General Terms & Conditions

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HIPERION CORPORATION GENERAL TERMS AND CONDITIONS

View below the Terms & Conditions for all transactions as follows:

• Rental
• Sales

Rental

THE FOLLOWING TERMS AND CONDITIONS APPLY TO THE RENTAL OR SALE BY HIPERION CORPORATION and its subsidiaries of any "Equipment" (which term includes related accessories, manuals and other items delivered with this order) to Customer. By placing an order with Hiperion Corporation, Customer agrees to and accepts these General Terms and Conditions (and together with the terms of Hiperion Corporation Lease Agreement, the “Contract”). All previous communications, representations or agreements between the parties, whether oral or written, regarding the transactions involved are superseded by the Contract. Hiperion Corporation HEREBY REJECTS IN ADVANCE ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED OR DEMANDED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY CUSTOMER’S BUSINESS FORMS OR PURCHASE ORDERS AND SUCH ADDITIONAL TERMS OR CONDITIONS SHALL BE VOID AND OF NO EFFECT UPON Hiperion Corporation. Hiperion Corporation RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY OR REPLACE ANY OF THESE TERMS AND CONDITIONS AT ANY TIME, AND SUCH MODIFICATION OR REPLACEMENT SHALL APPLY TO ALL RENTALS OF EQUIPMENT FROM HIPERION CORPORATION AFTER THE DATE OF SUCH MODIFICATION OR REPLACEMENT. IT IS CUSTOMER’S RESPONSIBILITY TO REVIEW THESE TERMS AND CONDITIONS EACH TIME CUSTOMER RENTS EQUIPMENT FROM HIPERION CORPORATION.

1. PAYMENT TERMS; TAXES. Terms are NET THIRTY (30) DAYS from invoice date. Any amounts not paid by that date are subject to finance charges at the rate of 1-1/2% per month or the highest rate permitted by law. Customer shall pay sales, use, excise, franchise, value added or other taxes, all federal, state, local and foreign taxes, and any other governmental charges in connection with the rental, purchase, possession or use of the Equipment (other than taxes on Hiperion Corporation net income). If Customer has outstanding invoice(s) with Hiperion Corporation and submits payment for rental transaction without directing Hiperion Corporation how to apply payment, Hiperion Corporation will automatically apply payment to the oldest rental charge. Hiperion Corporation may charge the Customer up to 25% of the list price or the aggregate rental price of the Equipment if Customer delays or cancels an order. In the event that the amount paid by Customer differs from the amount Hiperion Corporation records indicate to be due, and such difference is less than $150, the amount paid by Customer shall be deemed to be the actual amount due. Under no circumstances shall Customer have a right of set-off against payments owed to Hiperion Corporation or any of its affiliates. If Customer pays via credit card, Hiperion Corporation reserves the right to charge recurring billing without Customer’s authorization until the equipment is returned.

2. CREDITS. Hiperion Corporation may issue credits to Customer’s account in certain circumstances, including potential overpayments or duplicate payments in excess of $150, for early termination of a rental, as customer accommodations or incentives or for other reasons In Hiperion Corporation sole discretion The mere issuance of a credit by Hiperion Corporation to Customer’s account shall not constitute a determination or admission by Hiperion Corporation that an amount is actually due to Customer, and Hiperion Corporation expressly reserves the right to revoke or rescind any credit in the event that Hiperion Corporation subsequently determines that the credit is not due or may not be due to Customer. Customer may request to utilize a credit against a future purchase or rental from Hiperion Corporation or a refund of such credit. Upon receipt of such request, Hiperion Corporation shall confirm whether the credit is actually due to Customer, and if the credit is due, Hiperion Corporation shall apply or refund the credit as requested by Customer (except for certain types of credits, such as customer accommodations or incentives, which may not be refundable). Any credits not used or refunded within twelve (12) months of issuance will be reduced by a service fee of 8% per month of the initial credit amount. In the event that a credit is issued to Customer, Hiperion Corporation shall send periodic credit invoices to Customer notifying Customer of any outstanding credits and also indicating the date by which the credits must be utilized in order to avoid a service fee. Once imposed, the service fee is non-refundable and will not be waived, reversed or restored to Customer by Hiperion Corporation. Customer expressly releases and discharges Hiperion Corporation from any liability to Customer with respect to any credits that have been reduced by such service fees, or which Hiperion Corporation has determined are not due to Customer.

