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TERMS OF SERVICE
| The
Terms and Conditions set forth above are effective as of 1st
July, 2007 and shall remain in effect unless modified, revoked
or terminated by SkyNet.
MOBILE SATELLITE AND GSM SERVICES Terms and Conditions The following terms and conditions (“Terms and Conditions”) apply to individuals and entities (“Customers”) using GSM or satellite services, including but not limited to Inmarsat®, Iridium®, MarineSat/LandSat®, and GlobalStar® services, and associated equipment provided by SkyNet Mobile Communications Pty Ltd, a company contained within Australia (hereinafter "SkyNet"). 1. Provision of services and equipment by SkyNet (A) SkyNet shall provide to Customers satellite or GSM Mobile services, including but not limited to Inmarsat®, Iridium®, MarineSat/LandSat® and/or GlobalStar® services (“Services”) and/or associated equipment (“Equipment”) upon acceptance of a Customer’s order. Provision of Services and/or Equipment shall be in accordance with these Terms and Conditions. All orders are subject to SkyNets receipt and approval of a completed Subscriber Application and Services Agreement from Customer. (B) Customer is responsible for notifying SkyNet, 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 SkyNets receipt of Customer’s written request and SkyNets acknowledgement of receipt of Customer’s written request. All such requests must be in writing and sent to: (Fax): +61 7 3009 0401 or (E-mail): billing@SkyNetmobile.com. 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 SkyNet acknowledges receipt of Customer’s written request for permanent deactivation or temporary suspension of Services. 2. Ordering services and 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 Customer is required to complete all applicable paperwork for the Services or Equipment to be provided by SkyNet. 3. Customer purchase orders If Customer issues a purchase order to SkyNet 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. SkyNet will bill and Customer shall pay SkyNet for the Services provided by SkyNet and for all applicable federal, state, provincial, local and other taxes which may be levied upon the Services. Customer shall pay SkyNet, in addition to the charges, an amount equal to the GST payable by SkyNet in respect of any supply made under these Terms and Conditions (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Aust). (B) Equipment. Invoices for Equipment will be sent on or prior to the date of shipment and shall include all applicable federal, state, provincial, local and other taxes that may be levied upon the Equipment. (C) Payment terms. (i) Customer shall pay equipment invoices prior to delivery, service invoices within fourteen (14) days of the date of invoice. (ii) 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. (iii) Customer shall pay for any and all collection or litigation expenses, including reasonable legal fees, 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 SkyNets 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. (F) Customer acknowledges that if it uses the service of another service provider with SkyNet as the Accounting Authority, it will pay to SkyNet the amount charged by that service provider plus twelve and one-half percent (12½%) administrative fee for processing the charges. (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 favour will be credited against amounts owing on subsequent invoices. 5. Sale of equipment (A) Delivery/Freight Charges/Risk of Loss: Risk of loss in the Equipment shall transfer upon delivery to Customer and delivery shall take place once the Equipment has been placed on board the vehicle for transportation by SkyNet. Customer shall pay any costs incurred by SkyNet to ship the Equipment to Customer’s designated location, unless otherwise agreed prior to shipment. Any additional delivery terms for Equipment shall be mutually agreed to by SkyNet and Customer. SkyNet shall use commercially reasonable best efforts to comply with the delivery terms requested by Customer. In no event shall SkyNet have any liability in connection with any shipment, 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 advance, particularly in cases where the Equipment is temporarily out of stock. In the event that ordered Equipment is not available, SkyNet will maintain a backorder list compiled by date. As backordered Equipment is received from the Supplier, SkyNet will fill orders based on age of order. Customer is responsible for shipping charges for each partial shipment. (C) Title: Title to Equipment will transfer from SkyNet to Customer upon SkyNet’ receipt of the full sale price and any applicable taxes, fees, and freight charges. Customer shall pay any GST levied on the importation of the Equipment into Australia unless such GST is determined by the Australian Taxation Office (“ATO”) to be payable by SkyNet in which case Customer shall reimburse SkyNet for any such GST for which SkyNet is not entitled to an input tax credit. Until such time, SkyNet shall have a lien on the Equipment. Customer will keep Equipment that is subject to SkyNets lien free from any other liens, claims or encumbrances and will execute all such documents as may be reasonably required by SkyNet to evidence or perfect its security interest. (D) Inspection & Acceptance: Customer may inspect or test the Equipment that has been tendered for acceptance. Customer must exercise the post-acceptance rights provided by this Article (i) within fourteen (14) 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. (E) Warranty: (i) New Equipment delivered to Customer shall be free from defects in workmanship and material for a period of one (1) year/(365 days) and as defined by the equipment manufacturer warranty terms and conditions supplied with equipment and that all refurbished or used Equipment or accessories sold hereunder shall be free from defects in workmanship and material for a period of thirty (30) days. The warranty period for Equipment shall commence at the time of delivery of the Equipment. For repairs requested