Last updated: 11/2/2023
INTRODUCTION, DEFINITIONS, ACCEPTANCE, AND MODIFICATIONS
"HIVE" refers to HIVE Performance Computing Ltd., a duly incorporated company with its registered address at 3rd Floor, 99 Front Street, Hamilton HM12, Bermuda, who owns and operates the Website and Services. Where the present Terms refer to "HIVE", they may refer to HIVE and / or its affiliates, subsidiaries and parent companies and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively "Representatives" ), depending on the context. Any reference to "HIVE Cloud", "we", "our", or "us" in these Terms or the Incorporated Documents shall also refer to HIVE.
"Services" refer to the cloud computing services provided by HIVE, and as more fully detailed below. In these Terms and the Incorporated Documents, the Services may also be referred to as the "HPC Cloud Services" or the "HIVE Cloud Services".
"Website" is the website located at https://hivecloud.com/ which is owned and operated by HIVE, and includes all subdomains and subpages, present and future, including but not limited to any subpages where you can access the front-facing portion of the Services.
In these Terms, a Website visitor or Services user may be referred to as "you". When a Services user has an account and is logged in to the Services, they may be referred to as a "Logged-in User". When a Services user has purchased access to the Services, they may be referred to as the "Customer". Collectively HIVE and you may be referred to as the "Parties".
Additional definitions shall be made throughout these Terms, but they will be recognizable as they will be capitalized, bolded, and in quotation marks.
BY VISITING THE WEBSITE, OR SIGNING UP TO USE THE SERVICES IN ANY MANNER INCLUDING BUT NOT LIMITED TO SIGNING OR ACCEPTING AN ORDER FORM, YOU HEREBY ACCEPT TO BE BOUND BY THESE TERMS WITHOUT ANY RESERVATIONS,MODIFICATIONS, ADDITIONS OR DELETIONS. IF YOU DO NOT AGREE TO ALL THE PROVISIONS CONTAINED IN THE TERMS, YOU ARE NOT AUTHORIZED TO USE THE WEBSITE OR SERVICES. THE TERMS ARE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND US.
IF YOU ARE AN INDIVIDUAL USING THE SERVICES ON BEHALF OF A CORPORATION, PARTNERSHIP, ASSOCIATION OR OTHER REGISTERED ORGANIZATION ("LEGAL ENTITY"), YOU REPRESENT AND WARRANT THAT YOU HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE LEGAL ENTITY, AND HEREBY AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT ON BEHALF OF THAT LEGAL ENTITY. IN SUCH CASE, ANY REFERENCE TO "YOU" OR "CUSTOMER" IN THESE TERMS MAY ALSO REFER TO THE LEGAL ENTITY, AS APPLICABLE.
THE FOREGOING ACCEPTANCE IS SUPPLEMENTED BY THE "CONCLUSION OF THE TERMS" SECTION 2 HEREINBELOW.
HIVE reserves the right, at any time and without prior notice, to modify or replace any of the Terms. Any changes to the Terms can be found at this URL. It is your responsibility to check the Terms periodically for changes. Your use of the Website or Services following the posting of any changes to the Terms constitutes acceptance of those changes. If there are any significant changes to the Terms that materially affect your relationship with us, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account, by posting a prominent notice when you log in to your account for the first time following those changes, or by posting a prominent notice on the Website following those changes.
1. SUBJECT OF THE TERMS
1.1. The primary subject of the Terms is the supply of cloud computing services with standard lease or pre-emptible lease (pre-award) modes of use, of hardware resources, for the implementation of a certain number of open source and non-open source applications (hereinafter the "Services"), under the terms and conditions agreed upon in these Terms.
1.2. Specifically, HIVE offers a cloud-based High Performance Computing ("HPC") system dedicated to the AI/ML, rendering and VFX world, with which it is possible to exploit the power of a cluster to perform computing. The system allows the user to select its own machine in terms of GPU, CPU and available RAM and to exploit this for solving the case under study.
1.3. Certain software will be made available through the Services offered by HIVE. Such software is constantly being updated and expanded and can be subject to change, and HIVE makes no representations or warranties regarding the availability of any software available through the Services, and expressly disclaims any liability therefrom.
