive for any losses, damages, costs (including legal fees) and expenses suffered by CyberHive in accommodating the objection.
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that CyberHive shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of CyberHive, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).

2.9 Either party may, at any time on not less than 30 days’ notice, revise this Data Protection Schedule by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner’s Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply when replaced by attachment to this agreement, but only in respect of such matters which are within the scope of the Amended Terms.

2.10 Notwithstanding any other terms of this agreement, CyberHive’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract insofar as it relates to the obligations set out in this clause 2, or Applicable Data Protection Laws shall be limited as set out in clause 11.8.

Annex 1 Particulars of the processing
1. Particulars of processing
1.1 Scope: the provision of the products or services by CyberHive.
1.2 Nature and Purpose: to enable CyberHive to provide the Services.
1.3 Duration of the processing: the term of the Agreement.
2. Types of Personal Data
· Names;
· Addresses;
· Email addresses;
· Contact numbers; and
· Other Personal Data made available to CyberHive by the Client.
3. Categories of Data Subject
· Client personnel; and
· Client’s customers.