Terms and Conditions
The following terms and conditions (“Terms and Conditions”) apply
to individuals and entities (“Customers”) using any services or equipment
provided by SkyNet Mobile Communications Pty Ltd, SkyNet Satellite
Communications, Inc., and/or any affiliated entity (“SkyNet”), which services
shall include but not be limited to GSM or satellite services (including but
not limited to Inmarsat®, Iridium®, MarineSat/LandSat®, SatTrack® and
GlobalStar® services).
1. Provision of Services and Equipment by SkyNet
(A) SkyNet shall provide to Customers those services (“Services”) or equipment (“Equipment”) identified
on the Activation Request attached hereto, and into which these terms and Conditions are incorporated,
upon acceptance of Customer’s order. Provision of Services and/or Equipment shall be in accordance
with these Terms and Conditions. All orders are subject to SkyNet’s receipt and approval of a
completed Subscriber Application and Services Agreement from Customer, which may be approved or
disapproved in SkyNet’s sole discretion. Customer and SkyNet expressly disclaim the applicability
of the United Nations Convention on the International Sale of Goods with respect to transactions described herein.
(B) In the event that Customer desires to permanently deactivate
or temporarily suspend Services, Customer will notify SkyNet of the same in
writing, and SkyNet will promptly acknowledge receipt of such request and
terminate or suspend the Services. There will be no pro-rata refunds in
connection with such deactivation or suspension. Notwithstanding any
termination or suspension, Customer will remain liable for all charges for the
Services and Equipment, including, but not limited to, airtime and monthly
access fees up to and including the last day of the billing period in which
SkyNet acknowledges receipt of Customer’s written request for permanent
deactivation or temporary suspension of Services. All such requests must be
sent to: (Fax): +61 7 3009 or (E-mail): billing@SkyNetmobile.com.
2. Ordering Services and/or Equipment
Orders may
be submitted to SkyNet either through a SkyNet authorized dealer or by calling
SkyNet directly on the following telephone number: For Worldwide calls: +61 7
3860 5511. Orders are subject to SkyNet’s acceptance in its sole discretion. No
purchase order or other document shall be construed to modify, amend or
supplement any of these Terms and Conditions. Customer agrees that a purchase
order submitted and/or confirmed by electronic means is valid and enforceable,
and waives any claim challenging the enforceability of any such purchase order on
such basis. Customer is required to complete all applicable paperwork for the Services or
Equipment to be provided by SkyNet. Customer hereby authorizes SkyNet or its
representative to obtain information about Customer’s credit history from
credit-reporting agencies at any time. Customer understands that a credit
inquiry could adversely affect its credit rating. Customer authorizes SkyNet to
report Customer’s payment record to credit-reporting agencies.
3. Billing & Payment
(A) Services. SkyNet will bill and Customer shall pay
SkyNet for the Services provided by SkyNet and for all applicable federal,
state, local and other taxes which may be levied in connection with the
Services.
(B) Equipment. Invoices for Equipment will be sent on or
prior to the date of shipment and shall include all applicable federal, state,
local and other taxes that may be levied in connection with the Equipment.
(C) Payment terms. Customer
shall pay Equipment invoices prior to delivery, and Services invoices within
fourteen (14) days after the date of invoice. Overdue payments shall be subject to an interest charge of the lesser of
either one and one-half percent (1.5%) per month or the highest rate permitted
by law. Customer shall pay for any and
all collection or litigation expenses, including reasonable legal fees and
costs, incurred by SkyNet in collecting any late payments or late payment fees.
(D) SkyNet may require Customer to provide a third party
guarantee, deposit, letter of credit, or other credit facility deemed necessary
by SkyNet, in its sole discretion, to provide adequate assurance of payment. The
provision of such third party guarantee, deposit, letter of credit, or other
credit facility does not relieve Customer of its payment obligations specified
herein.
(E) All charges will be in accordance with SkyNet’s then current
charges as provided to Customer for the applicable Service or Equipment. SkyNet
reserves the right to revise such charges from time to time, without notice.