after the warranty period, SkyNet 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. The manufactures sole obligation under this warranty shall be, at manufactures option, either (ii) the repair or replacement of any Products which prove to be defective in workmanship or material or fail to meet manufacturer’s specifications; or, (iii) refund the purchase price of the defective Products. Warranty claims shall be submitted by Customer to SkyNet with supporting documentation stating the basis for the claim and within the warranty period. As to replacement Products supplied or repairs made during the original warranty period, the warranty period on the replacement or repaired Products shall be terminated with the expiry of the original warranty, or thirty (30) days from delivery, whichever is longer. (iv) All warranties offered by SkyNet are a “return to depot” warranty. If Customer requires a SkyNet 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. SkyNet will provide a written estimate of travel costs upon request. (vi) This 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 SkyNet at the time of delivery to Customer. (vii) SkyNet warrants that title to all Equipment delivered to Customer under these Terms and Conditions shall 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 SkyNet. If Customer returns unused equipment to SkyNet in its original package, in its original condition, and within fourteen (14) days of delivery, SkyNet will refund to Customer sixty five percent (65%) of the purchase price, the remaining thirty five percent (35%) of the purchase price representing a restocking fee. All internationally imported goods are non returnable. Customer will bear all shipment and insurance costs related to such return shipment. All Equipment returned to SkyNet must have a SkyNet-issued Returned Merchandise Authorization (“RMA”) number prominently displayed on the packaging and must be returned to the SkyNet facility as directed by SkyNet. An RMA number may be obtained by calling SkyNets Customer Care at +61 7 3860 5511 or by email at techsupport@SkyNetmobile.com. Equipment returned without an RMA number will be returned to Customer at Customer’s expense. 6. 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. 7. Service specific terms and conditions (A) Inmarsat Services: (i) Identification Numbers Unless specifically directed by a Customer, Customer shall be assigned a unique identification number for each Unit used by Customer, which is also referred to as an Inmarsat Mobile Number (“IMN”). Customer shall have no property right in the identification numbers assigned in connection with the Service and SkyNet may change such numbers at such time or times as SkyNet, in its sole discretion, considers necessary without any liability whatsoever. (ii) SkyNets Nera Inmarsat mini-M Terminals All Nera Inmarsat mini-M terminals distributed by SkyNet within North America and for use exclusively on ID013 will include software configured to use SkyNet’ land earth station (ID 013) and SIM Cards. All Nera Inmarsat mini-M terminals distributed by SkyNet outside of North America to be used on SkyNets land earth station (ID 002) will not include this software. To change these default settings, the terminal must be returned to SkyNet for software replacement. Customer is responsible for all charges related to the software replacement. (iii) Terminal Usage Inmarsat terminals and Services may not be used in the United States unless the Customer has indicated on its Subscriber Application and Services Agreement (C) Services Agreement and Termination CUSTOMER ACKNOWLEDGES THAT SKYNET SERVICES AND EQUIPMENT REQUIRE A MINIMUM SERVICE TERM. ACCORDINGLY, EARLY 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”). FOR THOSE CUSTOMERS THAT PURCHASE THE AIRTIME OR SKYNET SERVICE BUNDLE AND SUBSEQUENTLY, TERMINATE THE SERVICES PRIOR TO THE EXPIRATION OF THE MINIMUM SERVICE TERM, THE CUSTOMER WILL BE LIABLE TO PAY SKYNET (I) THE EARLY TERMINATION CHARGE, AND (II) A CHARGE EQUAL TO THE MONTHLY SERVICE FEE MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE MINIMUM SERVICE TERM. THE MINIMUM SERVICE TERMS ARE SPECIFIED ON THE TERMS OF SERVICE ACTIVATION REQUEST FORM. 8. 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 SkyNet or a Supplier or may be temporarily interrupted or curtailed due to modifications, upgrades, repairs or similar activities of a Supplier. SkyNet has no liability for unavailability or malfunction of Supplier’s networks or SkyNet delivery systems. 9. 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. 10. Abuse/fraudulent use of services and equipment (A) Customers shall not use the Services or Equipment in an abusive or fraudulent manner, including, but not limited to the following: (i) accessing or attempting to access Services by using an unauthorised 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 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 purchased from SkyNet. 11. Default and termination of services (A) The occurrence or happening of any one or more of the following events shall constitute an event of default if not remedied within ten (10) days after notice from SkyNet: (i) use of the Services or Equipment in any manner or for any purpose contrary to law (see Article 16); (ii) abuse or fraudulent use of the Services and/or Equipment (see Article 10); (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 SkyNets sole option and without in any way limiting any other rights and remedies it may have, suspend or terminate Customer’s Service without notice. SkyNet will bill Customer and Customer shall pay SkyNet, in accordance with Article 4, 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 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 Service provided pursuant to that Other Contract. 