Referral Partner Terms

CYBERHIVE REFERRAL PARTNER TERMS OF SERVICE

THESE TERMS OF SERVICE GOVERN REFERRALS MADE FOR CYBERHIVE SERVICES.

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

WHERE AN INDIVIDUAL IS ACCEPTING THE AGREEMENT, THE PARTNER CONFIRMS THAT THE INDIVIDUAL IS DULY AUTHORISED TO ACCEPT THE AGREEMENT ON BEHALF OF THE PARTNER AND HAS AUTHORITY TO BIND THE PARTNER AS A PARTY TO THE AGREEMENT.

AGREED TERMS

Interpretation

The following definitions and rules of interpretation apply in these CyberHive Referral Partner Terms of Service.

Definitions:

Agreement: the agreement between the parties comprising the Referral Partner Order Form, the CyberHive Referral Partner Terms of Service and any Schedules referenced in the Referral Partner Order Form.
Agreement Data: has the meaning given to it in clause 2.
Branding Guidelines: means guidelines for the branding and marketing of the Services, notably relating to specifications, layout and use of Company’s trademarks and branding, which shall be devised by Company and notified to the Partner in writing from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commission: has the meaning given to it in clause 2.
CyberHive: CyberHive Limited (No. 03974231), a company registered in England and Wales with its registered office at 2nd Floor Newmarket House, Market Street, Newbury, England, RG14 5DP.
CyberHive Services: the services provided by CyberHive together with any other services from time to time offered by CyberHive and which CyberHive, by express written notice to the Partner, includes within the scope of this Agreement.
CyberHive IP: (i) CyberHive’s name and all other trade and service names, trademarks, service marks and/or logos and/or other intellectual property owned by or licenced to CyberHive; or (ii) any software or other materials supplied or otherwise offered as part of the CyberHive Services.
Competing Partner: has the meaning given to it in clause 11.
Initial Term: the initial term for the Agreement as specified in the Referral Partner Order Form.
Net Income: the payments made to CyberHive for CyberHive Services under a Relevant Contract less any value added tax or other sales tax on them, any out-of-pocket expenses incurred by CyberHive in providing CyberHive Services and any discounts or rebates granted by CyberHive.
Order Effective Date: has the meaning given to it in clause 10.
Partner: the party identified as such in the Referral Partner Order Form who will make Referrals.
Prospective Client: a person: (i) who is not a current customer of CyberHive; (ii) who has not been previously Referred by the Partner to CyberHive; and (iii) with whom CyberHive is not in bona fide negotiations to provide CyberHive Services at the Referral Date.
Quarter: each period of three calendar months ending on 31 March, 30 June, 30 September and 31 December.
Referral: the provision to CyberHive of the contact details of an employee at a Prospective Client which meets the requirements set out at clause 9. Refer, Refers, and Referred shall be interpreted accordingly.
Referral Date: for each Prospective Client, the date during the term of this Agreement on which the Partner first Refers such Prospective Client to CyberHive.
Referral Partner Order Form: means the referral partner order form agreed between the parties setting out the Partner’s details and the rate of Commission.
Referral Period: for each Prospective Client, 12 months from the Referral Date.
Relevant Contract: a contract for the supply of CyberHive Services entered into during the Referral Period between CyberHive and a Prospective Client who was Referred by the Partner.
Reserved Account: means both (i) the accounts specified in Schedule 1, which comprise the prospective client groups in respect of which CyberHive has appointed another exclusive partner or has reserved to itself; and (ii) any other prospective client groups in respect of which CyberHive informs the Partner by written notice that it has appointed another exclusive partner or reserved to itself.
- Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
- Company. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Singular and plural. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- Successors and assigns. This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
- Legislative references. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
- Legislative references and subordinate legislation. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time.
- A reference to writing or written includes e-mail.
- “Including”. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Clauses and schedules. References to clauses and Schedules are to the clauses and Schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule.

