The following terms and conditions (“Terms and Conditions”) apply to end-users (“you” or “your”) using satellite, terrestrial or wireless services (“Services”) and/or associated sale or lease of equipment (“Equipment”) provided by OceanSat B.V. or any operating subsidiary or affiliate of OceanSat ("OCEANSAT," “we,” “us” or “ours”).
1. PROVISION OF EQUIPMENT & SERVICES BY OCEANSAT
A) These Terms and Conditions, and your written acceptance of an OCEANSAT proposal or quotation, when taken together, will govern the provision by OCEANSAT of Services and/or Equipment (collectively referred to as “Network Services”) to you and shall constitute a binding agreement in accordance with all such terms (the “Agreement”). There are no other oral or implied agreements, warranties or understandings. We, at our sole discretion, reserve the right to add, modify or delete the portfolio of Network Services made available to you under these Terms and Conditions.
B) In the absence of a counter-signed proposal or quotation, your issuance of a purchase order, service order or work order (each, a “Purchase Order(s)”) to OCEANSAT will constitute your acceptance of our proposal or quotation and, together with these Terms & Conditions (except as set forth below), shall be deemed an Agreement. All future orders for Network Services will be governed by these Terms and Conditions, unless otherwise agreed in writing. Future orders will be subject to OCEANSAT’s acceptance, which we may withhold for any reason or for no reason. Your 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.
2. EQUIPMENT TERMS & CONDITIONS
(i) When you purchase Equipment from OCEANSAT, risk of loss will transfer upon delivery to your shipping agent. Unless otherwise agreed in writing, we will ship all Equipment FCA (Free Carrier) OCEANSAT’s premises in the Netherlands to your designated location(s), and all shipping costs will be to your account. In no event will OCEANSAT have any liability in connection with any shipment, nor will the carrier be deemed to be an agent of OCEANSAT. Unless otherwise agreed in a quotation, you shall accept partial shipments.
(ii) Title to Equipment you purchase will transfer from OCEANSAT to you upon our receipt of the full sale price and any applicable taxes, fees, and freight charges. Until such time, you will keep Equipment that is owned by us free from any liens, claims or encumbrances.
(iii) OCEANSAT warrants that new Equipment delivered to you will perform substantially in accordance with the specifications contained in the technical documentation of the Equipment for a period of one (1) year (365/6 days) from the date of delivery. All repairs covered by such warranty will be performed at no charge to you. For any repairs requested after the warranty period, OCEANSAT will provide a quotation for such repairs and if you accepted and authorize the work, the repairs will be performed at your expense. In the event of a warranty claim, we will, at its sole option: (a) repair the Equipment so that it performs as set forth above, or (b) replace the nonconforming Equipment with Equipment which performs as set forth above. The foregoing Equipment warranty is your sole remedy in the event of a warranty claim, and is a ‘back-to-base’ warranty, such that you will bear the transportation cost of returning any nonconforming or defective Equipment to OCEANSAT’s designated premises in the Netherlands and also the transportation cost of returning the Equipment following a repair from OCEANSAT’s premises in the Netherlands to your premises. If you require an OCEANSAT technician to travel to your location to perform warranty services, you are responsible for all costs associated with the travel including, but not limited to, transportation costs, living expenses, etc. We will provide you a written estimate of such costs upon request.
(iv) The foregoing warranty does not extend to Equipment which has been altered, improperly installed by a third party or which fails or is damaged after delivery due to accident, act of God, shipping 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 OCEANSAT at the time of delivery to you.
(v) There will be no refunds for used Equipment returned to OCEANSAT. If you return unused Equipment to OCEANSAT in its original package, in its original condition, and within thirty (30) days of delivery, OCEANSAT will refund to you eighty five percent (85%) of the purchase price, the remaining fifteen percent (15%) of the purchase price representing a restocking fee. You will bear all shipment and insurance costs related to such return shipment.
(vi) Any Equipment you return must have an OCEANSAT-issued Returned Merchandise Authorization (“RMA”) number prominently displayed on the packaging and must be returned to the OCEANSAT facility as directed by OCEANSAT. An RMA number may be obtained by calling OCEANSAT’s Customer Care at +31-183-401025 or by email at support@OceanSat.nl. Equipment returned without an RMA number will be returned to you at your expense.
3. SERVICE TERMS & CONDITIONS
A) Satellite Communications Services.
