Version 1.7, April 2023
Preface.
Below you will find Hiber's Subscription Services Terms and Conditions, which apply to all products and services offer by Hiber and its subsidiaries (including HWS Solutions B.V.) on a subscription basis. Please read these Terms and Conditions carefully, as they apply to all quotes and offers provided by Hiber and its subsidiaries and all orders placed by you, the customer.
Hiber's Products are available on a “Business-to-Business” basis only. Hiber does not engage in direct-to-consumer business. Customer hereby certifies that it is acting solely as a purchaser or user in the capacity of its occupation or business.
Hiber B.V.
Address: Moermanskkade 600
1013 BC Amsterdam, the Netherlands
Phone: +31 (20) 244-0420
Email: legal@hiber.global
Chamber of Commerce number: 66317878
VAT number: NL856492450B01
HWS Solutions B.V.
Address: Moermanskkade 600
1013 BC Amsterdam, the Netherlands
Phone: +31 (20) 244-0420
Email: legal@hiber.global
Chamber of Commerce number: 81106343
VAT number: NL861933692B01
Applicability.
These Hiber Subscription Services Terms and Conditions (“Terms”) apply to the provision of subscription Services by Hiber B.V., a company registered in Amsterdam, The Netherlands and/or its affiliated entities (including without limitation HWS Solutions B.V.) (“Hiber”), to end users and other customers (“Customers”). In the event that Hiber and the Customer have executed a separate agreement, such as a purchase order, master sales agreement, reseller agreement, non-disclosure agreement, etc., and such agreement is in effect as of the date that the Services are purchased 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 for service to a Customer 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.
Definitions.
The following terms shall, when capitalized in these Terms, have the following meanings:
API:Application Programming Interface, the interface by means of which Customer may, at its choice, integrate the data from the End User Asset into its existing monitoring system.
Communications Node or CN: The node supplied by Hiber that works in conjunction with an End User Asset and that transmits the Data Package from such End User Asset to Mission Control or other destination via API. The CN may include, for example, a satellite modem, a local terrestrial transmitter used in conjunction with a satellite gateway, an integrated sensor/transmitter, or some other configuration. The scope of the CN for a particular Service offering is defined in the product specification for such Service offering.
Contract: A Customer's ordering document under which it purchases Subscriptions.
Customer: The entity purchasing Services 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.
Data Package: The data message generated by or delivered from the End User Asset to the CN and transmitted from the CN to the Customer via Mission Control or other API.
End User: The operator of the End User Asset; this may be a Customer or a third party.
End User Asset: The asset owned or operated by the End User that is being monitored using Hiber Services.
Equipment:The hardware provided by Hiber to Customer for the duration of the Subscription Period for the purpose of utilizing the Services from Hiber.
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.
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 licenses, applications, or consents respectively granted, applied for, or given in respect of any of the foregoing.
Mission Control: The online interface operated by Hiber from which the Customer may choose to manage its account and retrieve its Data Packages.
Products: Services, Equipment, and other products made available to Customer by Hiber.
Quote:A valid written offer from Hiber to a specific Customer to provide certain Services pursuant to the specified prices, terms, and conditions contained in such offer.
Services: The services supplied to Customer by Hiber.
Subscription: The agreement under which Hiber provides the relevant solution to Customer, including the rental of included Equipment, the provision of Services, and other agreed components, for the agreed Subscription Period.
Subscription Period: The term during which Hiber will provide the applicable Subscription Services to Customer.
Pricing and Taxes.
Subscriptions. All Services are purchased by means of Subscriptions. Subscriptions include the use of the Equipment during the Subscription Period, the transmission of the Data Packages to Mission Control or via API to another destination, and other services as specified in the product specification for the particular offering.
Commencement of Subscriptions. Each Subscription shall commence upon the earlier of: (i) the date of successful completion of installation of the Equipment; and (ii) the date one month after the date of delivery of the Equipment to Customer.
