Terms & Conditions of Business
See Parties:
- HIVE SERVICES GROUP is a limited company incorporated in England (company number 13173179) with its registered address at Suite D, South Cambridge Business Park, Babraham Road, Cambridge, England, CB22 3JH , England (“Hive”); and
- THE CUSTOMER who has engaged Hive for the provision of Services, whose details are set out in an Order (the “Customer”).
- Definitions and Interpretation
1.1. The definitions and rules of interpretation in this clause apply in these Terms & Conditions of Business (“Agreement”):
Affiliate: any company which is under common management control of, and of which more than 50% of the shares (or equivalent) are owned by: a party; a subsidiary of that party; its ultimate holding company; or any direct or indirectly owned subsidiary of such ultimate holding company (where “holding company” and “subsidiary” shall be as defined in section 1159 of the Companies Act 2006);
Business Day: Monday to Friday, excluding any bank holidays in England;
Charges: any charges payable by the Customer to Hive under this Agreement, as set out in the applicable Order;
Customer Materials: all information, text, specifications, graphics, documents, photos, designs, equipment and any other content or materials which are owned by, or licensed by a third party to, the Customer which are required for use in the provision of the Services;
1.2. Data Protection Laws: all applicable laws that relate to data protection, and the privacy of individuals which may include, without limitation, the Data Protection Act 2018, the General Data Protection Regulation 2016/679 and all applicable formal or informal guidance, rules, requirements, directions, guidelines, recommendations, advice, codes of practice, policies, measures or publications of the Information Commissioner’s Office (or any other relevant regulator or industry body), in each case in any relevant jurisdiction(s) from time to time and the equivalent in any other relevant jurisdictions, each as amended or replaced from time to time;
Deliverables: all goods and materials created by Hive or its agents whether or not in relation to the Services during the term of this Agreement, which may include but is not limited to text, diagrams, reports, specifications, or any other materials be supplied to the Customer as set out in the applicable Order;
Hive Materials: any materials, equipment, documents and/or other property (including any pre-existing Intellectual Property Rights) of Hive which are provided by Hive for the provision of the Services;
Intellectual Property Rights: any patents, copyright, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Order: means a document detailing the Customer’s confirmed order for the Services and/or Deliverables from Hive, as agreed by the parties in writing;
Proposal: a document setting out the specification for the Services relating to the Customer’s requirements and containing details of the Services and/or Deliverables to be provided by Hive to the Customer under this Agreement; and
Services: the services to be delivered, and the Deliverables to be created, by Hive to the Customer under this Agreement, as specified in the applicable Order. This may include, without limitation the provision of engineering consultancy and advisory services.
1.3. Unless the context otherwise requires:
1.3.1. words in the singular shall include the plural and, in the plural, include the singular;
1.3.2. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
1.3.3. the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.3.4. clause headings are for reference purposes only and do not affect the interpretation of the relevant clause;
1.3.5. time shall not be ‘of the essence’ under this Agreement unless otherwise stated;
1.4. a reference to ‘writing’ or ‘written’ includes email unless stated otherwise, but not faxes; and
1.4.1. in the event of conflict between the terms of this Agreement and the documents referenced herein, the documents shall take precedence in the following order of priority (with the documents that are higher in the list taking priority over documents lower in the list):
- a) the applicable Order (with newer Orders taking priority over older Orders);
- b) this Agreement;
- c) a Non-Disclosure Agreement (where applicable); and
- d) any other document incorporated by reference into this Agreement from time to time.
1.5. Engagement and Order Process
1.6. This Agreement shall:
1.6.1. apply to and be incorporated into any Services to be provided by Hive to the Customer; and
1.6.2. prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
1.7. The Order process shall be as follows:
1.7.1. the Customer shall request a proposal for Services from Hive;
1.7.2. Hive shall, at its sole discretion, provide the Customer with a Proposal, which shall set out its proposed specification and Charges for the Services. The Proposal may be provided to the Customer on the condition that the parties sign a Non-Disclosure Agreement;
1.7.3. Proposals are valid for 20 Business Days from the date of issue, after which they may be subject to amendment by Hive at its sole discretion;
1.7.4. if the Customer wishes to proceed with the Proposal, it shall be incorporated by Hive into an Order document. The parties may agree to incorporate all or any part of the Proposal into an Order;
1.7.5. for the avoidance of doubt, an Order is an invitation to treat. An Order will be deemed to be an offer by the Customer to purchase Services from Hive under this Agreement and either party may reject any Order, in whole or in part, at its sole discretion until it has been signed by both parties.