3. DELIVERY FOB HIPERION CORPORATION FACILITY. For all shipments except for the sale of new Equipment, delivery of all items is FOB Hiperion Corporation supplying office. Title transfers and Customer acceptance occurs upon shipment from Hiperion Corporation supplying office. All risk of loss or damage from shipping, theft, mysterious disappearance, fire or any other cause, including without limitation any use or misuse, is the responsibility of Customer thereafter. Hiperion Corporation will make reasonable efforts to meet any delivery schedule quoted; but shall not be responsible for failure to meet such delivery schedule, regardless of the reason for such failure. Hiperion Corporation will ship Equipment according to Customer's reasonable shipping instructions; if no reasonable method is specified, Hiperion Corporation will select the method. Equipment shall not be shipped by Hiperion Corporation or returned by Customer by U.S. mail. Customer will pay or reimburse Hiperion Corporation for all delivery and handling charges. Customer is deemed to have accepted each Product unless Customer notifies Hiperion Corporation of non-acceptance within 7 calendar days of delivery to Customer’s specified address.

4. LIMITED OR NO WARRANTY. Hiperion Corporation is not the manufacturer of any Equipment. The only warranties, if any, are only those offered by the Original Equipment Manufacturer (“OEM”) or expressly stated by Hiperion Corporation in the applicable quote or invoice.  Hiperion Corporation sole responsibility for any breach of any warranty Hiperion Corporation provides will be the following, at Hiperion Corporation sole discretion: (a) to repair such Equipment at Hiperion Corporation facility, (b) replace such Equipment with similar kind, or (c) if Hiperion Corporation  determines that neither of these two options is commercially reasonable or practical, to cancel such order with a full refund and no further obligation to Customer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, HIPERION CORPORATION DISCLAIMS ANY AND ALL WARRANTIES EXPRESSED OR IMPLIED; INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE EQUIPMENT DOES NOT INFRINGE UPON ANY PATENT OR PROPERTY RIGHT OF ANY THIRD PARTY. The remedies in these Terms and Conditions are Customer's sole and exclusive remedies for warranty claims. Customer acknowledges that Hiperion Corporation has based its pricing on the limitations set forth in this section 4.

5. INDEMNITY & LIMITATION OF LIABILITY.  Customer will defend, indemnify, and hold harmless Hiperion Corporation and its subsidiaries, affiliates, successors and assigns, its directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with: (a) any misuse or modification of the Equipment by Customer or its employees or agents, (b) any act (or failure to act) by Customer or its employees or agents in contravention of any safety procedures or instructions provided to Customer or its employees or agents, or (c) Customer’s, or its employees’ or agents’, failure to store, install, operate, or maintain the Equipment in accordance with any instructions or manuals. IN NO EVENT WILL Hiperion Corporation BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF HIPERION CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. 

6. RIGHT OF SETOFF. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, Hiperion Corporation is hereby authorized by Customer at any time and from time to time, without notice or demand to Customer or to any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all funds which may be in the possession of, or which may be owed by Hiperion Corporation or its affiliates against any obligation of Customer or Customer’s affiliates to Hiperion Corporation, whether such obligation is liquidated, unliquidated, fixed, contingent, matured or unmatured, and regardless of whether such obligation arises under the Contract or a different agreement between Hiperion Corporation and Customer or Customer’s affiliate.

7. COMPLIANCE. The parties agree to comply with applicable laws and regulations. Hiperion Corporation may suspend performance if Customer is in violation of applicable laws or regulations. No U.S. government procurement regulation shall be deemed a part of the Contract or be applicable to Hiperion Corporation unless specifically agreed to in writing by Hiperion Corporation. The Equipment may not be used as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. Customer agrees to comply with all United States and other applicable laws and regulations regarding the importation, use, sale, and diversion of the Equipment, and assumes responsibility for determining whether any shipment of Equipment requires government authorization or would otherwise violate applicable law. Any included software may only be used strictly in accordance with any applicable license(s). Any party defaulting on any of its obligations hereunder shall pay for all costs, expenses and legal fees incurred by the other party to enforce its rights, whether or not legal action is instituted, including in the case of , the costs of recovering, repairing of replacing the Equipment.

8. FORCE MAJEURE. Hiperion Corporation shall not be liable for failure to perform, or delay in performance, or delivery of any Equipment or maintenance due to (a) fires, floods, other natural disaster, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of Hiperion Corporation.

