These Hiber Equipment Purchase Terms and Conditions (“Terms”) apply to the sale and lease of ground equipment, parts, and other goods (“Equipment”) by Hiber B.V. (“Hiber”), a company registered in Amsterdam, The Netherlands , to End Users, resellers, integrators, and other commercial and governmental customers (“Customers”). In the event that Hiber and the Customer have executed a separate agreement that applies to the sale or lease of Equipment such as a master sales agreement, reseller agreement, etc., and such agreement is in effect as of the date that the Equipment is purchased or leased by Customer, then the terms of such separate agreement shall take precedence over any inconsistent provisions contained in these Terms. In the event that Hiber provides a Quote to a Customer that contains Equipment for purchase or lease and such Quote provides for terms that vary from these Terms, the terms of such Quote shall take precedence over these Terms provided that Customer accepts the Quote within the timeframe specified in such Quote.
a. Customer: The entity purchasing or leasing Equipment from Hiber, either as an End User, for integration into its own service or product offering, or for resale to End Users or other parties.
b. Intellectual Property: Inventions, designs, discoveries, processes, formulae, trade secrets, research and development information, preparatory designs, design standards, specifications, notations, improvements, know-how, goodwill, reputation, get-up, trade names and marks, internet domain names or similar electronic identifiers, logos, devices, plans, models, drawings, technical, functional or user documentation, computer software (including source code and object code), data, databases, all descriptions of work in which copyright subsists (including without limitation all literary, dramatic, musical and artistic works) and all other related matters.
c. Intellectual Property Rights: All present and future right title and interest whatsoever whether legal or beneficial anywhere in the world in any and all copyright, registered or unregistered designs, unregistered design rights, trade marks (whether or not registered) goodwill, rights or protections equivalent or similar to copyright, topography rights, patents, petty patents, utility models, database rights, confidential information, designations and rights under any international convention for the protection of any of the foregoing and any licences, applications, or consents respectively granted, applied for, or given in respect of any of the foregoing.
d. Mission Control: The online interface operated by Hiber from which the End User makes manages its Hiber account.
e. Quote: A valid written offer from Hiber to a specific Customer to provide certain Services and/or Equipment pursuant to the specified prices, terms, and conditions contained in such offer.
f. Resale Customer: A party to whom a Customer, in its own name, resells Equipment sold to Customer by Hiber.
g. Services: Service offered by Hiber as described more fully in the Hiber Standard Terms and Conditions of Service.
h. Subscription: The unit of activation of Service for a specified period, which may include packages including components such as Equipment, maintenance, and installation services.
a. All pricing for Equipment shall be provided in a written Quote, on Hiber’s web site, or as stated on Mission Control and shall be firm fixed prices. All pricing is subject to change based on market conditions; no Customer order shall be final until Acceptance of the Order as specified in Article 4.
b. Package Subscriptions. Hiber may from time to time offer packaged subscription rates that may include one or more components other than Equipment, including, for example, provision of Services, installation, or maintenance (“Package Subscriptions”). The terms for all such Package Subscriptions are included in the quotes provided by Hiber. Such terms may include minimum quantities and service terms. In the event that Customer defaults on any Package Subscription plan, Hiber may charge a penalty up to and including the full package price. The terms of sale for the services component of any Package Subscription are contained in the Hiber Standard Terms and Conditions of Service found on the Hiber web site, www.hiber.global. Installation and maintenance services are provided in accordance with the applicable Installation Guide, also found on the Hiber web site.
c. All pricing shall be exclusive of all taxes, regulatory fees, customs fees, and other charges. Customer will be solely responsible for the following: (a) any applicable national, state, provincial, and regional local sales, excise, use or other tax assessment, including VAT or GST where applicable and surcharges or similar charges of any nature levied upon the Service or Equipment by any governmental taxation or revenue entity (except for taxes based on Hiber’s income) arising out of or related to the sale or lease of the Equipment (“Taxes”); (b) telecommunications regulatory fees imposed by any governmental authority; and (c) any shipping, insurance , and customs costs incurred in the shipment of the Equipment to the Customer location. If Customer provides Hiber with an applicable tax exemption certificate, Hiber will work with Customer to obtain applicable tax exemptions to the extent consistent with applicable law.