1.4. The machines made available by HIVE in the HPC cloud are listed on the Website. The list of machines made available by HIVE is subject to changes and updates, and HIVE makes no representations or warranties regarding the availability of any machines available through the Services, and expressly disclaims any liability therefrom.
1.5. The Services shall enable the Customer to use the Services according to its functions for purposes related to the Customer's professional and working activity, in compliance with the technical limitations of the Services.
1.6. Additionally, these Terms govern your use of, or interaction with, the Website.
2. CONCLUSION OF THE TERMS AS IT RELATES TO THE SERVICES
2.1. The Terms, as they relate to the Services, are concluded only upon the written response acknowledging acceptance by HIVE Cloud and further to HIVE Cloud's receipt of Customer's pre-payment, and signature (including electronic acceptance) of the document outlining the available Services to you (the "Order Form"). If the Order Form is accepted by HIVE Cloud, but the pre-payment is not received by HIVE Cloud, then no Agreement has been concluded between the Parties and HIVE Cloud has no obligations towards Customer as it relates to the Services. In order to submit to HIVE Cloud a proposal for an Order Form, the Order Form must be completed by the Customer in all its parts, together with this Terms signed by the Customer and submitted to HIVE Cloud for review and consideration. For further clarity, not all submitted Order Forms will be accepted by HIVE Cloud and HIVE Cloud reserves the right to reject any Order Form without the need to provide any justification to the Customer.
2.2. Having acquired the Order Form, in accordance with the preceding paragraph, HIVE will activate the "Access to the Services" account and send you the "Account Credentials" (username and password) by email, to the email address indicated by the Customer on the Order Form.
2.3. The Services shall only be activated by HIVE after the Customer, when they are a Logged-in User, has entered the chosen payment method from those indicated (e.g. credit card) and pre-paid for the Services requested, as specified further in these Terms.
2.4. By sending us the Order Form, the Customer acknowledges and accepts that it concludes the Agreement whose only valid and effective version is the one in English, while any other versions provided by HIVE in any other foreign language are made available as a courtesy only.
3. METHODS OF DELIVERY AND USE OF THE SERVICES
3.1. The Customer accepts and acknowledges as its own, any use and operation of the Services (connection, modification, data registration and other activities) that will be carried out with its access keys and Account Credentials, whether by the Customer or any third party using the Customer's Account Credentials.
3.2. Once the Customer has access to the Services, it may, in compliance with the conditions and terms of these Terms, and the technical limitations, at Customer's sole risk, store information and data relating to the functionalities of the Services in the memory areas which are reserved for them.
3.3. No data will be preserved by HIVE Cloud unless it is set out within the Order Form. Anything submitted for Storage by the Customer, without having indicated on the Order Form or paid for such services may automatically be deleted without any possibility of recovery. Should the Customer require data storage, it must discuss such requirements with HIVE Cloud and the Parties will together discuss the feasibility and fees related to such requests. Upon termination of any order, anything submitted shall automatically be deleted without any possibility of recovery.
3.4. HIVE may vary the technical characteristics, systems and resources as a result of the technological evolution of the hardware and software components. These changes shall take effect immediately in the Services and shall be communicated to the Customer on a quarterly basis or by way of update when the Customer is a Logged-in User for the fist time following the updates.
4. LIMITATIONS AND EXCLUSIONS OF RESPONSIBILITY FOR THE SERVICES
4.1. HIVE ensures operation 24 hours per day, 7 days per week, including holidays for the duration of the Agreement, limited only by the SLA . Maintenance, on the other hand, shall be limited to during office hours from Monday to Friday, excluding statutory holidays.
4.2. If purchased by the Customer and specified in the Order Form, HIVE shall back up all data contained in the Services on a daily basis and shall restore the latest available version of the data if necessary.
4.3. HIVE will engage its best reasonable efforts that it has and is equipped with appropriate tools to effectively protect the physical, IT and organisational security of the information.
4.4. In case of impossibility and/or incorrect provision of the Services for reasons attributable to HIVE, the latter undertakes to reimburse the Customer the maximum of an amount equal to that already paid by the latter for the execution of the Agreement, and as described in the SLA. Nothing else shall be due from HIVE to the Customer by way of compensation, indemnity or otherwise.
4.5. In any event, and without limiting the general limitations of liability further in these Terms, HIVE and its Representatives shall not be liable in any way for direct and /or indirect damages claimed by the Customer including but not limited to loss of earnings, loss of data, loss of turnover, or loss of chances.