Subscription Terms. The terms for all Subscriptions are included in the Quote or Contract 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. Pursuant to the terms of the Quote or Contract, it may be possible for Customer to change between selected Subscription Periods during the current Subscription Period, with longer Subscription Periods bearing a lower annual Subscription fee and shorter Subscription Periods bearing a higher annual Subscription fee. In the event that changing between different Subscription Period lengths (both shortening and extending) is permitted by the Quote or Contract, the pricing for the new Subscription Period duration will be applied retroactively. This means that an extension to a longer Subscription Period will include a partial credit, while shortening the Subscription Period, including any permitted termination for convenience, will result in an early cancellation fee. In the event that the Quote or Contract provides for an annual renewal of the Subscription Period rather than a fixed Subscription Period, the Customer must cancel the Subscription no less than three months before the anniversary of the beginning of the relevant annual Subscription Period or the Subscription Period will automatically extended for an additional year.
Taxes and Fees. All pricing is exclusive of 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 by any governmental taxation or revenue entity (except for taxes based on Hiber's income) arising out of or related to the sale of the Services (“Taxes”); and (b) telecommunications regulatory fees imposed by any governmental authority. 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.
Currency Rates. All rates are quoted in Euros. If requested by Customer for regulatory reasons, Subscription fees and other charges may be invoiced in the local currency of the country where the Services are being performed. In this case, the Euros Contract price will be converted to the applicable local currency for the purposes of invoicing using the local currency “buy” exchange rate (according to European Central Bank reference rates) before each invoice is raised.
Acceptance and Payment Terms.
All Customer orders shall be deemed accepted by Hiber upon the emailed confirmation by Hiber of an order placed by Customer or upon the signed acceptance by Customer of a written Quote or Contract from Hiber (“Acceptance”).
Unless otherwise provided in the Quote, all written Quotes from Hiber shall be valid for a period of 60 days from the date of the Quote, provided that Quotes for proofs-of-concept and other short-term or temporary service offerings shall be valid for a period of 30 days.
Unless otherwise provided in the Quote, all Subscriptions are invoiced as follows:
For Subscriptions of 5 years or longer duration:
For Subscriptions of one year duration:
For Subscriptions with a duration of between 1 and 5 years, the Parties will agree on an appropriate variation of the above two options, provided that no less than 50% of total value shall be payable upon the signing of the contract.
For all renewals of annual Subscriptions, 100% of the annual renewal Subscription fee shall be invoiced on the first day of the renewal period, which shall be the anniversary of the original Subscription effective date.
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 11 of these Terms
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.
Customer Purchase Orders and Terms. In the event that Customer issues a purchase order to Hiber in connection with any Subscription, 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.
Cancellations.
Recognizing the unique nature of the Services provided by Hiber and the pricing structure of Hiber's Subscription Services, and excepting termination by Customer under Article 7(e) or Article 13(a) and any shortening of the Subscription Period under Article 3(c), Subscriptions are not permitted to be cancelled by the Customer without the written consent of Hiber, which will be subject to a cancellation fee of the full remaining value of the Subscription in question.
Data Protection.
Customer agrees and understands that Hiber may store, process and use data collected from Customer for the purposes of managing Customer's account, processing the Customer's orders, and providing Services. 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. In accordance with Article 4 of the General Data Protection Regulation (GDPR), Hiber will disclose any data breach as defined in the GDPR in accordance with its Data Breach Protocol. For a copy of Hiber's Data Breach Protocol, please contact legal@hiber.global. In compliance with such Privacy policy, Hiber may utilize anonymized and amalgamated Customer metadata for research and marketing purposes.
Service Requirements, On-Line Tools, and Data Package Delivery.
Installation. If the Subscription does not explicitly include installation services from Hiber, it is the responsibility of the Customer to properly install and operate the Equipment, which shall be undertaken according to instructions provided by Hiber. Customer shall utilize only qualified employees or contractors to undertake such installations. Installations may only be carried out after an installation plan has been developed and approved by both Hiber and Customer. In all cases, it shall be the Customer's sole responsibility to install Equipment that is to be connected directly to the Customer assets being monitored, including without limitation wellheads. All such installations shall be carried out by Customer personnel qualified to work on such assets and shall follow and comply will all Customer policies, procedures, and safety guidelines regarding such assets. The Customer shall only utilize hardware approved by Hiber. The Customer shall also ensure that the antenna is installed in such a manner as to permit line-of-sight access to the applicable satellite(s).