d. Currency Rates. Rates for all Equipment are denominated in Euros. Payments to Hiber may be made in Euros, U.S. Dollars, and British Pounds. In the case of payment by Dollars and Pounds, Hiber will calculate the appropriate amount based on the current exchange rate as established by Hiber’s bank. All exchange rates are subject to fluctuation, and Hiber reserves the right to adjust the rate in any Quote in the event that the exchange rate for the quoted currency varies by more than five percent between the date of the Quote and the date of acceptance of the Quote by Customer.
a. A Customer order for Equipment shall be deemed accepted by Hiber upon the emailed confirmation by Hiber of an order placed on Mission Control or otherwise or upon the signed acceptance by Customer of a written Quote from Hiber within the validity period of such Quote (“Acceptance”).
b. Except where Equipment costs are charged as part of Package Subscription on a monthly recurring basis, payment in advance is required for all purchases of Equipment. Billing in arrears is not permitted unless specific arrangements to do so are accepted by Hiber in writing. In the event that Hiber accepts billing in arrears, it may perform appropriate credit checks and other verification on the Customer. For any purchased Equipment that is shipped to Customer prior to full payment being received by Hiber, Hiber shall retain a security lien on such Equipment until payment in full is received by Hiber.
c. Invoicing and Invoicing Disputes. For any invoices sent by Hiber to Customer, payment by Customer shall be received by Hiber within thirty (30) days after Customer’s receipt of the invoice. Past due invoices shall accrue interest, as a penalty, at the rate of one and one-half percent (1 ½ %) per month or the maximum rate allowed by applicable law, whichever is less. Customer shall be liable for the payment of all fees and expenses, including attorneys’ fees, reasonably incurred in collecting, or attempting to collect, any charges owed hereunder. In case any portion of the invoice is disputed in good faith by Customer, Customer shall notify Hiber of the disputed amount within 30 days of the receipt of the invoice in question. Customer and Hiber shall each engage a senior member of their management team to resolve the dispute amicably. Customer may withhold any such disputed amounts until the dispute is resolved. In the event that the parties are unable to resolve the dispute, the parties shall engage in the dispute resolution process specified in Article 12 of these Terms.
d. In the event that any Tax, duty, impost, levy or like charge becomes payable in any territory, either by deduction or otherwise, on or in respect of any amount to be paid by Customer to Hiber, or which Customer may be required to withhold in respect of any amount due to Hiber, such tax, duty, impost levy or like charge shall be for the account of Customer, and Customer shall pay to Hiber such an amount as to yield to Hiber a net equal to the amount that but for such tax, levy, impost or charge would have been received by Hiber.
e. Customer Purchase Orders and Terms. In the event that Customer issues a purchase order to Hiber in connection with ordering Equipment, such purchase order will be treated as an administrative document only and not an offer subject to acceptance, and will not add to, delete from, or modify any of these Terms. Any Customer acceptance or acknowledgement of these Terms shall not serve to modify these Terms unless expressly confirmed in writing by Hiber.
f. Cancellations. Recognizing the unique nature of the Equipment provided by Hiber and the customized and discrete nature of Hiber’s operations, once a Customer has paid for Equipment, the order may not be cancelled by the Customer without the written consent of Hiber, which may be subject to a cancellation fee of up to the full value of the order in question.
g. ALL EQUIPMENT SALES ARE FINAL. No returns of purchased Equipment are permitted.
a. Permitted Uses. Hiber grants a worldwide license to use the Equipment and all Intellectual Property contained therein for the Equipment’s intended purposes only. Equipment is licensed for use solely in conjunction with Services provided by Hiber and its affiliates, resellers, and other authorized distributors. Any other use of the Equipment is strictly prohibited and shall be deemed to be a violation of the relevant Intellectual Property Rights owned by Hiber. In no event may Equipment be used in conjunction with services provided by any other service provider.
