Version 3.0, October 2020.
1. Applicability.
These Hiber Standard Terms and Conditions of Service (“Terms”) apply to
the provision of Services by Hiber B.V., a company registered in
Amsterdam, The Netherlands (“Hiber”), 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, 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.
2. Definitions.
The following terms shall, when capitalized in these Terms, have the
following meanings:
a. Activation for a CN is the act of a Customer, using Mission Control
or other available means, to enable the active transmission of data to
or from such CN.
b. 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 by means of Hiberband to Mission Control or
other destination. 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.
c. CN Fleet: A Customer’s total fleet of CNs.
d. 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.
e. Data Package: The data message generated by or delivered from the End
User Asset to the CN and transmitted from the CN using Hiberband.
f. End User: The operator of the End User Asset; this may be a Customer
or a third party.
g. End User Asset: The asset owned or operated by the End User that is
being monitored using Hiber Services. h. Hiberband: The communications
services provided by Hiber for the receipt and onward transmission of
Customer data messages utilizing Hiber’s own network of satellites,
satellites owned and operated by third parties, or by other space- or
ground-based communications method selected by Hiber.
i. 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.
j. 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.
k. Mission Control: The online interface operated by Hiber from which
the Customer or End User manages its account, purchases Services,
activates Subscriptions, and retrieves its Data Packages.
l. 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.
m. Resale Customer: A party to whom a Customer resells Services sold to
Customer by Hiber. This term shall include all instances where the
Customer is acting as a reseller of Hiber Services under Hiber’s name,
as a reseller selling Hiber Services under the Customer’s own name
(i.e., white-labelling the Services), as a value-added reseller, as an
integrator, or under any other method of resale.
n. Services: The services supplied to Customer by Hiber.
o. Subscription: The unit of activation of Service for a specified
period.
3. Pricing and Taxes.
a. Subscriptions. All Services are purchased by means of Subscriptions
or other methods as established by Hiber from time to time. Unless other
arrangements are agreed by Hiber, all Services shall be sold in the form
of prepaid Subscriptions and shall be priced on a per-CN, per-year
basis. Hiber may from time to time establish minimum quantities of
Subscriptions.
b. Commencement of Subscriptions. Unless otherwise specified in a Quote,
for Services provided without use of a satellite gateway device, the
period for each Subscription shall commence on the date of Activation of
the Subscription on a CN-by-CN basis. For Services provided using a
satellite gateway device, each Subscription shall commence upon the
completion of acceptance testing, as described in the applicable
Installation Guide found on the Hiber web site, www.hiber.global.
c. Customer may set up automatic Subscription activations and renewals,
in which case Customer shall maintain adequate funds in its account or
maintain a valid credit card or bank account debit on file with Hiber.
d. Unless otherwise provided in a specific Quote from Hiber, all current
pricing and parameters (e.g., length of Subscription, frequency of Data
Package reporting) for Services shall be provided on Mission Control and
shall be firm fixed prices. All pricing for new or renewed Subscriptions
is subject to change based on market conditions. Upon expiration of a
Subscription term, any renewal of the Subscription will be at the
Subscription rate applicable at the time of the renewal.
e. Package Subscriptions. Hiber may from time to time offer packaged
subscription rates that may include one or more components other than
Services, including, for example, equipment leasing or sales,
installation, or maintenance. 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 or
lease for the equipment component of any package subscription, including
the applicable warranty provisions, are contained in the Hiber Equipment
Purchase and Lease Terms and Conditions 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. f. Taxes and Fees. 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 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.
g. Currency Rates. Rates for all Services 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 quoted in
any offer for sale in the event that the exchange rate for the quoted
currency varies by more than five percent between the date of the offer
and the date of acceptance of the offer by Customer. For any
Subscription term of more than twelve months, Hiber reserves the right,
upon 30 days’ notice to the Customer, to increase the Subscription price
for Services at any time after the twelfth month to the extent that the
exchange rate for the quoted currency has decreased against the Euro,
U.S. Dollar, or British Pound, as applicable, by more than 10 percent
since the date of acceptance of the offer by Customer. In the event that
Hiber notifies Customer of such a rate increase, Customer shall have the
right within five business days of such notice to terminate the
applicable Subscription without financial penalty.
h. Rate Adjustments. Unless otherwise provided in a Quote, in the event
that rates charged by Hiber’s suppliers increase, Hiber’s rates to
Customers may be adjusted accordingly, upon ninety (90) days’ written
notice to Customer.
