Terms of Use

BriarTek Incorporated

I. Acceptance of Terms

These terms of use, including our Privacy Policy and any applicable Third Party Services (as both are defined below), (this “TOU”) govern your use of certain mobile satellite services with subscriber units or other compatible equipment (the “Services”). BriarTek Incorporated is referred to as the “Company.” The Company’s suppliers, including, but not limited to, Iridium Satellite LLC, shall be referred to as its “Suppliers.” You refers to the customer purchasing and using the Services. Please review this TOU carefully.
 
This TOU contains the complete terms and conditions that apply to your use of the Services, and by clicking “I Accept” at the time that you submit your registration information or by any use of the Services, you agree to be legally bound by these terms and conditions set forth in this TOU. If you do not agree to all of these terms, do not click “I Accept” at the time you submit your registration information and you should not use the Services in any manner.

The Company reserves the right, in its sole discretion, to change, modify, add or remove any of the terms and conditions contained in this TOU, in whole or in part, at any time. Amendments to this TOU will be effective immediately upon posting of the new TOU on the Company’s website at cerberus.briartek.com the “Company’s Website”) and by using the Services following the posting of such new TOU, you are agreeing to comply with and be bound by the terms and conditions of the new TOU as revised.

II. Intellectual Property Rights

  1. Intellectual Property: All rights, title and interest to all intellectual property incorporated in the Services, including any enhancements, developments, customizations, or derivatives thereto, are and shall remain the sole and exclusive property of the Company and/or its Suppliers as applicable and no ownership or similar rights are granted to you. You shall not make any developments, customizations, or derivatives to the Services without the express written approval of the Company and/or its Suppliers.
  2. Trademarks: The Company and its Suppliers’ trademarks, service marks, logos, brands, slogans, and other distinctive designs are owned by the Company and its Suppliers respectively, are protected by applicable law, and may not be copied or used without the Company's or its Suppliers’ prior written consent.
  3. Injunctive Relief: You agree that a violation of this Section harms the Company and its Suppliers, which cannot be fully redressed by money damages, and that the Company and/or its Suppliers shall be entitled to immediate injunctive relief in addition to all other remedies available.

III. Privacy Policy

Your use of the Services is subject to the terms of the Company’s Privacy Policy provided on the Company’s Website and incorporated herein by reference. The Company reserves the right, in its sole discretion, to change the Privacy Policy, in whole or in part, at any time. Amendments to the Privacy Policy will take effect immediately upon being posted to the Company’s Website, and your continued use of the Services following the posting of such a new Privacy Policy constitutes your acceptance thereof.

IV. Your Covenants and Acknowledgments

You represent that you will only use the Services for lawful purposes, in a reasonable manner, and in compliance with all applicable local laws. You will not ship the Services or use the Services in the following countries: Cuba, Iran, North Korea, Sudan, or Syria. Additionally, you will not transmit the Services to a Cuban national, wherever located. You are expressly forbidden to enhance, upgrade, modify, change or revise the Services. The Company reserves the right, but is not obligated, to immediately suspend or terminate your right to use the Services at any time, if the Company determines, in its sole discretion, that your conduct violations this Section.
 

V. Pricing and Payments

  You shall pay the Company for your use of the Services at the rates and pricing under your applicable service plan with the Company. You shall be solely responsible for all taxes, fees, and surcharges, arising from your use of the Services which may be asserted against the Company or its Suppliers by any local, state or national government entity with respect to or arising out of your use of the Services hereunder.

The Company shall provide you with invoices for Services that are due within thirty (30) days of the date of such invoice. Any amounts remaining unpaid after thirty (30) days of the date of an invoice shall be subjected to an additional late fee which shall be equivalent to one and one half percent (1.5%) per month of the overdue balance. All payments made by you shall be applied in the following priority: (i) late fees; (ii) overdue amounts; and (iii) remaining balance.
 
If you have a dispute regarding the charges to your account, you agree to notify us of the dispute within thirty (30) days after the date of the invoice, unless otherwise provided by law. If you do not notify us of your dispute in writing – e-mail is not a sufficient writing – within this time period, you may not pursue a claim in arbitration or in court. The Company shall review and respond to the billing dispute within a reasonable time after receipt of the billing dispute. Any charges that the Company agrees were not charged correctly shall be credited to you if you have paid such charges. Any billing dispute which cannot be resolved amicably shall be subject to the dispute resolution procedure set forth herein. Pending resolution of any such dispute, you shall not be relieved of your obligation for payment of all charges invoiced hereunder, including disputed items. Any amounts which have not been disputed in accordance with this Section shall be deemed finally and irrevocably accepted. If you accept a credit, refund or other compensation or benefit to resolve a disputed invoice or charge, you agree that the issue is fully and finally resolved.
 

