1 Obligations of Innovative Satellite Solutions, LLC (ISS LLC) and Robinson Marine Electronics S.A.
1.1
Subject to the Contract (including, but not limited to the performance and observance by the Customer of its obligations hereunder), ISS LLC shall from the Commissioning Date, and at all times thereafter during the period of the Contract, make the Service available to the Customer on a 24-hour basis.
1.2
Where the Service provided requires a License, ISS LLC shall assist in making the appropriate application if requested.
2 Obligations of the Customer
2.1
The Customer shall at all times comply with the requirements laid down by ISS LLC for the Equipment installation and operating environment. Appropriately trained Customer staff on request from ISS LLC shall readily operate this facility and they shall thereafter maintain and operate these facilities (or cause them to be maintained and operated) to and in accordance with standards and the procedures to be notified by ISS LLC to the Customer in writing from time-to-time.
2.2
In the event that ISS LLC is instructed by the Satellite Owner to modify, vary or amend characteristics of any of the Service, up to and including shut down of said carrier, the Customer must comply with said instructions. Likewise, if ISS LLC assesses that there is a risk to other users of the satellite, the Customer shall comply with any ISS LLC instructions to modify, vary or amend characteristics, up to and including shut down. Customer operations staff for the terminal must be suitably qualified, having completed appropriate training on the Equipment which will be provided by ISS LLC during the installation process. If requested by ISS LLC, the Customer shall carry out approved routine maintenance and/or occasional short-duration link tests, at mutually agreed times and with agreed test equipment, to ensure continued satisfactory and safe operation of the Service.
2.3
The Customer’s responsibilities under this paragraph include, but are not limited to, provision at the Customer’s expense of suitable accommodation, foundations, environment and essential services (including suitable electric power and grounding arrangements at points and with connections specified by ISS LLC) at the Premises, to enable ISS LLC to provide the Service.
2.3.1
The Customer shall obtain and comply with any License that is required in order to receive and utilize the Service or any part of it.
2.3.2
The Customer shall, at its own expense, afford anyone accredited by ISS LLC, on production of official evidence of identity and authority, reasonable access to the Premises at all reasonable times for the purpose of the Contract, and the Customer must obtain any other permission which may be needed to achieve such access. Where special safety practices for visits to Premises are required, these will be agreed between ISS LLC and the Customer within thirty (30) days of ISS LLCs acceptance of the application for the Service. If ISS LLC and the Customer are unable to agree upon the appropriate safety practices, ISS LLC shall have the right to cancel the application for the Service.
2.4
The Customer shall not incur any obligation on behalf of ISS LLC, nor pledge the credit of ISS LLC, nor in any way hold itself out as a representative, agent, partner or joint venture of ISS LLC.
2.5
The Customer accepts that the crew employed by the Customer may enter into separate agreements with ISS LLC concerning further defined internet and telephone services, giving its crew the right to use these services provided for by ISS LLC. The payment for such services shall be according to separate agreements between ISS LLC and the crew members in question.
3 Suspension and Instructions on Use of the Services
3.1
ISS LLC may temporarily suspend the Service for the purpose of repair, maintenance or improvement of any of ISS LLC’s telecommunications systems and Equipment.
3.2
ISS LLC may give instructions about the use of the Service procedures to be followed by the Customer which ISS LLC thinks to be reasonably necessary in the interests of safety, or of the quality of the Service to ISS LLC’s other customers, or the proper use of the appropriate transmission media, with which the Customer must comply immediately. In all cases, ISS LLC will give as much written or oral notice as is reasonably practicable in the circumstances, and ISS LLC will restore the Service as soon as is reasonably practicable after temporary suspension. For the avoidance of doubt such temporary suspension shall not be regarded as a service failure or a breach of contract.
4 Satellite Service
4.1
ISS LLC shall be entitled to monitor the satellite service to ensure that the technical characteristics of the signal comply with obligations to the Satellite Owner, and under any other applicable License.
4.2
The Customer shall comply with the Satellite Owner’s procedures which may be amended from time-to-time.
4.3
Where the satellite is replaced by the Satellite Owner other than as a result of damage, loss or breakdown of the satellite, ISS LLC shall give the Customer fourteen (14) days advance notice in writing of the date and time of withdrawal of the satellite and the likely resulting length of time for which Service will be disrupted or lost as a consequence of its replacement, and ISS LLC shall have the right to suspend the Service for the length of specified notice.
5 Limitations on the Use and Misuse of Service
5.1
Neither the Customer nor any other person is permitted to use the Service otherwise than in compliance with the provisions of any License applicable to the Customer or, as the case may be, any other person in connection with the use of the Service.
5.2
Any use of the Service by the Customer or any person other than the Customer in breach of this paragraph will be deemed to be a breach by the Customer of these conditions and ISS LLC will be entitled to exercise its rights in respect of such breach accordingly.