4. Acceptance and Payment Terms.
a. 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 from Hiber
(“Acceptance”).
b. 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.
c. Except where Subscriptions are charged on a periodic recurring basis,
payment in advance is required for all purchases of Services. Post-pay
billing is not permitted unless specific arrangements to do so are
accepted by Hiber in writing. In the event that Hiber accepts post-pay
billing in a Quote, and for all recurring payment Customers, Hiber may
perform appropriate credit checks and other verification on the
Customer.
d. 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
e. 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.
f. Customer Purchase Orders and Terms. In the event that Customer issues
a purchase order to Hiber in connection with ordering Services, 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.
5. Cancellations.
Recognizing the unique nature of the Services provided by Hiber and the
customized and discrete nature of Hiber’s operations, and excepting
termination by Customer under Article 3(g) or Article 13(a), once a
Customer has paid for any order, such 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.
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
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.
7. Service Requirements, On-Line Tools, and Data Package
Delivery.
a. Hiber Service. Hiber operates Hiberband as a communications network
service provider. Hiber’s Service responsibility is the delivery of the
Data Package to Mission Control or to another destination agreed by
Hiber. Unless the Customer orders installation services from Hiber, it
is the responsibility of the Customer to properly install and operate
the CN. The Customer shall only utilize hardware approved by Hiber for
use with Hiberband. The Customer shall also ensure that the CN antenna
is installed in such a manner as to permit line-of-sight access to the
Hiberband satellites.
b. 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.
c. Mission Control. Hiber will provide to each Customer or End User, as
appropriate, access to Mission Control for the purpose of allowing the
Customer to manage the Services provided by Hiber.
d. Service Offerings. Mission Control permits the Customer, when
activating a Subscription, to select the type of Service offering
desired. Offerings may include differing levels of Service, such as
options for Data package reporting frequency as permitted by satellite
or other network availability. Availability and pricing for different
Services shall be as specified in Mission Control and may change from
time to time.
e. Data Package Delivery. Hiber will deliver the Data Package to Mission
Control 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 in encrypted form. Once delivered to Mission Control,
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.
f. Hiber will provide a specific availability standard for Services
provided by Hiberband, which will be specified in the current relevant
product and Service data sheets, Customer’s Mission Control account, in
the Quote provided by Hiber, or elsewhere as agreed with Customer. This
minimum Service Level Agreement (“SLA”) will be based on a number of
applicable metrics and will be a measurement of (i) the total number of
Data Packages delivered via Hiberband and available at the Customer
portal in a calendar month divided by (ii) the total number of Data
Packages sent by all of the End User Assets in the Customer’s CN Fleet
during that month. Hiber’s liability in connection with an SLA below the
specified level for a given month will be included in the Customer’s
Mission Control account or in a customer Quote for Service. In all
cases, the SLA shall exclude any Hiberband Service interruptions caused
by a Force Majeure event as described in Article 10 and shall also
exclude delivery failures caused by any fault or anomaly in the CN,
including but not limited to improperly installed or aligned antennas.
g. Service Updates. Customer agrees to allow all updates to the
Hiberband 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(g).
h. The provision of all Services by Hiber is subject to the availability
of capacity on Hiberband. Services may be temporarily unavailable or
limited because of capacity limitations, equipment failure,
modifications, upgrades, repairs or similar activities. EXCEPT AS
DESCRIBED IN ARTICLE 7(F), HIBER SHALL HAVE NO LIABILITY WHATSOEVER FOR
UNAVAILABILITY OR MALFUNCTION OF ITS SERVICES OR FOR THE FAILURE TO
DELIVER ANY DATA PACKAGE. Hiber will endeavor to provide all Customers
with advanced notice of any planned maintenance on Hiberband that might
affect service availability.
8. Indemnity and Limitation of Liability.
a. 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. HIBER SHALL NOT BE LIABLE TO CUSTOMER, NOR SHALL
CUSTOMER MAKE ANY CLAIM AGAINST HIBER, 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.
b. NEITHER CUSTOMER NOR HIBER 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.
c. Should Hiber be found liable to Customer under these Terms and
Conditions, in no event shall Hiber's total liability exceed the amount
paid by Customer to Hiber over the preceding twelve-month period.
d. Customer shall use the Services in full compliance with all
applicable laws and regulations. Customer shall ensure that its ground
equipment, including the CN, is properly licensed by the relevant
governmental authority in the country where the CN is located. 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.
e. 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 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
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.