VI. THIRD PARTY SERVICES

The Services are being sold by the Company to you in its role as a reseller and as such certain services are not provided by the Company, including, but not limited to, any Supplier’s limited warranty for the Services and the coverage map for the Services (the “Third Party Services”). As such, the Services may be subject to certain third party limited warranties or terms of use as provided for on the Company’s Website. In the case of the Third Party Services, the third party will be responsible for providing the Third Party Services to you, and you will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Services. With respect to the Third Party Services, the Company acts solely as an independent sales agent when collecting any due amounts, including, but not limited to, taxes.

VII. LIMITED WARRANTY

EXCEPT AS EXPRESSLY STATED IN ANY THIRD PARTY WARRANTY SERVICES AS PROVIDED ON THE COMPANY’S WEBSITE, THE COMPANY AND ITS SUPPLIERS MAKES NO REPRESENTATIONS, GUARANTEES, CONDITIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS, GUARANTEES, CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, USE, OR RELATED TO THE PERFORMANCE OR NONPERFORMANCE OF ANY PRODUCTS, ACCESSORIES, FACILITIES OR SERVICES OR USER INFORMATION. ANY OTHER STANDARDS OF PERFORMANCE, GUARANTEES, CONDITIONS AND WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS LIMITED WARRANTY CONTAINED IN ANY THIRD PARTY WARRANTIES ON THE COMPANY’S WEBSITE FAILS OF ITS ESSENTIAL PURPOSE.

THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). MARITIME USE OF THE SERVICES BY ITS VERY NATURE IS A HIGH RISK ACTIVITY. THE COMPANY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE, DISTRIBUTE OR RESELL THE SERVICES FOR HIGH RISK ACTIVITIES.

VIII. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE AS A CONDITION OF THE PROVISION OF SERVICES THAT YOU WILL MAKE NO CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND THAT YOU WAIVE ANY RIGHT TO MAKE ANY CLAIM AGAINST THE COMPANY, ITS AGENTS, OR ITS SUPPLIER FOR LOSSES, DAMAGES, LIABILITIES, JUDGMENTS, FINES, AMOUNTS PAID IN SETTLEMENT, EXPENSES AND COSTS OF DEFENSE DUE TO LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, LOSS OF BUSINESS, LOSS OF PRIVACY, LOSS OF USE, LOSS OF TIME OR INCONVENIENCE, COST OF RECOVERY OR SUSTAINED BY REASON OF BODILY INJURY, LOSS OF LIFE, DAMAGE TO PROPERTY OR FOR ANY OTHER LOSS WHATSOEVER, OR FOR SPECIAL, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, BY REASON OF ANY UNAVAILABILITY, DELAY, FAULTINESS OR FAILURES OF THE SERVICES, THE PRODUCTS TO BE PROVIDED OR CERTIFIED BY THE COMPANY OR ITS SUPPLIERS HEREUNDER, OR THE COMPANY, ITS AGENT’S, OR ITS SUPPLIER’S FACILITIES OR COMMUNICATION SYSTEMS OR FOR INACCURACIES OR FAILURES WITH REGARD TO ANY INFORMATION PROVIDED. THIS IS A WAIVER AND RELEASE AND DISCLAIMER OF LIABILITY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND APPLIES REGARDLESS OF THE CAUSE OF ANY LIABILITY, INCLUDING WITHOUT LIMITATION, TO WRONGFUL CONDUCT, OMISSION OR FAULT OF EMPLOYEES OR AGENTS OF THE COMPANY (INCLUDING ITS SUPPLIERS), THAT RESULT FROM ANY PAST, PRESENT OR FUTURE CLAIM, DEMAND, SUIT, ACTION OR PROCEEDING BROUGHT OR INITIATED BY A THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ACTIONS BY ANY FEDERAL OR STATE GOVERNMENTAL AUTHORITY; AND FURTHER, THAT SUCH AGREEMENT SHALL BE CONSISTENT WITH THE WAIVER LANGUAGE IN THE TOU. THIS LIMITATION WILL APPLY EVEN IF THE COMPANY, ITS AGENTS, OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER ALSO APPLIES IF YOU BRING A CLAIM AGAINST ONE OF THE SUPPLIERS, TO THE EXTENT THE COMPANY WOULD BE REQUIRED TO INDEMNIFY THE SUPPLIER FOR THE CLAIM. IN NO EVENT SHALL THE COMPANY AND ITS SUPPLIERS BE LIABLE TO YOUR OR ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF THE PURCHASE PRICE OR THE COST OF THE SERVICES OVER A TWELVE MONTH PERIOD. ALL CLAIMS MUST BE BROUGHT WITHIN TWO (2) YEARS OF THE DATE THE CLAIM ARISES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