1.7.6. an Order will be effective and binding on the parties once the applicable Order has been signed by both parties in writing. For the avoidance of doubt, Orders are not binding until they have been agreed by both parties in writing (which may be by email).
1.8. Any Proposals, specifications, marketing collateral and/or fee estimates relating to the Services are illustrative only, and do not form part of this Agreement and do not have contractual force unless they are expressly incorporated into the applicable Order.
1.9. An amendment to a Proposal or Order document (prior to signature) will only be binding on Hive when it is expressly approved by an authorised signatory of Hive.
1.10. Upon providing the Customer with prior notice, Hive reserves the right to make any changes to the Services and/or Deliverables specification detailed in the applicable Order which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.
- Provision of the Services
2.1. Hive shall provide the Services to the Customer using reasonable care and skill and shall use reasonable efforts to deliver the Services and/or any Deliverables to the Customer in accordance with the applicable Order in all material respects.
2.2. Hive will use reasonable efforts to complete the Services and provide the Deliverables to the Customer within any timeframe agreed with the Customer, but for the avoidance of doubt all timeframes provided by Hive shall be estimates only.
2.3. Each of the parties warrant that it has the legal right and authority to enter into and adhere to the terms of this Agreement.
2.4. The Customer must:
2.4.1. ensure that each Order is accurate, complete and meets the Customer’s requirements;
2.4.2. promptly provide Hive with any reasonably requested assistance and/or co-operation in relation to the Services;
2.4.3. promptly provide to Hive all Customer Materials required under the applicable Order or otherwise reasonably required by Hive in connection with the Services and ensure that they are accurate and complete;
2.4.4. keep and maintain all Hive Materials at the Customer’s premises in safe custody at its own risk, maintain the Hive Materials in good condition until they are returned to Hive and not dispose of or use the Hive Materials other than in accordance with Hive’s written instructions or authorisation; and
2.4.5. obtain and maintain all necessary licences and consents and comply with all relevant legislation and/or industry guidance, as is necessary and/or appropriate to enable Hive to provide the Services.
2.5. Where the Services are to be performed by Hive at the Customer’s premises, or any third-party location, the Customer shall:
2.5.1. arrange any insurance against any loss or damage that may arise and ensure that such premises are in a suitable condition for the provision of the Services;
2.5.2. make available to Hive, its employees, agents and sub-contractors access to the Customer’s, or any third party’s premises (as required to perform the Services) and such suitably qualified personnel, office space, computing facilities, resources and materials as reasonably required and agreed between the parties to enable Hive to carry out its obligations under this Agreement; and
2.5.3. provide Hive in writing, prior to attendance, with all security, health or other work-place regulations, codes or rules to which Hive will be expected to comply with whilst in attendance under this clause 3.5.
2.6. If Hive’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (“Customer Default”) then, without prejudice to any other right or remedy it may have, Hive shall:
2.6.1. suspend the provision of the Services until the Customer remedies the Customer Default. Hive shall be granted an extension of time to perform its obligations at least equal to the delay caused by the Customer Default in addition to the time reasonably required by Hive to deliver the Services following the Customer Default; and
2.6.2. not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Hive’s failure or delay to perform any of its obligations due to the Customer Default.
2.7. The Customer shall indemnify Hive in full for any costs, expenses, losses or liabilities whatsoever and howsoever incurred or suffered by Hive, its agents, subcontractors, consultants, directors or employees arising in relation to a delay in provision of the Services due to a Customer Default.
- Charges and Payment
3.1. The Customer agrees to pay Hive within 30 days of the date of each invoice in full and in cleared funds to a bank account nominated in writing by Hive. Time for payment shall be ‘of the essence’ under this Agreement.
3.2. The Charges shall be calculated on a fixed fee basis (unless otherwise agreed in writing between the parties) and set out in the relevant Order.
3.3. Unless otherwise stipulated in the Order or agreed in writing between the parties, Hive shall invoice the Customer on a monthly basis in arrears for the work provided during each month.