b. Prohibited Uses. EQUIPMENT IS DESIGNED FOR THE MONITORING OF NON-CRITICAL ASSETS. EQUIPMENT IS NOT INTENDED OR RATED FOR USE IN ANY APPLICATION OR ENVIRONMENT WITH SAFETY-OF-LIFE OR OTHER CRITICAL USE REQUIREMENTS. IN NO EVENT SHALL EQUIPMENT BE USED IN ANY APPLICATION WHERE THE SAFETY OF HUMAN LIFE OR OTHER CRITICAL REQUIREMENT DEPENDS UPON THE USE OF THE APPLICATION IN QUESTION, AND HIBER EXPLICITLY DISAVOWS ANY LIABILITY FOR ANY USE OF EQUIPMENT IN ANY SUCH APPLICATION. IN NO EVENT SHALL EQUIPMENT BE UTILIZED IN ANY APPLICATION WHERE A FAILURE OF SUCH EQUIPMENT COULD REASONABLY BE ANTICIPATED TO LEAD TO ANY LOSS OR INJURY TO LIFE OR TO SIGNIFICANT PROPERTY LOSS.
a. Unless otherwise specified in a Quote, all Equipment is shipped “FCA-- Hiber’s facility” (Incoterms 2010).
b. Hiber warrants that title to all new Equipment delivered to Customer will be free and clear of all liens, encumbrances, security interests, or other claims other than a lien in favor of Hiber pursuant to Article 4(b).
c. Hiber warrants that the Equipment will be free from defects in material and workmanship for a guaranteed period of one (1) year from the date of arrival of the Equipment at the Customer’s designated destination. For Equipment provided as part of a Package Subscription, the warranty shall last for the duration of the relevant Package Subscription term. All repairs on warrantable defects within the warranty period will be performed at no charge. For the avoidance of doubt, only the parts and labor directly related to the specific warranty-covered repair shall be free of charge. Any additional labor necessary to complete the repair that is unrelated to the direct warranty repair shall be Customer’s responsibility to pay.
d. In the event of a warranty claim, Hiber shall, at its expense and option, repair or replace the Equipment to achieve conformance and return the Equipment to Customer.
e. The warranty shall not apply to normal wear and tear of the Equipment nor to any Equipment that has been damaged due to: (i) accident, (ii) misuse, abuse, or negligence, (iii) alteration or storage in any manner that is inconsistent with Hiber’s recommended practices, (iv) failure by the Customer to follow recommended maintenance practices or to update Equipment with software updates or patches made available by Hiber; (v) use of components or parts not approved by Hiber, (vi) improper installation and (vii) environmental conditions, including water damage not caused by a defect. Hiber shall not be responsible for any repairs attempted or made by parties not authorized by Hiber. Unless otherwise agreed in writing, any opening of the Equipment casing, or repair performed other than by an authorized repair person or facility, shall void this warranty. Hiber shall not be responsible for the performance of any Equipment which incorporates items not manufactured by Hiber unless such performance is expressly designated as Hiber’s responsibility under the terms of a written agreement between Hiber and the Customer.
f. Software Warranty. Hiber warrants to the Customer that all software provided to Customer, including software embedded in Equipment, as delivered or updated by Hiber and properly installed and operated on the Equipment it is originally licensed for, will function substantially as described in the relevant product data sheets posted on Hiber’s web site, www.hiber.global, during the warranty period specified in Article 7(c). If any item of software fails to so perform during its warranty period, as the sole remedy Hiber will at its discretion provide a suitable fix, patch or workaround for the problem which may be included in a future revision of the software. For specific software that is distributed by Hiber as a licensee of third parties, additional warranty terms offered by such third parties to end users may apply. No other warranty for software, either explicit or implicit, is provided by Hiber.