IX. Indemnification

You agree to fully defend, hold harmless, and indemnify the Company, its affiliates, employees, officers, directors, consultants, Suppliers, and agents from and against any and all claims, liability, damages, judgments, fines, losses and expenses (including, but not limited to, reasonable attorneys' fees) resulting from any past, present, or future claim, demand, suit, action, or proceeding, including without limitation actions by third parties and by any state or federal governmental authority arising out of or relating to any breach of the TOU or your use of the Services as well as from any third party intellectual property infringement claims arising out of or relating in any way with respect to intellectual property of the Company or its Suppliers.

X. Termination

The Company may, with or without cause, immediately terminate this TOU, and deny you the right to use the Services upon notice to you via email. Without limiting the foregoing, the Company has the right to immediately terminate your right to use the Services in the event that you breach this TOU or engage in conduct that Company, in its sole discretion, considers unacceptable. If this TOU is terminated, you will no longer be authorized to use the Services. In the event of termination, the disclaimers, limitations of liabilities and the indemnification provisions set forth in this TOU, shall survive.

XI. Governing Law

The validity, construction and performance of this TOU shall be governed and construed in accordance with the laws of the Commonwealth of Virginia without regard to the conflicts of laws provisions thereof. Any action brought pursuant to this TOU shall be commenced in federal or state court located in the Commonwealth of Virginia. The parties hereby consent to personal jurisdiction in the federal and state courts in Virginia and waive any right to a change of venue. Additionally, the parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.

XII. Arbitration

All claims or disputes under this TOU shall be submitted to final and binding arbitration before the American Arbitration Association, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, for arbitration in the Commonwealth of Virginia. Judgment upon the award rendered by an arbitrator(s) may be entered in any court having jurisdiction thereof, and, if the Company is the party seeking enforcement, the Company shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys' fees, to be paid by you as the party against whom enforcement is ordered. Any dispute or portion of a dispute involving intellectual property rights shall not be subject to arbitration and shall be determined by a court of competent jurisdiction as provided herein. Notwithstanding the foregoing, the Company shall have the right to initiate an action in a court of competent jurisdiction for temporary, preliminary or permanent injunctive relief in the event you or any third party infringes upon its proprietary rights or breaches or threatens to violate any law through use of the Services. Each party agrees that any dispute resolution proceedings whether in arbitration or in court, will be conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated or representative action. ADDITIONALLY, IF ANY CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.

XIII. Export Controls

Export of the Services is subject to U.S. laws and regulations, including the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury Office of Foreign Assets Control. By using the Services, you agree to comply with all applicable U.S. export control and economic sanctions laws and regulations, and certify that you are eligible to receive the Services under such laws and regulations. The Services may not be shipped to or used in the following countries: Cuba, Iran, North Korea, Sudan, or Syria. The Services may not be transmitted to a Cuban national, wherever located. By using the Services, you certify that: you are not located in any of these countries; you are not a Cuban national located outside of the United States; and you will not re-export the Services to any of these countries. You further agree not to transfer the Services to any prohibited end user(s) or to use the Services for any prohibited end uses under applicable U.S. laws and regulations unless authorized by the U.S. Government by regulation or specific license. You acknowledge that it is your responsibility to comply with any and all export and import laws and that the Company has no further responsibility after the initial distribution to you within the original country of distribution.

XIV. Miscellaneous

This TOU constitutes the full and entire understanding and agreement between the Company and you with respect to your use of the Services and supersedes all prior agreements, understandings, inducements, and conditions, express or implied, oral or written, relating to the subject matter hereof, except as may be otherwise agreed. If any provision of this TOU shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall either be (i) enforced and reconstructed to the maximum extent permitted by law, or (ii) to the extent such provisions can not be reconstructed, deemed severable from this TOU and shall not affect the validity and enforceability of any remaining provisions. The terms hereof may be waived by a party only by a written instrument executed by such party. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach, whether or not similar. You cannot assign the TOU or any of your rights or duties under it without the Company’s express written consent. The Company may assign all or part of the TOU or any of its rights or duties without notice to you. All disputes and complaints regarding the Service and interpretations of this TOU shall be governed by the English language.

AS STATED ABOVE, CLICKING “I ACCEPT” AT THE TIME THAT YOU SUBMIT YOUR REGISTRATION INFORMATION OR ANY USE OF THE SERVICES, INDICATES YOUR ACCEPTANCE OF THIS TOU.