3.4. Hive shall be entitled to charge the Customer for any expenses reasonably incurred by Hive’s directors, employees, agents and contractors in connection with the provision of the Services including, but not limited to, travel expenses, hotel costs, subsistence and any associated expenses, and for the cost of any third party services and materials that are reasonably required by Hive for the performance of the Services. Where possible, such third-party services and materials will be set out in the Order in advance.
3.5. All Charges payable to Hive under this Agreement are exclusive of VAT. In addition to the Charges, the Customer shall pay an amount equal to any VAT chargeable on those sums on delivery of a valid VAT invoice.
3.6. The Customer will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.
3.7. If the Customer does not pay an invoice issued to the Customer by the relevant due date, Hive reserve the right to take the following actions:
3.7.1. charge interest on any outstanding sums from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
3.7.2. deleting or disposing of any Customer Materials and/or Deliverables that Hive may hold on the Customer’s behalf. Hive will not be liable for any loss or damage the Customer may suffer as a result of any such deletion or disposal; and/or
3.7.3. suspending or terminating the Services Hive provides to the Customer.
3.8. Hive reserves the right to set-off any liability that the Customer may have to Hive against any liability that Hive may have to the Customer.
- Intellectual Property Rights
4.1. All Intellectual Property Rights in the Customer Materials will remain the property of the Customer or its licensors (as applicable).
4.2. The Customer hereby grants Hive a non-exclusive, perpetual, irrevocable, transferable, royalty-free, worldwide licence to use the Customer Materials solely for use in the provision of the Services and the creation of the Deliverables.
4.3. All Intellectual Property Rights in the Hive Materials will remain the property of Hive or its licensors (as applicable).
4.4. All Intellectual Property Rights in the Deliverables, the Services, and/or any other materials (either in the form of pre-contractual documentation, Proposals, site documentation or as text, images, research papers, reports, specifications, project plans or electronically stored code for the manipulation, transmission and presentation of information) created or developed by Hive under this Agreement will remain Hive’s property.
4.5. Subject to clause 5.6, upon payment of the Charges in full, Hive hereby grants the Customer a licence for all Intellectual Property Rights in the Deliverables on a non-exclusive, perpetual, irrevocable, non-transferable, royalty-free, worldwide basis to allow the Customer to make reasonable use of the Deliverables.
4.6. The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Hive obtaining a written licence from the relevant licensor on such terms as will entitle Hive to license such rights to the Customer.
4.7. The Customer acknowledges that Hive and its personnel may use any non-confidential details of the Services for a number of purposes, including case studies, publications, exhibitions, competitions and other promotional purposes (such as use in print and on our website). The Customer hereby permit Hive and other associated parties to publish the name and standard logo of the Customer for such purposes.
4.8. The Customer acknowledges and agrees that the Deliverables are provided on an ‘as is’ basis without any guarantees or warranties.
4.9. The Customer will indemnify and keep Hive and its Affiliates, officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Hive arising out of or in connection with any claim:
4.9.1. in relation to the Customer Materials or any Deliverables (to the extent they contain or are derived from the Customer Materials) infringing a third party’s Intellectual Property Rights;
4.9.2. in relation to any information provided by the Customer or the Customer Materials being inaccurate or incomplete; and/or
4.9.3. for any defamatory, offensive or illegal content, information or materials provided by the Customer either directly or indirectly to Hive.
4.10. Clause 5.9 shall survive termination of this Agreement, however arising.
- Confidentiality
5.1. A party (“Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).
5.2. In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:
5.2.1. to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;
5.2.2. not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and
5.2.3. to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.
5.3. Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:
5.3.1. is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;
5.3.2. the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;
5.3.3. the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;
5.3.4. is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or
5.3.5. is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.
5.4. This clause 6 shall survive termination of this Agreement, however arising.
- Data Protection
6.1. General Obligations. Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection Laws where any information relating to and enabling the identification of a natural person (“Personal Data”) is to be processed under this Agreement.
6.2. Data Specification. The Customer must provide Hive with a document setting out the (a) subject matter and duration of any processing to be undertaken by Hive; (b) the nature and purpose of the processing; and (c) the type of Personal Data and the categories of data subject relevant to this Agreement.