g. Software Updates: Customer agrees to apply all updates to the Equipment that are made available to Customer by Hiber. Firmware updates, software patches, and other types of updates will be distributed by Hiber from time to time, and Customer shall take all actions as are necessary to apply such updates. Hiber shall bear no responsibility for any Equipment failures or deficiencies, and all warranty coverage shall be denied for such failures and deficiencies, to the extent they are caused by Customer’s failure to comply with this Article 7(g).
h. Once a warranty repair has been completed, Hiber will warrant such repair until the later of the end of (i) ninety (90) days from the date of return delivery at the Customer’s delivery point; and (ii) the original warranty period
i. Unless otherwise provided in a specific Quote, all warranty repairs shall require that the Customer return the Equipment to Hiber for repair or replacement. In the event that a Quote calls for on-site warranty repairs or replacement at Customer’s location, Customer shall be responsible for all actual costs associated with the technician’s travel to the site, including, but not limited to, transportation costs and living expenses. Hiber will provide a written estimate of travel costs upon request. Urgent requests for service may incur additional charges. Customer shall provide reasonable access to the site as well as a safe work environment and shall be liable for injuries or death resulting from Customer’s negligent or willful misconduct while the technician is at the Customer’s site.
j. The warranties contained herein are exclusive and are given in lieu of all other warranties, expressed, implied or statutory, including the implied warranty of merchantability or fitness for a particular purpose.
k. For any repairs requested after the warranty period or for damage arising out of the conditions specified in Clause 7(e), Hiber will provide a quote for such repairs and if the quote is accepted and the work authorized by Customer, the repairs will be performed at Customer’s expense.
l. Customer may have an option to purchase a maintenance plan to take effect after the relevant warranty period on its Equipment has expired. In the event that the Customer purchases a maintenance plan, the warranty provisions of this Article 7 shall be extended by the period of the maintenance plan. Hiber may limit out-of-warranty access to software updates and patches if a maintenance plan is not purchased.
a. Hiber may from time to time offer Package Subscriptions as described in Article 3(b) in which a Customer is offered a combined Equipment/Services package for a single combined rate payable over a specified period. Under such terms, the Equipment may be either considered to be sold, rented, or leased, depending upon the terms specified in the relevant Quote. All such arrangements shall, in addition to the other provisions of these Terms, be governed by the terms of this Article as appropriate:
i. Sold Equipment. In the event that the Quote provides for an immediate transfer of title of the Equipment from Hiber to Customer upon full lump-sum payment at the commencement of the Subscription plan, then the Equipment shall be treated as sold and shall be governed by these Terms.
ii. Rented Equipment. Hiber may from time to time make Equipment available for short-term rental, generally as part of a short-term trial or proof-of-concept. In such cases, the Equipment must be returned to Hiber at the end of the relevant short-term period. For such rented Equipment, the provisions of Article 8(b) shall apply in addition to the other provisions of these Terms.
iii. Leased Equipment. In the event that a Quote provides that a Package Subscription includes both Services and Equipment for a defined period (for example, a one-year or two-year package), then the provisions of Article 8(b) shall apply in addition to the other provisions of these Terms.
b. Leased and Rented Equipment. The following provisions shall apply with respect to all leased and rented Equipment:
i. Hiber reserves the right to retain a security deposit to secure the value of the rented or leased Equipment. Hiber may run appropriate credit checks on Customer to determine creditworthiness before a rental or lease is permitted.
ii. Hiber shall retain the ownership of the Equipment during the rental or lease term. Customer will protect Hiber’s ownership rights against claims, liens and other encumbrances by Customer’s creditors or other claimants against Customer. Customer will not remove, obliterate, or obscure markings which identify Hiber as owner of the Equipment.
iii. Customer shall return all rented or leased Equipment to Hiber at the end of the relevant rental or lease term, at Customer’s expense. Upon receiving back rented or leased Equipment, Hiber shall test and examine such Equipment and will notify Customer within ten (10) business days of any damage or excess wear. Hiber will invoice Customer for the full cost of restoring the Equipment to good working condition.
