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1. Definitions

1.1 Agreement: the collective term for all arrangements between the Customer and Hive related to the Services. The Agreement consists of the Order Form and these Terms;

1.2 Business Day:  Any day – other than Saturday, Sunday or legal holidays in Belgium;

1.3 Customer: every professional entity relying on the Services or the Platform of Hive;

1.4 Databases: all data, databases and infrastructure of the Customer;

1.5 End-User: any individual authorised by the Customer to access and use the Platform on behalf of the Customer (e.g. dealers and customers of the Customer); 

1.6 Hive: the private company (NV) “NimbleOps”, incorporated under the laws of Belgium, having its registered office at Kleindokkaai 17, 9000 Ghent, registered under number 0677.439.585;

1.7 Order Form: an order form or similar document containing the practical arrangements agreed upon between Hive and the Customer related to the SIB, the Project, Platform and/or the Services, such as but not limited to the fees, the Project scope, the milestones and the Term;

1.8 Platform: the B2B eCommerce platform (incl. the dealer app) developed by Hive that (amongst others) streamlines the sales of the Customer through the optimisation of its CPQ-flow (configure, price and quote); 

1.9 Project: The works performed by Hive necessary to allow the Customer to use the Platform correctly and efficiently during the Agreement. These works can include (non-limited): integrating the Platform in the Customer’s Databases, onboarding training, custom development, etc.;

1.10 Seeing Is Believing (SIB): the preliminary track during which (amongst others) the final scope, fee, term and plan of the Project is set out and (if agreed upon) first designs of the configurators are developed;

1.11 Services: all services provided by Hive to the Customer as part of the Agreement, including but not limited to: the Project, the SIB, the Subscription, providing support, maintenance of the Platform, etc.; 

1.12 Subscription: a limited, non-exclusive, non-assignable and non-transferable access and use right to the Platform. This specifically excludes a right to download a local copy, reproduce the Platform or make any part of the Platform publicly accessible in any way. If the Subscription includes access to the dealer app, downloading the dealer app on a local device is permitted.

1.13 Terms: these Terms and Conditions and the Privacy & User Policy;

1.14 Website: https://hivecpq.com/en/home

2. Applicability of the Terms

2.1 Unless explicitly agreed otherwise in writing, the offering, sale and delivery of all Services shall be governed by the present Terms. The Terms shall always take precedence over any terms and conditions of the Customer, which shall not be enforceable against Hive, even if the Customer (later) declares them the only valid terms. In the event that explicit preference is given in writing to the terms and conditions of the Customer, the following Terms shall remain valid in a supplementary way. The Terms apply to the entire (contractual) relationship between the Parties, including individual orders or contracts for the Services.

2.2 All the transactions between Hive and the Customer are governed by (in descending hierarchical order, with the next applying in the absence or non-application of the previous): (i) the Order Form, (ii) the Terms, and; (iii) Belgian law.

Seeing is Believing

3. Initial scoping

3.1 Hive will determine the scope of the SIB (and a preliminary/non-binding scope of the Project and the Subscriptions) and subsequently will provide the SIB quote to the Customer. The Customer is obligated to cooperate and shall provide Hive, in a timely manner, with the necessary and correct information Hive requires to perform this initial scoping.

4. Quotes

4.1 Without prejudice to the obligation of the Customer in Article 3.1. the quote concerning the SIB shall be binding.

4.2 All proposals and quotations of Hive, either verbal or in writing, concerning the Project or the Subscriptions that are provided to the Customer before the end of the SIB: (i) are non-binding, (ii) merely provide an indication of final scope and the fees, and (iii) shall be subject to changes based on the findings during the SIB and further negotiations between Hive and the Customer. During these negotiations, the proposal or quotation shall continuously evolve. Any changes to a proposal or quotation renders the previous version null and void.

4.3 The specifications, capabilities, technical features and other details of the Platform and the Services on the Website or in a demo are only meant to be approximations. This information only binds Hive insofar as this is explicitly stated in the Agreement.

5. Seeing Is Believing

5.1 During the SIB, Hive shall determine the final Project scope, including the term, fee and Project plan and (if included in the scope) Hive shall start the first design of the configurators. A blueprint for the integration construction for the Project will be created.