Referrals
- CyberHive appoints the Partner on a non-exclusive basis to identify Prospective Clients for CyberHive and to make Referrals of such persons on the terms of this Agreement.
- List of Prospective Clients. No later than 30 days after the Order Effective Date, and every 3 months’ thereafter during the term of this Agreement, CyberHive and the Partner shall jointly agree in writing the Prospective Clients (including any class or group of Prospective Clients) in respect of whom the Partner shall seek to make Referrals before the Partner approaches such Prospective Clients or makes any Referrals in respect of them.
- Duties of Partner.
  - Good faith. The Partner shall serve CyberHive faithfully and diligently and not allow its interests to conflict with its duties under this Agreement;
  - The Partner shall use its reasonable endeavours to make Referrals of Prospective Clients;
  - The Partner shall report in writing to CyberHive from time to time on progress made with Prospective Clients; and
  - Compliance with instructions. The Partner shall comply with all reasonable and lawful instructions of CyberHive.
- Limited scope of authority.
  - No authority to bind. The Partner shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind CyberHive in any way, and shall not do any act which might reasonably create the impression that the Partner is so authorised.
  - No authority to contract or negotiate. The Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of CyberHive, including for the provision of CyberHive Services or the price for them, and shall not negotiate any terms for the provision of CyberHive Services with Prospective Clients.
- Obligation to disclose limits on authority. The Partner must disclose to each Prospective Client that it represents CyberHive and that it has no authority or ability to negotiate or vary CyberHive Services or the terms of CyberHive Services or enter into any contract on behalf of CyberHive.
- Restriction on competing activity. The Partner shall not, without the prior written consent of CyberHive, during the term of this Agreement perform duties similar to making Referrals on behalf of any person or company who provides services similar to the Services.
- Marketing material. If the Partner produces any marketing material for CyberHive’s Services the Partner undertakes to comply with the Branding Guidelines, a copy of which the Partner must request from CyberHive.
- Limits on representations. The Partner shall not, without CyberHive’s prior written consent, make or give any representations, warranties or other promises concerning CyberHive Services which are not contained in CyberHive’s marketing material.
- Referral Requirements. Any Referral must meet at least three of the four following qualifications for it to be eligible for Commission:
  - Budget: the Partner must provide CyberHive with either the actual or estimated budget of the Potential Client for the CyberHive Services;
  - Authority: the Partner must provide CyberHive with the name and contact details of an employee, partner or director at a Prospective Client who knows the Partner and is of sufficient seniority to authorise the purchase of the CyberHive Services; and
  - Need: the Partner must provide CyberHive with an outline of the Prospective Client’s need for the CyberHive Services and the Prospective Client must have confirmed in writing (by ticking a box or taking some other form of positive action that is recorded in writing) that CyberHive may contact them about purchasing the CyberHive Services; and
  - Time: the Partner must provide CyberHive with an actual or estimated timeline for the provision of the CyberHive Services.

Whether the Referral is eligible for Commission shall determined by CyberHive in its sole and absolute discretion.

Reserved Accounts: CyberHive reserves the right to designate certain customers or Potential Customers as Reserved Accounts, from whom only CyberHive may solicit orders for CyberHive Services. Reserved Accounts are identified in Schedule 1, as may be updated by CyberHive from time to time by giving the Partner not less than 30 days’ notice in writing. Partner undertakes that it shall not attempt to solicit orders for CyberHive Services from Reserved Accounts and agrees that no commission or fees shall be payable to it in respect of Reserved Accounts, unless otherwise agreed in writing by the parties.
Conflicting referrals. Where CyberHive receives multiple Referrals for the same Prospective Client from the Partner and other persons it has engaged to make Referrals (Competing Partner), the Partner accepts that only one person will be entitled to receive the Commission. The person who Refers the Prospective Client to CyberHive first shall be entitled to receive the Commission provided the Referral Period has not lapsed, in which case, the Commission shall be paid to the next person who Referred the Prospective Client to CyberHive.
Consequential referrals. Where a Prospective Client is Referred by the Partner and the Prospective Client then refers CyberHive to a third party who purchases CyberHive Services from CyberHive, the Partner shall not, by virtue of such initial Referral, be deemed to have Referred the third party to CyberHive.

Commission and payment
- Commission entitlement. The Partner shall be entitled to Commission if a Prospective Client Referred by the Partner enters into a Relevant Contract.
- Commission is due on the Net Income received under each Relevant Contract at the rate specified in the Referral Partner Order Form Quarterly in arrears for a period of the shorter of:
  - 12 months from the date the Relevant Contract was entered into;
  - The initial term of the Relevant Contract (excluding any renewals or extensions); or
  - The reduced term of the Relevant Contract where it is terminated/cancelled before the expiry of the initial term for any reason,

(the “Commission”).