SAFETY-OF-LIFE AND OTHER CRITICAL APPLICATIONS. HIBER'S SERVICES ARE HIGH-LATENCY, LOW-TRANSMISSION-RATE SERVICES DESIGNED TO MONITOR NON-CRITICAL ASSETS. HIBER'S SERVICES ARE NOT RATED FOR USE IN ANY APPLICATION OR ENVIRONMENT WITH SAFETY-OF-LIFE OR OTHER CRITICAL USE REQUIREMENTS. IN NO EVENT SHALL HIBER'S SERVICES 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 HIBER'S SERVICES IN ANY SUCH APPLICATION. IN NO EVENT SHALL HIBER'S SERVICES BE UTILIZED IN ANY APPLICATION WHERE A FAILURE IN ANY SENSOR OR ASSET MONITORED BY HIBER COULD REASONABLY BE ANTICIPATED TO LEAD TO ANY LOSS OR INJURY TO LIFE OR TO SIGNIFICANT PROPERTY LOSS.
Mission Control and API. Hiber will provide to each Customer access to Mission Control and/or to an API for the purpose of allowing the Customer to manage the data transmitted from the End User Asset.
Data Package Delivery. Hiber will deliver the Data Package to Mission Control or API in the format received from the End User Asset. The Data Package will be encrypted at the CN and will be transmitted and delivered to Mission Control or API in encrypted form. Once delivered to Mission Control or API, Customer shall be able to access the Data Package as desired; each Data Package will include a unique sequential identifier, the identity and location of the transmitting CN, and the time stamp of message transmission.
Service Level Agreement. Hiber provides a specific availability standard for Services, which shall be provided to Customer by Hiber. This minimum Service Level Agreement (“SLA”) is based on a number of applicable metrics, including the frequency of measurements agreed between Hiber and Customer. Hiber's total liability in connection with an SLA below the specified level for a given period is included in the SLA. In the event that the Customer is entitled to termination of a Subscription or Contract due to repeated consecutive failures by Hiber to meet its SLA obligations, then Customer will have the option to terminate such Subscription or Contract upon notice to Hiber. In such case, Customer shall return all Equipment to Hiber at Customer's expense pursuant to Article 8(c)(iii), and the Subscription or Contract shall be terminated upon Hiber's receipt of such Equipment in original condition, normal wear and tear excepted. Upon such termination, Hiber will return to Customer any prepaid Subscription Fees previously paid by Customer but for which Service has not yet been provided by Hiber, and no further Subscription Fees shall be due from Customer.
Service Updates. Customer agrees to allow all updates to the Services and 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 allow all such updates to be implemented. Hiber shall bear no responsibility for any Service or Equipment failures or deficiencies to the extent caused by Customer's failure to comply with this Article 7(f).
The provision of all Services by Hiber is subject to network availability. Services may be temporarily unavailable or limited because of capacity limitations, equipment failure, modifications, upgrades, repairs or similar activities. Hiber provides no warranty with respect to the accuracy of any data provided to Customer as part of the Services. EXCEPT AS DESCRIBED IN ARTICLE 7(e), NEITHER HIBER NOR ITS AFFILIATES, NOR THEIR OFFICERS, EMPLOYEES, OR AGENTS, SHALL HAVE ANY LIABILITY WHATSOEVER FOR UNAVAILABILITY, INNACURACY, OR MALFUNCTION OF ITS SERVICES OR FOR THE FAILURE TO DELIVER ANY DATA PACKAGE. Hiber shall have no liability for any action or inaction by Customer, or for any decision made by Customer, that is based on the data provided to Customer as part of the Services.
Hiber will endeavor to provide all Customers with advanced notice of any planned maintenance that might affect service availability.