(F) Customer acknowledges that if SkyNet provides the services of
a third party service provider to Customer, and (i) invoices Customer, and/or
(ii) receives or processes payments from Customer, for such services on behalf
of such third party service provider, SkyNet will charge to Customer, and
Customer agrees to pay in connection with such services, the amount charged by such
third party service provider therefor, plus an administrative fee of twelve and
one-half percent (12½%) administrative fee.
(G) Customer acknowledges its responsibility to provide and pay
for all equipment and services required to connect Customer-provided equipment
to the Services or Equipment.
(H) Customer will notify SkyNet in writing of any disputes or disagreements
with invoiced charges within fourteen (14) days after the date of invoice.
Thereafter, Customer shall be deemed to have waived its right to dispute
charges. All disputed amounts resolved in Customer’s favor will be credited against
amounts owing on subsequent invoices.
4. Sale of Equipment
(A) Title/Delivery/Freight
Charges/Risk of Loss: Title
and Risk of loss in the Equipment shall transfer to Customer at
the time the Equipment has been tendered to the carrier for transport to
Customer. Customer shall pay any transportation costs incurred by SkyNet to
ship the Equipment to Customer’s designated location, unless otherwise agreed in
writing prior to shipment. Any additional delivery terms for Equipment shall be
mutually agreed to by SkyNet and Customer. SkyNet shall use commercially
reasonable efforts to comply with the delivery terms requested by Customer. In
no event shall SkyNet have any liability in connection with any shipment of
Equipment, nor shall the carrier be deemed to be an agent of SkyNet.
(B) Partial Shipments: Customer agrees to accept partial
shipments unless otherwise specified in writing in advance. In the event that
ordered Equipment is not available, SkyNet will maintain a backorder list
compiled by date. As backordered Equipment is received, SkyNet will fill orders
based on age of order. Customer is responsible for shipping charges for each
partial shipment.
(C) Inspection & Acceptance: Customer may inspect or test the Equipment
that has been tendered for acceptance. Unless Customer notifies SkyNet in
writing of the existence of any defects in the Equipment within fourteen (14)
days after receipt, such Equipment shall be deemed to be accepted.
(D) Warranty: SkyNet warrants that title to all Equipment delivered to Customer under
these Terms and Conditions shall be free and clear of all liens, encumbrances, or
security interests. EXCEPT FOR THE
FOREGOING OR PURSUANT TO ANY WRITTEN WARRANTIES THAT MAY BE PROVIDED BY THE
MANUFACTURER OF EQUIPMENT PROVIDED BY SKYNET (WHICH WARRANTIES ARE SOLELY THOSE
OF THE MANUFACTURER, AND WHICH SKYNET DOES NOT JOIN IN MAKING), AND TO THE
EXTENT PERMITTED BY LAW, THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS”
AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. SKYNET MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING
SERVICES OR EQUIPMENT. SKYNET DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE
SERVICE, NOR THAT COMMUNICATIONS UTILIZING THE SERVICES OR THE EQUIPMENT WILL
BE PRIVATE OR SECURE.
5. Operating Procedures
Customers shall follow the procedures (“Procedures”) established
by the entities that supply the Services and Equipment to SkyNet (“Suppliers”) and
such Procedures may be provided to Customer upon reasonable request to SkyNet.
Customer acknowledges that the Procedures may be modified from time to time by
Suppliers. SkyNet shall not be liable for Customer’s use of the Services or
Equipment in a manner inconsistent with the Procedures provided by Suppliers.
6. Service Specific Terms and Conditions
(A) Inmarsat Services: Inmarsat
terminals and Services may not be used in the United States unless the Customer
has so indicated on its Subscriber Application and Services Agreement.