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.
9. Provisions Applicable to Resale of Services.
In the event that Customer is purchasing Services for resale to Resale
Customers, the provisions of this Article 9 shall apply to such resale,
as shall the other provisions of these Terms.
a. Customer shall employee appropriate screening methods for its Resale
Customers to ensure that it and all of its Resale Customers comply in
full with the provisions of Article 12(a). Customer shall not resell
Services for use in any country where such use would be illegal under
applicable EU, US, or other law. Customer shall, upon request by Hiber
and as permitted by , provide information of its Resale Customers to
Hiber to enable Hiber to verify compliance with this Article 9(a). Hiber
shall be entitled to terminate all business with Customer immediately
and without penalty for any violation by Customer of this Article 9(a).
b. 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 must have, at its sole expense, the capability to
extract and store usage and performance information from Mission
Control. 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 for such services notwithstanding any non-payment
by or disputes with any Resale Customers; it is Customer’s
responsibility to ensure that all equipment and associated hardware and
software are properly configured with respect to the Services being
used. Customer may pass through the SLA guarantees specified in Article
7(f) to its Resale Customers at its sole discretion.
c. Customer shall defend, indemnify and hold harmless Hiber and it
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 Services by such Resale Customers
(including without limitation the failure by Resale Customers to abide
by the provisions of Article 9(f) of these Terms), except to the extent
such claims are based upon the gross negligence or willful misconduct of
Hiber.
d. Customer shall be solely responsible for all Taxes, tariffs and
surcharges, if any, arising from the purchase of Services 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 with respect to or arising out of the provision of Services
hereunder. All rates paid by Customer are exclusive of all such amounts.
e. Customer shall only permit the use by its Resale Customers of
equipment that is certified for use by Hiber.
f. Customer shall require its Resale Customers to abide by terms
consistent with these Terms. Customer shall require any Resale Customers
to use the Services, Mission Control, and any other facilities,
services, information, hardware, and data that may be provided under
these Terms 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 same 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.
g. Customer shall maintain, at its own expense, all regulatory licenses
and certifications, governmental or otherwise, necessary for Customer to
provide for resale the Services under these Terms to the extent that
Hiber does not provide such licenses and certifications itself.
Specifically, Customer is responsible for service provider licenses to
market and/or sell services to Resale Customers within all countries in
which it engages in business or where its Resale Customers operate CNs.
h. Customer shall be solely responsible for providing first-level
support relating to Services to its Resale Customers. Hiber shall
provide second- and third-level support with respect to any Resale
Customer Service issues that are not supported by means of the on-line
Mission Control tools or through information that can be extracted using
the on-line platform. Hiber reserves the right to charge Customer a
support fee for non-routine support provided to any of its Resale
Customers.
i. Unless the Customer orders such services to be provided by Hiber, the
Customer shall be responsible for all of its equipment, including
installation, commissioning, integration, validation, activation, and
maintenance (including the performance of any such tasks by a
third-party integrator or supplier engaged by the Customer.
j. 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 Services 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 Services. 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 other than those covered under this Terms.
10. 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.
11. Governing Law and Disputes.
a. 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.
b. 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:
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 11(c) shall be decided
by a court of competent jurisdiction and not the arbitrator.
d. 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.
12. Export Licensing, Regulatory, Anti-Corruption, and Other
Requirements.
a. The provision of Services 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 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.
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 CNs and therefore cannot guarantee the
proper licensing of the Services 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. For
maritime usage, the Services shall only be used in international waters
unless a terrestrial license is in place for the countries in which the
vessels make port.
d. 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.
13. 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 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.
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 B.V. Attn: Legal Department Moermanskkade 600
1013 BC Amsterdam, The Netherlands
14. 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.
15. Intellectual Property and Proprietary Rights and
Disclosure:
a. Development Activities. In the event that Customer and Hiber work
toward the development of new applications or devices for use with the
Hiberband network, 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.
b. 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.
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 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.
16. 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.
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.