4.6. HIVE shall not perform any surveillance on the Customer's use of the Services and the Services generally. Therefore, HIVE does not control the conduct or acts put in place by the Customer and/or by any third parties authorised by the same, i.e. it does not control or monitor the information and/or data and/or content these enter into the Services. Notwithstanding the foregoing, HIVE retains the right to investigate any Customer and the Customer's use of the Services if HIVE reasonably believes these Terms are being violated.
5. OBLIGATIONS OF THE CUSTOMER AS IT RELATES TO THE SERVICES
5.1. The Customer must access and make use of the Services and use the Services exclusively within the scope of its business activity and in any case for lawful and legitimate purposes, with the utmost diligence, strictly complying with the applicable laws and regulations, as well as with the provisions of these Terms and of the Incorporated Documents most notably the Acceptable Use Policy, and without infringing the rights and interests of HIVE and of third parties.
5.2. Unless otherwise agreed upon in writing in the Order Form, the Customer declares that they are the sole and exclusive user of the Services and solely responsible for the content of the information, text and data recorded, stored and transmitted with the Services.
5.3. The Customer is prohibited from storing any information or data other than those related to the functionalities of the Services.
5.4. The Customer undertakes not to disclose, transfer or allow third parties to use the provided access keys and Account Credentials and to store these with the utmost care and diligence.
5.5. The Customer undertakes to allow access to the Services and the use of the Services exclusively to its own personnel and/or collaborators who have been made aware of and have accepted all the obligations deriving from the Agreement. It is understood that the Customer shall be liable towards HIVE for any breach of these Terms or any unlawful or illegal act by its personnel or collaborators or other authorised users.
5.6. In any case, the Customer is solely responsible for all operations carried out during the use (data entry and dissemination), administration and management of the Services. As a result, the Customer therefore exempts HIVE and its Representatives from any liability, for the operations carried out whilst using the Services and for any direct or indirect damages to persons or property resulting from such operations. Furthermore, the Customer undertakes to hold harmless HIVE and its Representatives against any dispute and claim for compensation or of any other nature made by third parties for these operations, as well as against any disputes connected with the distribution and dissemination on the network of such entered data.
5.7. The Customer shall inform HIVE in writing of any unauthorised use of its Account Credentials, its access keys or of any other breach of the security of the Services, within 24 hours of becoming aware of the event. In the event of theft and/or loss of the access keys, the Customer shall immediately notify HIVE in writing, in order that the latter may deactivate and replace these.
5.8. The Customer also guarantees that the data and information transmitted to HIVE for the purpose of concluding the Agreement are true, correct and such as to allow its identification, and undertakes to communicate any changes thereto, including the email address indicated in the Order Form. If the Customer, at the time of identification, has concealed its real identity or falsely declares to be another subject, including through the use of untrue personal documents, or in any case, has acted in such a way as to compromise the identification process, it acknowledges and accepts that it will be held, including criminally, responsible for the false declarations and/or the use of false documentation and will also be considered exclusively responsible for all damages suffered and to be suffered by HIVE and/or by third parties because of the inaccuracy and/or falsehood of the information transmitted, accepting as of now the obligation to indemnify and hold harmless HIVE and its Representatives from any possible claim, action and/or request for compensation or damages which may be advanced by anyone against it.
5.9. It shall be the duty of the Customer to send HIVE an "end of Services" notice and, only on receipt of such notice, shall HIVE cease to provide the Services requested or paid for by the Customer. All pre-paid Order Forms are non-refundable, and the Customer's end-of-Services notice will annul any outstanding pre-paid services or credits outstanding.
5.10. The Customer makes the following representations and warranties to HIVE:
- It has the full power and authority to carry on its businesses.
- The obligations expressed to be assumed by it under the Agreement are legal, valid, binding and enforceable obligations.
- It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, the Agreement and the transactions contemplated by the Agreement.
- The entry into and performance by it of, and the transactions contemplated by, the Agreement do not and will not conflict with any applicable laws, its constitutional documents; or any agreement or instrument binding upon it or any of its assets.