iv. Customer will bear responsibility for all malfunctions, failures, damage to or loss or theft of Equipment from the time that the Equipment is shipped by Hiber until the time that the Equipment is received back by Hiber, except for and normal wear and tear and manufacturing defects covered under Article 7.
v. In the event of any damage or loss during the rental or lease term, Customer will promptly give Hiber notice thereof and, Customer will elect one of the following options:
Pay to Hiber an amount equal to the fair market value of the Equipment, or fraction thereof, for the damaged or lost Equipment. In such case, the rental or lease charges and other obligations of the Customer shall continue until the payment is made. After payment is made, the relevant lease or rental agreement will terminate with respect to the Equipment involved; or
Request that Hiber repair or replace the damaged or lost Equipment, and pay to Hiber the cost of such repair or replacement, including all incidental costs such as shipping and insurance. In such case the applicable rental or lease charges and other obligations of the Customer shall continue during the period of repair or until replacement. If Hiber is unable to repair or replace the Equipment then option in Article 8(iv)(1) shall apply.
vi. Customer shall maintain the rental or leased Equipment as recommended by Hiber. If the Package Subscription purchased by Customer includes maintenance provided by Hiber, then Customer shall provide all necessary cooperation with Hiber to ensure timely and convenient access to the Equipment in question.
vii. If Customer fails to perform any obligation when due under these Terms or the applicable Quote or Package Subscription, or otherwise defaults on its obligations, Hiber shall have the right to terminate the rental or lease of the Equipment by immediate notice to the Customer. Upon such termination, (i) the balance of the applicable Package Subscription charges will be due and payable immediately and, (ii) Hiber shall have the right, at its option, to take possession of and remove the Equipment from service immediately. Any other damages or amount chargeable to the Customer shall be immediately due upon such termination. In addition to failure to perform its obligation elsewhere stated in these Terms, the following shall be defaults by the Customer:
Issuance of writ, attachment, execution, or similar court process against the Customer or its property;
Bankruptcy, or any application for reorganization protection from creditors, insolvency, appointment of a receiver or trustee whether voluntary or involuntary;
Termination of the Customer’s business;
If any representation made by Customer proves to be false or misleading in any material respect;
Any action which jeopardizes Hiber’s ownership rights or ability to take possession of the Equipment.
Any use of the Equipment for improper or illegal purposes or in any way contrary to the requirements of any applicable Hiber term or condition, or any failure to pay any charge due to Hiber on time.
Any use of the Equipment in conjunction with services provided by any service provider other than Hiber and its affiliates, resellers, and other authorized distributors.
a. Customer agrees to protect, indemnify and hold harmless Hiber, its affiliates, and their employees, officers, and agents, from and against all claims, damages and costs including legal expenses arising out of the Customer’s use of the Equipment.
b. There are no implied or other standards of performance, guarantees or warranties except as expressly stated in these terms, and any express or implied warranties or other terms implied by law, including, but not limited to warranties of merchantability or fitness for any purpose or use are hereby expressly excluded and disclaimed to the fullest extent permitted by law. NEITHER HIBER NOR ITS AFFILIATES, NOR THEIR EMPLOYEES, OFFICERS, AND AGENTS, SHALL BE LIABLE TO CUSTOMER, NOR SHALL CUSTOMER MAKE ANY CLAIM AGAINST HIBER OR ITS AFFILIATES, OR THEIR OFFICERS, EMPLOYEES OR AGENTS, FOR CLAIMS, ACTIONS, LOSSES, COSTS AND DAMAGES (“LIABILITIES”) SUSTAINED BY REASON OF ANY FAULTINESS OR FAILURE OF THE EQUIPMENT. In the event that Customer is selling Equipment to a third party, Customer agrees that it will include in any agreement to provide Equipment an explicit commitment on the part of the third party to waive any right to make any claim against Hiber and its affiliates, and their employees, officers, and agents, for Liabilities sustained by reason of any faultiness or failure of the Equipment.
