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.
Address: Moermanskkade 600
1013 BC Amsterdam, the Netherlands
Phone: +31 (20) 244-0420
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
Chamber of Commerce number: 81106343
VAT number: NL861933692B01
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
The following terms shall, when capitalized in these Terms, have the
3. Pricing and Taxes.
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.
Contract: A Customer’s ordering document under which it purchases
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 using Hiberband.
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
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
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 manages its account and retrieves 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: The term during which Hiber will provide the
applicable Subscription Services to Customer.
4. Acceptance and Payment Terms.
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, and
other services as specified in the product specification for the
Commencement of Subscriptions. Each Subscription shall commence upon the
notification by Hiber to Customer that Equipment installation has been
completed and the first Data Package has been successfully transmitted
from the relevant End User Assets and delivered to Mission Control.
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.
Installation. Installation services, if provided, are provided in
accordance with the applicable installation manuals provided by Hiber to
Customer. Customer shall be solely responsible for installation of all
equipment connecting directly to wellheads and other Customer-owned
assets being monitored. Customer shall utilize only qualified employees
or contractors to undertake such installations. All installations by
Customer shall be performed in accordance with the installation manuals
provided by Hiber. Installations may only be carried out after an
installation plan has been developed and approved by both Hiber and
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.
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
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.
All Subscriptions are invoiced annually in advance. The first invoice
will be provided to Customer at the commencement of the Subscription
Period and shall cover the remaining calendar year. All subsequent
invoices will be provided to Customer on or about the first of January
of each successive year.
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.
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. 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
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 firstname.lastname@example.org. In compliance with
Customer metadata for research and marketing purposes.
7. Service Requirements, On-Line Tools, and Data Package Delivery.
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. If the Subscription does not include installation services from
Hiber, it is the responsibility of the Customer to properly install and
operate the Equipment. 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 qualified
Customer personnel 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 for use with
Hiberband. The Customer shall also ensure that the antenna is installed
in such a manner as to permit line-of-sight access to the Hiberband
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. Hiber will provide to each Customer access to Mission
Control for the purpose of allowing the Customer to manage the Services
provided by Hiber.
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
Service Level Agreement. Hiber provides a specific availability standard
for Services provided by Hiberband, which is appended to these Terms as
Annex 1. This minimum Service Level Agreement (“SLA”) is based on a
number of applicable metrics and is 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 covered by the Contract
in question during that month. Hiber’s 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 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(f).
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. 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 on Hiberband that might affect service
9. Indemnity and Limitation of Liability.
License to Use Equipment.
i. Permitted Uses. Hiber grants a worldwide license to use the Equipment
and all Intellectual Property contained therein for the Equipment’s
intended purposes only. Equipment is licensed for use solely in
conjunction with Services provided by Hiber and its affiliates,
resellers, and other authorized distributors. Any other use of the
Equipment is strictly prohibited and shall be deemed to be a violation
of the relevant Intellectual Property Rights owned by Hiber. In no event
may Equipment be used in conjunction with services provided by any other
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
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
For any repairs requested for damage arising out of the conditions
specified in Clause 8(b)(v), Hiber will perform the necessary repairs at
Possession and Use of Equipment.
i. Hiber reserves the right to retain a security deposit to secure the
value of the rented or leased Equipment. Hiber may run appropriate
credit checks on Customer to determine creditworthiness before a rental
or lease is permitted.
ii. Hiber shall retain the ownership of the Equipment during the
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.
iii. 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.
iv. 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
v. 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.
vi. Customer shall maintain the Equipment as provided by Hiber in the
relevant installation guide for the product in question.
vii. 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.
10. Excusable Delay and Force Majeure.
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
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
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
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 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.
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.
12. Export Licensing, Regulatory, Anti-Corruption, and Other
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
13. Changes to Term, Notices, and Communications.
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
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. For
maritime usage, the Services and Equipment shall only be used in
international waters unless a terrestrial license is in place for the
countries in which the vessels make port.
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.
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
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
Attn: Legal Department
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.
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:
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.
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
Duties and Responsibilities:
1. 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
2. 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.