Mobile Satellite Services and Equipment Terms and Conditions
The following terms and conditions ("Terms and Conditions") apply to end-users ("Customer(s)") using mobile satellite services, including but not limited to Inmarsat®, Iridium®, MarineSat/LandSat®, GlobalStar® HughesNet™, AmosConnect™ services ("Services") and/or associated equipment ("Equipment") provided by Satworx or any other operating subsidiary of FoneBill LLc (collectively, "Satworx").
1. PROVISION OF SERVICES AND EQUIPMENT BY SATWORX
(A) These Terms and Conditions, a Satworx approved Subscriber Application and Services Agreement (“Subscriber Application”) and/or Customer’s written acceptance of a Satworx quotation, when taken together, will govern the provision by Satworx of Services and/or Equipment to Customer. There are no other oral or implied agreements, warranties or understandings, and from time to time, Satworx may, at its sole discretion, add, delete or modify the portfolio of Services and/or Equipment made available to Customer under these Terms and Conditions.
(B) In the absence of a quotation signed by Customer, Customer’s verbal instruction or issuance to Satworx of a purchase order, work order, work ticket or other form of written order on Customer’s standard form (collectively “Purchase Order(s)”) will constitute Customer’s acceptance of a Satworx quotation. All future orders for Services and/or Equipment will be governed by these Terms and Conditions, unless otherwise agreed. Future orders will be subject to Satworx’ acceptance, which may be withheld for any reason or for no reason.
(C) Customer is responsible for notifying Satworx, in writing, of any requirement to permanently deactivate or temporarily suspend Services. Such permanent deactivation or temporary suspension of Services will be effective only after Satworx’ receipt of Customer’s written request and Satworx’ acknowledgement of receipt of Customer’s written request. All such requests must be in writing and sent to: (Fax): +1-702-765-4606 or (Email): firstname.lastname@example.org. There will be no pro-rata refunds for deactivation or suspension. Customer will remain liable for all charges including, but not limited to, airtime and monthly access fees up to and including the last day of the billing period in which Satworx acknowledges receipt of Customer’s written request for permanent deactivation or temporary suspension of Services as well as any applicable early termination fees.
2. ORDERING SERVICES AND EQUIPMENT
Orders may be submitted to Satworx either through a Satworx authorized dealer or by calling Satworx directly at the following telephone number:
- For US and Canada calls: +1-866-728-9679.
- For International calls: +1-702-765-4606.
Customer is required to complete all applicable paperwork for the Services or Equipment to be provided by Satworx.
3. CUSTOMER PURCHASE ORDERS
If Customer issues a purchase order to Satworx for Services or Equipment, such purchase order will be treated as an administrative document only and will not add to, delete from, or change any of these Terms and Conditions. Customer agrees to waive any future challenge to the enforceability of any purchase order on the basis that such purchase order was made and or confirmed by electronic means.
4. BILLING & PAYMENT
(A) Services. Satworx will bill and Customer will pay Satworx for the Services provided by Satworx and for all applicable federal, state, provincial, local, and other taxes, fees and duties or other charges and amounts, including but not limited to value added or withholding taxes which may be levied upon the Services.
(B) Equipment. Invoices for Equipment will be sent on or after the date of shipment and will include all applicable federal, state, provincial, local, and other taxes, fees and duties or other charges and amounts, including but not limited to value added or withholding taxes that may be levied upon the Equipment.
(C) In the event that any tax, duty, impost, levy or the like charge becomes payable in any territory, either by deduction or otherwise, on or in respect of any amount to be paid by Company to Satworx, or which Company may be required to withhold in respect of any amount due to Satworx, such tax, duty, impost levy or like charge shall be for the account of Company and Company shall pay to Satworx such an amount as to yield to Satworx a net equal to the amount that but for such tax, levy, impost or charge would have been received by Satworx. Satworx will provide reasonable assistance to Company to minimize the amount of such withholdings or deductions, including providing any relevant certification of its status as a non-resident or a jurisdiction or of its entitlement to benefits under a treaty.
(D) Payment terms.
- Customer will pay all invoices within thirty (30) days of the date of invoice, and in accordance with the instructions as stated on the invoice.
- Amounts not paid within thirty (30) days will be subject to an interest charge of the lesser of, (i) one and one-half percent (1.5%) per month, or
- the highest rate permitted by law. (iii) Customer will pay for any and all collection or litigation expenses, including reasonable legal fees, incurred by Satworx in collecting any late payments or late payment fees.