12. Warranty, indemnity and limitation of liability (A) SkyNet shall not be liable to Customer, any user, or other person for: (i) any Consequential Loss. “Consequential Loss” shall for the purposes of this Article 12 mean (i) pure economic loss (ii) losses incurred by any client of Customer or other third party (iii) loss of profits (whether categorised as direct or indirect) (iv) losses arising from business interruption (v) loss of business revenue, goodwill, anticipated savings (vi) losses whether or not occurring in the normal course of business, wasted management or staff time (vii) loss or corruption of data; (viii) loss of business opportunity. (ii) any acts or omissions of a telecommunications carrier unaffiliated with SkyNet whose facilities are used in providing the Services; (iii) any claims of defamation, invasion of privacy, slander, libel, harassment or copyright infringement arising from material transmitted or received over SkyNet’ facilities; 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. Customer or any user, or other person expressly acknowledge and agree that the service provided by SkyNet does not and is not intended to support or carry emergency transmissions to any type of hospitals, law enforcement agencies, medical care unit 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, with your permission, another user uses your account, you are responsible to inform that user that it is not possible to support or carry emergency calls with any SkyNet SATELLITE OR GSM MODEM service. (D) Customer agrees with SkyNet that neither SkyNet, SkyNets 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 Personal Injury, Consequential Loss, loss of distribution rights, abortive expenditure or damage to property arising from or in connection with (a) 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; or (b) the suspension by SkyNet or SkyNets Suppliers of the mobile earth station’s authorisation to use services provided by SkyNet or SkyNets Suppliers, due to any cause whatsoever. Should SkyNet be found liable to Customer under these Terms and Conditions, IN NO EVENT SHALL SKYNETS TOTAL LIABILITY IN ANY WAY ARISING FROM THESE TERMS AND CONDITIONS BY CUSTOMER EXCEED AN AMOUNT EQUAL TO THE LAST ONE (1) MONTH OF PAYMENTS TO SKYNET UNDER THESE TERMS AND CONDITIONS. (E) CUSTOMER ALONE SHALL BE RESPONSIBLE FOR ALL CLAIMS, ACTIONS, LOSSES, COSTS AND DAMAGES (“LIABILITY”) ARISING OUT OF OR RELATING TO THE ACTS OR OMISSIONS OF CUSTOMER’S USE OF THE SERVICES AND EQUIPMENT IN CONNECTION WITH THESE TERMS AND CONDITIONS. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SKYNET AND ITS OFFICERS, EMPLOYEES, SKYNETS SUPPLIERS AND AGENTS FROM AND AGAINST ALL SUCH LIABILITY. (F) SkyNet shall not be liable for any service outage or degradation in Suppliers' networks due to satellite malfunction or any other cause. (G) This Article does not exclude, modify any conditions or warranty implied into these Terms and Conditions or any contract by any law (including the Trade Practices Act 1974 (Aust)) where to do so would contravene that law or cause any part of this Article to be void. (H) Subject to Article 12(F), SkyNet (i) excludes all condition and warranties implied into these Terms and Conditions and (ii) limits its liability for breach of any conditions or warranty that it cannot exclude to the greater of (at SkyNets option) repairing or replacing goods or paying for the cost of having those goods repaired or replaced and resupplying the Services or paying the cost of having the Services re-supplied. (I) Each provision of this Article 12 is to be construed as a separate provision applying and surviving even if one or more of the other provisions of this Article is held inapplicable or unreasonable. 13. Confidential information/privacy and data protection (A) Unless Customer consents in writing, or disclosure is made pursuant to a legal proceeding, SkyNet shall keep confidential all information or data furnished by Customer or otherwise acquired by SkyNet through performance. Such information will not be released by SkyNet to anyone other than: (i) Customer; (ii) a person who in the reasonable judgment of SkyNet 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 SkyNet to collect outstanding balances owed to SkyNet by Customer; or (v) to a law enforcement agency whenever SkyNet has reasonable grounds to believe that Customer has knowingly supplied SkyNet with false or misleading information or is otherwise involved in unlawful activities. (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 SkyNet against claims by third parties resulting from inadequate observance of the provisions of this Article 13(B). 14. 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 P +61 7 3860 5511 F +61 7 3009 0401 15. Applicable law Customer shall 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. 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. Customers are 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 the United States 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. 16. Governing law These Terms and Conditions shall be governed by and construed in accordance with the laws of Australia and Customer irrevocably agrees that the Australian Courts shall have non-exclusive jurisdiction in relation to any proceedings arising out of or in relation to the Terms and Conditions initiated by Customer. SkyNet shall be entitled to initiate proceedings arising out of or in relation to these Terms and Conditions in any Court having jurisdiction. 17. 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. These Terms and Conditions shall ensure to the benefit of, and shall be binding on Customers’ and SkyNets respective successors and permitted assigns. 18. Force Majeure SkyNet shall 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, work stoppages or other labour disputes, or any law, order, regulation, direction, action or request of any government or authority or instrumentality thereof. SkyNets 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. 19. 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. 20. 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. 21. 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. 22. Effective date The Terms and Conditions set forth above are effective as of 1st July, 2007 and shall remain in effect unless modified, revoked or terminated by SkyNet. |