Duty on CyberHive to disclose commission data. CyberHive shall use reasonable endeavours to notify the Partner in writing of the following:
- the date it enters into a Relevant Contract;
- the amount of the payments due for CyberHive Services under it; and
- the dates on which payments for such CyberHive Services are payable,

within a reasonable period of time after it enters into such Relevant Contract.

Commission statement. CyberHive shall within 14 days of the end of each Quarter send to the Partner a written statement setting out, in respect of such Quarter, and in respect of each Relevant Contract:
- the Commission payable to the Partner;
- payments for CyberHive Services received and details of any sums due which have not been received; and
- how the Commission has been calculated, including details of all deductions made in determining Net Income.
Invoicing of Commission. The Partner shall be entitled to invoice CyberHive for the Commission after it receives the statement submitted pursuant to clause 4 for the amount specified in such statement, together with any applicable VAT. For the avoidance of doubt, CyberHive shall not be required to pay any Commission on sums due pursuant to the Relevant Contract but which have not been received.
Due date for Commission. The due date for payment by CyberHive of such Commission shall be 30 days from the date of the invoice.
Currency of Commission. Commission shall be payable to the Partner in pounds sterling.
All sums payable under this Agreement:
- are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question;
- the payer shall be entitled to deduct and withhold from any amounts payable withholding tax.
Interest on late payments. If CyberHive fails to make any payment due to the Partner under this Agreement by the due date for payment, then, CyberHive shall pay interest on the overdue amount at the rate of 2% per annum.
Disputes about Commission. If any dispute arises as to the amount of Commission payable by CyberHive to the Partner, the same shall be referred to CyberHive’s auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties. The Partner shall bear the costs and expenses incurred in respect of any such audit.
Exclusions from Commission. No Commission or other compensation shall be payable where:
- CyberHive contracts with a third party in the circumstances described in clause 12; and
- CyberHive contracts with a Prospective Client Referred by the Partner after the Referral Period has lapsed.

Obligations of CyberHive
- Provision of information. CyberHive shall use reasonable endeavours to provide the Partner at all material times with the information the Partner reasonably requires to perform its duties, including marketing information for and details of CyberHive Services, and information about CyberHive.
- Payment of expenses. CyberHive shall not be responsible for any expenses incurred by the Partner unless such expenses have been agreed by CyberHive in writing, in advance.
- Freedom of CyberHive not to pursue Referrals. CyberHive shall be under no obligation to:
  - follow up any Referral made by the Partner; or
  - enter into a Relevant Contract.

CyberHive will inform the Partner of any referrals that are not persued. Withing the limits of commercial and/or regulatory requirements any reasons will also be shared.