5.2 This final Project scope and Subscription fees will be based on the works performed by Hive and the information provided by the Customer during the initial scoping and the SIB. The Customer shall be obligated to assist and provide information to Hive whenever necessary. Therefore, if the information provided is inaccurate, insufficient or incorrect or the Customers fails to assist Hive, the final Project scope, term and/or fee, and/or the Subscription fee shall be subject to changes, based on the newly provided information.

5.3 Unless otherwise agreed in writing, the milestones and term stated in the Order Form are non-binding and shall merely reflect a best efforts obligation for Hive to perform the necessary works within the timeframe of the milestones.

6. Request to test

6.1 Unless expressly agreed upon otherwise, Hive shall, at its own discretion, send requests to the Customer to test and evaluate the works performed by Hive in order to obtain acceptance of the SIB.

6.2 If the Customer fails to substantively respond in writing to the request to test within two (2) weeks, the delivery (and the content) of the SIB will be considered unconditionally accepted by the Customer. As such, the Customer forfeits its right to contest the timely and correct delivery.

6.3 Any works performed to implement modifications afterwards will be invoiced to the Customer at the hour/day rate of the consultants of Hive, as stated in the Order Form.

7. Term

7.1 The term for the SIB is agreed upon in the Order Form. The term of the SIB shall be subject to changes upon mutual agreement, or if the Customer fails to fulfil its obligation in Article 5. or 6.

8. Fee and invoicing

8.1 The fee will be determined during the initial scoping and will be agreed upon in the Order Form of the SIB.

8.2 Hive shall send the invoice to the Customer upon confirmation of the quote of the SIB. The Customer shall fulfil its payment obligation in accordance with Article 20. of these Terms.

The Project 

9. The Project

9.1 Unless otherwise expressly agreed in writing, Hive will never be bound by any result obligation concerning the milestones or term of the Project as stated in the Order Form. The milestones and term reflect a best efforts obligation for Hive to perform the necessary works.

9.2 Hive shall commence the Project upon receival of the advance payment as stated in Article 12.1. of these Terms. During the Project, Hive shall (amongst others) integrate the Customer’s database with the Platform in accordance with the Project plan.

9.3 The Customer is obligated to cooperate with Hive’s consultants, and provide the necessary support, when preparing and integrating the Customer’s database with the Platform. This includes (but is not limited to) access to all required Databases and providing information to Hive in a structured way.

9.4 If the information provided is inaccurate, insufficient or incorrect or the Customer fails to assist Hive, the Project fee, Project milestones and Project plan will be subject to change, based on the newly provided information.

10. Request to test

10.1 Unless expressly agreed upon otherwise, Hive shall, at its own discretion, send requests to the Customer to test and evaluate the works performed by Hive in order to obtain (partial/interim) acceptance of the Project.

10.2 If the Customer fails to substantively respond in writing to the request to test within two (2) weeks, the (partial/interim) delivery (and the content) will be considered unconditionally accepted by the Customer. As such, the Customer forfeits its right to contest the timely and correct delivery.

10.3 Any works performed to implement modifications afterwards will be invoiced to the Customer at the hour/day rate of the consultants of Hive, as stated in the Order Form.

11. Term

11.1 The term of the Project will be decided upon in the Order Form. This term, however, shall be subject to changes upon mutual agreement, or if the Customer fails to adhere to its obligations stated in the Article 8.2 and/or 9.3.

12. Fee and invoicing

12.1 The binding Project fee and the invoicing plan will be determined in the Order Form. Nonetheless, Hive always reserves the right to request an advance payment of thirty percent (30%) on the total amount of the fee.

12.2 In the absence of an invoicing plan in the Order Form, Hive shall invoice the Customer at reasonable timeframes and at its own discretion, taking into account Project plan or the milestones and the Customer’s feedback to the requests to test.

12.3 The Customer shall fulfil its payments obligations in the accordance with the provisions of Article 20.

The Platform

13. Subscription

13.1 The Customer receives Subscriptions to the Platform, subject to the Terms and timely payment of the fees. The original activation of the Subscriptions (and the concurrent End-Users) shall be in accordance with the Order Form.