Equipment.
License to Use Equipment.
Shipping and Warranty on Equipment.
Unless otherwise specified in a Quote, all Equipment is shipped “FCA-- Hiber's facility” (Incoterms 2010).
Hiber warrants that title to all Equipment delivered to Customer will be free and clear of all liens, encumbrances, security interests, or other claims.
Hiber warrants that the Equipment will be free from defects in material and workmanship for the duration of the Subscription Period. 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.
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.
The warranty shall not apply 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, or (vi) improper installation performed by Customer or a third party not authorized by Hiber. 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.
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 8(b). 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.
Battery Replacement. Some components supplied to Customer include batteries that are necessary for the component to operate. All such batteries are standard commercially-available batteries. Unless other arrangements are agreed to by Hiber, Customer is responsible for replacing batteries used in the Equipment. Hiber shall specify the battery type(s) required for replacement, and Customer shall use only the battery type specified by Hiber.
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.
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.
For any repairs requested for damage arising out of the conditions specified in Clause 8(b)(v), Hiber will perform the necessary repairs at Customer's expense.
Possession and Use of Equipment.
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.
Hiber shall retain the ownership of the Equipment during the Subscription Period. 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.
Customer shall return all Equipment to Hiber at the end of the Subscription Period, 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.
Customer will bear responsibility for all 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 warrantable effects covered under Article 8(b).
In the event of any damage or loss to the Equipment during the Subscription Period, including damage arising out of the conditions specified in Clause 8(b)(v), Customer will promptly give Hiber notice thereof and, Customer shall pay to Hiber an amount equal to the fair market value of the Equipment in the case of lost, stolen, or damaged-beyond-repair Equipment, or the full cost of repair of the Equipment in the case of otherwise damaged Equipment, including all incidental costs such as shipping and insurance. In all such cases, Hiber will replace or repair the Equipment, as appropriate, and the Subscription fees and other obligations of the Customer shall continue until the end of the relevant Subscription Period.
Customer shall maintain the Equipment as provided by Hiber in the relevant installation guide for the product in question.
If Customer fails to perform any obligation when due under these Terms or the applicable Contract or Quote, or otherwise defaults on its obligations, Hiber shall have the right to terminate the Subscription by immediate notice to the Customer. Upon such termination, (i) the balance of the applicable 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.
Indemnity and Limitation of Liability.
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 OFFICERS, EMPLOYEES OR 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 UNAVAILABILITY, DELAY, FAULTINESS OR FAILURE OF THE SERVICES. In the event that Customer is selling the Services to a Resale Customer, Customer agrees that it will include in any contracts or terms to such Resale Customer an explicit commitment on the part of the Resale Customer to waive any right to make any claim against Hiber for Liabilities sustained by reason of any unavailability, delay, faultiness or failure of the Services provided by Hiber.
NEITHER CUSTOMER NOR HIBER NOR THEIR AFFILIATES, NOR THEIR OFFICERS, EMPLOYEES 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, or use of the Services or the use of the Services in combination with Customer-provided equipment.
CUSTOMER SHALL INDEMNIFY HIBER AND ITS AFFILIATES AND THEIR OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES RELATED TO POLLUTION OR CONTAMINATION EMANATING FROM FACILITIES, PREMISES, OR PROPERTY OWNED OR USED BY CUSTOMER OR ITS AFFILIATES OR FROM ANY EQUIPMENT OWNED OR USED BY CUSTOMER OR ITS AFFILIATES ON WHICH THE EQUIPMENT IS INSTALLED (INCLUDING WITHOUT LIMITATION WELLS AND RESERVOIRS), REGARDLESS OF CAUSE.
CUSTOMER SHALL INDEMNIFY HIBER AND ITS AFFILIATES AND THEIR OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL LIABILITIES ARISING IN CONNECTION WITH INSTALLATION OF ANY EQUIPMENT BY CUSTOMER.
Should Hiber or its affiliates or their officers, employees, or agents be found liable to Customer under these Terms and Conditions, in no event shall the total liability exceed the amount paid by Customer to Hiber over the preceding twelve-month period.
