1. PROVISION OF SERVICES

 

1.1 Service Ordering

Network Innovations shall provide the Products and/or Services to Customer in accordance with these General Terms, the terms as set out in the Service Agreement and the Flow-Down Terms (where applicable). Customer may order the Products and/or Services by either issuing a signed AOF or by placing an order via the NI Portals.

1.2 Changes to Products and/or Services

Customer agrees that Network Innovations may at any time during the service term, modify and/or replace the Products and/or Services currently offered (the “Replacement Product and/or Service“) and Network Innovations may migrate Customer to the Replacement Product and/or Service by giving at least fourteen (14) calendar days’ notice to the Customer. Customer further agrees that specifications, descriptions and illustrations of the Products and Services are illustrative and subject to alteration, improvement or revision of design.

1.3 Upgrade Network

Network Innovations and/or its suppliers shall be entitled to upgrade the network(s) at any time with notice to the Customer, and Customer agrees to perform the corresponding hardware changes (if any) at its own cost. Where emergency upgrades are required, whilst Network Innovations shall endeavour to notify the Customer, Network Innovations and/or its suppliers shall have the right to perform emergency upgrades to the network(s) without any notice to the Customer.

1.4 Troubleshooting

Network Innovations shall be entitled at any time, to conduct troubleshooting measures in order to rectify any problems encountered in the provision of the Services and the Customer shall have no claim against Network Innovations for any downtime resulting from such troubleshooting exercise(s).

1.5 Right to Intercept

Customer agrees that Network Innovations reserves the absolute right to intercept the Service and any communication of the Customer, including the right to disclose information and data, as required by a government or regulatory authority in accordance with Applicable Laws.

1.6 Engineering services

If Network Innovations is required to provide engineering services, Customer will be subject to the working hours of the respective jurisdictions of the Remote Site and the specific terms stated in the Service Agreement.

1.7 Terms of Service. Network Innovations’ provision of Products and Services is subject to the General Terms, the applicable Service Agreement, the availability of Products and Services, and applicable Flow-Down Terms to the exclusion of all other terms and conditions which Customer may seek to impose or incorporate in any order, purchase requisition, purchase order or similar document or by trade, custom, practice or course of dealing. In the event of a conflict between these various terms, the controlling documents shall be the Service Agreement, these General Terms and finally the Flow-Down Terms.

1.8 Location of Services. Where applicable, Customer will notify Network Innovations of any move of the Product Location or Service location that may affect the Services. Network Innovations reserves the right to invoice Customer for, and Customer agrees to pay, Network Innovations’ charges for assistance that may be incurred in connection with Customer’s move of the Product Location or Service location within any approved region that may affect the Services. Services maybe limited to the “Geographical Area of Service” or region set forth in a Service Agreement. If, during the Minimum Term, Customer desires to move the location where Services are being received by Customer to a different area outside of the Geographical Area of Service or region specified in a Service Agreement, Customer shall notify Network Innovations at least thirty (30) days prior to such contemplated move so that the parties can promptly discuss the potential impact of such move on the ability to continue to provide Services (e.g., service coverage availability, technical and operational requirements, and licensing requirements) and on the associated pricing of Service and costs related to the move. Customer’s obligation to pay the charges for Service shall not be abated during this period. If it is determined that Service can be continued during and/or after the move, the pricing and costs for Service may be adjusted to adequately compensate Network Innovations for the change in location and Service related thereto, and Customer will execute any necessary amendments to give effect to such adjustments. If it is determined by Network Innovations that Service cannot be continued after such move, then Network Innovations may terminate the Service or affected AOF upon notice to Customer as though an event had occurred under clause 8.2 (A) (vi) without the requirement of an additional notice or cure period. Upon any such termination, Customer shall pay the amounts invoiced and ensure that the Products are returned to Network Innovations in accordance with clause 8 .3.

1.9 Special Services. Network Innovations does not guarantee the accuracy of any global positioning system services or similar services that may be part of Service ordered by Customer. Network Innovations shall not be liable for any losses, either direct or indirect, that may arise out of Customer’s use of such services.

1.10 911 and Other Emergency Services. Except to the extent specified in a Service Agreement and required by Applicable Laws, Customer acknowledges that the Products and the Services provided by Network Innovations are not capable of servicing 911 emergency calls or calls to any other universal emergency telephone number (UETN) such as 112 in Europe, and that geographic location and/or call-back number information will not be forwarded to an emergency centre or public safety answering point (PSAP). Therefore, Customer should maintain alternate means of calling emergency services. Customer agrees that Network Innovations will have no liability to Customer or any third party for Customer’s or any third party’s use of Products and Services for any emergency services.

2. PRODUCTS

2.1 Rental of Products

In addition to the Services, Network Innovations may also provide Products on rental basis subject to the Rental Charges, Security Deposit and other terms set out in the Service Agreement and the Product Rental Terms.

2.2 Lease of Products

In addition to the Services, Network Innovations may also provide Products on lease basis subject to the Lease Charges, Security Deposit and other terms set out in the Service Agreement and the Product Lease Terms.

2.3 Sale and Purchase of Products

Customer shall be solely responsible for procuring, at its own cost and expense, any Products, terminal, software or facilities that are required to enable connectivity to the Services and shall pay the Product Purchase Price to Network Innovations. Customer agrees that the Products purchased shall be subject to the Product Purchase Terms. Unless otherwise agreed by the parties as set forth in a Service Agreement and unless the Customer has obtained a pre-approved credit account with Network Innovations, 100% of such Product Purchase Price is payable upfront before delivery. Customer shall notify Network Innovations of any changes or modification to the Products or sub-systems that adversely affects the Services. In these circumstances Network Innovations may in its absolute discretion and without liability to the Customer, discontinue the Services.

2.4 Customer Provided Products

Customer shall at its own cost deliver Customer Provided Products to Network Innovations. Where necessary Network Innovations shall install Customer Provided Products for use in providing the Services at Customer’s expense. The Customer Provided Products shall at all times remain at the risk of the Customer and will be used by Network Innovations with reasonable care. The Customer warrants that the Customer Provided Products is in good order and condition and functions according to its specifications.