(i) You understand and acknowledge the following: (a) OCEANSAT does not own or operate its own satellite communication system (“Satellite Services”), (b) OCEANSAT is a reseller of Satellite Services, and (c) OCEANSAT purchases Satellite Services from third party suppliers (collectively the “Supplier(s)”), subject to the terms and conditions contained in agreements between OCEANSAT and the suppliers of Satellite Services as set forth in subsection (iii) below.
(ii) Satellite Services may be temporarily unavailable or limited because of capacity limitations, network equipment failures, distress or any other emergency pre-emption as required by OCEANSAT or a Supplier. Satellite Services may also be temporarily interrupted or curtailed due to modifications, upgrades, repairs or similar activities of OCEANSAT’s Supplier. The use and restoration of certain space segment is governed by Part 64, Subpart D of the FCC’s Rules and Regulations, which specify the priority system for such activities. OCEANSAT has no liability for any Supplier networks.
(iii) OCEANSAT leases the transponder capacity in accordance with Satellite Services supplier’s satellite transponder lease (or similar agreement) and/or leases the iDirect service in accordance with the service provider’s service lease Agreement, redacted copies of which are available upon your written request and incorporated herein by reference (each, a “Lease Agreement”). The terms and conditions contained in the Lease Agreements shall govern your use and operation of the transponder capacity contracted for under this Service Agreement, and accordingly OCEANSAT hereby sublicenses to you all of the our right and obligations as “Customer” under the Lease agreements. You shall fully perform and satisfy all obligations of “Customer” under the Lease Agreements, including without limitation those with respect to transmitting to or receiving from the leased transponder capacity. OCEANSAT shall have the full power and authority to enforce any and all obligations of “Customer” under the Lease Agreement which you have assumed hereunder. A breach by you of any term or condition of the Lease Agreement shall constitute a breach of this Service Agreement. To the extent fulfillment of any obligation of OCEANSAT under these Terms and Conditions is not permissible or possible under a Lease Agreement, the Lease Agreement will prevail and such obligation will be suspended or modified to the extent required by the Lease Agreement.
(iv) Improper Illumination. “Improper Illumination” is defined as any of the following: (a) transmissions other than as specified in writing by OCEANSAT, or (b) transmissions of an incorrect frequency, or (c) transmissions at excessive power levels, or (d) any illumination that could cause harm to or interference on any transponder or space segment on any satellite. OCEANSAT will immediately notify you if we detect or are informed of any Improper Illumination of any Service provided under these Terms and Conditions. You will take immediate corrective action to stop the Improper Illumination. If capable, and as soon as capable, OCEANSAT will temporarily suspend, with no liability to you, any affected Services should you be unable to rectify the Improper Illumination within four (4) minutes from notification of the Improper Illumination to you as set forth in the preceding sentence. Such affected Services will be suspended until you demonstrate to our sole satisfaction that the Improper Illumination is rectified. You will be charged and will pay any amount that we are required to pay to our Suppliers or other telecommunications service provider(s) under any Other Contract due to any Improper Illumination attributable to you. OCEANSAT will timely inform you in writing of any liability we incur as a result of such Improper Illumination. It is your responsibility to provide OCEANSAT, on or before the Due Date, with a telephone number(s) at which we can contact you twenty-four hours per day, seven days per week, 365/366 days per year. In addition, OCEANSAT has the right, in its sole discretion, to take immediate action, including but not limited to suspending or terminating any affected Service(s), in order to protect our services and/or interests.
B) Terrestrial Services.
(i) You understand and acknowledge the following: (a) OCEANSAT does not own or operate its own terrestrial network (“Terrestrial Services”), (b) OCEANSAT is a reseller of Terrestrial Services, and (c) OCEANSAT purchases Terrestrial Services from third party suppliers (collectively the “Supplier(s)”), under strict contractual terms and conditions required of all resellers.
(ii) The obligations of OCEANSAT and the terms for provisioning of terrestrial Network Services are subject to the terms of the agreements under which OCEANSAT purchases such terrestrial Network Services from its Suppliers (each a “Terrestrial Contract”). To the extent fulfillment of any obligation of OCEANSAT under these Terms and Conditions is not permissible or possible under a Terrestrial Contract, the Terrestrial Contract will prevail and such obligation will be suspended or modified to the extent required by the Terrestrial Contract. OCEANSAT makes no warranties whatsoever with respect to the availability of Terrestrial Services.