(B) Services Agreement and Termination CUSTOMER ACKNOWLEDGES THAT SKYNET
SERVICES AND EQUIPMENT REQUIRE A MINIMUM SERVICE TERM, TO WHICH CUSTOMER HAS
AGREED. ACCORDINGLY, TERMINATION OF THE SERVICES PRIOR TO THE EXPIRATION OF THE
MINIMUM SERVICE TERM WILL RESULT IN A ONE-TIME EARLY TERMINATION CHARGE (“EARLY
TERMINATION CHARGE”) EQUAL TO THE MONTHLY SERVICE FEE MULTIPLIED BY THE NUMBER
OF MONTHS REMAINING IN THE MINIMUM SERVICE TERM. THE MINIMUM SERVICE TERM IS
SPECIFIED ON THE TERMS OF SERVICE ACTIVATION REQUEST FORM. CUSTOMER AGREES TO
PAY ANY AND ALL CHARGES FOR USE OF THE SERVICES AND THE EQUIPMENT REGARDLESS OF
THE DATE INVOICED FOR SUCH CHARGES, AND EVEN IF INVOICED AFTER TERMINATION OR
SUSPENSION OF SERVICES, AS LONG AS SUCH CHARGES ARE OTHERWISE VALID HEREUNDER.
7. 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 other emergency pre-emption or circumstances
beyond the control of SkyNet, or a Supplier’s network availability may be
temporarily interrupted or curtailed due to modifications, upgrades, repairs or
similar activities. Customer agrees that SkyNet will not be liable for
unavailability or malfunction of Supplier’s networks or SkyNet delivery
systems.
8. Conditions of Other Contracts
The obligations of SkyNet and the terms of service and sale under
these Terms and Conditions are subject to the terms of the agreements under which
SkyNet 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 shall prevail and such obligation shall be suspended or modified
to the extent required by the Other Contract. SkyNet 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.
9. Abuse/Fraudulent Use of Services and Equipment
(A) Customer shall not use the Services or Equipment in an abusive
or fraudulent manner, which shall include, but not be limited to the following:
(i) accessing or attempting to access Services by using an unauthorized
device or by tampering with or altering Equipment;
(ii) obtaining or attempting to obtain permission to use Services
or Equipment by providing false or misleading information;
(iii) obtaining Services or Equipment without having the intent to
pay charges incurred;
(iv) intentionally interfering with or causing disruption in the
provision of Services or Equipment to other Customers;
(v) using Services or Equipment to engage in or further criminal
activity;
(vi) 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
(vii) using Services or Equipment in a manner that interferes unreasonably
with the use of Services or Equipment by one or more other Customers.
(B) SkyNet reserves the right to terminate use of the Services of
any Customer engaging in abusive or fraudulent use of the Services or Equipment
provided by SkyNet.
10. Default and Termination of Services
(A) SkyNet
may limit, suspend or terminate the Services without notice for any reason,
including, without limitation, the occurrence or happening of any one or more
of the following events, each of which shall constitute an event of default:
(i) use of the Services or Equipment in any manner or for any
purpose contrary to law;
(ii) abuse or fraudulent use of the Services and/or Equipment;
(iii) failure to make any payments due as invoiced;
(iv) discovery by SkyNet that any representation or warranty made
by Customer in any document furnished by Customer to SkyNet is incorrect;
(v) breach or violation of any of these Terms and Conditions by
the Customer; or
(vi) commencement of any proceeding, whether voluntarily or involuntarily,
relating to the Customer under any law relating to insolvency, bankruptcy or
the protection of creditors' rights generally.
(B) In the event of default, SkyNet may, at its sole option and
without in any way limiting any other rights and remedies it may have, immediately
terminate Customer’s Service without notice. SkyNet will bill Customer and
Customer shall pay SkyNet, in accordance with Section 3, for all outstanding
charges accrued up to and outstanding on the date of such termination. In all
such cases, SkyNet shall incur no liability whatsoever. Customer shall be
liable for all costs and expenses incurred by SkyNet due to default by a
Customer, including but not limited to attorney’s fees and legal costs.