2.5 Right to use the Products: Protection from Liens. Customer is entitled to use the Products in accordance with the General Terms and the applicable Service Agreement solely to enable Customer to receive the benefit of the Services. Risk in the Products shall pass to the Customer upon delivery, and Customer shall hold the Products in a fiduciary position up until full payment for the Products has been made to Network Innovations or the Products are returned to Network Innovations. Upon request, Customer agrees to execute any documents necessary to perfect Network Innovations’ interest in the Products. Customer shall not allow any Liens to attach to any part of the Products. If a Lien is attached to the Products, Customer shall promptly release or discharge same by payment, bonding or otherwise, and shall defend, indemnify and hold Network Innovations harmless against any Losses caused thereby.

2.6 Testing In the event of purchase of certain Products, following installation of the Products, Network Innovations technical personnel will, where applicable, perform a series of tests (“line-up tests”) to verify that the Product(s) installed meet the appropriate service standards. Services will not be available for Customer’s use until the line-up tests are successfully completed. Line-up tests will take approximately 48 hours for each circuit if each test is successfully completed, and none have to be repeated. If Customer interferes with or terminates the line-up tests prior to completion, Network Innovations’ Product repair and warranty obligations and service level commitments (if any) will not apply or be effective unless and until the line-up tests have been successfully completed and all charges and costs associated with the termination, reinstitution and completion of the line-up tests shall be Customer’s liability.

2.7 Care and Use. Customer shall ensure that: (i) the Products are used in the regular course of its business and in accordance with Network Innovations’ and the manufacturer’s operating specifications, (ii) Products are kept and operated in an environment suitable for its intended use (for example, the indoor units must be kept in a clean, wind and water tight environment); (iii) Products are not subjected to Customer Events; (iv) the Products are not resold or rented without Network Innovations’ prior written consent; and (v) up-to-date records and logs of the repair, maintenance, performance and condition of the Products are kept. Customer shall not remove or deface any label Network Innovations may affix on the Products. All Product alterations, additions and replacements are the property of Network Innovations. Customer shall, if so required, at its own entire cost (i) provide the lighting, electricity, lightning protection, telecommunications connections, civil works, and inside wiring; (ii) grant or cause to be granted to Network Innovations or its designated representative full and free access rights for access to and egress from each Product Location, and (iii) provide all offshore transportation from the helipad or port to and from each Product Location (where applicable). If Customer connects its own products (i.e. Customer Provided Products) to Network Innovations’ network, Customer must ensure that such product is compatible with and does not harm, affect, impair, undermine or interfere in any way whatsoever with the operational efficiency and technical integrity of the Services, Network Innovations’ network, its third-party suppliers’ networks or any other Network Innovations’ services. Network Innovations shall have the exclusive access to provide additional services to third parties through the onboard network as long as such services do not interfere with the Service being received by Customer.

2.8 Delivery Terms. Unless otherwise specified in a Service Agreement, Products shall be delivered to Customer Ex-Works (per INCOTERMS 2010) at the specified Ex-Works Site. Customer shall bear all risk of loss or damage to the Products from any cause whatsoever and is responsible for obtaining and paying for insurance (or equivalent coverage in the case of self-insurance), including all risk insurance and, for mobile trailer units, automobile liability insurance, for full replacement value of the Products and damage to third parties while operating or transporting the Products during the Coverage Period. By placing a Service Agreement or using the Products and Services, Customer represents that it has, as applicable, either purchased the required insurance coverage for the Products or has adequate independent financial strength to bear the risk of loss or damage to the Products and shall exhibit to Network Innovations on demand the policy document and the most recent receipt for the premium, perform any obligation required of it under the terms of such insurance, do nothing which could invalidate any such insurance and pay to Network Innovations promptly on receipt the proceeds of any insurance claim made in respect thereof. If any loss or damage to the Product(s) occurs, Customer shall immediately notify Network Innovations and Network Innovations shall either repair or replace the damaged Product(s), at Network Innovations’ option, and Customer shall promptly pay any invoice for such costs or, in the event of a total loss, for the Product’s full replacement value. If such loss or damage occurs, Network Innovations shall have the option to replace Product(s) or terminate the applicable Service Agreement; however, no loss or damage shall relieve Customer of any obligations hereunder. Unless otherwise stated in the applicable Service Agreement, Customer is responsible for providing and paying for all freight forwarder, shipping, customs, import/export and related costs for shipments of Products to and from Customer’s specified destinations and the Ex-Works Site. If the applicable Service Agreement states that Network Innovations will arrange for such services, Customer agrees to pay all such costs plus related charges at Network Innovations’ rates.

3. TERM

Subject to the termination provisions set forth in the General Terms and unless otherwise specified in a Service Agreement, the Products and/or Services (as applicable) shall be provided during the Minimum Term. The Service may be subject to automatic renewal for periods specified in the applicable Service Agreements. If the Customer wishes to avoid an automatic renewal, Customer shall follow the instructions relating to such Products and/or Services as specified in the Service Agreement. Failure to do so or continued usage of the Products and/or Services shall be deemed acceptance of any applicable automatic renewal. The General Terms shall continue to apply to any Product or Service so long as the Customer uses such Product or Service.

4. PAYMENT

4.1 In consideration of the provision of Products and/or Service, the Customer shall pay Network Innovations: (a) the One Time Charge on the date of the Service Agreement and in any event prior to the Commencement Date, (b) the Service Fees upon the successful activation of the Service which shall be the Commencement Date, and (c) any other fees as specified in the Service Agreement.

The Service Fees may be invoiced in advance, and if so specified in a Service Agreement, are due and payable in advance no later than the first business day of each service month, quarter, year or the date specified in the invoice. Service Fees that are invoiced in arrears are due and payable within 30 days of the invoice date.

Unless stated otherwise in the Service Agreement, any other non-recurring charges related to a Service Agreement are due and payable within 30 days from the date of Network Innovations’ invoice.

Customer is responsible for any and all usage of the Products and Services; accordingly, Customer shall pay all invoiced amounts relating to its usage of Products and Services including without limitation, the Service Fees which may cover subscription charges and usage charges relating to all traffic generated by a Product.