- All payments will be made in U.S. currency.
(E) Satworx may require Customer to provide a third party guarantee, deposit, letter of credit, or other form of security deemed necessary by Satworx, in its sole discretion, to provide adequate assurance of payment. The provision of such third party guarantee, deposit, letter of credit, or other form of security does not relieve Customer of its payment obligations specified herein.
(F) All charges will be in accordance with Satworx’ then current charges or the quotation as provided to Customer for the applicable Service and/or Equipment. Satworx reserves the right to revise such charges from time to time.
(G) Customer acknowledges that if it uses the service of another service provider with Satworx as the Accounting Authority, it will pay to Satworx the amount charged by that service provider plus a fifteen percent (15%) administrative fee for processing the charges.
(H) Customer acknowledges its responsibility to provide and pay for all equipment and services required to connect Customer.
(I) Customer must pay all undisputed amounts when due. If any portion is in dispute, Customer must, within thirty (30) days of the invoice date containing such disputed amount, give notice to Satworx of the amount it disputes ("Disputed Amount") and include in such notice the specific details and reasons for disputing each tem. For avoidance of doubt, claims of unauthorized use, fraudulent use or any other misuse will not constitute a valid basis for dispute of an invoice. If the Disputed Amount is resolved in favor of Satworx, Customer must pay the Disputed Amount with appropriate late charges, if applicable, upon final determination of such dispute. Satworx will issue credits against amounts owing on subsequent invoices upon resolution of any disputed amounts in favor of Customer. An invoice is deemed to be accepted by Customer if no written notice of dispute is provided before the date the payment is due.
(J) Liability for Data Usage. Customer shall be fully liable for payment for any and all voice and data charges accrued through the use of Customer’s Equipment. It is Customer’s sole obligation and responsibility to ensure that all Equipment and associated computer hardware and software are properly configured with respect to the Services being used and that only authorized users are permitted access to the Equipment.
(K) Invoicing Policies.
- Paper Invoice Fee. An administrative fee of $4.95 USD per month, or equivalent, is charged by Satworx for the issuance of paper invoices. To avoid this fee, Customer may elect to receive electronic invoices, in PDF format, each month. Invoices in electronic format are available by email and online via Satworx e-Invoicing. Satworx e-Invoicing also allows Customers to pay invoices directly online by credit card. In the case of invoices issued in a currency other than US dollars, the Paper Invoice Fee is as follows: CND $5.75; AUD $6.25; EUR €3.75; GBP ₤2.50; SDR 3.25.
(L) Pricing Plans. Certain Inmarsat services, including BGAN, Swift Broadband, and Fleet Broadband, may be sold under pricing plans, some of which may require minimum service term commitments. Accordingly, termination of a service plan that specifies a minimum service term prior to the expiration of the minimum service term will result in Customer being liable to pay Satworx the applicable termination charge as specified in the particular service plan. For the avoidance of doubt, Customer herein acknowledges that the assessment of a termination charge is reasonable and is not a penalty, but rather constitutes liquidated damages for the loss of a bargain.
5. SALE OF EQUIPMENT
(A) Delivery/Freight Charges/Risk of Loss: Risk of loss in the Equipment will transfer upon delivery to Customer and delivery will take place when Equipment is shipped to Customer by Satworx, regardless of shipping INCOTERM. Customer will pay any costs incurred by Satworx to ship the Equipment to Customer’s designated location, unless otherwise agreed upon by the parties prior to shipment. Any additional delivery terms for Equipment will be mutually agreed to by Satworx and Customer. Satworx will use commercially reasonable efforts to comply with the delivery terms requested by Customer. In no event will Satworx have any liability in connection with any shipment, nor will the carrier be deemed to be an agent of Satworx.
(B) Partial Shipments: Customer agrees to accept partial shipments unless otherwise specified in advance, particularly in cases where the Equipment is temporarily out of stock. In the event that ordered Equipment is not available, Satworx will maintain a backorder list compiled by date. As backordered Equipment is received from the Supplier, Satworx will fill orders based on age of order. Customer is responsible for shipping charges for each partial shipment.