5.3
The Customer must not, nor must any other person, use the Service:
5.3.1
To send a message or communication which is offensive, abusive, indecent, obscene or menacing; or
5.3.2
To cause annoyance, inconvenience or needless anxiety; or
5.3.3
Use of voice service delivered by others than ISS LLC over this system is not allowed. Use of file-sharing, streaming audio or video content is not allowed. Any attempt of altering the way of transfer streaming audio/video content is not allowed, (i.e. download and transfer audio/video files via other protocols like ftp, e-mail or other applicable transfer methods). Use of WAN accelerators or optimizers or other techniques requiring more than 50% continuous utilization is not allowed under a shared service. This does not apply to customers who have dedicated bandwidth allocated to the vessel.
The Customer may be charged one monthly fee per documented incident of unauthorized use. This does not exclude any other remedies under the Contract.
5.3.4
The power supply to the antenna should always be connected onboard. The crew is not allowed to switch this off without noticing ISS LLC in advance. The Customer is responsible for all damages due to above.
ISS LLC reserves the right to charge the Customer for replacement parts/antenna related to faults caused by the Customer’s failure, and/or to safeguard and maintain Equipment according to ISS LLCs instructions.
5.4
If anyone other than the Customer uses the Service provided to the Customer, with the Customer’s knowledge or approval, in contravention of subparagraph 9.1, ISS LLC can treat the contravention as a breach by the Customer of these conditions.
5.5
If ISS LLC suspends the Service for contravention, by the Customer or any other person, ISS LLC can refuse to restore the Service until ISS LLC receives an acceptable assurance from the Customer that there will be no further contravention.
5.6
ISS LLC may terminate or temporarily suspend supply of the Service by giving written notice to the Customer if the Customer is in breach of any of the conditions mentioned in this clause 5.
5.7
ISS LLCs rights under subparagraph 8.1 of this Appendix do not prejudice any other rights of ISS LLC under these conditions or this Contract.
5.8
Any waiver by ISS LLC of any breach of these conditions is limited to the particular breach. No delay by ISS LLC to act upon a breach shall be deemed a waiver.
6 Requests for Service
6.1
All requests for Service to be provided under the Contract shall be made in writing by the Customer to ISS LLC in the form of a purchase order. ISS LLC will then provide written acceptance or rejection, and in case the purchase order is accepted, confirm the charges and details of the Service to apply.
6.2
ISS LLC will not be liable for delay where the details contained in the Customer’s request for the Service are insufficient for ISS LLC to provide the Service by the requested date.
7 Charges and Payment
7.1
ISS LLC will provide the Customer with invoices that include the monthly Service Fee. For the Voice over IP (VoIP) service there will be an itemized billing of all telephone calls.
7.2
The Customer must pay all charges arising under the Contract within Net 30 days of the date of the invoice. Daily interest will be charged on payments outstanding 30 days after the date of the invoice at a daily rate equal to 2% per month.
7.3
All charges arising under the Contract are exclusive of Value Added Tax (VAT) for which, if applicable, an amount will be added to the Customer’s invoice.
7.4
All work, material, freight and travel expenses related to installation or de-installation of system, technical service and support will be charged to the Customer in accordance with ISS LLC’s at any time current standard prices. ISS LLC can change ISS LLC’s standard prices upon 60 days prior written notice. If such price increase exceeds 10% plus increase in US Consumer Price Index, measured from Commissioning Date, the Customer may terminate the Contract
7.5
Deliveries from ISS LLC’s sub-supplier(s) may be subject to a handling fee which must be paid by the Customer. The handling fee for such sub-supply shall be fixed at 10% of the prices from the sub-supplier(s).
7.6
An invoice fee will be added to each invoice for coverage of administration and handling costs.
7.7
In the event of default on payments of any outstanding monies from the Customer to ISS LLC or any of its subsidiaries, ISS LLC reserves the right to temporarily suspend Service under this Contract until the outstanding balance is settled. A written notice will be given prior to such measurement.
7.8
Service fee will be charged for delivered, non-commissioned systems at a discount rate of 50%, unless other is agreed upon. For systems in a pre commissioning state invoicing will start at dispatch date + 30 days.
8 Limitation of Warranty. Limitation of Liability
8.1
ISS LLC’s duty in performing any obligations under the Contract is to exercise the reasonable skill and care of a competent telecommunications service provider. ISS LLC makes no other, and specifically disclaims all other, warranties, both express and implied.
ISS LLC’s responsibility for the Service under these conditions applies only for that part of the Service that is provided by means of telecommunication systems which are exclusively operated and owned by ISS LLC. ISS LLC is not responsible for any service problems occurring or associated with Customer end user equipment. In addition, ISS LLC is not responsible for any service failure which is caused by a telecommunications provider, the Satellite Owner and/or originates from the Satellite Link.
8.2
ISS LLC’s potential liability under the Contract per quarter of a year is upward limited to the agreed remuneration for the Services in said quarter.
The limitation of liability in the paragraph above is not applicable in relation to ISS LLC’s indemnification obligations, c.f. clause 10.2 and clause 10.4.
8.3
Neither party is liable to the other party either in contract, tort (including negligence) or otherwise for loss (whether direct or indirect) of profits, business, or anticipated savings or for any indirect or consequential loss or damage whatever, except as expressly stated in the Contract.