If it is expressly stated in a Service Agreement that the Service is subject to usage limits or allowances, then any usage over and above the specified limits shall be considered “excess usage” and shall be subject to additional fees or charges as specified and invoiced by Network Innovations.

If the Commencement Date is delayed for reasons attributable to the Customer or if Customer has commenced actual full or partial usage of the Service, Network Innovations may deem the Commencement Date to have occurred and may begin invoicing for the Service.

4.2 If Network Innovations performs Out of Scope Work due to missing or incomplete information provided by the Customer or Customer’s failure to provide information in a timely manner, or due to Customer’s failure to prepare a location adequately for Service delivery, then Customer will pay Network Innovations for such Out of Scope Work in accordance with a written good faith cost estimate provided by Network Innovations.

4.3 In consideration of the Products provided by Network Innovations, Customer will pay either the Lease Charges or the Product Purchase Price (as applicable) stated in the Service Agreement and subject to the terms in clauses 2.1 or 2.2 herein as the case may be.

4.4 Unless otherwise provided in the applicable Service Agreement, Customer shall pay all costs of installation and commissioning, re-installation at another Product Location, maintenance, repair, and decommissioning and removal of the Product, including travel and standby time at Network Innovations’ rates. Network Innovations’ rates include basic standard test products assigned to Network Innovations’ service technicians; however, Network Innovations will bill Customer separately for use of a specialized test product, if required. Charges for labour shall commence from the date and time personnel leave Network Innovations’ facility and terminate on the date and time such personnel return to such facility. If Customer does not provide travel, food and accommodation for Network Innovations’ personnel, Customer agrees to pay such costs at rates specified by Network Innovations.

4.5 Customer shall make all payments (i) in the currency as specified in the invoice without offset, deduction or withholding and (ii) by bank wire transfer, electronic funds transfer (EFT), cheques or Automated-Clearing-House (ACH) cheques or such other payment arrangement specified in a Service Agreement to such bank account as Network Innovations may designate. In addition, Customer shall be responsible for any and all transfer, exchange, or other similar charges. All payments shall be deemed to be made only upon Network Innovations’ receipt of collected funds. Network Innovations may apply any payment made by Customer to any outstanding amount that may be due under a Service Agreement, or any other agreement between Customer and Network Innovations, regardless of any designation of payment that Customer

4.6 Network Innovations may require the Customer to provide a Security Deposit prior to placing any order and such Security Deposit will be held in a non-interest-bearing account. Such Security Deposit may be required in respect of each type of Product and/or Service the Customer elects to procure and shall be maintained throughout the term of the applicable Service Agreement. Network Innovations shall refund the Security Deposit (or so much of Security Deposit as has not been applied by Network Innovations in reduction of payment due to Network Innovations under a Service Agreement) to the Customer on the termination or expiration of a Service Agreement provided that the Customer has paid to Network Innovations all invoiced amounts and other fees, charges and interest which may become due and payable by the Customer to Network Innovations. In addition, Network Innovations may require the Customer to increase the amount of the Security Deposit held by Network Innovations or require a further Security Deposit of a reasonable amount at any time from the Customer, if:

1. ) In the reasonable opinion of Network Innovations, the Customer’s financial circumstances have substantially changed since the Customer entered into a Service Agreement;
2. ) Customer has defaulted on timely payment of two or more invoices;
3. ) Network Innovations has used the Security Deposit (or any part thereof) to pay any outstanding invoiced amounts.

In addition to receiving a Security Deposit, Network Innovations shall also be entitled to require the Customer to provide a bank guarantee to Network Innovations securing payment of invoices on or before the Commencement Date. Network Innovations will return the bank guarantee to the Customer after the termination or expiration of a Service Agreement provided that the Customer has fully paid all invoiced amounts, any other fees or charges and interest due pursuant to a Service Agreement. It is further agreed that, Network Innovations may require the Customer to increase the amount of the bank guarantee held by Network Innovations or to provide a further bank guarantee of a reasonable amount in the same circumstances as described above. Network Innovations may enforce and draw down the bank guarantee if an event of Default (as defined below) occurs to satisfy outstanding payment due to Network Innovations.

4.7 If Customer fails to make any payment due to Network Innovations by the due date for payment, then without limiting Network Innovations’ other rights and remedies at law:

1. Customer may be required to pay interest on the overdue amount at the rate of 18% per annum or the maximum rate permitted by law. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgement, and Customer shall pay the interest together with the overdue amount;
2. Network Innovations shall have no obligation to provide Products and/or Services to Customer until the overdue amount is settled in full together with accrued interest; and
3. Customer agrees to pay all costs and expenses, including, without limitation reasonable attorneys’ fees, incurred by Network Innovations in collecting past due balances.

4.8 A failure to pay the invoiced amounts by the due date will constitute a ‘default’ (“Default”). If Customer is in Default for five (5) days for any one period of time, Network Innovations at its sole election may discontinue providing Service and/or Products to the Customer with five (5) days’ notice.

4.9 If at the end of a further period of five (5) days from the date of discontinuation of the Service, the Customer fails to remedy the Default, Network Innovations may cancel and terminate the Service, and the applicable Service Agreement without any further notice.

4.10 Notwithstanding anything to the contrary, Network Innovations reserves the right to (a) adjust the Service Fee or any other fees payable under the Service Agreement from time to time at its discretion, whenever its suppliers adjust their fees or charges; and (b) change the currency used in the Service Agreement or denominate the currency used in the Service Agreement to another foreign currency, at any time. Network Innovations will endeavour to provide reasonable notice to the Customer.

5. TAXES

Customer will be solely liable for and shall pay and shall indemnify Network Innovations in respect of all Taxes arising from the Products and/or Service provided to the Customer. Customer will provide Network Innovations with all applicable certificates of exemption from Taxes. In the absence of applicable exemption certificates, Network Innovations will invoice Customer 100% of all Taxes that are payable. Customer will pay such invoices in accordance with the provisions of these General Terms.