- All authorizations required or desirable, to enable it lawfully to enter into, exercise its rights under and comply with its obligations under the Agreement; to ensure that those obligations are legal, valid, binding and enforceable; and to make the Agreement admissible in evidence in its jurisdiction of incorporation, have been, or will have been by the time, obtained or effected and are, or will be by the appropriate time, in full force and effect.
- It is not aware of any circumstances which are likely to lead to any authorization obtained or effected not remaining in full force and effect, any authorization not being obtained, renewed or effected when required or desirable; or any authorization being subject to a condition or requirement which it does not reasonably expect to satisfy or the compliance with which has or could reasonably be expected to have a material adverse effect.
- It is not the target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury or Singapore ("Sanctions"), including by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained by OFAC or any other Sanctions list maintained by one of the foregoing governmental authorities, directly or indirectly owned or controlled by one or more SDNs or other persons included on any other Sanctions list, or located, organized or resident in a country or territory that is the target of Sanctions.
- The use of the Services will not violate any applicable laws and regulations or HIVE's policies, including but not limited to the Acceptable Use Policy.
- All information supplied by the Customer is and shall be true and correct, and the information does not contain and will not contain any statement that is false or misleading.
- Customer acknowledges and agrees that, in entering into the Agreement, HIVE has relied on the warranties set forth in this section 5.10.
6. SUPPORT AND UPDATES
6.1. HIVE is under no obligation to update and further develop the Website or Services. Should it update the Services, HIVE shall inform the Customer, by means of electronic notices, of both updates and revisions issued in respect of the Services. All clauses of the Agreement shall apply to the thus updated or revised Services.
6.2. Throughout the duration of the Agreement, HIVE shall provide the Customer with technical assistance to solve problems in accessing and using the Services, and in operating and using the Services. Requests for support and information may be made electronically to the contact details given in the Order Form and may be invoiced to Customer according to the fee schedule in place at the time of the request if the technical assistance requests exceed the permitted threshold of support hours.
6.3. Support services are supplied by HIVE or by its agents; in order to enable the provision of the aforementioned support services, the Customer shall be required to supply the access keys to HIVE if requested.
6.4. The support services included in the Agreement are only those referred to in the Order Form any other activity not included in the Order Form will need to be requested by Customer, and should HIVE Cloud accept, shall be supplied by HIVE at the rates in force from time to time and which shall only be communicated to the Customer upon request.
6.5. Unless otherwise agreed in writing, HIVE shall not be obliged to provide the Customer with training regarding the Services' updates and revisions.
7. SUSPENSION OF SERVICES
7.1. The Customer is informed and accepts that the Services may be suspended in order to carry out scheduled technical interventions aimed at maintaining and/or updating the Services, the Services and/or the resources on which it is provided. HIVE will be required to notify the Customer by means of a written communication to the email address indicated in the Order Form with five (5) days' notice.
7.2. HIVE reserves the right, at its sole discretion, including without prior notice, to suspend the Services if:
- the Customer defaults on any provision of these Terms, including any Incorporated Documents;
- it has reasonable grounds to believe that the Services are being used by unauthorised third parties;
- cases of force majeure or circumstances should occur, which, in the sole opinion of HIVE, require urgent action to be taken, in particular to solve security problems and to prevent or avoid danger to the entire network or to persons or property;
- the Customer is involved, for whatever reason, in a judicial or extrajudicial dispute of a civil, criminal or administrative nature, including with third parties, in particular when the dispute concerns the Services;
- the suspension is requested or ordered by any competent court or judicial authority.
7.3. HIVE will restore the functionalities of the Services after the resolution of the causes that led to the suspension.
7.4. In the event of suspension of the Services attributable to the Customer, the period of suspension shall not be reimbursed or recovered in any way and HIVE shall be entitled to compensation for all damages, direct and indirect, suffered as a result of the Customer's conduct.
8. GUARANTEES AND EXCLUSIONS
8.1. HIVE ensures that the Website and Services shall be provided and that the Website and Services shall operate in accordance with these Terms.
8.2. HIVE guarantees the suitability of the Services provided only in relation to the information provided by the Customer and to the specific requirements of said Customer, who declares, by signing the Agreement, that it has previously examined the functionalities of the Services and that these meet its requirements.
8.3. Without prejudice to section 7, HIVE does not guarantee that the provision of the Website and Services and the operation of the Services shall be uninterrupted or error-free or in all the possible combinations of use, nor that all errors or defects can be remedied, but only that it shall do everything possible to remedy these, acknowledging as much as possible the unused period of use to the Customer.