(C) Title: Title to Equipment purchased by Customer will transfer from Satworx to Customer upon Satworx’ receipt of the full sale price and any applicable taxes, fees, freight, and other charges. Until such time, Customer will keep Equipment that is owned by Satworx free from any liens, claims or encumbrances and will execute all such documents as may be reasonably required by Satworx to evidence or perfect its security interest.
(D) Inspection & Acceptance: Customer may inspect or test the Equipment that has been tendered for acceptance. Customer may require repair or replacement of nonconforming Equipment at no increase in price. Customer must exercise the post-acceptance rights provided by this Article, (i) within thirty (30) days after a defect is discovered or should have been discovered, and (ii) before any substantial change occurs in the condition of the defective item, unless the change is due to the defect in the item.
- Satworx warrants that new Equipment delivered to Customer will be free from defects in workmanship and material for a period of one (1) year/(365 days) from date of delivery. All refurbished or used Equipment or accessories sold hereunder will be free from defects in workmanship and material for a period of thirty (30) days from date of delivery. All repairs covered by such warranty will be performed at no charge to Customer. For any repairs requested after the warranty period, Satworx will provide a quote for such repairs and if the quote is accepted and the work authorized by Customer, the repairs will be performed at Customer’s expense. In the event of a warranty claim, Satworx will, at its sole option: (a) repair the Equipment so that it performs set forth above, (b) replace the nonconforming Equipment with Equipment which performs as set forth above, or (c) if Satworx determines that neither of the foregoing is commercially reasonable upon return of the Equipment to Satworx, refund all sums paid by Customer to Satworx with respect to the nonconforming Equipment. The foregoing Equipment warranty is Customer's sole remedy in the event of a warranty claim.
- All warranties offered by Satworx are a “back-to-base” warranty, such that Customer will bear the transportation cost of returning any nonconforming or defective Equipment to Satworx' designated premises and also the transportation cost of returning the Equipment following a repair from Satworx' designated premises to Customer's premises. If Customer requires a Satworx technician to travel to Customer’s location to perform warranty services, Customer is responsible for all costs associated with the travel including, but not limited to, transportation costs, living expenses, etc. Satworx will provide a written estimate of travel costs upon request.
- The foregoing warranty does not extend to Equipment which is altered, improperly installed by a third party or which fails or is damaged after delivery due to accident, act of God, shipment or handling, or due to storage, operation, use, or maintenance in a manner or environment which does not conform to the Equipment manufacturer's instructions or specifications provided by Satworx at the time of delivery to Customer.
- Subject to Article 5(C) above, Satworx warrants that title to all Equipment delivered to Customer under these Terms and Conditions will be free and clear of all liens, encumbrances, security interests, or other claims.
(F) Refunds/Restocking Fees: There will be no refunds for used Equipment returned to Satworx. If Customer returns unused Equipment to Satworx in its original package, in its original condition, and within thirty (30) days of delivery, Satworx will refund to Customer eighty five percent (85%) of the purchase price, the remaining fifteen percent (15%) of the purchase price representing a restocking fee. Customer will bear all shipment and insurance costs related to such return shipment. All Equipment returned to Satworx must have a Satworx-issued Returned Merchandise Authorization (“RMA”) number prominently displayed on the packaging and must be returned to the Satworx facility as directed by Satworx. An RMA number may be obtained by calling Satworx’ Customer Care at 1-866-728-9679 within North America, 1-702-765-4606 internationally, or by email at email@example.com. Equipment returned without an RMA number will be returned to Customer at Customer’s expense.
6. OPERATIONS CENTER
Operations Center: Satworx operates a Customer Care and Operations Center, Monday-Friday, 8 AM – 6 PM for general customer assistance, billing inquiries and sales. Technical support is available 24 hours per day, 7 days per week. The Center say be contacted at the following telephone numbers:
- For US and Canada calls: 1-866-728-9679
- For International calls: +1-702-765-4606
The Operations Center provides Customers with operator assistance, operator intercept, mobile terminal commissioning, technical trouble shooting, and general customer assistance services.
7. 911 SERVICE
911 Service is provided to Customer directly from a satellite provider or third party operations center for Customers using these services. Please contact the respective satellite service provider or third party operations center for further directions and procedures for using and accessing the 911 Service. Satworx IS NOT responsible for routing the 911 call. Satworx DOES NOT provide customers with any type of 911 emergency response services. The provision of emergency response services is the responsibility of the respective satellite service provider or third party operations center.