c. NEITHER CUSTOMER NOR HIBER, NOR THEIR AFFILIATES, NOR THEIR EMPLOYEES, OFFICERS, OR AGENTS, SHALL BE LIABLE TO THE OTHER, ANY USER, OR OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL, EXEMPLARY OR PUNITIVE LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS, OR LOSS OF BUSINESS OPPORTUNITIES, HOWEVER ARISING, EVEN IF THE PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OCCURRING. Hiber shall not be liable to Customer for infringement of patents or other intellectual property rights arising from manufacture, sale, lease, or use of the Equipment or the use of the Equipment in combination with Customer-provided equipment.
d. Should Hiber or its affiliates, or their employees, officers, or agents, be found liable to Customer under these Terms, in no event shall the total liability exceed the amount paid by Customer to Hiber over the preceding twelve-month period.
e. Customer shall use the Equipment in full compliance with all applicable laws and regulations. Customer shall ensure that the Equipment is properly licensed by the relevant governmental authority in the country where such Equipment is being used. Customer shall be responsible for all Liability arising out of or relating to the use of the Equipment by Customer or otherwise related to any acts or omissions of Customer. Customer shall indemnify and hold Hiber and its affiliates as well as their officers, employees and agents harmless from and against all such Liability.
f. Any limitations of liability in these Terms shall not apply in case of: (a) death or personal injury caused by a party’s negligence where it would be illegal under applicable law for a party to exclude or attempt to exclude its liability; and (b) fraud or fraudulent misrepresentation by a party.
In the event that Customer is purchasing Equipment for resale to Resale Customers, the provisions of this Article 10 shall apply to such resale, as shall the other provisions of these Terms.
a. Customer shall perform all accounting, billing and collections activities necessary with respect to its Resale Customers and shall be solely responsible for all expenses related to the performance of such activities. Customer shall be solely responsible for all credit risk relating to its Resale Customers and shall be responsible for paying all amounts due to Hiber notwithstanding any non-payment by or disputes with any Resale Customers.
b. Customer shall defend, indemnify and hold harmless Hiber and its affiliates, and their officers, employees, and agents, against all claims, actions, losses, costs and damages arising from claims by Resale Customers or third parties relating to the use of the Equipment by such Resale Customers, (including without limitation the failure by Resale Customers to abide by the provisions of Article 10(d) of these Terms), except to the extent such claims are based upon the gross negligence or willful misconduct of Hiber.
c. Customer shall be solely responsible for all Taxes, tariffs and surcharges, if any, arising from the purchase or lease of Equipment by Customer and the resale to its Resale Customers. This includes but is not limited to Customer being responsible for payment or reimbursement of any goods and services taxes, value added taxes, and income taxes, universal service levies, charges, levies, duties, withholding, usage or other fees which may be asserted against Customer or Hiber by any governmental entity.
d. Customer shall require its Resale Customers to abide by terms consistent with these Terms. Customer shall require any Resale Customers to use the Equipment only for lawful purposes and in compliance with all applicable laws and regulations of the territories in which Customer or any Resale Customer uses the Equipment or to which it is otherwise subject, including without limitation telecommunications licensing, export control requirements, patent, copyright, trademark, and any other intellectual property rights, and laws concerning defamation, obscenity, privacy and data protection.
e. Use of Hiber Trademarks. Hiber hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license to use certain trademarks, trade names, service marks, other commercial symbols, designs and logos owned by Hiber (hereinafter "Marks”) for the purpose of promoting and reselling the Equipment to Resale Customers. Customer acknowledges that the Marks are the exclusive property of Hiber and that neither these Terms nor the carrying on of business by Customer will in any way give Customer any interest or ownership in any of the Marks, or in other promotional advertising or other written material prepared by Hiber regarding the Equipment. Customer must cease use of the Marks upon written notice from Hiber or upon termination of the business relationship. Customer must obtain the written approval of Hiber to apply the Marks to services or hardware other than those covered under this Terms.