8.4. In any event, HIVE and its Representatives shall not be liable for failure or partial use of the Services and operation of the Services caused (in whole or in part) by Customer omissions.
9. FEES FOR THE SERVICES; PAYMENT TERMS, PROCESSING AND BILLING
9.1. In return for the provision of the Services, the Customer shall pay to HIVE the amount specified in the Order Form, in accordance with the procedures specified therein and otherwise outlined in these Terms.
9.2. The Customer may not suspend payment for any reason whatsoever, including in the event of disputes about the provision of the Services or the operation of the Services.
9.3. Failure to pay the amount due shall entitle HIVE to suspend the Services. HIVE shall send the Customer a notice of default, reserving the right to quantify the damages and without prejudice to its right to demand fulfilment or to terminate the Agreement.
9.4. Customer pre-payments are non-refundable.
9.5. Unless otherwise specified in an Order Form, the default payment and billing terms are as follows:
- All on-demand compute usage fees are subject to change.
- For both prepaid services and all other batch compute services performed through the Services, HIVE Cloud uses third-party payment processors (the "Payment Processors" ) to credit or bill Customer through the payment account(s) linked to the Customer's account ( "Billing Information" ). Billing Information may include but not be limited to credit card number, billing address, credit card expiration date, bank account information, and bank transfer and autopay information The processing of credits or payments may be subject to the terms, conditions and policies of the Payment Processors in addition to the Agreement. HIVE Cloud is not responsible for the acts or omissions of the Payment Processors. Customer agrees to purchase credits or pay all sums for services Customer uses at applicable prices in accordance with these pricing and billing policies and Customer authorizes HIVE Cloud and Payment Processors to deduct or charge all such sums (including all applicable taxes) based on the payment method(s) specified in or linked to the Customer's account ("Payment Methods") .
- The Customer must provide current, valid, complete and accurate Billing Information for all Payment Methods linked to the Customer's account, and must promptly update all such information in the event of changes. Customer must promptly notify HIVE Cloud or the Payment Processors if a payment method is canceled (e.g., for loss or theft) or otherwise inoperable.
- HIVE Cloud Services other than prepaid services will be billed monthly in arrears based on the Customer's prior month's usage, and unless agreed to otherwise with HIVE Cloud and specified in an Order Form, all cloud services fees are due and payable upon receipt of invoice, which will be billed at the then current on-demand usage rates. All invoices under $20,000 will be automatically charged to the Customer's credit card using the Billing Information and selected Payment Methods. All invoices for $20,000 or more must be paid by bank transfer (ACH or Wire) using the Payment Methods linked to the Customer's account, payable immediately.
- HIVE Cloud reserves the right to deactivate, terminate, prevent access to, disable services for, and/or suspend or delete a Customer's account or access to any HIVE Cloud Services at any time for nonpayment, late payment (if applicable), or failure to maintain at all times current, valid, complete and accurate Billing Information and Payment Methods.
- Fees for either Reserved Compute Instances or Bulk Credits are due and payable in accordance with the applicable Order Forms.
- All fees for HIVE Cloud Services that are unpaid or past due for any reason are subject to a finance charge of 1.5% of the unpaid balance per month (or the highest rate permitted by law, whichever is lower) from the date such payment was due until the date paid. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by HIVE Cloud in collecting past due amounts. If any amount of your Fees is past due, we may suspend your access to the Services after we provide you written notice of late payment. Any amounts due under this Agreement shall not be withheld or offset by you against amounts due to you for any reason.
- Customer is responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest and back-payments relating to Customer's purchase of any HIVE Cloud Services, including but not limited to national, state or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively,"Taxes"). Unless otherwise stated, HIVE Cloud's pricing policies do not include and are not discounted or enhanced for any such Taxes. If HIVE Cloud becomes obligated to collect or pay Taxes in connection with the purchase of Services, those Taxes will be invoiced as part of a billing process or collected at the time of purchase. In certain states, countries and territories, the purchase of HIVE Cloud Services may be subject to certain Taxes, and if so, HIVE Cloud may collect such Taxes and remit them to the appropriate taxing authority. Customer must also provide any tax identification information that is necessary for compliance with these tax obligations. Customer is solely responsible for any misrepresentations made or non-compliance caused with respect to Taxes.