6. CUSTOMER’S OBLIGATIONS

6.1 Local Licences

Customer shall: (i) obtain and maintain during the term of a Service Agreement all government or other regulatory body licences, permits, temporary permits and authorizations required by Applicable Laws for its receipt of the Services, transmission and receipt of signals, and use of the Products and Services; (ii) obtain all necessary permits for access to and egress from Product Location and transportation thereto, on private or public property, necessary for Network Innovations’ personnel to access the Product for the installation, operation, maintenance, repair and removal of the Products; and (iii) obtain all required and applicable permits, licenses, visas and other immigration and customs clearances and export licences (if any) for the Products, Services and Network Innovations’ personnel.

Customer shall indemnify and hold Network Innovations harmless against any cause of action or claim that may arise out of Customer’s failure to obtain or maintain such licences, permits or approvals. Notwithstanding the foregoing, Network Innovations may (but is not obligated to) assist in the provision of local licenses in certain countries at Customer’s request, and where such assistance is rendered, extra charges shall be payable by Customer on a cost-plus administration fee basis.

6.2 Facilities

Customer shall ensure that specified facilities (if any) including but not limited to stable power supply, air-conditioned room facilities and cables etc are available at all times for the purpose of storing the Products including the Customer Provided Products.

6.3 Prohibited Use

Customer shall NOT use the Products and Services for any purpose prohibited under Applicable Laws. Customer understands that transmission of any material or content in violation of local law and/or applicable regulations is prohibited, including without limitation, any copyrighted material, threatening or obscene material and material protected by trade secrets or intellectual property rights that belongs to third party. Customer’s usage shall strictly comply with Network Innovations’ AUP Policy. Customer will follow established practices and procedures and will not use the Service, or any portion thereof, in a manner which would or could be expected to, under standard engineering practice, harm or interfere with the use of Service that is not assigned to Customer. Further, Customer shall eliminate economic losses and inconvenience to legitimate users and/or suppliers arising from technological fraud, such as, without limitation, the cloning of Subscriber Identity Module (SIM) card(s), theft of SIM card identification numbers or bypassing of carriers. For the avoidance of any doubt, Network Innovations or its suppliers shall not be responsible or liable for any fraud originating from, or due to connection with, third party networks. Network Innovations reserves the right to immediately suspend or terminate use of Services, and Customer agrees to indemnify, defend and hold harmless Network Innovations for any Losses arising out of Customer’s or the End-User’s violation or alleged violation of this clause.

6.4 Reselling

Customer shall not be permitted, without Network Innovations’ express prior written consent, to provide, re-sell, lease or supply Network Innovations’ Products and Services to any individual, business entity or in any country that is blocked or embargoed under applicable sanctions laws or in violation of any export control laws.

6.5 Permitted Use

Customer shall comply with the all operational requirements and with all applicable governmental laws, rules and regulations, including any restrictions on Customer’s receipt of the Service applicable in any country in which Customer uses this service.

6.6 Customer Provided Facilities

Unless otherwise specified in the Service Agreement, Customer shall be responsible for the provision, installation, operation, maintenance of, and for securing all necessary licenses and/or authorisations for all Customer Provided Facilities. Customer will operate any applicable transmit facilities in a manner that allows for cessation of, and will cease, transmission immediately upon receiving notice from either Network Innovations.

6.7 Customer Uplink Providers/ Customer’s Installers and other third-party providers

If and where applicable, Customer may contract with third parties other than Network Innovations to: a) transmit its signals to, or receive its signals from a satellite used to provide the Service, b) install Products or Customer Provided Products, provided, that Customer requires its contractors and such third-party providers to comply with all of the requirements of the Service Agreement regarding transmissions to, or reception from, the satellite and/or installation of Products, as applicable, and makes Network Innovations a third party beneficiary (or to the extent that it may be required for enforceability, gives Network Innovations direct privities) entitled to enforce such agreements. If Customer retains third parties as permitted by the previous sentence, these third parties’ services and facilities shall be deemed to be Customer Provided Facilities and the acts and omissions of these third parties in connection shall be deemed to be the acts and omissions of such third parties and of Customer.

6.8 Usage of Products and Services; Third Party Use

Customer acknowledges and agrees that: (1) it is the Customer’s responsibility to maintain the security of access to the Products and/or Services, (2) any and all usage of the Products and/or Services shall be deemed as usage authorized by the Customer, and (3) the Customer is responsible and liable for any and all activity relating to these Products and/or Services. Accordingly, without implying any right of Customer to permit any third party use of a Product and/or Service, Customer shall be responsible to Network Innovations for any third party use or transmissions to the same extent as Customer would be for its own use or transmissions and references in the General Terms with respect to Customer’s responsibilities to Network Innovations regarding Customer’s use or transmissions shall be interpreted accordingly.

6.9 Compliance with Law

Customer shall observe and comply with the relevant laws, regulations, orders, and policies and guidelines of any international body having jurisdiction over Network Innovations and/or its affiliates which Network Innovations and/or its affiliates are legally obliged to comply.

Customer shall at no time engage in any corrupt practices to procure contracts or business which include without limitation the giving of gifts and other such incentives, bribery and rewards to local or foreign government officials or other parties in order to obtain a favourable position or outcome in any negotiation or transaction and the Customer shall at all times indemnify and hold Network Innovations harmless from any claims, fines or other financial liability arising from such practices. All accounts and books recording the activities, income and expenditure of the Customer relating to the Products and Services of Network Innovations will be accurately kept at the office of the Customer, and copies of which will be provided to Network Innovations upon request in writing.

Customer shall comply with applicable export control laws, and will not transfer, import, export or re-export either directly or indirectly, any Product, technical data or software provided by Network Innovations to any country for which the United States or any other applicable government requires an export license or other governmental approval without first obtaining such license or approval. Customer shall indemnify and hold Network Innovations harmless from any third-party claim to the extent such claim is due to a breach of these obligations.