Customer shall use the Services in full compliance with all applicable laws and regulations. Customer shall ensure that its Equipment is properly licensed by the relevant governmental authority in the country where the Equipment is installed. Customer shall be responsible for all Liability arising out of or relating to the use of the Services 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.
Where the provision of Services by Hiber to Customer requires that employees or contractors of Hiber perform work on premises owned, leased or otherwise occupied by Customer, Customer shall provide a safe and secure work environment, and if applicable transportation, consistent with all applicable industry standards. Customer shall be solely liable for any injury or death to any Hiber employee or contractor arising in connection with the gross negligence or willful misconduct of Customer or its employees, contractors, and licensees, and Customer shall indemnify and hold Hiber harmless from and against any Liability arising in connection with any such injury or death.
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.
Excusable Delay and Force Majeure.
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. 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.
Governing Law and Disputes.
These Terms and the sale of the Services 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.
Any disputes arising in connection with the sale of the Services or these Terms 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 11. To the extent that the ICC Rules are in conflict with Article 11, the provisions of this Article 11 shall prevail. The following shall apply to any arbitral proceeding conducted pursuant to this Article 11:
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.
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.
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.
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 11(c) shall be decided by a court of competent jurisdiction and not the arbitrator.
Notwithstanding the provisions of Article 11(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.
Export Licensing, Regulatory, Anti-Corruption, and Other Requirements.
The supply of Services and 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 products and Services provided by Hiber Under no circumstances may the Services or Equipment be operated 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.
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 Equipment 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.
Regulatory. Customer recognizes that Hiber does not control the installation and use of the Services and Equipment and therefore cannot guarantee the proper licensing in every jurisdiction in which they are used. Customer shall ensure the proper licensing and certification of all Services and Equipment in all countries in which it operates.
Anti-Corruption. 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, and (iii) anti-corruption laws in any country in which the Customer is organized or located or where the Services are to be performed. Customer warrants that it will (a) comply in all respects with such laws and regulations, 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.
Changes to Term, Notices, and Communications.
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, if applicable, by means of a notification posted in the Customer's Mission Control account. Customer's continued use of Service 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 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 11 shall not affect the resolution of any disputes that arose before such change.
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 B.V.
Attn: Legal Department
Moermanskkade 600
1013 BC Amsterdam, The Netherlands
Customer agrees that Hiber may use its name and logo in press releases, case studies, and on Hiber's web site. Any specific press releases concerning Customer's use of the Services will be provided to Customer for review prior to publication.
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.
Intellectual Property and Proprietary Rights and Disclosure:
Development Activities. In the event that Customer and Hiber work toward the development of new applications or devices, this paragraph shall govern the Intellectual Property rights of each party with respect to such development. Each party shall each retain ownership of the Intellectual Property Rights in any Intellectual Property it owns or that it developed or develops prior to or outside such development, subject to any rights of third parties. Subject to third party rights, each party shall retain ownership of the Intellectual Property Rights in any Intellectual Property it produces or it develops alone in the course of development. Such party shall be free to use and protect them. Each party hereby grants the other party, to the extent that such a license is necessary for the full and proper performance of the other party's development activities, a royalty free, non-exclusive, non-transferable license to use its Intellectual Property Rights solely for the purposes of such development activities. Each party agrees not to cause or permit the reverse engineering, disassembly or de-compilation of the Intellectual Property made available to it by the other party.
All information including, but not limited to drawings, prints, publications, specifications, processes, manufacturing techniques, software products and programs (in object code or any other form), and other intellectual property, accessed or obtained by the Customer prior to and during the provision of the Services under these Terms 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.
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 Service, hardware, 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 this contract.
Relationship of Parties:
Nothing in these Terms shall grant to either party the right to make commitments of any kind for or on behalf of the other party. These Terms shall not constitute a joint venture, agency relationship, or partnership as between the parties, and the rights and obligations of the parties shall be limited to those expressly set forth herein.
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.
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.