- With respect to prepaid credits, all credits are revocable or subject to early expiration for violations, including for abuse, misrepresentation of Billing Information, unauthorized transfer, or illegal conduct by the Customer.
- With respect to either Reserved Compute Instances or Bulk Credits purchased by the Customer pursuant to an Order Form, if, at any time during the Term of the Order Form, Customer's use thereof materially violates any of HIVE's policies including but not limited to the Acceptable Use Policy, HIVE Cloud may cancel the Order Form upon written notice to the Customer, such cancellation to be effective on the day HIVE sends out the written notice (the "Cancellation Date" ), and HIVE Cloud may suspend Client's use of the Reserved Compute Instances or Bulk Credits, as the case may be, immediately upon Client's violation or HIVE Cloud's discovery thereof.
- In the event that HIVE Cloud cancels an Order Form pursuant to the paragraph above, then Customer will be entitled to a refund equal to the prorated balance of the fees from the Cancellation Date through the end of the Term of the Order Form; provided, however, that Client's committed utilization of Reserved Compute Instances or use of Bulk Credits, as the case may be, from the Effective Date (as defined on the applicable Order Form) through the Cancellation Date will be charged at HIVE Cloud's on-demand rates then in effect and will offset any refund issued.
10. DURATION AND TERMINATION OF THE TERMS AS IT RELATES TO THE SERVICES
10.1. Unless otherwise agreed in writing in the Order Form, the Agreement shall last for a "Term" of 1 (one) year from the date of sending the access keys, with automatic renewal for the same duration on expiry should an Order From still be active. Should the Agreement terminate, the execution of an Order Form subsequent to this Agreement's termination shall re-activate this Agreement for a new Term. For clarity, these Terms cannot terminate while an Order Form is active.
10.2. In the event of non-fulfilment by one of the two Parties (irregularities and/or non-fulfilment of the signed Agreement), it will be the responsibility of the non-defaulting Party to send a written communication seeking the regularisation or fulfilment.
11. INTELLECTUAL PROPERTY RIGHTS TO THE WEBSITE AND SERVICES
11.1. The Customer is required to use the Services in compliance with the intellectual and/or industrial property rights of HIVE and this section. The software, as any other copyright or other intellectual property right, is the exclusive property of HIVE and/or of its assignors, therefore the Customer does not acquire any right or title in this regard and is required to use them only during the period of contractual validity. In the case of licences provided by third party providers through HIVE, the Customer, for itself and/or for the third parties it has allowed to use the Services, undertakes to accept and comply with the terms of the aforementioned licences.
11.2. You acknowledge that: (a) the Website and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) HIVE and/or third parties own all right, title and interest in and to the Website and Services and content that may be presented or accessed through the Website and Services, including without limitation all Intellectual Property Rights therein and thereto. All rights not specifically granted under these Terms are reserved to HIVE and its licensors. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, whether registered or not, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
11.3. You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Website and Services, or content that may be presented or accessed through the Website and Services for any purpose, unless otherwise permitted by these Terms or the functionalities of the Website and Services; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Website and Services; or (iii) remove, obscure, or alter HIVE'S or any third party's copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Website and Services.
11.5. If you choose to communicate to HIVE (via any means, included but not limited to by email) suggestions for improvements to the Website and Services or any idea or proposal related to HIVE or its businesses or properties generally (collectively,"Feedback"), HIVE shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to HIVE and waive in favor of HIVE, its successors and assigns all your moral rights in the Feedback, and agree to provide HIVE such assistance as HIVE may require to document, perfect, and maintain HIVE'S rights to the Feedback. You acknowledge and agree that, by providing any Feedback to HIVE, you are not entitled to any compensation or reimbursement of any kind from HIVE under any circumstances.
11.6. Should HIVE become aware of any improper use of the Services or breach of the prohibitions set out in this section by a Customer, it may terminate the Agreement, by sending a written notice to the Customer with the right to permanently retain the fees received, as partial compensation for the damages suffered, as well as to claim any further damages suffered.
12. INFORMATION SECURITY FOR THE SERVICES
12.1. The Customer, having acknowledged that HIVE has equipped itself with means and/or tools deemed suitable to protect the information (physical, logical, IT and organisational) in the most effective way, undertakes, hereby, not to disclose or make in any way available to third parties any confidential information known or managed in relation to the execution and/or application of the Terms without HIVE’s specific written consent.