Furthermore, to the extent applicable, Customer is responsible for complying with all Applicable Laws, including without limitation, those relating to earth stations on vessels, use of products specific to C-Band satellite communications service located on sea-going vessels or platforms. Customer acknowledges that many countries forbid the operation and/or transmission of such services within or near a population centre or port-of-call. Customer agrees to comply with such regulations and requirements. Customer acknowledges and agrees that, in order to comply with Applicable Laws, Network Innovations may be required, without notice to Customer, to respond to and cooperate with requests, inquiries and/or investigations from governmental authorities concerning Customer and/or use of the Services at a Product Location.

Notwithstanding anything to the contrary, if after the execution date of a Service Agreement, there is (a) a change in the Applicable Laws of a jurisdiction where a party or Product Location is located, whether through amendment of existing Applicable Laws or enactment of new laws, or a change having the force of law in the interpretation or application thereof by any judicial, arbitral, or administrative body or (b) any binding adjudication by any judicial, arbitral, or administrative body that a provision of a Service Agreement or this General Terms is rendered invalid, and a resulting change or such adjudication has a material adverse effect on the economic benefits accruing to Network Innovations, the parties shall negotiate in good faith to promptly modify this such affected Service Agreement or take such other action as is mutually deemed appropriate or necessary by the parties to restore the economic benefits in effect prior to such change or adjudication.

6.10 Application of Flow-Down Terms

The Flow-Down Terms contain terms and conditions which relate to the provision of satellite bandwidth and other communication products and services to be used in the provision of the Service. To the extent those terms and conditions are relevant, they will apply equally to the provision of Products and Services by Network Innovations to the Customer. In making use of the Service, the Customer shall comply in all respects with the terms of the Flow-Down Terms. Network Innovations shall be entitled to regulate and take whatever steps necessary to comply with the operational, technical and other requirements of the third party providers and suppliers including (but not limited to) the right to impose onto the Customer automatically on a “back-to-back” basis all of the obligations and indemnities imposed by such third party suppliers from time to time. Customer’s use of the Service shall be deemed acceptance of such Flow-Down Terms where applicable.

6.11 Technical Compliance

Customer will be responsible for the technical compliance, security, proper functioning of and safe operation of the Customer Provided Products and Facilities, and shall take all steps to ensure that its Products and Facilities do not damage, interfere with or cause any deterioration in the operation of any of Network Innovations’ facilities, products or services of any telecommunication operator; it shall fully comply with the parameters and guidelines as set out in the relevant Service Agreement, as the same may be modified or supplemented from time to time by Network Innovations in its discretion. Further, Customer shall not at any time change any of its Products or technical specifications used in connection with any Service or as listed in the relevant Service Agreement without prior written consent from, and discussion with Network Innovations to ensure technical compatibility relating to any such proposed change.

6.12 Access

Customer agrees to provide Network Innovations and/or its subcontractors and their respective employees, servants or agents (“Network Innovations’ Personnel”) access to the Product Locations (including access to the associated Products) as necessary for Network Innovations to provide and perform the Services. Where Network Innovations’ Personnel is required to access a Remote Site, Customer shall ensure that while Network Innovations’ Personnel is at such Remote Site, all proper and legal health and safety precautions are in place and fully operational to protect Network Innovations’ Personnel. Network Innovations retains the right of direction and control over management of safety, risk and hazard control at the Remote Site. Where Network Innovations provides Customer access to its facilities and Products, the Customer shall comply and ensure that its employees, servants, agents and subcontractors complies with all and any access policies from time to time implemented by Network Innovations in respect of such facilities and/or Products.

6.13 Responsibility for acts of End-Users

Customer shall remain Network Innovations’ customer on record for all Services provided hereunder. Customer shall be responsible for all the acts or omissions of its users, employees, and any of its affiliates who procure and/or use the Services from Network Innovations and for the payment of all charges for Services provided hereunder, including Services provided to such End-Users.

7. NETWORK INNOVATIONS’ RIGHTS TO SUSPEND SERVICE

7.1 Wrongful Use

In the event Customer’s use of the Products and/or Services causes (in Network Innovations’ reasonable opinion) interference to other users of the Service or adversely affects Network Innovations or its suppliers or causes loss or damage to the Products, Network Innovations shall be entitled to forthwith suspend Customer’s use of the Products and/or Service and terminate the Service and applicable Service Agreement with immediate effect, without limiting Network Innovations’ right to the fees and charges payable under a Service Agreement up to the termination date and to any other rights granted to Network Innovations. Network Innovations shall also be entitled to retain the balance of any unused fees or charges. In the event of any damage or loss to the Products caused by the acts or omissions of the Customer or its employees, agents or representatives, Customer shall indemnify Network Innovations for any losses and costs arising from such loss or damage to the Products and Customer shall permit Network Innovations to carry out inspection of the Products to determine the cause of any such loss or damage. Such indemnification shall survive the expiration, cancellation or termination of a Service or Service Agreement.

7.2 Force Majeure Event

Network Innovations shall make reasonable efforts to meet delivery and performance dates, but Network Innovations shall not be liable for any loss, damage, delay or failure to perform, in whole or in part, resulting from a Force Majeure Event. In such event, Network Innovations shall be given a reasonable extension of time to complete performance. Further, in the event of a Force Majeure Event, Network Innovations shall be entitled to suspend the Service for a reasonable duration to be determined by Network Innovations based on the seriousness of the effect of such Force Majeure Event to the Service. Force Majeure events shall not excuse Customer’s delay in payment of, or failure to pay, any amounts due.

8. CANCELLATION, TERMINATION, DENIAL OF ACCESS AND FORCE MAJEURE

8.1 Cancellation

If the Customer cancels a Service during a service term for any reason other than an unremedied material breach of the General Terms by Network Innovations, then Customer shall pay to Network Innovations the Termination Fee in addition to the Service Fees and any other fees for Services rendered and the Lease Charges and/or Product Purchase Price of the Products delivered prior to the date of any such cancellation. Customer shall also pay Losses suffered by Network Innovations as a result of such cancellation.

