Version 2.0, October 2020.
1. Applicability.
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.
2. Definitions.
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.
3. Pricing and Taxes.
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.
4. Acceptance and Payment Terms.
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.
5. License to Use Equipment.
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.
6. Data Protection.
Customer agrees and understands that Hiber may store, process and use
data collected from Customer for the purposes of managing Customer’s
Mission Control account and processing the Customer’s orders. For
additional information on the data that Hiber maintains and how it is
processed, please see Hiber’s Privacy Policy posted on Hiber’s website.
7. Shipping and Warranty on Equipment.
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.
8. Equipment Rentals and Leases.
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.
9. Indemnity and Limitation of Liability.
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.
10. Provisions Applicable to Resale of Equipment.
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.
11. Excusable Delay and Force Majeure.
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.
12. Governing Law and Disputes.
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.
13. Export Licensing, Regulatory, Anti-Corruption, and Other
Requirements.
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.
14. Changes to Terms; Notices and Communications.
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: Hiber BV Attn: Legal Department Moermanskkade 600 1013
BC Amsterdam, The Netherlands
15. Severability.
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.
16. Proprietary Rights:
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.
17. Assignment:
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.
18. Entire Agreement.
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.