13. INTERRUPTION OF THE WEBSITE
13.1. From time to time, the Website may be unavailable for brief periods of time for maintenance and / or modifications to the Website. While we will endeavour to make this unavailability as brief as possible, HIVE and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website, and disclaims any responsibility thereto.
14. GENERAL DISCLAIMER OF WARRANTIES
14.1. You expressly understand and agree that your use of the Website and Services, the information or material thereon (whether provided by HIVE or third parties) or any activity arising from your use of the Website or Services or the information thereon or the materials streamed or downloaded therefrom is at your sole risk. The Website and Services, any materials downloaded or streamed therefrom, or any third party materials, are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer or device or loss of data that results from the download, stream or access of any material obtained through the use of the Website or Services or any other functionalities of the Website and Services, or losses or damages (pecuniary or otherwise) resulting from (i) your use of the Website or Services, the information thereon, any materials downloaded or streamed therefrom, or (ii) any activity arising from the use of the Website or Services or the information or any materials downloaded or streamed therefrom.
14.2. HIVE expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Website and Services, the information thereon or any materials downloaded or streamed therefrom, and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. HIVE, and its Representatives do not warrant that: (i) the Website and Services will be secure or available at any particular time or location (except as provided for in the SLA); (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Website or Services is free of viruses or other harmful components; or (iv) the results of using the Website or Services, or any activity arising therefrom, or any content downloaded or streamed therefrom will meet your requirements.
15. LIMITATION OF LIABILITY
15.1. In no case will HIVE or its Representatives be liable for any indirect, special, consequential, exemplary, punitive damages or other damages, or for any losses, damages, liabilities, costs and expenses arising out of or relating to (i) your access, use, misuse or inability to access or use the Website or Services, or (ii) the interruption, suspension or termination of any part of or all the Website or Services; and in both cases (i) and (ii) regardless of the cause of action (whether in contract, warranty, delict, quasi-delict, tort, negligence, strict liability or any other theory of liability) and even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary in these Terms, and to the maximum extent permitted by law, in no event will our aggregate liability for any claims in connection with your use of the Website and Services and exceed the amount of fees paid in the previous 12 months.
15.2. You expressly understand and agree that HIVE or its Representatives shall not be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, in contract, tort, strict liability, negligence, general civil liability or any other cause of action under legal or equitable theory, relating to the Website or Services, the information on the Website and Services, your use of the Website or Services, activities arising from your use of the Website or Services, any third party materials on the Website and Services, or any materials downloaded from the Website or Services. This limitation of liability applies, without limitation, to any damages or injury caused by any error, omission or other failure of performance by HIVE or its Representatives; any interruption, defect or delay in operation or transmission, including communication line failure; any computer virus; and any theft, destruction or alteration of, or unauthorized access to or use of, any electronic records.
16. APPLICABLE LAW AND JURISDICTION
16.1. These Terms (or the Agreement) and your use of the Website or Services generally shall be governed by and construed in accordance with the laws of Bermuda.
16.2. Any dispute between the Parties concerning the interpretation, validity, execution and termination of these Terms or the Agreement, or any use of the Website or Services generally, shall fall under the exclusive jurisdiction of the Courts of Bermuda. Notwithstanding the foregoing, HIVE shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Bermuda court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Bermuda court.
17.2. In no case will any breaches and/or conduct of the Customer differing from the Terms be considered exceptions to the same or their tacit acceptance, even if not contested by HIVE. Any inaction of HIVE in exercising or enforcing any right or clause of the Terms does not constitute a waiver of such rights or clauses.
17.3. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavour to give effect to the Parties' intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.
17.4. The relationship between HIVE and you established in the Terms cannot be understood as a relationship based on a mandate, partnership, representation, collaboration or association or other similar or equivalent contractual form.
17.5. HIVE shall not be liable for any failure to perform its obligations under the present Terms where such failure results from any cause beyond HIVE's reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event
17.6. The Customer undertakes not to transfer the Agreement to any third parties without HIVE's prior written authorisation.
17.7. For anything not expressly provided for in the Terms, the Parties expressly refer, to the extent this is possible, to the laws in force.