8.2 Termination by Network innovations

1. For Cause. Network Innovations may immediately terminate a Service Agreement “for cause” upon delivery of a written notice to Customer, if: (i) Customer fails to make payment of any amount due under such Service Agreement and such amount remains unpaid for fifteen (15) days as set forth in clause 4.9; or (ii) Customer fails to cease activity in violation of clause 6 above immediately upon receiving telephone or email notice from Network Innovations; or (iii) Customer’s use of the Products materially breaches the terms and conditions as stipulated in the Product Lease Terms; or (iv) Customer fails to cure its breach of any provision of a Service Agreement or these General Terms within 15 days after delivery of written notice to Customer by Network Innovations; or (v) the Services are used for any purpose or in any manner that violates Network Innovations’ AUP Policies or Flow-Down Terms; or (vi) if Customer fails to cease any other activity in violation of the Service Agreement within fifteen (15) days after receiving from Network Innovations a notice of such violation; or (vii) Customer’s use of the Service exceeds the permitted credit limit; or (viii)Network Innovations terminates for cause any other Service Agreement that it may have with Customer (or any commonly controlled affiliate of Customer); or (ix) any of the Insolvency Events occurs.
2. For Other Reasons. Network Innovations shall have the right to terminate the affected Service, if:

1. 1. any court or arbitral order or order of any public authority or change in any Applicable Laws prevents Network Innovations from providing the Services or has a materially adverse effect on the economic benefits accruing to Network Innovations hereunder;
   2. a Force Majeure Event continues for 30 days’ or more.

8.3 Consequences of Termination

In the event of a termination, Customer shall (A) promptly coordinate with Network Innovations for de-installation and removal of the Products and for the return of such Products at Customer’s risk and expense to the Ex-Works Site or other location designated by Network Innovations, failing which Customer shall be liable for the replacement value of the Products, (B) immediately cease use of the Services, and (C) pay Network Innovations’ invoice for (i) all outstanding charges through the date of termination, (ii) all decommissioning costs for removal of the Products (if applicable), and (iii) any costs and related expenses incurred by Network Innovations relating to Customer’s default (including third party charges, attorney’s fees, court costs, and collection agency fees). In addition to the foregoing, if a Service Agreement is terminated for any reason other than an unremedied breach on Network Innovations’ part or sub-clause 8.2 (B), in addition to all of Network Innovations’ other remedies at law or in equity, the Termination Fee and all amounts due under a Service Agreement shall become immediately due and payable by the Customer, together with any interest accrued pursuant to these General Terms and terms of a Service Agreement. For the avoidance of doubt, Network Innovations may (if it deems fit) apply the Security Deposit against the Termination Fee. Upon termination, Network Innovations shall be entitled to use the components allocated for the Service for any purpose Network Innovations deems fit. Customer acknowledges that Network Innovations’ rights set forth in this clause are:

1. 1. ) reasonable under all circumstances;
   2. ) constitute liquidated damages; and
   3. ) do not constitute a penalty.

8.4 Right to Deny Access or Intervention

1. 1. ) Network Innovations may deny Customer’s access to a Service in any circumstance in which Network Innovations would have the right to terminate the related Service Agreement for ‘cause’.
   2. ) Network Innovations may also deny Customer’s access to a Service where the usage of the Service by the Customer has caused Network Innovations or any member of the Network Innovations Group to: (i) be indicted, (ii) be otherwise charged as a criminal defendant, (iii) become the subject of any criminal proceeding, or (iv) become the subject of any other governmental action or threat of any action by any governmental authority or representative thereof which potentially could result in the revocation, suspension, or loss of any license, ability or right to provide services to any customer, or loss of any customer’s right or ability to use the service provided to it by Network Innovations.
   3. ) The third-party suppliers of Network Innovations may also deny Customer’s access to a Service if Customer’s signal is being “jammed” or “interfered” by a third party and such jamming is interfering with the use or threatens the health of the Service.
   4. ) Network Innovations may continue to deny Customer access to a Service until any breach of the related Service Agreement by Customer is cured and, in the case of any denial of access pursuant to clause 8.4 (b) above, until any action or threat of action is resolved in Network Innovations’ favour or removed and, in each case, until assurances are given to Network Innovations’ reasonable satisfaction that the matter(s) giving rise to a denial of access will not reoccur.
   5. ) Network Innovations’ denial of Customer’s access to a Service in accordance with this clause shall not result in any Outage Credit to Customer and Customer’s payment obligations shall continue to be due and payable.
   6. ) Customer recognises that it may be necessary in unusual or abnormal technical situations, or other unforeseen situations, for Network Innovations to deliberately pre-empt or interrupt Customer’s use of the Service, solely in order to protect the overall health and performance of the Service. To the extent technically feasible, Network Innovations shall give Customer at least 24 hours’ notice of such pre-emption or interruption and will use all reasonable efforts to schedule and conduct its activities during periods of such pre-emption or interruption so as to minimize the disruption to users of the Service.
   7. )If the Service does not meet the Service specifications, but Customer elects to continue to use the applicable Service, as degraded, Network Innovations may interrupt Customer’s use as necessary to perform testing or take any other action that may be appropriate to attempt to restore the affected Service to its Service specifications. In such event, Network Innovations shall coordinate activities with the Customer and shall use all reasonable efforts to minimise the overall disruption.

8.5 Survival

The termination of any Service Agreement for any reason shall extinguish all of Network Innovations’ obligations to provide, and Customer’s obligations to accept, the Services, but shall not relieve either party of any obligations that may have arisen prior to such termination.

9. WARRANTIES, LIABILITY AND INDEMNIFICATION

9.1 Limited Warranties

NETWORK INNOVATIONS MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS AND/OR SERVICES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, COMPLETENESS, OPERABILITY AND INTEROPERABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED. NETWORK INNOVATIONS SHALL NOT BE LIABLE TO CUSTOMER OR THEIR END USERS OR ANY THIRD PARTIES FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE.