9. LIENS. Customer shall keep the Equipment free from any liens, including without limitation, mechanics’ liens, storage, warehouse or other possessory liens, claims or encumbrances, attachments, rights of others and legal processes (“Liens”) of creditors of Customer or any other persons. Customer shall promptly notify Hiperion Corporation upon receipt of notice of any such Liens affecting the Equipment and Customer shall promptly defend at its own expense Hiperion Corporation title to the Equipment from such Liens.

10. Export Regulations. Customer shall not transfer or otherwise dispose of any Equipment or related software, know-how, technical data, documentation or materials furnished by Hiperion Corporation to any party or in any manner which would constitute a violation of the export control regulations of the United States (now or hereafter in effect). Such export regulations prohibit, without limitation, exports, transshipments or re-exports of Equipment to: (a) such countries or regulations that are subject to U.S. sanctions programs, or (b) to entities or individuals that appear on the U.S. government’s (a) Specially Designated Nationals List; (b) Denied Persons List; (c) Unverified List; (d) Debarred List; or (e) Entity List.

11. TERMINATION. In addition to any other remedies that Hiperion Corporation may have, Hiperion Corporation may terminate the Contract with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under the Contract and the failure continues for five (5) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms and conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

12. OWNERSHIP; USE. All Equipment remains the property of Hiperion Corporation at all times. Customer shall not sublease or assign any rights to or for rental Equipment. Customer will not permit any ownership labels to be removed, obscured or defaced. Equipment must remain at and may be used only by Customer at Customer's place of business designated on the face of the Contract. Customer shall pay any costs arising from a change of location with or without Hiperion Corporation written consent. If Hiperion Corporation has given written consent for Customer to relocate Equipment, Customer shall be responsible for all related cost including return shipping. Customer shall not make any alterations, additions or modifications to the Equipment and shall use it only for the purpose and in the manner intended by the manufacturer. Customer has no purchase rights, purchase options or equity accruals unless specifically otherwise stated by Hiperion Corporation in writing, all of which will be immediately lost if Customer fails to comply with any of the terms of the Contract. 

13. RENTAL TERMS. Unless otherwise stated in the Contract: (a) rates quoted are for a thirty (30) day rental period; (b) minimum rental is thirty (30) days; (c) minimum billing is $100; (d) rental charges commence the day Hiperion Corporation ships the Equipment to Customer; (e) rent is prorated on a daily basis starting at the beginning of the second rental billing period; and (f) rent continues to accrue until the Equipment is returned to Hiperion Corporation or, in the case of lost or destroyed Equipment, until Customer notifies Hiperion Corporation of the circumstances. Customer shall pay all back rent owed to Hiperion Corporation. Customer may be charged a processing fee for lost or damaged accessories.  In the event of lost or damaged Equipment customer will pay the actual cost to replace or repair Equipment as determined by Hiperion Corporation as well as a damage evaluation fee.  If requested to do so by Hiperion Corporation, Customer will furnish Hiperion Corporation with proof that Customer has insurance coverage on the Equipment acceptable to Hiperion Corporation. If Customer fails to do so, Hiperion Corporation may at its option and for its benefit alone, obtain insurance and charge the cost to Customer as additional rent.

14. REPAIR/CALIBRATION. Upon reasonable notice from Customer during the course of rental, Hiperion Corporation will repair or calibrate any malfunctioning Equipment; provided, however, Customer will pay the costs of such repair or calibration if the Equipment has been neglected, misused or abused after receipt by Customer, or permitted anyone other than Hiperion Corporation to work on or service the Equipment. Customer must pay rental charges if any Equipment replaced by Hiperion Corporation is not properly returned to Hiperion Corporation not later than the earlier of ten (10) calendar days after shipment of the replacement Equipment or (ii) the expiration of the rental term.

15. RETURN. Customer agrees to return the Equipment, freight prepaid, properly packaged, and will be responsible for delivery to Hiperion Corporation in substantially the same condition as when first received by Customer, reasonable use and wear alone excepted. Customer's license with respect to any software included with the Equipment will terminate on the expiration or termination of the rental, at which time Customer agrees promptly to return the software to Hiperion Corporation and to destroy any archived copies.