8. OPERATING PROCEDURES
Customers will follow the procedures (“Procedures”) established by the entities that supply the Services and Equipment to Satworx (“Suppliers”) and such Procedures may be provided to Customer upon reasonable request to Satworx. Customer acknowledges that the Procedures may be modified from time to time by Suppliers. Satworx will not be liable for Customer’s use of the Services or Equipment in a manner inconsistent with the Procedures provided by Suppliers.
9. SERVICE SPECIFIC TERMS AND CONDITIONS
- Identification Numbers
Unless specifically directed by a Customer, Customer will be assigned a unique identification number for each Unit used by Customer, which is also referred to as an Inmarsat Mobile Number (“IMN”). Customer will have no property right in the identification numbers assigned in connection with the Service and Satworx may change such numbers at such time or times as Satworx, in its sole discretion, considers necessary without any liability whatsoever.
- Terminal Usage
Inmarsat terminals and Services may not be used in the United States unless the Customer has indicated on its Subscriber Application that the Services will be used exclusively in the United States under Satworx’ licenses.
10. SERVICE AVAILABILITY
THE SERVICES ARE PROVIDED ON AN “ON-DEMAND” BASIS AND ARE SUBJECT TO THE AVAILABILITY OF CAPACITY ON THE APPLICABLE SATELLITE NETWORK. SERVICES MAY BE TEMPORARILY UNAVAILABLE OR LIMITED BECAUSE OF CAPACITY LIMITATIONS, NETWORK EQUIPMENT FAILURES, DISTRESS OR ANY OTHER EMERGENCY PRE-EMPTION AS REQUIRED BY SATWORX OR A SUPPLIER OR MAY BE TEMPORARILY INTERRUPTED OR CURTAILED DUE TO MODIFICATIONS, UPGRADES, REPAIRS OR SIMILAR ACTIVITIES OF A SUPPLIER. SATWORX HAS NO LIABILITY FOR UNAVAILABILITY OR MALFUNCTION OF SUPPLIERS’ NETWORKS.
11. CONDITIONS OF OTHER CONTRACTS
The obligations of Satworx and the terms of service and sale under these Terms and Conditions are subject to the terms of the agreements under which Satworx purchases the Services and Equipment from Suppliers (each an "Other Contract"). To the extent fulfillment of any obligation under these Terms and Conditions is not permissible or possible under an Other Contract, the Other Contract will prevail and such obligation will be suspended or modified to the extent required by the Other Contract. Satworx represents and warrants that it is not presently aware of any material respect in which these Terms and Conditions are inconsistent with an Other Contract.
12. SOFTWARE LICENSE AND INTELLECTUAL PROPERTY
(A) Effective upon delivery, Satworx herein grants to Customer a fully paid, non-exclusive, non-sublicensable and non-transferable license and/or sublicense to use the software provided with the Equipment, including, such software associated with StratosOne™, StratosNet®, AmosConnect™, AmosMail™, or any other third party software (the “Software”), for as long as Customer is entitled to use the Equipment. Customer may use the Software only in machine-readable, object code form. Third party software may be subject to additional terms and conditions described in the applicable third party software user documentation, and to the extent that those terms conflict with these Terms and Conditions, the third party terms will control. Customer may use the Software only for internal purposes and only in connection with the Equipment and Services provided by Satworx. Customer may not assign, transfer, pledge, rent, share, copy or sublicense any of the Software. Customer may not reverse engineer, decompile or otherwise attempt to discover the source code of the Software.
(B) If the Customer using the Equipment or Software is the U.S. Government, then the following restrictions apply:
- The Software provided is software developed at private expense and is not in the public domain.
- The Software is provided to non-Department of Defense government agencies with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to the restrictions as set forth in subparagraph "C" of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19.
- In the event the Software is provided to a Department of Defense government agency, the Government's rights in the Software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clauses at DFARS 252.227-7015 and DFARS 227.7202.
(C) Other than as specifically set forth in this Article, no licenses or any rights of any kind under any patent, copyright and rights to create derivative works, trademark, trade secret, service mark, mask works or other form of intellectual property collectively “Intellectual Property Rights”) are granted by either Party or are to be implied by these Terms and Conditions or arisen by estoppel.