a. Except for Customer’s payment obligations, no party will be liable for any failure to perform due to a cause beyond such party’s reasonable control (“Force Majeure”) including, but not limited to, acts of Nature, actions or inaction of any governmental body in either its sovereign or contractual capacity, explosions, fires, floods, earthquakes, epidemics, strikes or other labor difficulties, freight embargoes, unusually severe weather, riots, war, theft, national emergencies or natural disasters; provided that the party failing to perform promptly notifies the other party of such circumstances and uses its reasonable efforts to avoid or remove such cause of non-performance.
b. During any period when performance of a party’s obligation is prevented by Force Majeure, that obligation shall be suspended for the duration of the period of Force Majeure. Upon removal or cessation of such cause of non-performance, all obligations will resume.
a. These Terms and the sale or lease of the Equipment shall be governed by and interpreted in accordance with the laws of The Netherlands, excluding any conflict of law or choice-of-law provisions or principles that would require the application of the laws of any other jurisdiction.
b. Any disputes arising in connection with the sale or lease of Equipment shall be finally and exclusively resolved by arbitration conducted in Amsterdam, The Netherlands, The rules for such arbitration shall be the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”) then in effect, as such ICC Rules may be modified by this Article 12. To the extent that the ICC Rules are in conflict with Article 12, the provisions of this Article 12 shall prevail. The following shall apply to any arbitral proceeding conducted pursuant to this Article 12:
i. One or more arbitrators will be appointed for the arbitration by the ICC in accordance with the ICC Rules. Each arbitrator shall be fluent in the English language and be familiar with the Governing Law. The arbitration proceeding shall be conducted in the English language.
ii. Any award of the arbitrators shall be enforceable by any court having jurisdiction over the party against which the award has been rendered, or wherever assets of the party against which the award has been rendered can be located. The award may not include any damages waived by a party pursuant to these Terms.
iii. The arbitration award shall be final and binding on the parties, and each party hereby waives any right of appeal to any court or tribunal of competent jurisdiction to the fullest extent permitted by the governing law.
c. These Terms do not permit class or collective arbitrations in any manner, even if the ICC Rules would permit such claims. Notwithstanding any other provision of these Terms, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. No class or representative or other aggregate litigation theory of liability or prayer for relief may be maintained in any arbitration held under these Terms. Any question regarding the enforceability or interpretation of this Article 12(c) shall be decided by a court of competent jurisdiction and not the arbitrator.
d. Notwithstanding the provisions of Article 12(b), any action to collect money owed to Hiber may be brought by Hiber in any court of competent jurisdiction. In any such case, Customer shall pay all costs incurred by Hiber in such action, including without limitation court costs and attorneys’ fees.
a. The sale or lease of Equipment may be subject to applicable export, international sanctions, and anti-money laundering laws and regulations. The parties will comply with all such applicable laws, including without limitation export, trade compliance, embargo, anti-money laundering, and sanctions laws and regulations of the European Union, the United States of America, and the United Nations. Customer shall provide adequate information as requested by Hiber to identify the ultimate user or owner of all Equipment provided by Hiber. Under no circumstances may the Equipment be resold or otherwise made available in the following countries, or provided to nationals of the following countries, without prior written proof to Hiber’s satisfaction that Customer holds all required authorizations from all relevant EU and US authorities: Iran, Cuba, Sudan, Syria, and North Korea.
b. Export. Customer shall comply with the terms of all relevant export licenses as well as with all relevant export and import laws of the European Union and the United States of America and other applicable countries to ensure that the Services and related hardware are not re-exported or otherwise transferred in violation of such laws. Customer shall be solely responsible for obtaining any required import and export licenses.
c. Regulatory. Customer recognizes that Hiber does not control the installation and use of the Equipment and therefore cannot guarantee the proper licensing of the use of the Equipment in every jurisdiction in which it is used. Customer shall ensure the proper licensing and certification of all Equipment in all countries in which it operates. For maritime usage, the Equipment shall only be used in international waters unless a terrestrial license is in place for the countries in which the vessels make port.