16. MISCELLANEOUS. All notices hereunder shall be in writing. Typographic and/or clerical errors may be corrected by Hiperion Corporation on notice to Customer. These terms and conditions shall be governed by and construed in accordance with the laws of the State of Delaware. Any legal action or proceeding with respect to the Contract shall be brought exclusively in the state or federal courts in Dover, Delaware without giving any effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction that would cause the application of any laws of any jurisdiction other than those of the State of Delaware), and the parties hereby consent to the venue and jurisdiction of such courts. In any arbitration or litigation between the parties in connection with this Agreement, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs in such proceeding from the other party. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. To the extent that any provision or a portion of any provision is determined to be illegal or unenforceable, the remainder will remain in full force and effect. Customer may not transfer or encumber any rights hereunder without the consent of Hiperion Corporation; Hiperion Corporation may assign or transfer any of its rights or obligations upon notice in connection with a transfer of its business. No waiver by either party of any breach of any provision of the Contract shall be construed as a waiver of any subsequent breach or as a continuing waiver of such breach. Any approval, consent or determination of Hiperion Corporation shall be given in Hiperion Corporation sole and absolute discretion. Time is of the essence. "Including" means "including without limitation."

Sales

THE FOLLOWING TERMS AND CONDITIONS APPLY TO THE RENTAL OR SALE BY HIPERION CORPORATION and its subsidiaries of any "Equipment" (which term includes related accessories, manuals and other items delivered with this order) to Customer. By placing an order with Hiperion Corporation, Customer agrees to and accepts these General Terms and Conditions (and together with the terms of any accompanying order, purchase, or sales contract (the “Contract”). All previous communications, representations or agreements between the parties, whether oral or written, regarding the transactions involved are superseded by the Contract. Hiperion Corporation HEREBY REJECTS IN ADVANCE ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED OR DEMANDED BY CUSTOMER, WHETHER OR NOT CONTAINED IN ANY CUSTOMER’S BUSINESS FORMS OR PURCHASE ORDERS AND SUCH ADDITIONAL TERMS OR CONDITIONS SHALL BE VOID AND OF NO EFFECT UPON Hiperion Corporation.  Hiperion Corporation RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY OR REPLACE ANY OF THESE TERMS AND CONDITIONS AT ANY TIME, AND SUCH MODIFICATION OR REPLACEMENT SHALL APPLY TO ALL SALES OF EQUIPMENT FROM HIPERION CORPORATION AFTER THE DATE OF SUCH MODIFICATION OR REPLACEMENT.  IT IS CUSTOMER’S RESPONSIBILITY TO REVIEW THESE TERMS AND CONDITIONS EACH TIME CUSTOMER RENTS EQUIPMENT FROM HIPERION CORPORATION.

1. PAYMENT TERMS; TAXES. Terms are NET THIRTY (30) DAYS from invoice date.  Any amounts not paid by that date are subject to finance charges at the rate of 1-1/2% per month or the highest rate permitted by law. Customer shall pay sales, use, excise, franchise, value added or other taxes, all federal, state, local and foreign taxes, and any other governmental charges in connection with the rental, purchase, possession or use of the Equipment (other than taxes on Hiperion Corporation net income). If Customer delays or cancels an order, Hiperion Corporation may charge the Customer 25% of the list price of the Equipment.  Under no circumstances shall Customer have a right of set-off against payments owed to Hiperion Corporation or any of its affiliates.

2. CREDITS. Hiperion Corporation may issue credits to Customer’s account in certain circumstances, including potential overpayments or duplicate payments in excess of $150, for any agreed customer accommodations or incentives or for other reasons In Hiperion Corporation sole discretion The mere issuance of a credit by Hiperion Corporation to Customer’s account shall not constitute a determination or admission by Hiperion Corporation that an amount is actually due to Customer, and Hiperion Corporation expressly reserves the right to revoke or rescind any credit in the event that Hiperion Corporation subsequently determines that the credit is not due or may not be due to Customer. Customer may request to utilize a credit against a future purchase from Hiperion Corporation or a refund of such credit. Upon receipt of such request, Hiperion Corporation shall confirm whether the credit is actually due to Customer, and if the credit is due, Hiperion Corporation shall apply or refund the credit as requested by Customer (except for certain types of credits, such as customer accommodations or incentives, which may not be refundable).  Any credits not used or refunded within twelve (12) months of issuance will be reduced by a service fee of 8% per month of the initial credit amount. In the event that a credit is issued to Customer, Hiperion Corporation shall send periodic credit invoices to Customer notifying Customer of any outstanding credits and also indicating the date by which the credits must be utilized in order to avoid a service fee. Once imposed, the service fee is non-refundable and will not be waived, reversed or restored to Customer by Hiperion Corporation. Customer expressly releases and discharges Hiperion Corporation from any liability to Customer with respect to any credits that have been reduced by such service fees, or which Hiperion Corporation has determined are not due to   Customer.