13. USE OF SERVICES AND EQUIPMENT
(A) Customer will use the Services only in accordance with applicable U.S. and foreign rules, laws and regulations. Customer is solely responsible for determining and complying with the licensing requirements in any jurisdiction in which it is operating the Equipment. Customer will be liable for all use or misuse of the Services and/or Equipment hereunder, irrespective of whether such use or misuse was authorized, fraudulent or otherwise. Customer will not resell or rent the Services or Equipment. Customers will not use the Services or Equipment in an abusive or fraudulent manner, including, but not limited to the following:
- accessing or attempting to access Services by using an unauthorized device or by tampering with or altering Equipment;
- obtaining or attempting to obtain permission to use Services or Equipment by providing false or misleading information;
- obtaining Services or Equipment without having the intent to pay charges incurred;
- intentionally interfering with or causing disruption in the provision of Services or Equipment to other Customers;
- using Services or Equipment to further criminal activity;
- using Services or Equipment to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent or to call another person so frequently or at such times of day or in any other manner with the intended effect of annoying, threatening or harassing such other persons; or
- using Services or Equipment in a manner that interferes unreasonably with the use of services or equipment by one or more other Satworx customers.
(B) Satworx reserves the right to terminate use of the Services of any Customer engaging in abusive or fraudulent use of the Services or Equipment purchased from Satworx.
14. DEFAULT AND TERMINATION OF SERVICES
(A) The occurrence or happening of any one or more of the following events will constitute an event of default if not remedied within ten (10) days after notice from Satworx:
- use of the Services or Equipment in any manner or for any purpose contrary to law (see Article 19);
- abuse or fraudulent use of the Services and/or Equipment (see Article 13);
- failure to make any payments due as invoiced;
- discovery by Satworx that any representation or warranty made by Customer in any document furnished by Customer to Satworx is incorrect;
- breach or violation of any of these Terms and Conditions by Customer; or
- commencement of any proceeding, whether voluntarily or involuntarily, relating to Customer under any law relating to insolvency, bankruptcy or the protection of creditors' rights generally.
(B) Subject to Article 13, in the event of default, Satworx may, at Satworx’ sole option and without in any way limiting any other rights and remedies it may have, suspend or terminate Customer’s Service without notice. Satworx will bill Customer and Customer will pay Satworx, in accordance with Article 4, for all outstanding charges accrued up to and outstanding on the date of such termination. In all such cases, Satworx will incur no liability whatsoever. Customer will be liable for all costs and expenses incurred by Satworx due to default by a Customer, including but not limited to legal costs.
(C) Satworx, may, with no liability whatsoever, suspend or terminate Services and/or Equipment if lawfully ordered to cease operation of such Services and/or Equipment by a state or federal court of law, or any other lawful federal, state or local governmental authority. If at any time during the term of these Terms and Conditions any equipment, facilities, or property used by Satworx or its Suppliers to provide the Services and/or Equipment are taken for a public or quasi-public purpose by a lawful power or authority under the exercise of condemnation or eminent domain, Satworx will have the right, upon written notice to Customer, to terminate the Services and/or Equipment affected by the taking.
(D) Satworx may also terminate Services in the event that an Other Contract for purchase of Services and/or Equipment expires or is terminated, provided that termination of the Services will only be with respect to the Services or Equipment provided pursuant to that Other Contract.
(E) The rights of termination, restriction or suspension set forth in this Article are in addition to any other remedies available to Satworx under these Terms and Conditions, or at law or in equity.
15. IMPLIED WARRANTIES AND REPRESENTATIONS
(A) EXCEPT FOR THE WARRANTIES SET FORTH HEREIN, ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE OR OTHERWISE, IN RESPECT OF THE SERVICES OR EQUIPMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
(B) Satworx may provide Customer with access to certain account management tools (“Tools”), either directly or through Satworx’ website. Such Tools may include, but are not limited to, “Quicksort”, “Stratosaccess™”, "StratosGateway™", "AmosConnect Online" and "Dashboard". These Tools are provided to help Customers track their accounts and/or service usage. HOWEVER, USE OF THESE TOOLS ARE AT THE CUSTOMER’S OWN RISK, AND SATWORX MAKES NO REPRESENTATION OR WARRANTY AS TO THE BENEFITS OF THE TOOLS OR THE ACCURACY OF ANY INFORMATION GENERATED THEREBY. TO THE FULLEST EXTENT ALLOWABLE BY LAW, SATWORX DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF OR RELATED TO THE USE OF THESE TOOLS AND INFORMATION, REGARDLESS OF THE BASIS OF THE CLAIM (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
16. INDEMNITY AND LIMITATION OF LIABILITY
(A) SOME JURISDICTIONS WILL NOT ALLOW THE PARTIES TO LIMIT LIABILITY FOR PERSONAL INJURY. IN THOSE JURISDICTIONS, THE FOLLOWING LIMITATIONS AND INDEMNITIES WILL ONLY APPLY TO PERSONAL INJURY TO THE EXTENT ALLOWABLE UNDER APPLICABLE LAW.