13.2 In case Hive determines too many concurrent End-Users are active on the Platform, Hive shall, upon prior notice, be entitled to limit/suspend the Customer’s Subscriptions -or- invoice the extra concurrent users, at its sole discretion.

14. The Platform

14.1 The Customer is entitled to access and use the Platform in accordance with the Terms. The Platform of Hive is provided to the Customer “AS-IS”. The Customer confirms it does not base its reliance on the Platform upon the development of any future functionality, features or data connectivity.

14.2 The Customer shall be solely responsible for procuring, maintaining and securing its network connection(s) to the Platform.

14.3 The Customer shall use its best endeavours to prevent or terminate any unauthorised access to or use of the Platform. If the Customer discovers such unauthorised access and/or use, it shall notify Hive immediately, in which case Hive will be entitled to take all necessary or useful measures to remedy such access and/or use.

14.4 If the Customer observes any deficiency or problem, it is obliged to immediately cease the use of the Platform and make every reasonable effort – or have every reasonably effort made – to prevent any (further) damage. The Customer shall notify Hive immediately thereof.

14.5 In the event of problems with the availability of the Platform, Hive undertakes its best effort to solve such issue as soon as reasonably possible without giving any guarantee. In any case and where appropriate, Hive shall be free to determine what is to be considered an adequate solution for its Customers in this respect.

15. Support and maintenance

15.1 When the Customer is in need of assistance or has an enquiry with respect to the Services or the Platform, the Customer can contact the helpdesk of Hive. The helpdesk shall be available via the Platform, via email (support@hivecpq.com) and telephone every day (incl. weekends and holidays) from 9 am to 5 pm (CET).

15.2 Whether or not the support is included in the fee, is described in the Order Form. If not, the support will be invoiced in accordance with the normal consultancy rates of Hive, as stated in the order Form. 

15.3 The Customer must offer all necessary assistance and co-operation to the helpdesk of Hive, e.g. provide a detailed description of the problem and the situation in which it occurred.

15.4 The helpdesk of Hive will do its best efforts to assist the Customer as soon as reasonably possible following the requested support.

15.5 Hive performs maintenance activities and implements updates of the Platform on a regular basis. Hive strives to minimise the impact on the availability of the Platform, but does not exclude any downtime in this respect. If the impact on the availability of the Platform is significant, Hive will inform the Customer thereof.

16. Other Customer obligations

16.1 The Customer shall ensure that its End-Users use the Platform in accordance with the Terms. Additionally, the Customer shall ensure that any End-User accepts the Privacy & User policy and acts in accordance therewith. The Customer and its End-Users shall not access the Platform in a manner intended to avoid incurring fees.

16.2 Whenever Hive reasonably suspects that there has been a breach of the Terms (e.g. use of the Platform by the Customer for purposes that breach any provisions in these Terms), it is allowed to audit the Customer to verify its compliance with the Terms, at Hive’s own expense and after a prior notice of two Business Days.

17. Fees and invoicing

17.1 The Subscription fees are determined in the Order Form of the Project and are binding. The fees will be invoiced monthly.

17.2 Insofar as the fees are based on the level of payroll costs, cost of components, social security contributions and government taxes, insurance premiums, costs of materials, exchange rates and/or other costs applicable at the time, and in the event of an objective and significant increase of one or more of these price factors, Hive shall be entitled to increase its prices accordingly and in accordance with the legally permitted standards.

17.3 Hive is entitled to index the Subscription fee on January 1 in accordance with the Belgian Agoria-index ‘salary’ and thereby considering the applicable laws and limitations regarding indexation.

18. Term and termination

18.1 The term of the Subscription is described in the Order Form. The Subscription shall automatically be renewed for one year, unless either party gives notice of termination to the other party at the latest six months before the end of the term. The Customer can give notice by sending an email to their Hive customer success manager. Failure to do so will obligate the Customer to pay the invoice for the renewed Subscription term, even if the Customer has no intention to continue its use of the Services. The new fees of Hive shall be applicable.