3. DELIVERY FOB ORIGIN. For all shipments involving new Equipment, DELIVERY IS FOB Origin.   All risk of loss or damage from shipping, theft, mysterious disappearance, fire or any other cause, including without limitation any use or misuse, is the responsibility of Customer thereafter. Hiperion Corporation will make reasonable efforts to meet any delivery schedule quoted; but shall not be responsible for failure to meet such delivery schedule, regardless of the reason for such failure. Hiperion Corporation will ship Equipment according to Customer's reasonable shipping instructions; if no reasonable method is specified, Hiperion Corporation will select the method. Equipment shall not be shipped by Hiperion Corporation or returned by Customer by U.S. mail. Customer will pay or reimburse Hiperion Corporation for all delivery and handling charges.

4. TITLE. Title to new Equipment will pass to Customer at FOB Origin. Customer hereby grants to Hiperion Corporation a first priority security interest on the Equipment and all proceeds thereof, which shall expire only upon Customer making payment in full to Hiperion Corporation for the Equipment. Customer authorizes Hiperion Corporation to file financing statements covering the Equipment in any jurisdiction’s Hiperion Corporation deems appropriate. Customer is deemed to have accepted each Product unless Customer notifies Hiperion Corporation of non-acceptance within 7 calendar days of delivery to Customer’s specified address.

5. LIMITED OR NO WARRANTY. Hiperion Corporation is not the manufacturer of any Equipment. The only warranties, if any, are only those offered by the Original Equipment Manufacturer (“OEM”) or expressly stated by Hiperion Corporation in the applicable quote or invoice. Certified Pre-Owned (“CPO”) Equipment comes with a 12-month limited warranty. The CPO limited warranty does not cover abuse, negligence, shipping damage, nor does it apply to defects resulting from improper or inadequate maintenance or calibration by Customer/unauthorized third parties, or unauthorized modification or improper use of Equipment by Customer.  Hiperion Corporation sole responsibility for any breach of any warranty Hiperion Corporation provides will be the following, at Hiperion Corporation sole discretion: (a) to repair such Equipment at Hiperion Corporation facility, (b) replace such Equipment with similar kind, or (c) if Hiperion Corporation  determines that neither of these two options is commercially reasonable or practical, to cancel such order with a full refund and no further obligation to Customer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, Hiperion Corporation DISCLAIMS ANY AND ALL WARRANTIES EXPRESSED OR IMPLIED; INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE EQUIPMENT DOES NOT INFRINGE UPON ANY PATENT OR PROPERTY RIGHT OF ANY THIRD PARTY. The remedies in these Terms and Conditions are Customer's sole and exclusive remedies for warranty claims. Customer acknowledges that Hiperion Corporation has based its pricing on the limitations set forth in this section 5. 

6. INDEMNITY & LIMITATION OF LIABILITY.  Customer will defend, indemnify, and hold harmless Hiperion Corporation and its subsidiaries, affiliates, successors and assigns, its directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with: (a) any misuse or modification of the Equipment by Customer or its employees or agents, (b) any act (or failure to act) by Customer or its employees or agents in contravention of any safety procedures or instructions provided to Customer or its employees or agents, or (c) Customer’s, or its employees’ or agents’, failure to store, install, operate, or maintain the Equipment in accordance with any instructions or manuals. IN NO EVENT WILL Hiperion Corporation BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE EQUIPMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF HIPERION CORPORATION HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. 

7. RIGHT OF SETOFF.  In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any  such rights, Hiperion Corporation is hereby authorized by Customer at any time and from time to time, without notice or demand to Customer or to any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all funds which may be in the possession of, or which may be owed by Hiperion Corporation or its affiliates against any obligation of Customer or Customer’s affiliates to Hiperion Corporation, whether such obligation is liquidated, unliquidated, fixed, contingent, matured or unmatured, and regardless of whether such obligation arises under the Contract or a different agreement between Hiperion Corporation and Customer or Customer’s affiliate.