(C) SkyNet may also terminate Services in the event that an Other Contract
for purchase of Service and/or Equipment expires or is terminated, provided
that termination of the Services shall only be with respect to the specific service
previously provided pursuant to such Other Contract.
11. Indemnity and Limitation of Liability
(A) SKYNET SHALL NOT BE LIABLE TO CUSTOMER, ANY USER, OR OTHER
PERSON FOR:
(i) INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST BUSINESS,
OPPORTUNITIES, GOODWILL AND/OR PROFITS), SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES
AND EVEN IF SUCH DAMAGES WERE REASONABLY
FORESEEABLE;
(ii) ANY ACTS OR OMISSIONS OF A TELECOMMUNICATIONS CARRIER
UNAFFILIATED WITH SKYNET WHOSE FACILITIES, EQUIPMENT OR SERVICES ARE USED IN
PROVIDING THE SERVICES;
(iii) ANY ACTS OR OMISSIONS OF A THIRD PARTY MANUFACTURER OF
EQUIPMENT;
(iii) ANY CLAIMS OF DEFAMATION, INVASION OF PRIVACY, SLANDER,
LIBEL, HARASSMENT OR COPYRIGHT INFRINGEMENT ARISING FROM MATERIAL TRANSMITTED
OR RECEIVED HEREUNDER; OR
(iv) INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY
ARISING FROM USE OF THE SERVICES OR EQUIPMENT OR THE USE OF THE SERVICES AND
EQUIPMENT IN COMBINATION WITH CUSTOMER-PROVIDED SERVICES OR EQUIPMENT.
(B) IN ADDITION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT
THE SERVICES PROVIDED BY SKYNET DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY
EMERGENCY TRANSMISSIONS TO ANY TYPE TO OR FROM HOSPITALS, LAW ENFORCEMENT
AGENCIES, MEDICAL CARE UNITS OR ANY TYPE OF EMERGENCY SERVICES OF ANY KIND, AND
THAT SKYNET IS NOT LIABLE IN ANY MANNER FOR SUCH TRANSMISSIONS. IN THE EVENT
THAT ANOTHER USER USES CUSTOMER’S ACCOUNT, CUSTOMER IS RESPONSIBLE TO INFORM
SUCH USER OF THESE RESTRICTIONS.
(C) CUSTOMER AGREES THAT NEITHER SKYNET, SKYNET’S SUPPLIERS NOR
ANY OF THEIR RESPECTIVE AFFILIATES, RESELLERS OR AGENTS SHALL BE LIABLE ON ANY
BASIS WHATSOEVER (INCLUDING IN CONTRACT AND IN TORT) TO CUSTOMER OR CUSTOMER’S
CUSTOMERS FOR ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH (i) ANY
UNAVAILABILITY, DELAY, INTERRUPTION, DISRUPTION OR DEGRADATION IN OR OF THE SPACE
SEGMENT OR OF ANY TELECOMMUNICATIONS CARRIED ON IN THE SPACE SEGMENT,
REGARDLESS OF CAUSE INCLUDING, BUT WITHOUT LIMITATION, EQUIPMENT FAILURE OR
MALFUNCTION; (ii) THE SUSPENSION BY SKYNET OR SKYNET’S SUPPLIERS OF THE MOBILE
EARTH STATION’S AUTHORIZATION TO USE SERVICES PROVIDED BY SKYNET OR SKYNET’S
SUPPLIERS, DUE TO ANY CAUSE WHATSOEVER; OR (iii) ANY SERVICE OUTAGE OR
DEGRADATION IN A SUPPLIER’S NETWORK DUE TO SATELLITE MALFUNCTION OR ANY OTHER
CAUSE.