d. Customer shall comply with applicable laws and regulations relating to anti-corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act, (ii) the United Kingdom Bribery Act 2010 irrespective of the place of performance, and (iii) anti-corruption laws in any country in which the Customer is organized or located or where the Equipment is to be delivered or used. Customer warrants that it will (a) comply in all respects with such laws, rules and regulations related thereto, including the comparable laws of all jurisdictions where it or its agents are conducting business, (b) provide written certification of its compliance with the foregoing when asked by Hiber, and (c) cooperate with Hiber and its designees at Customer’s expense in any inquiry or investigation of Customer or its agents regarding their conduct or alleged conduct relating to compliance or failure to comply with any of the foregoing.
a. Hiber retains the right to modify these Terms at any time. Hiber will provide thirty days’ notice to Customer of any such changes, such notice to be provided electronically to the Customer’s email account of record or by means of a notification posted in the Customer’s Mission Control account. Customer’s continued use of the Equipment after the notified modification takes effect shall indicate acceptance by the Customer of such modification. If the Customer can demonstrate that the specific modification of the Terms will have a material adverse effect on the Equipment or Service provided to Customer, then Customer shall have a right to cancel the affected Subscription(s) within 30 days of receiving the notice with no early termination fee if Hiber fails to mitigate the change after notification by Customer of the adverse affect. Notwithstanding this provision, any changes to the dispute resolution provision of Article 12 shall not affect the resolution of any disputes that arose before such change.
b. All notices and communications permitted or required (“Notices”) shall be in writing in the English language and shall be sent by facsimile, overnight courier, or certified mail, as appropriate in light of the subject matter of the Notice. All notices to Hiber shall be sent to the following:
Attn: Legal Department
1013 BC Amsterdam, The Netherlands
If any provision of these Terms is declared invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In the event that any such provision is declared invalid, illegal or unenforceable due to its scope, breadth or duration, then it shall be modified to the scope, breadth or duration permitted by law and shall continue to be fully enforceable as so modified.
a. All information including, but not limited to drawings, prints, publications, specifications, processes, manufacturing techniques, and software (in object code or any other form), and other intellectual property, accessed or obtained by the Customer shall be received in confidence by the Customer and shall remain the property of Hiber. Such information shall not be reproduced, used, or disclosed to any third party by the Customer without the prior written consent of Hiber.
b. Customer acknowledges that the Equipment contains software, including but not limited to operating systems and applications. Such software may be included in ROMs or other semiconductor chips embedded in hardware, or it may be contained separately on disks or on other media. Such software is proprietary, is copyrighted, and may also contain valuable trade secrets and be protected by patents. Customer may use software that is incorporated in or packaged with Equipment solely in connection with the authorized use of such Equipment and shall have no other rights with respect to such software.
c. Duties and Responsibilities:
The Customer shall make no attempt, nor authorize any other party, to reverse engineer, (including reverse compile, disassemble or otherwise reverse engineer), modify or make derivatives of any Equipment, software, prototype, data or other supplies delivered, provided or disclosed by Hiber. Customer agrees that it will not induce its Resale Customer, as applicable, or any other third party to perform any such reverse engineering.
Each party shall respect the proprietary and patent interests of the other party and shall endeavor to prevent the disclosure or use of data so identified to or by persons not specifically authorized to receive such information. Proprietary data, if any, shall be used only for the purpose defined in these Terms.
Neither these Terms nor any interest herein, may be assigned, in whole or in part, by either party without the prior written consent of the other party hereto, except that without securing such prior consent, either party shall have the right to assign these Terms to any successor which results from a merger, consolidation, spin-off, or the acquisition of substantially all of the entire business and assets of that party relating to the subject matter of these Terms, provided, however, that such successor shall have expressly assumed all of the obligations and liability of such party under these Terms, and such successor is not a competitor to the other party.
These Terms constitute the entire understanding between Hiber and Customer as to the subject matter hereof and supersede all prior agreements, discussion, representations, and understandings, written or oral, between Hiber and Customer with respect to such subject matter.