1. 1. Network Innovations warrants that it will perform the Service in a good and workmanlike manner consistent with applicable industry standards and practices. The Service is provided on an “as is” and “as available” basis. Subject to any applicable SLA, Network Innovations does not guarantee that the Service is fault free. Further, due to the technical nature of data setups and the inherent sophistication of data transmission through a variety of satellite and other operating systems, Network Innovations makes no representation as to the success of voice or data calls through any system. Customer agrees that all data call attempts, regardless of ultimate successful transmission and termination, will be paid for and no credits will be given in the event of dispute of this nature. Along with potential incorrect use, all satellite systems have inherent limitations and anomalies that can create dropped calls of either voice or data nature. Dropped calls shall not be credited.
   2. Products. Network Innovations will, to the extent the manufacturer of the Product has contractually entitled Network Innovations to do so, assign the manufacturer’s warranties to Customer. The warranty may include parts and on-site labor (except travel and standby time or third-party expenses, which will be invoiced to Customer at Network Innovations’ Rates) for repairs to the Product(s) due to defects and normal wear and tear during the applicable warranty term. This repair obligation shall not apply in cases in which Network Innovations determines that the Product has been subjected to Customer Events.

The warranties and defects rectification obligations expressed in this clause shall apply in place of all other warranties, conditions and other terms whether express or implied by statute or common law and all such other warranties, conditions and other terms are excluded.

9.2 Without prejudice to the generality of clause 9.1 and for the avoidance of doubt, Network Innovations does not warrant or represent that the Services will be provided free of any interruption or disturbance and further excludes any responsibility or liability for:

1. 1. ) any interference, interruption or disruption to any part or all of the Services caused by any failure, breakdown, inoperability, defect or fault in or of the satellite, any public or third-party telecommunication network, infrastructure, cables or other facilities;
   2. ) the contents of the data, Customer Provided Products and Facilities or any services thereby provided or used by Customer;
   3. ) any act or omission on the part of the Customer or its employees, agents, representatives or contractors or any third party;
   4. ) any service or assistance provided by or other action taken or omission done by Network Innovations pursuant to or in accordance with the express instructions or directions of Customer and/or the consequences thereof; or
   5. ) any damages or losses of any nature whatsoever and howsoever arising (including loss of use, Losses resulting from missing, contaminated or misdirected email or other electronic messages or the contents thereof).

9.3 Limitation of liability

In no event shall Network Innovations be liable for any indirect, incidental, con­sequential, punitive, special or other similar damages (whether in tort, negligence, strict liability or under any other theory of liability) including but not limited to loss of actual or anticipated revenues or profits, customer’s goodwill, loss of business, revenue, profits, or savings whether foreseeable or not, occasioned by (i) any defect in the Network Innovations’ facilities or in any facility provided or arranged for Customer by Network Innovations, or (ii) the provision of any Product or Service to Customer, any delay in the provision of any Product or Service to Customer, or any failure of Network Innovations to provide any Product or Service, or (iii) any other cause whatsoever. In addition, without limiting the generality of the foregoing, Customer acknowledges and agrees that it shall have no right of recovery for the satisfaction of any cause whatsoever, arising out of or relating to the Products and/or Service, against (a) Network Innovations Group; or (b) any supplier of services or products to Network Innovations. It is expressly agreed that Network Innovations’ aggregate liability to the Customer or to any third party for loss or damages arising under or in connection with a Service Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to an amount not exceeding the total amount paid by Customer to Network Innovations in respect of the affected Service Agreement which is the subject of the claim for the month immediately preceding the claim.

9.4 Indemnification

Customer shall indemnify and hold harmless the Network Innovations Group from any claims, liabilities, losses, costs, or damages (including reasonable legal fees and costs), arising out of or relating to the provision of any Service, and/or Customer’s or its End User(s)’ use of, the Network Innovations’ Products, Services or facilities, including, but not limited to, (a) those arising out of any transmission by Customer or its End User(s) that is actually, or alleged to be, libellous, slanderous, obscene, indecent, a breach in the privacy or security of transmissions, an infringement of copyright or any other intellectual property right, or otherwise illegal; or (b) Customer’s breach of its obligations under clause 6 above, or (c) those arising out of any claims brought by any End User(s) or any other third party(ies) in connection with any Service, including any disputes between or among Customer, its End User(s), other transmission recipients and/or transmission content suppliers; or (d) any warranty, representation, or statement Customer may make to a third party in connection with any Service. The limitations of liability set forth in clause 9.2 and 9.3 shall apply to, and the indemnifications set forth in this clause 9.4 shall run in favour of, the Network Innovations Group.

10. INTELLECTUAL PROPERTY RIGHTS

Network Innovations owns or is licensed to use the Intellectual Property Rights embedded in the Products and Services. Unless otherwise expressly agreed in writing, the Customer is not granted any express or implied licences relating to Intellectual Property Rights, save for a limited licence to use the Products and Services in accordance with this General Terms and terms in a Service Agreement. Any unauthorized use of the Intellectual Property Rights of the Products and Services shall constitute a material breach which shall entitle Network Innovations to the remedies stated herein and under the applicable law. Notwithstanding anything to the foregoing, Customer agrees and undertakes to hold harmless and indemnify Network Innovations against any claims, losses, costs and damages arising or incurred as a result of any infringement of the Intellectual Property Rights.

11. REMEDIES

The remedies provided herein are cumulative and in addition to any other rights or remedies either party may have at law or in equity or under any Service Agreement Nothing contained herein or any Service Agreement shall be deemed to preclude either party from seeking injunctive relief, if necessary, in order to prevent the other from willfully or intentionally breaching its obligations herein or any Service Agreement or to compel the other to perform its obligations hereunder.

Network Innovations will be entitled to seek injunctive or other equitable relief to remedy or forestall any breach or threatened breach by Customer of a Service Agreement, without the necessity of posting of a bond or other security. Network Innovations’ rights and remedies under a Service Agreement shall not be exclusive and are in addition to any other rights and remedies provided at law or in equity. If any litigation is commenced against either party, the non-prevailing party in such litigation shall bear the fees, costs and expenses of the prevailing Party.

12. ASSIGNMENT

12.1 Network Innovations Companies

Individual Service Agreements may be entered into by and between Customer and Network Innovations or any Network Innovations Company. Accordingly, with respect to any individual Service Agreement, any references in herein to Network Innovations shall be deemed to refer to and include, in context, the Network Innovations Company that executes such Service Agreement. For the avoidance of doubt, a Network Innovations Company’s execution of a Service Agreement which incorporates these General Terms shall not, and is not intended to, bind Network Innovations or any Network Innovations Company other than the Network Innovations Company that executes the Service Agreement.