(B) SATWORX DOES NOT UNDERTAKE TO TRANSMIT MESSAGES, BUT OFFERS THE USE OF ITS FACILITIES TO CUSTOMERS FOR THE TRANSMISSION OF TELECOMMUNICATION SERVICES.
(C) CUSTOMER AGREES TO RELEASE, PROTECT, INDEMNIFY, DEFEND AND HOLD HARMLESS SATWORX AND SATWORX' AFFILIATES, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES (“SATWORX GROUP”), ASSIGNS AND SUPPLIERS FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, ACTIONS, LOSSES, DAMAGES, DEMANDS, SUITS, (INCLUDING DAMAGE TO PROPERTY AND PERSONAL INJURY) AND EXPENSES (INCLUDING LOSSES FROM SETTLEMENT AND REASONABLE COURTS COSTS AND ATTORNEY'S FEES) ARISING OUT OF OR RELATING IN ANY WAY OR ALLEGED TO BE CAUSED BY:
- CUSTOMER’S USE OR MISUSE OF THE EQUIPMENT AND/OR SERVICES; AND/OR
- FAILURE OR LIMITATIONS OF ANY EMERGENCY DISTRESS FEATURES ASSOCIATED WITH THE EQUIMPENT AND/OR SERVICES (INCLUDING BUT NOT LIMITED TO, GLOBAL MARITIME DISTRESS AND SAFETY SERVICES (GMDSS) FEATURES; AND/OR
- INSTALLATION, MAINTENANCE AND/OR REMOVAL OF SUCH EQUIPMENT AND/OR SERVICES PROVIDED BY SATWORX AND/OR ITS SUBCONTRACTORS; AND/OR
- CUSTOMER’S BREACH OF THESE TERMS AND CONDITIONS, EXCEPT TO THE EXTENT SUCH CLAIMS ARE BASED UPON THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SATWORX; AND/OR
- ANY CLAIMS OR ACTIONS FOR LIBEL, DEFAMATION, SLANDER, INVASION OF PRIVACY, PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, OR THE VIOLATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, ARISING IN CONNECTION WITH THE USE OR MISUSE OF THE SERVICES AND/OR EQUIPMENT; AND/OR
- ANY CLAIM OR ACTION FOR PATENT INFRINGEMENT RESULTING FROM CUSTOMER’S USE (OR USE BY ANY OF ITS AFFILIATES) OF THE EQUIPMENT AND/OR SERVICES IN COMBINATION WITH THE EQUIPMENT, HARDWARE, SOFTWARE, SYSTEMS, CABLING, FACILITIES OR SERVICES NOT PROVIDED HEREUNDER BY SATWORX.
(D) THE TOTAL, AGGREGATE LIABILITY OF SATWORX TO CUSTOMER FOR ANY AND ALL CLAIMS WHATSOEVER RELATED TO THE EQUIPMENT AND/OR SERVICES OR THESE TERMS AND CONDITIONS FOR DAMAGES TO CUSTOMER (OR TO ANY AFFILIATE OF CUSTOMER) FOR ANY CLAIMS WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, HOWSOEVER ARISING WILL BE LIMITED TO DAMAGES ACTUALLY PROVEN AS DIRECTLY ATTRIBUTABLE TO SATWORX, AND FURTHER LIMITED TO AN AMOUNT EQUAL TO THE LAST THREE (3) MONTHS OF PAYMENTS MADE BY CUSTOMER TO SATWORX UNDER THESE TERMS AND CONDITIONS PRECEDING THE DATE OF ANY CLAIM MADE AGAINST SATWORX.