(D) NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, IN THE EVENT
THAT SKYNET IS HELD TO BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER UNDER THESE
TERMS AND CONDITIONS, IN NO EVENT SHALL SKYNET’S TOTAL LIABILITY WITH RESPECT
TO SUCH LOSS OR DAMAGE EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT ACTUALLY
PAID TO SKYNET BY CUSTOMER UNDER THESE TERMS AND CONDITIONS FOR THE SERVICES
AND/OR EQUIPMENT TO WHICH SUCH LIABILITY RELATES DURING THE SIX (6) MONTHS
IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(E) CUSTOMER SHALL DEFEND,
INDEMNIFY AND HOLD SKYNET AND ITS OFFICERS, EMPLOYEES, SUPPLIERS AND AGENTS
HARMLESS FROM AND AGAINST ALL CLAIMS, ACTIONS, LOSSES, COSTS AND DAMAGES BROUGHT
OR SUFFERED BY THIRD PARTIES ARISING OUT OF OR RELATING TO THE USE OF THE
SERVICES AND EQUIPMENT BY CUSTOMER.
(F) EXCEPT TO THE
EXTENT PROHIBITED BY LAW, ALL CLAIMS AGAINST SKYNET ARISING IN CONNECTION WITH
THE SERVICES OR THE EQUIPMENT MUST BE BROUGHT WITHIN 2 YEARS OF THE DATE THE
CLAIM ARISES.
12. Confidential Information/Privacy and Data Protection
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 SkyNet against claims by third parties
resulting from inadequate observance of the provisions of this Section.
13. Notices
All notices, requests, demands and other communications hereunder shall
be effective upon delivery. Such notices shall be in writing and shall be sent
by facsimile, email, nationally recognized overnight courier or delivered in
person, addressed as follows:
For Customer Service and Billing Inquiries:
Accounts, PO Box 63 Hamilton, Brisbane, AUSTRALIA 4007
techsupport@skynetmobile.com
P +61 7 3860 5511 F +61 7 3009 0401
14. Applicable Law
These Terms and Conditions shall be governed by the laws of the
State of Queensland, Australia, excluding its conflicts of laws provision. Customer agrees to abide by all of the
regulations in effect in countries where the Services or Equipment may be used,
including licensing requirements. SkyNet shall not be held responsible for any operational
restrictions, customs, license or permit fees required for operation in the
destination country. In addition, SkyNet shall have no responsibility for fines
associated with terminal seizure nor for legal ramifications of using Equipment
in countries where it is prohibited. Customer is advised to contact the embassy
or trade office of the destination country prior to entry into that country.
Customer agrees to comply with relevant export and import laws in Australia and
other countries to ensure the Equipment is not transferred in violation of such
laws and to obtain any required export/import licenses or authorizations.
15. Assignment
SkyNet 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
SkyNet has directly or indirectly, an ownership interest. Customer shall not
assign its rights and obligations hereunder without the prior written consent
of SkyNet. These Terms and Conditions shall inure to the benefit of, and shall
be binding on Customer’s and SkyNet’s respective successors and permitted
assigns.
16. Force Majeure
SkyNet shall not be liable for any loss or 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, work stoppages or other labor
disputes, or any law, order, regulation, direction, action or request of any government
or authority or instrumentality thereof. SkyNet’s obligation to perform shall
be suspended for the duration of a period of Force Majeure and shall resume as
soon as reasonably possible, upon the cessation of the event of Force Majeure.
17. Waiver of Compliance
The waiver or the failure of SkyNet to enforce any of the
provisions of these Terms and Conditions or to exercise any right or privilege hereunder,
shall 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.
18. Entire agreement
These Terms and Conditions constitute the entire agreement between
SkyNet 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
SkyNet and Customer with respect to such subject matter.
19. Severability
If any provision of these Terms and Conditions shall be declared
invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby. In the event that any such
provision shall be declared invalid, illegal or unenforceable due to its scope,
breadth or duration, then it shall be modified to the scope, breadth or
duration permitted by law and shall continue to be fully enforceable as so
modified.
20. Effective Date
The Terms and Conditions set forth above are effective as of October
2, 2008 and shall remain in effect unless modified, revoked or terminated by
SkyNet in its sole discretion, which may be accomplished without prior notice.