Confidentiality
- Obligations of confidentiality. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
- Confidentiality exceptions. Each party may disclose the other party’s confidential information:
  - to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 5; and
  - as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Limited use of confidential information. No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
- Return of documents and records. All documents and other records (in whatever form) containing confidential information supplied to or acquired by the Partner from CyberHive shall be returned promptly to CyberHive on termination of this Agreement, and no copies shall be kept, whether digitally or otherwise.
Compliance
- Each party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
- Compliance with Bribery Act 2010. The Partner shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010 (BA 2010).
Data protection
- - Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: have the meanings given to them in the Data Protection Legislation.
  - Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data.
  - UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
- Independent Controllers. The parties agree that save for as otherwise stated in this Agreement, for the purposes of Data Protection Legislation, each party shall be a separate and independent controller of any personal data which is shared in connection with this Agreement (Agreement Data).
- Effect of non-compliance with Data Protection Legislation. Each party is responsible for and shall comply with all their obligations imposed on a controller under the Data Protection Legislation.
- Particular obligations relating to data sharing. Each party shall:
  - ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Agreement Data to the other party for the purpose made known to it by the disclosing party or as otherwise set out in this Agreement;
  - ensure that it only processes Agreement Data it receives from the other party for the purposes set out in clause 7.4(a) unless it is otherwise permitted by applicable Data Protection Legislation to process the Agreement Data for a different purpose; and
  - ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
- Partner shall indemnify CyberHive against all liabilities, costs, expenses, damages and losses suffered or incurred by CyberHive arising out of or in connection with the breach of the Data Protection Legislation by the Partner, its employees or agents.
Intellectual property
- Intellectual Property Rights. This Agreement does not transfer any rights or interest in Intellectual Property Rights. For the avoidance of doubt, nothing in this Agreement shall assign or otherwise transfer any rights or interest in the CyberHive IP.
- Creation of Intellectual Property. Subject to clause 1, all Intellectual Property Rights developed or created by a party pursuant to this Agreement shall be the property of that party.
Limitation of liability
- References to liability in this clause 9 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Unlimited liability. Nothing in this Agreement shall limit or exclude the liability of either party for:
  - Death or personal injury. Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
  - Fraud. Fraud or fraudulent misrepresentation or wilful default.
  - Liability under indemnities. Liability under the indemnities contained in the Agreement.
  - Unlawful liability restrictions. Any matter in respect of which it would be unlawful to exclude or restrict liability.
- Limitations of liability. Subject to clause 1 above:
  - Loss of profit, revenue, goodwill, or anticipated savings. CyberHive shall not under any circumstances whatever be liable to the Partner for: any loss of profit, sales, revenue, or business; loss of anticipated savings; loss of or damage to goodwill; loss of agreements or contracts; loss of use or corruption of software, data or information; any loss arising out of the lawful termination of this Agreement or any decision not to renew its term, or any loss that is an indirect or secondary consequence of any act or omission of the party in question.
  - Total cap. The total liability of CyberHive in respect of all other loss or damage arising under or in connection with this Agreement shall in no circumstances exceed the Commission paid by CyberHive in the 12 months preceding the event, action or omission which gave rise to liability under this Agreement.

Commencement and duration

This Agreement shall commence on the date when it has been entered into by all the parties (“Order Effective Date”). Unless terminated earlier in accordance with clause 11, this Agreement shall continue for the Initial Term and shall automatically extend for a period of 12 months (the “Extended Term”) at the end of the Initial Term and at the end of each Extended Term. The parties may agree in writing not later than 3 months before the end of the Initial Term of the Extended Term to terminate this Agreement at the end of the Initial Term of the relevant Extended Term, as the case may be.

Termination
- Termination on notice. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
  - the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
  - the other party suspends, or threatens to suspend, payment of its debts or is unable or is deemed unable to pay its debts as they fall due;
  - the other party is subject to any form of insolvency application, petition or proceedings;
  - the other party (being a company or otherwise) goes into liquidation, administration or receivership (or if any resolution, application, petition or proceedings is passed or issued in relation thereto);
  - the other party (being an individual) is the subject of a bankruptcy petition or order;
  - any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 1 (b)-(e) (inclusive);
  - the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
  - the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
- Termination by CyberHive. CyberHive may terminate this Agreement on notice with immediate effect if:
  - the Partner is in breach of its compliance obligations in clause 6;
  - the Partner is not making a sufficient number of Referrals;
  - in the reasonable opinion of CyberHive, the Agreement or CyberHive’s association with the Partner is harmful, detrimental or otherwise undermines the reputation or goodwill of CyberHive.

Consequences of termination
- Clauses to remain in force on termination. On termination of this Agreement, the following clauses shall continue in force: clause 1, clause 5 and clause 12 (inclusive).
- Accrued rights. Termination of this Agreement shall 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 any breach of the Agreement which existed at or before the date of termination, save for that on termination any rights the Partner may have to any Commission due after termination shall cease.
Other important terms
- No partnership or agency between the parties. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- No agency on behalf of third party. Save for as otherwise set out in this Agreement, each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- No reliance on matters outside Agreement. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
- Misrepresentation and misstatement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Assignments and other dealings. This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
- No automatic waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address that either party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier, or email to the email address that either party may specify to the other party.
- Deemed receipt of notices. A notice or other communication shall be deemed to have been received:
  - if delivered personally, when left at the address referred to in clause 13.10;
  - 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 email, one Business Day after transmission.
- Exclusions from notice provisions. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Third party rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
- Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).