6.3. Data Controller. The Customer acknowledges and agrees that it will be the Data Controller under this Agreement. As Hive does not have any control over the Customer’s data protection notices, policies and contracts, the Customer will indemnify and keep Hive and its Affiliates indemnified against all losses, costs, and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Hive arising out of or in connection with any claim in respect of: (a) a breach of clause 7.1, 7.2 or 7.3; (b) any liability arising whatsoever in respect of the cookies on, or the capture of Personal Data through, the Customer’s website(s); and (c) the consent of data subjects for the exportation of any Personal Data outside of the European Economic Area by Hive under clause 7.6.
6.4. Data Processor. Hive acknowledges and agrees that it will be the Data Processor under this Agreement and that it shall: (a) keep all Personal Data it receives, stores and collects from the Customer strictly confidential (pursuant to clause 6 (Confidentiality), and not disclose any Personal Data to third parties; (b) not use the Personal Data for any purpose other than to perform its obligations under this Agreement; (c) ensure that all Personal Data it receives, stores and collects from the Customer is processed in accordance with this Agreement or as otherwise instructed in writing from time to time by the Customer and Hive shall not process the Personal Data for any other purpose, unless required by law to which Hive is subject, in which case Hive shall to the extent permitted by law inform the Customer of that legal requirement prior to responding to the request; (d) promptly carry out any written request requiring Hive to amend, transfer or delete the Personal Data or any part of the Personal Data made by the Customer during this Agreement; and (e) notify the Customer without undue delay or in any case within 48 hours upon Hive or any sub-processor becoming aware of a breach affecting Personal data and at this time providing the Customer with all sufficient information required to meet any obligation to notify the relevant data protection authority or inform affected individuals under applicable Data Protection Laws.
6.5. Assistance. Hive agrees to assist the Customer with all subject access requests which may be received from a data subject in a prompt timeframe (at the Customer’s cost) and ensure that appropriate technical and organisational measures are in place to enable the Customer to meet its obligations to those requesting access to Personal Data held by Hive. Upon request, Hive shall provide the Customer with reasonably requested information within a reasonable timeframe to demonstrate its compliance with this clause 7. Hive shall assist the Customer in relation to any data impact assessments and/or any prior consultation with the relevant data protection authority, provided that Hive shall be entitled to charge a reasonable fee for such assistance.
6.6. Data Transfers. Hive agrees not to transmit any Personal Data to a country or territory outside the European Economic Area without the Customer’s prior written consent, provided that such consent is hereby deemed provided where the Personal Data is subject to an adequate level of protection in accordance with Data Protection Laws.
6.7. Return of Data. Upon the termination or expiry of this Agreement for any reason, Hive shall return all Personal Data to the Customer as requested by the Customer in writing, provided that this shall not prevent Hive from retaining a copy to meet its legal or regulatory obligations.
6.8. Safeguards. Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purpose of processing as well as the varying risks to rights and freedoms of natural persons, the parties warrant that for the duration of this Agreement they will implement administrative, technical and physical safeguards sufficient to ensure the security and confidentiality, and protect against the unauthorised or accidental destruction, loss, alteration, use, or disclosure, of Personal Data and other records and information of the end-customers or employees and to protect against anticipated threats or hazards to the integrity of such information and records.
- Limitation of Liability
7.1. This clause 8 sets out the entire financial liability of Hive (including any liability for the acts or omissions of its employees, directors, agents and sub-contractors) to the Customer:
7.1.1. arising under or in connection with this Agreement;
7.1.2. in respect of any use made by the Customer of the Services and/or the Deliverables or any part of them; and
7.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
7.2. All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
7.3. Nothing in this Agreement shall limit either party’s liability: (a) for death or personal injury caused by Hive’s negligence; (b) for any damage or liability arising from Hive’s fraud or fraudulent misrepresentation (c) under any indemnity in this Agreement; or (d) any other liability which cannot be excluded by law.
7.4. Subject to clause 8.3:
7.4.1. Hive will not be liable to the Customer for any loss of profits, loss of business, any loss of income, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, or any special, indirect, consequential or any form of pure economic loss, costs, damages, charges or expenses; and
7.4.2. Hive’s total liability to the Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to 75% of the Charges paid or payable by the Customer to Hive under the applicable Order giving rise to such liability.
