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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
Attn: Legal Department
1013 BC Amsterdam, The Netherlands
If any provision of these Terms is declared invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In the event that any such provision is declared invalid, illegal or unenforceable due to its scope, breadth or duration, then it shall be modified to the scope, breadth or duration permitted by law and shall continue to be fully enforceable as so modified.
a. 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.
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.
Neither these Terms nor any interest herein, may be assigned, in whole or in part, by either party without the prior written consent of the other party hereto, except that without securing such prior consent, either party shall have the right to assign these Terms to any successor which results from a merger, consolidation, spin-off, or the acquisition of substantially all of the entire business and assets of that party relating to the subject matter of these Terms, provided, however, that such successor shall have expressly assumed all of the obligations and liability of such party under these Terms, and such successor is not a competitor to the other party.
These Terms constitute the entire understanding between Hiber and Customer as to the subject matter hereof and supersede all prior agreements, discussion, representations, and understandings, written or oral, between Hiber and Customer with respect to such subject matter.