12.2 Assignment by Network Innovations

Network Innovations may assign its rights and interests under any Service Agreement, and any or all sums due or to become due under any Service Agreement to an assignee for any reason. Customer agrees that upon receipt of notice from Network Innovations of such assignment, Customer shall perform all of its obligations directly for the benefit of the assignee and shall pay all sums due or to become due directly to the assignee, if so directed. Upon receipt of notice of such assignment, Customer agrees to execute and deliver to Network Innovations such documentation as assignee may reasonably require from Network Innovations. As used in this clause, assign shall mean to grant, sell, assign, encumber or otherwise convey directly or indirectly, in whole or in part.

12.3 Customer Assignment

Customer may assign its rights under any Service Agreement, only in whole (as to the agreement assigned), and only after securing Network Innovations’ express prior written consent, which consent may be withheld or conditioned in Network Innovations’ sole discretion. As used in this clause assign shall mean to grant, sell, assign, encumber, otherwise convey, license, lease, sublease, or permit the utilisation of, directly or indirectly, in whole or in part.

12.4 Successors

Subject to all the provisions concerning assignments, above, any Service Agreement shall be binding on and shall inure to the benefit of any successors and assigns of the parties; provided, that no assignment of any Service Agreement shall relieve either party of its obligations to the other party. Any purported assignment by either party not in compliance with the provisions herein shall be null and void and of no force and effect.

13. REPRESENTATIONS, WARRANTIES AND COVENANTS

13.1 Representations, Warranties and Covenants

Subject to the understanding that certain applications may be pending or subsequently filed by Network Innovations with the applicable governmental authority, Network Innovations and Customer each represents and warrants to, and agrees with, the other that: (1) it has the right, power and authority to enter into and perform its obligations under a Service Agreement; (2) it has taken all requisite partnership or corporate action, as applicable, to approve execution, delivery and performance of a Service Agreement, and a Service Agreement constitutes a legal, valid and binding obligation upon itself; (3) the fulfilment of its obligations will not constitute a material violation of any existing applicable law, rule, regulation or order of any governmental authority, or contract to which it is subject; (4) all public or private consents, permissions, agreements, licenses or authorisations necessary for the performance of its obligations under a Service Agreement to which it is subject have been obtained, or it will use all reasonable efforts to obtain, in a timely manner and (5) it does not know of any intermediary involved in connection with the negotiations and discussions incident to the execution of a Service Agreement, or of any intermediary who might be entitled to a fee or commission upon the consumma­tion of the transactions contemplated by a Service Agreement.

14. MISCELLANEOUS

14.1 Governing Law and Jurisdiction

Unless otherwise specified in a Service Agreement, a Service Agreement shall be governed by the laws of the state and country of the place of incorporation of the Network Innovations contracting entity that executes the Service Agreement without regard to any conflicts of law principles. The parties hereby agree to submit to the non-exclusive jurisdiction of the courts of the state and country of the place of incorporation of the Network Innovations contracting entity that signs the Service Agreement. Customer further agrees that those courts are the most appropriate and convenient courts to settle any disputes arising from a Service Agreement and accordingly will not argue to the contrary. Accordingly, the Customer irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future may have that any proceedings have been brought in an inconvenient forum, where that venue falls within those courts stated herein. The parties agree that the choice of jurisdiction herein is solely for the benefit of Network Innovations contracting entity only. As a result, Network Innovations contracting entity shall not be prevented from taking proceedings relating to a dispute under a Service Agreement in any other courts with jurisdiction. To the extent allowed by law, Network Innovations contracting entity may take concurrent proceedings in any number of jurisdictions. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of a Service Agreement in any jurisdiction other than that specified in this paragraph. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. Customer acknowledges that the obligations contemplated hereby are commercial in nature and hereby expressly waives any claim of sovereign immunity or other defences it may have in its capacity as a governmental or quasi-governmental agency.

No Jury Trial. The parties hereby knowingly, voluntarily and intentionally waive the right either party may have to a trial by jury in respect of any litigation based hereon or arising out of, under or in connection with a Service Agreement and any document contemplated to be executed in conjunction herewith, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party. This provision is a material inducement for the parties’ acceptance of a Service Agreement.

14.2 Severability

Nothing contained herein shall be construed so as to require the commission of any act contrary to law. If any provision of these General Terms shall be invalid or unenforceable, the provisions so affected shall be curtailed and limited only to the extent necessary to permit compliance with the minimum legal requirements.

14.3 No Third-Party Beneficiary

Other than as specifically set forth herein, the provisions are for the benefit only of Network Innovations and Customer, and no third party may seek to enforce or benefit from those provisions. Both parties acknowledge and agree that the operational requirements are intended for the benefit of both Network Innovations and all other customers using the Network Innovations Provided Facilities and that such intended beneficiaries may separately, or in addition to the parties hereto, seek to enforce such provisions.

14.4 Waiver

Waiver of the breach of any provision herein will not operate or be construed as a waiver of any other or subsequent breach. No failure or delay in exercising any right, remedy or power will operate as a waiver of any other right, remedy or power.

14.5 Notices

1. 1. ) General Notices. All notices and other communications from either party to the other, except as otherwise expressly provided, shall be in writing and shall be deemed received upon actual delivery at the address and/or facsimile number and/or electronic email address set forth in a Service Agreement. Each party will advise the other promptly in writing of any change in the address, designated representative or telephone or facsimile number or email address.
   2. ) Telephone Notices. For the purpose of receiving notices from Network Innovations regarding technical problems, including with respect to Service failure and restoration, Customer shall maintain a telephone that is available at all times during which Customer is receiving Service from Network Innovations. All such notices shall be made in English and shall be effective upon the placement of a telephone call from one party to the other. Each party shall promptly confirm all tele­phone notices in writing at the address and/or facsimile number and/or email address set forth in the applicable Service Agreement.