7.5. Whilst Hive will use reasonable endeavours to make sure that any Customer Materials provided are not lost or damaged, Hive will not be responsible or liable for any loss or damage that may occur to them.
7.6. This clause 8 shall survive termination of this Agreement, however arising.
- Termination
8.1. After you have signed an Order with Hive, the Services under that Order can only be cancelled in accordance with its terms or with Hive’s prior written consent.
8.2. Subject clauses 9.3 and 9.4, this Agreement will continue until it is terminated by either party providing the other party with at least one month’s prior written notice.
8.3. In the event that this Agreement is terminated under clause 9.2, the Agreement will be deemed to continue in full force and effect until all Services and Deliverables have been completed under the then current Orders.
8.4. Without limiting its other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:
8.5. a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 7 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or
8.5.1. an event, including (or similar in nature to) the following:
8.6. the Defaulting Party is unable to pay its debts as they fall due;
8.7. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;
8.8. a receiver is appointed in respect of the whole or any part of the Defaulting Party; or
8.9. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or
the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
8.10. Without limiting its other rights or remedies, Hive may terminate this Agreement with immediate effect by giving written notice to the Customer if:
8.10.1. the Customer’s financial position deteriorates to such an extent that in Hive’s opinion the Customer’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy; or
8.10.2. the Customer fails to pay any amount due under this Agreement on the due date for payment and fails to pay all outstanding amounts within 10 days after being notified in writing to do so.
8.11. Without limiting its other rights or remedies, Hive may suspend provision of the Services under the Agreement or any other contract between the Customer and Hive if the Customer becomes subject to any of the events listed in clause 9.4.2 or Hive reasonably believes that the Customer is about to become subject to any of them.
- Consequences of Termination
9.1. If this Agreement terminates for any reason:
9.1.1. any Order in force at the time of termination relating to the terminated Services will automatically terminate;
9.1.2. Hive shall not have any obligation to repay any charges paid by the Customer other than a pro rata proportion of the fees for the Services that have been provided at the effective date of termination;
9.1.3. notwithstanding any other provision, all charges payable by the Customer to Hive under this Agreement or the relevant Order will become due and payable immediately. In respect of Services supplied, but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt. This clause is without prejudice to any right by Hive to claim for interest or any other right under this Agreement; and
9.1.4. the Customer shall immediately return all Hive Materials (and any Deliverables which have not been paid in full) to Hive. If the Customer fails to do so then Hive may enter the Customer’s premises in order to reclaim possession of Hive Materials and any unpaid Deliverables.
9.2. Termination of this Agreement and/or any Order will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of a breach of this Agreement and/or any Order which existed at, or before, the effective date of termination.
9.3. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
- Force Majeure
Hive shall not be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, acts of God, strikes, lock-outs or other industrial disputes (involving the workforce of Hive), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors). If an event under this clause continues for a period of 28 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.
- Notices
11.1. 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 (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
11.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.1; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
11.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- Miscellaneous
12.1. 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. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
12.2. It may be necessary Hive to update this Agreement and its terms from time to time. If the Customer continues to use the Services after Hive has informed it of any amendments or additional terms to the Agreement, you will be deemed to have accepted these changes and they will be incorporated into this Agreement.
12.3. Subject to clauses 2.5 and 13.2, no variation of this Agreement or an Order will be effective unless it is in writing and signed by both parties.
12.4. Throughout the duration of this Agreement and for a period of 12 months from the termination of this Agreement, the Customer shall not (except with the prior written consent of Hive) directly or indirectly solicit or entice away (or attempt to solicit or attempt to entice away) any employee, director, worker, or sub-contractor of Hive who is employed or engaged by Hive to provide the Services under this Agreement.
12.5. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
12.6. The Customer shall not, without the prior written consent of Hive, assign, transfer, charge, sub-contract or deal in any other manner with all or any of the Customer’s rights or obligations under this Agreement. Hive may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12.7. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
12.8. Nothing in this Agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.
12.9. 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.
12.10. Each Order may be signed in counterparts. Each signed copy of a document will be deemed to be an original, but all signed copies, when taken together, will constitute one and the same agreement.
12.11. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.