9 Matters beyond ISS LLC’s Reasonable Control. Force Majeure
ISS LLC is not liable for any breach of the Contract where the breach is caused by Act of God, terrorism, insurrection or civil disorder, war or military operation, national or local emergency, acts or omissions of government, highway authority or other competent authority, ISS LLCs compliance with any statutory obligation or an obligation under a statute, industrial dispute of any kind (whether or not involving ISS LLCs employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, acts or omissions of persons for whom ISS LLC is not responsible (including in particular other telecommunication service providers and the Satellite Owner) or any other cause whether similar or dissimilar outside ISS LLCs reasonable control.
10 Indemnity
10.1
The Customer must indemnify ISS LLC against any claims or legal proceedings arising from the Customer’s use of the Service or Equipment or use of the Service or Equipment by the Customer’s end-users or affiliates, which are brought or threatened against ISS LLC by the Customer’s end-users or affiliates.
10.2
ISS LLC shall be responsible for and hold harmless and indemnify the Customer from and against all claims, demands and causes of action of every kind and character arising in connection herewith in favor of ISS LLC’s personnel or ISS LLC’s invitees, on account of bodily injury, death or damage to property, regardless of the cause of such bodily injury, death or damage to property, excluding the gross negligence or willful misconduct of the Customer.
10.3
The Customer shall be responsible for and hold harmless and indemnify ISS LLC from and against all claims, demands and causes of action of every kind and character arising in connection herewith in favor of the Customer’s personnel or the Customer’s invitees, on account of bodily injury, death or damage to such person’s property, regardless of the cause of such bodily injury, death or damage to property, excluding the gross negligence or willful misconduct of ISS LLC.
10.4
ISS LLC shall be responsible for and hold harmless and indemnify the Customer against any and all loss or liability arising from a court decision, or arising from settlements controlled by ISS LLC, should Equipment, software or the Service furnished by ISS LLC infringe any patent.
11 Termination
11.1
Either party will be entitled to terminate the Contract in the event that:
(a) One party is in material breach of any term of the Contract and fails to remedy the breach within 60 days of notice of the breach with reference to this clause 11.1;
(b) One party is the subject of a voluntary bankruptcy order, or becomes insolvent, or goes into liquidation (otherwise than for reconstruction or amalgamation) or makes any composition with or assignment for the benefit of its creditors or if any of its assets are seized, or has a receiver or administrator appointed over its assets;
11.2
The Customer is entitled to terminate the Contract with 6 months prior written notice.
In the event of sale of the vessel a shorter notice period may be accepted by ISS LLC if the new owner of the vessel enters into a new contract and the new owner is approved by ISS LLC.
11.3
In the event of a termination of the Contract, for whatever reason, the Customer is obliged to redeliver the Equipment to ISS LLC’s locations in Concepcion, Talcahuano, and Coronel Chile, or such other place ISS LLC may elect, while observing the handling instructions provided by ISS LLC.
If the redelivery of the Equipment is delayed beyond the date of the termination of the Contract, ISS LLC shall be entitled to liquidate damages from the date the Equipment should be redelivered. The liquidated damages shall be payable in a rate of USD 10% of the monthly service fee per day.
The Customer accepts that return of the Equipment may be demanded if the rent or any agreed supplement has not been paid. The Customer accepts that return may be demanded when the contract period has expired.
11.4
Termination of the Contract shall be without prejudice to the parties’ rights and remedies accrued prior to termination.
12 Fault Repair
12.1
The Customer shall report a fault in the Service by telephoning either English Language Support on: +1 (240) 252-5211 or Spanish language Support on: +56 (9) 9599-2409 or such other number as ISS LLC may from time to time provide to the Customer. The Customer will at the time of report provide ISS LLC with a contact name and telephone number to enable ISS LLC to advise progress being made to clear the fault. All faults shall also be registered by ISS LLC based on a written report from the Customer.
12.2
If the Customer reports a fault in the Service, ISS LLC will respond by carrying out one or more of the following actions: Provide assistance by telephone, including advice, where appropriate, as to test and checks to be carried out by the Customer.
Where possible, carrying out diagnostic checks from ISS LLC’s Premises; or visit the Premises as detailed in 12.3 below
12.3
ISS LLC will take all reasonable steps to correct the fault. The charges paid by the Customer for the Service fee shall cover maintenance including fault clearance and the Service restoration under clause 12.2 above. Visits to Customer Premises are to be charged as follows:
12.3.1
ISS LLC shall provide replacement parts as needed to repair faulty Equipment. Shipping costs are the Customer’s responsibility.
12.3.2
ISS LLC is responsible for repairing faults at its own cost. The Customer is responsible for personnel charges for travel-cost, travel-time and accommodation costs.
12.3.3
ISS LLC reserves the right to charge the Customer for replacement parts related to faults caused by the Customer’s failure, and/or to safeguard and maintain Equipment according to ISS LLC’s instructions.
End of Maritime VSAT General Terms and Conditions
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