General

19. The Services

19.1 Unless agreed otherwise in writing, Hive shall not be bound by a result obligation but shall at all times execute the Agreement and the Services to the best of its knowledge and ability and with appropriate care and good faith (‘best effort obligation’).

19.2 Hive provides the Services on a fully independent basis. Hive reserves the right to (partially) outsource the performance of the Services to subcontractors, for which Hive shall assume liability towards the Customer.

19.3 The Customer shall provide Hive with (i) all necessary co-operation in relation to this Agreement; and, (ii) all necessary access to information as may be required by Hive in order to provide the Services.

19.4 Hive is entitled to rely on data and information provided by the Customer, without having to verify its accuracy and completeness. Hive shall make use of data and information provided by the Customer without accepting any responsibility in this respect. The Customer is responsible for the timely delivery, accuracy and completeness of the provided data and information, and indemnifies Hive from any claims in this context, including claims of third parties.

20. Payment

20.1 Hive’s invoices are payable to Hive’s designated bank account as indicated on the invoice at the latest on fourteen (14) days after the invoice date. The invoice has been settled when the complete amount stated on the invoice has been received by Hive. All fees - unless specifically stated otherwise in the Order Form - do not include VAT or any other levies or taxes.

20.2 All invoices from Hive are to be paid in EURO. When the payment is done in a different currency, the conversion will be calculated with regards to the highest rate, either at the rate of the invoice date or the date of payment. All bank and exchange costs connected to the collection of the amount will be charged to the Customer.

20.3 By concluding an Agreement and relying on the Services of Hive, the Customer agrees to electronic invoicing by Hive.

20.4 If the Customer fails to pay in full any invoice by the due date for payment, then:

  • the Customer shall pay interest on the overdue amount at the rate of ten percent (10%) per year. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount; and
  • the Customer shall pay Hive five percent (5%) of the outstanding balance, with a minimum amount of two hundred and fifty euro (250,00 EUR) for costs associated with a.o. the collection of the amounts due and with the adverse consequence on Hive’s cash flow, as liquidated damages. The Customer confirms that this sum represents a genuine pre-estimate of Hive’s loss.

This paragraph is without prejudice to Hive’s right to prove and claim any higher damages.

20.5 Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default.

20.6 Partial payments will firstly be deducted from interest due, liquidated damages payments and possible costs and subsequently from unpaid invoices.

20.7 Hive is entitled to suspend the Customer’s access to the Platform, or its other obligations in connection with the Agreement if the Customer has not complied with a payment condition or other payment obligation.

20.8 Invoices that are not disputed by registered letter within eight (8) days after their issuing will be considered to have been fully accepted.

20.9 Promotional gifts by Hive, in any form whatsoever (including, but not limited to discounts), shall only be applicable in accordance with the guidelines and conditions expressly stated in this regard. The Customer acknowledges that such promotional gifts are (i) not cumulative; (ii) personal by nature; and, (iii) can never entail an implied right thereto.

21. Liability

21.1 Hive’s liability shall always be assessed in the light of the best efforts obligation to which it has committed. The liability of Hive is in any case limited to the mandatory liability imposed by law.

21.2 Hive’s liability under the Agreement is limited to the invoice value of the fees relating to the specific component of the Services that gave rise to the damage and/or liability claim paid by the Customer during the twelve (12) month period preceding the date on which the applicable liability claim arose.

21.3 Hive cannot accept any claim from the Customer for indemnification for:

  • Defects that are caused directly or indirectly by an act of the Customer or a third party (e.g. cloud or software partner) regardless of whether they were caused by a fault, negligence or carelessness;
  • Damage caused as a result of incorrect information provided by the Customer
  • Damage caused by all incorrect or inadequate use of the Services (e.g. insufficient verification of the generated results);
  • Damage caused by use of the Platform incompatible with the legislation and/or regulations;
  • Damage caused by the further use or application by the Customer after a problem has been found;
  • Damage caused by force majeure or hardship in accordance with the provisions of Article 23.; and,
  • Indirect and consequential damage, such as, but not limited to, loss of profit, loss of savings, loss of revenue, loss caused by business interruption or damage to third parties
  • Any other claims, damages and loss caused by circumstances or causes outside of the reasonable control of Hive.