(E) NEITHER SATWORX GROUP NOR ANY OF SATWORX GROUP'S SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, INSURERS, SUBSIDIARIES AND AFFILIATED (INCLUDING PARENT) COMPANIES, AND THEIR EMPLOYEES, REPRESENTATIVES, OFFICERS AND DIRECTORS, WILL BE LIABLE ON ANY BASIS WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOSS ARISING FROM OR ATTRIBUTABLE TO FAILURE TO REALIZE ANTICIPATED SAVINGS, OR LOSS OF PRODUCTION, EQUIPMENT OR DATA) EVEN IF A PARTY KNEW OR HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES, IN CONNECTION WITH (I) THE PROVISION OR FAILURE TO PROVIDE THE EQUIPMENT AND/OR SERVICES, FOR ANY REASON WHATSOEVER AND HOWSOEVER ARISING, OR (II) ANY UNAVAILABILITY, DELAY, INTERRUPTION, DISRUPTION OR DEGRADATION IN OR OF THE SPACE SEGMENT OR OF ANY TELECOMMUNICATIONS CARRIED ON THE SPACE SEGMENT OR SERVICE OUTAGE OR DEGRADATION IN SUPPLIERS' NETWORKS DUE TO SATELLITE MALFUNCTION, OR (III) THE SUSPENSION BY SATWORX OR SATWORX’ SUPPLIERS OF THE MOBILE EARTH STATION’S AUTHORIZATION TO USE SERVICES PROVIDED BY SATWORX OR SATWORX’ SUPPLIERS, DUE TO ANY CAUSES WHATSOEVER. SATWORX’ LIABILITY IN CONTRACT, TORT OR OTHERWISE, INCLUDING ANY LIABILITY FOR NEGLIGENCE, HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF SATWORX’ OBLIGATIONS UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE REMEDIES PROVIDED HEREIN.
17. CONFIDENTIAL INFORMATION / PRIVACY AND DATA PROTECTION
(A) Unless Customer consents in writing, or disclosure is made pursuant to a legal proceeding, Satworx will keep confidential all information or data furnished by Customer or otherwise acquired by Satworx through performance. Such information will not be released by Satworx to anyone other than: (i) Customer; (ii) a person who in the reasonable judgment of Satworx is acting as an agent of Customer; (iii) to the commissioning entity or supplier or another telecommunications carrier provided that the information is to be used for the provision of Services and disclosure is made on a confidential basis with the information to be used solely for that purpose; (iv) an agent retained by Satworx to collect outstanding balances owed to Satworx by Customer; or (v) to a law enforcement agency whenever Satworx has reasonable grounds to believe that Customer has knowingly supplied Satworx with false or misleading information or is otherwise involved in unlawful activities. Customer’s data will be held and/or transferred in strict accordance with the applicable data protection laws and Satworx’ registration and Customer consent.
(B) Each party will comply fully with all applicable privacy and data protection laws and regulations, and will provide such assistance to the other party as is reasonably necessary to assist the other party in complying with such laws and regulations. Customer will indemnify Satworx against claims by third parties resulting from inadequate breach or inadequate observance of the provisions of this Article 17 (B).
18. INDEPENDENT CONTRACTOR
These Terms and Conditions do not create any partnership, joint venture, agency or employee/employer relationship of any kind between Satworx and Customer. Satworx is an independent contractor with respect to performance under these Terms and Conditions; all persons employed by each party are, and will remain, the It is expressly understood that neither party’s employees may participate in or receive any benefits from the other party’s employee benefit plans.
All notices, requests, demands and other communications hereunder will be effective upon delivery. Such notices will be in writing and will be sent by facsimile, email, nationally recognized overnight courier or delivered in person, addressed as set forth below. Satworx may, at any time, amend the below addresses for notice upon written notice to Customer.
If to Satworx:
7251 W. Lake Mead Blvd.
Las Vegas, NV 89128-8380
1 866 SATWORX
1 866 728 9679
Outside North America
1 702 765 4606
20. GOVERNING LAW / RULES & REGULATIONS
(A) These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Nevada, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction.
(B) Customer will not use the Services for any purpose contrary to law. Customer agrees to abide by all of the current regulations in effect in countries where the Services or Equipment may be used, including licensing requirements. Both Satworx and Customer will fully abide by all applicable laws, rules and regulations, including but not limited to all applicable anti-bribery or anti-corruption laws. Satworx will not pay any commissions, fees or grant any rebates to any employee or officer of Customer, nor favor any employee or officer of Customer with gifts or entertainment of other than nominal value, nor enter into business arrangements with any employee or officer of Customer, other than as a representative of Customer, without the prior written approval of Customer.