8. COMPLIANCE. The parties agree to comply with applicable laws and regulations. Hiperion Corporation may suspend performance if Customer is in violation of applicable laws or regulations. No U.S. government procurement regulation shall be deemed a part of the Contract or be applicable to Hiperion Corporation unless specifically agreed to in writing by Hiperion Corporation. The Equipment may not be used as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. Customer agrees to comply with all United States and other applicable laws and regulations regarding the importation, use, sale, and diversion of the Equipment, and assumes responsibility for determining whether any shipment of Equipment requires government authorization or would otherwise violate applicable law. Any included software may only be used strictly in accordance with any applicable license(s). Any party defaulting on any of its obligations hereunder shall pay for all costs, expenses and legal fees incurred by the other party to enforce its rights, whether or not legal action is instituted, including in the case of Hiperion Corporation, the costs of recovering, repairing of replacing the Equipment.

9. FORCE MAJEURE.   shall not be liable for failure to perform, or delay in performance, or delivery of any Equipment or maintenance due to (a) fires, floods, other natural disaster, strikes, or other labor disputes, accidents, sabotage, terrorism, war, riots, delays in transportation or lack of transportation facilities, restrictions imposed by federal, state or local laws, rules or regulations; or (b) any other cause beyond the reasonable control of Hiperion Corporation.

10. LIENS.  Customer shall keep the Equipment free from any liens, including without limitation, mechanics’ liens, storage, warehouse or other possessory liens, claims or encumbrances, attachments, rights of others and legal processes (“Liens”) of creditors of Customer or any other persons until such time as the Customer has paid Hiperion Corporation in full for the purchase of the Equipment.  Customer shall promptly notify Hiperion Corporation upon receipt of notice of any such Liens affecting the Equipment and Customer shall promptly defend at its own expense Hiperion Corporation title to the Equipment from such Liens.

11. EXPORT REGULATIONS.  Customer shall not transfer or otherwise dispose of any Equipment or related software, know-how, technical data, documentation or materials furnished by Hiperion Corporation to any party or in any manner which would constitute a violation of the export control regulations of the United States (now or hereafter in effect).  Such export regulations prohibit, without limitation, exports, transshipments or re-exports of Equipment to:  (a) such countries or regulations that are subject to U.S. sanctions programs, or (b) to entities or individuals that appear on the U.S. government’s (a) Specially Designated Nationals List; (b) Denied Persons List; (c) Unverified List; (d) Debarred List; or (e) Entity List.

12. TERMINATION. In addition to any other remedies that Hiperion Corporation may have, Hiperion Corporation may terminate the Contract with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under the Contract and the failure continues for five (5) days after Customer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these terms and conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

13. RETURNS. Before shipment all returned Equipment must have a Return Merchandise Authorization Form issued by Hiperion Corporation within any applicable Right of Return (“ROR”) period and must be packaged in the original packing materials with all accompanying accessories and shipped prepaid freight to Hiperion Corporation designated location. All CPO Equipment will have an ROR of 14 calendar days.  The ROR period will start on the first day the customer receives the Equipment and is not extended by Customer’s failure or delay in inspecting the Equipment.  FOR ALL EQUIPMENT AFTER THE ROR PERIOD, IF ANY, ALL SALES ARE FINAL.  New Equipment does not have an ROR but may be returned at Hiperion Corporation sole discretion for which a restocking fee may apply.

14. MISCELLANEOUS. All notices hereunder shall be in writing. Typographic and/or clerical errors may be corrected by Hiperion Corporation on notice to Customer. The Contract shall be governed by and construed in accordance with the laws of the State of Delaware. Any legal action or proceeding with respect to the Contract shall be brought exclusively in the state or federal courts in Dover, Delaware without giving any effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction that would cause the application of any laws of any jurisdiction other than those of the State of Delaware), and the parties hereby consent to the venue and jurisdiction of such courts. In any arbitration or litigation between the parties in connection with this Agreement, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs in such proceeding from the other party.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply. To the extent that any provision or a portion of any provision is determined to be illegal or unenforceable, the remainder will remain in full force and effect. Customer may not transfer or encumber any rights hereunder without the consent of Hiperion Corporation; Hiperion Corporation may assign or transfer any of its rights or obligations upon notice in connection with a transfer of its business. No waiver by either party of any breach of any provision of the Contract shall be construed as a waiver of any subsequent breach or as a continuing waiver of such breach. Any approval, consent or determination of Hiperion Corporation shall be given in Hiperion Corporation sole and absolute discretion. Time is of the essence. "Including" means "including without limitation."