21.4 Customer will hold Hive harmless against all claims from third parties arising from the incorrect or unlawful use of the Services. It will cover all damages such as compensations or legal costs (including reasonable lawyer’s fees) providing that Hive has informed the Customer as soon as reasonably possible of any claim arising from that matter.

22. Termination

22.1 Either party may terminate the Agreement per registered mail for material breach, automatically and without definitive court decision if the other party has committed a material breach and fails to remedy such breach within fifteen (15) days of written notice of default by the claiming party. Parties will consider (amongst others) the following events as a material breach:

  • Failure to pay invoices for which payment is due for three (3) consecutive months;
  • Failure to comply with the best effort performance of the Services for three (3) consecutive months;
  • Unauthorised or illegal use of the Platform;
  • Failure to comply with the Terms;
  • Intellectual property infringement (cfr. Article 25.).

22.2 The Agreement may be terminated if an insolvency event occurs, i.e. a party ceases to pay its debts or ceases its activities, files for bankruptcy, liquidation of the legal entity or enters proceedings in receivership or judicial composition proceedings.

22.3 Hive shall never be obligated to refund the Customer any fees (and will invoice the remainder of the fees) if the Customer terminates the Agreement during the Term (without the termination being the result of a material breach by Hive).

22.4 Regardless of the cause for termination, the following consequences will follow the termination of the Agreement:

  • Hive will stop providing its Services and the Platform shall be inaccessible for the Customer and its End-Users;
  • Hive is entitled to refuse any request from the Customer to enter into a (new) Agreement with regard to the Services;
  • Each party will discontinue its use and will return the confidential information and proprietary materials of the other party.

22.5 The termination of the Agreement, for whatever reason, shall not prejudice the rights acquired by each party.

23. Force majeure & Hardship

23.1 The following are conventionally considered as cases of force majeure or hardship: all circumstances which were reasonably unforeseeable at the time the Agreement was concluded, are unavoidable, and create (i) the inability on the part of Hive to carry out the Agreement, or (ii) make the execution of the obligations in the Agreement much harder or more difficult than normally anticipated (financially or otherwise). For example (but not limited to): natural disasters, war, (threats of) terrorism, strikes, lock-out, diseases, pandemics, shortage of personnel, organisational conditions, confiscation, fire, scarcity of (raw) materials, bankruptcy or delays on the part of suppliers or subcontractors.

23.2 Cases of force majeure or hardship give Hive the right to temporarily suspend the performance of its obligations in the Agreement, without Hive being liable for any damages.

23.3 A situation of force majeure that continues beyond three (3) consecutive months shall entitle either party to terminate the Agreement with immediate effect by simple written notification to the other party, without judicial intervention and without any liability.

23.4 The Customer shall always be required to pay all fees for Services that have already been provided resp. performed on the date of suspension or termination, and any costs incurred or still to be incurred by Hive as a consequence of the suspension or termination.

24. Confidentiality

24.1 All information marked as confidential or reasonably to be considered confidential, disclosed by either party to the other party prior to entering into the Agreement as well as during the Agreement shall be treated by the receiving party with the utmost secrecy.

24.2 The receiving party shall:

  • Not use, reproduce, or allocate the confidential information in any manner or for any other purpose than the cooperation between Hive and the Customer;
  • Not engage in, nor authorise others to engage in, the reverse engineering, disassembly or the decompilation of any of the confidential information; and,
  • Not derive any commercial benefit from the confidential information.

24.3 This confidentiality obligation applies during the Term of the Agreement between Hive and the Customer and will continue to exist for a period of three (3) years after the termination of the cooperation for any reason whatsoever.

24.4 This confidentiality obligation shall, however, in no event imply that Hive shall not be entitled to use and/or commercialise any ideas, input, feedback received from the Customer, which may serve to improve and/or expand the offerings.