(C) Customer agrees to strictly adhere to the requirements and restrictions of the U.S. export and embargo laws and regulations, and any similar laws and regulations of other countries as applicable, in respect of the Services and/or Equipment to ensure the Services and/or Equipment is not transferred in violation of such laws and to obtain any required export/import licenses or authorizations. Customer agrees to obtain, at Customer’s sole expense, all necessary licenses, approvals, permits, consents and governmental authorizations that may be required for Customer’s use of the Services and Equipment. The use of Satworx Services and Equipment is expressly prohibited: (i) within the territory of Cuba, Iran, and any other countries where such use is prohibited under U.S. or other applicable law; and (ii) by any nationals of Cuba, Iran, or any other countries where such use is prohibited under U.S. or other applicable law. The use in Sudan of Equipment provided by Satworx is also prohibited.
(D) Satworx will not be held responsible for any operational restrictions, customs, license or permit fees required for operation of the Network Services in the destination country. In addition, Satworx will have no responsibility for fines associated with terminal seizure nor for legal ramifications of using Equipment in countries where it is prohibited. Customers are advised to contact the embassy or trade office of the destination country prior to entry into that country.
Satworx may, without the consent of Customer, (a) assign its right to receive payment hereunder to a third party and (b) assign its rights and obligations hereunder to a corporation, partnership or other business enterprise in which Satworx has directly or indirectly, an ownership interest. These Terms and Conditions will enure to the benefit of, and will be binding on Customers’ and Satworx’ respective successors and permitted assigns.
22. FORCE MAJEURE
Satworx will not be liable for any failure of performance hereunder due to causes beyond its reasonable control (“Force Majeure”), including, without limitation, acts of God, fire, explosion, satellite failure, vandalism, cable cut, storm or other catastrophes, national emergency, insurrections, riots, wars or strikes, lock-outs, usually severe weather, epidemics, earthquakes, floods, work stoppages or other labor disputes, or any law, order, regulation, direction, action or request of any government or authority or instrumentality thereof, or delay in delivery of Equipment, to the extent such delay is beyond the reasonable control of Satworx or Customer and other delays incurred for reasons beyond Satworx' reasonable control, which, by the exercise of reasonable diligence, they are unable to prevent or avoid. Satworx' obligation to perform will be suspended for the duration of a period of Force Majeure and will resume as soon as reasonably possible, upon the cessation of the event of Force Majeure.
23. WAIVER OF COMPLIANCE
The waiver or the failure of Satworx to enforce any of the provisions of these Terms and Conditions or to exercise any right or privilege hereunder, will not be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder.
24. ENTIRE AGREEMENT
These Terms and Conditions constitute the entire agreement between Satworx and Customer relating to the subject matter hereof and supersede all prior agreements between the Parties with respect to such subject matter. There are no other oral or implied agreements, warranties or understandings between Satworx and Customer with respect to such subject matter.
If any provision of these Terms and Conditions will be declared invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. In the event that any such provision will be declared invalid, illegal or unenforceable due to its scope, breadth or duration, then it will be modified to the scope, breadth or duration permitted by law and will continue to be fully enforceable as so modified.
All provisions which would naturally survive the expiration or termination of these Terms and Conditions will so survive, including but not limited to the Articles entitled “Billing and Payment”, “Sale of Equipment”, “Use of Services and Equipment”, “Default and Termination of Services”, "Indemnity and Limitation of Liability”, “Confidential Information/Privacy and Data Protection”, and “Governing Law/ Rules and Regulations”
27. RESTRICTED DESTINATIONS
No Services shall be used in, or Equipment imported into, any country where doing so is a violation of applicable U.S. law, and no Services shall be used by, or Equipment transferred to, any person or entity identified on the U.S. Specially Designated Nationals (SDN) List. Without limiting the foregoing, in no instance shall Services be used in, or Equipment imported into, the following countries without the express written consent of Satworx, which will only be provided upon a showing that the proposed use or importation is licensed or otherwise authorized by the applicable authority: Cuba, Iran, Syria, Sudan and North Korea.
28. EFFECTIVE DATE
The Terms and Conditions are effective as of 20 August 2007, and will remain in effect unless modified, revoked or terminated by Satworx. Notwithstanding the foregoing, these Terms and Conditions will continue to govern the provision by Satworx and use by Customer of the Services and/or Equipment, unless otherwise amended and agreed upon in writing by the parties.
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