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
Hamilton, Brisbane, AUSTRALIA 4007
techsupport@skynetmobile.com
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.