25. Intellectual property rights

25.1 All registrations of the trade names/trademark Hive, or any other trade name/trademark that includes the name Hive, or under which the Subscriptions, SIB, Projects and other Services are sold, shall be made in the name of Hive. The Customer shall not use Hive’s company name, the Platform name or any other Platform trademarks as part of Customer’s name or in any manner capable of misrepresenting the relationship between Customer and Hive. The Customer shall not alter, remove or tamper with the brands, trademarks, or other means of identification of Hive.

25.2 The Customer explicitly acknowledges that Hive shall own and retain all (intellectual) property rights with respect to the Platform, the Services, the Project, SIB (including all copies, modifications, extensions and derivative works thereof), such as but not limited to rights associated with the dashboards, service configurations, other authorship rights, design rights, know-how and domain names.

25.3 The Customer explicitly authorises Hive to use the Customer’s name and/or Project as a reference for publicity purposes, such as a publication on the Website. In this regard, the Customer also authorises Hive to use the Customer’s name, trademark, logo, etc.

26. Privacy

26.1 Hive as controller

26.1.1 The collection by Hive of personal data of the (potential) Customer and/or its personnel/staff shall take place in accordance with the provisions of Hive’s privacy policy. In such event, Hive acts as controller. This privacy policy includes information about the personal data collected by Hive, as well as the manner in which Hive uses and processes this personal data. Hive’s privacy policy can be consulted via Disclaimer.

26.1.2 By entering into an Agreement with Hive, the Customer acknowledges to have read and accepted the privacy policy.

26.2 Hive as processor

26.2.1 The Customer acknowledges that – with regard to the processing of all data of the Customer and/or End-User entered and uploaded into the Platform – it shall act as controller and Hive as processor. All arrangements made between Parties in this respect shall be solely governed by the Data Processing Agreement.

26.2.2 The Customer acknowledges explicitly that by using the Platform or entering into an Agreement with Hive to have read and accepted the Data Processing Agreement in its entirety.

27. Changes to the Terms

27.1 Hive reserves the right to amend these Terms and the offer and composition of the Subscription or included Services any time. New or amended Terms shall apply from the thirtieth (30th) day after they were (implicitly) accepted by the Customer.

28. Netting

28.1 In accordance with the stipulations of the Law on Financial Collateral dated 15 December 2004, Hive and the Customer will automatically and legally compensate and offset each other for all current and future debts.

29. Miscellaneous

29.1 No waiver

29.1.1 Any failure or delay by Hive in exercising any right under an Agreement with the Customer, any single or partial exercise of any right under such Agreement or any partial reaction or absence of reaction by Hive in the event of violation by the Customer of one or more provisions of such an Agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of Hive’s rights under such Agreement, nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by Hive, this waiver cannot be invoked by the Customer in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.

29.2 Notices

29.2.1 Any notice to be given under the Agreement shall be deemed duly given when sent by e-mail or postage prepaid or courier and addressed to the other party’s address. It shall be deemed received three (3) working days after the date of dispatch in the case of e-mails and in the case of postage prepaid or courier on the date of receipt by the other party.

29.3 Divisibility

29.3.1 If any part or any clause of the Agreement is for whatever reason held to be unlawful, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Agreement.

29.3.2 Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes clo­sest to the intention of parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.

29.4 Non-transfer

29.4.1 This Agreement and the rights and obligations ensuing from it for the Customer may not be transferred either directly or indirectly without the written consent of Hive.

29.4.2 Hive shall have the right to transfer this Agreement and the rights and obligations ensuing from it to a third party. In that case, a new agreement between Customer and the third party shall be concluded with terms and conditions (rights and obligations) identical to those in this Agreement for the remaining Term.

30. Jurisdiction and applicable law

30.1 The present Terms as well as any agreement between parties, of whatever nature, are governed by and construed in accordance with the laws of Belgium, with exclusion of all conflict of laws rules.

30.2 All disputes arising from these Terms well as from any other agreement concluded between parties shall fall within the exclusive jurisdiction of the courts of the district in which Hive has its registered office, unless Hive decides that the courts of the district in which the Customer has its registered office have jurisdiction.

30.3 Without prejudice to any other provision of these Terms, any claims by the Customer arising out of or in connection with an Agreement between parties will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant or Services.