4. INSTALLATION AND MAINTENANCE
A) OCEANSAT and you will agree on a mutually convenient date for provision of the Network Services (“Due Date”). In the event the Due Date is delayed, OCEANSAT and you will agree upon a new Due Date. You will adhere to the Installation Guidelines. In no event will OCEANSAT be liable for failure to meet the Due Date when such failure is due to your act or omission. You will reimburse OCEANSAT for all out-of-pocket expenses incurred by OCEANSAT in relation to a failure to meet the Due Date you have caused. Your sole remedy for a failure by OCEANSAT to either provide Services by the Due Date or to provide Services during the contracted term for such Services, will be for you to request an outage credit, to the extent the same may be available under the applicable Lease Agreement or Terrestrial Contract, or as the parties may mutually agree on a case-by-case basis.
B) If stated on the quotation, and unless otherwise agreed, installation services will be provided by OCEANSAT or its subcontractors, on a time and materials basis at OCEANSAT’s then current rates for labor, or at the rates set forth in the applicable quotation.
C) If stated on the quotation, OCEANSAT will provide maintenance services in relation to the Network Services. On-site maintenance will be made available on a time and materials basis at OCEANSAT’s then current rates for labor, or at the rates set forth in the applicable quotation. You agree to comply with all reasonable instructions that OCEANSAT may give, from time to time, and to provide all necessary assistance to OCEANSAT in diagnosing any Network Service faults.
D) Where required by law or regulations or at the request of OCEANSAT, you will install, maintain and/or pay reasonable expenses we have incurred to provide special facilities and protective apparatus at locations involving high voltage power and/or hazardous materials.
5. STAND-BY TIME
Notwithstanding anything to the contrary in these Terms and Conditions, and regardless of whether related to any warranty in these Terms and Conditions, under all circumstance you will bear the cost of: (a) all offshore and overseas transportation expenses related to the provision of Network Services, and (b) all Stand-By time incurred by OCEANSAT or its contractor personnel that is caused by or attributed to you, including without limitation, where caused by delays to or untimely cancellation of service calls. For the purposes of this Article, Stand-By time means the amount of hours, or portion thereof, incurred by OCEANSAT while waiting for (i) transport to and from an offshore location; or (ii) access to your premises if required hereunder. Stand-by time which you have caused will be charged at OCEANSAT’s then current rates for labor.
6. INTELLECTUAL PROPERTY
Other than as specifically set forth in these Terms & Conditions, no licenses or any rights of any kind under any patent, copyright and rights to create derivative works, trademark, trade secret, service mark, mask works or other form of intellectual property (collectively “Intellectual Property Rights”) are granted by either Party or are to be implied by these Terms and Conditions or arisen by estoppel.
Except as set forth in this agreement, OceanSat expressly disclaims all warranties, whether express, implied, statutory or otherwise, as to any aspects of the equipment or to any OceanSat services rendered, including without limitation, the warranties of merchantability and fitness for a particular purpose. OceanSat does not warrant that the equipment or services will meet your requirements or that the operation of the network services will be uninterrupted or error-free. Any warranties granted herein are provided solely to you, and OceanSat makes no warranty of any kind to your users or any other third parties.
8. USE OF NETWORK SERVICES
You will use the Network Services in accordance with all applicable Dutch and foreign rules, laws and regulations and OCEANSAT’s Acceptable Internet Users Policy. You will be liable for all use or misuse of the Network Services hereunder, irrespective of whether such use or misuse was authorized, fraudulent or otherwise. You will not resell or rent the Network Services provided by OCEANSAT or use the Network Services in an abusive or fraudulent manner, including, but not limited to the following:
(i) Accessing or attempting to access Network Services by using an unauthorized device or by tampering with or altering Equipment;
(ii) Obtaining or attempting to obtain permission to use Network Services by providing false or misleading information;
(iii) Obtaining Network Services without having the intent to pay charges incurred;
(iv) Intentionally interfering with or causing disruption in the provision of Network Services to other OCEANSAT customers;
(v) Using Network Services to further criminal activity, including making 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
(vi) Using Network Services in a manner that interferes unreasonably with the use of services or equipment by one or more other OCEANSAT customers.
9. PAYMENT TERMS
A) Acceptance. Billing for Services (or any part thereof) will commence upon the Acceptance Date for each network site, which is defined as follows: the earlier of (i) your signature of the Acceptance Certificate or (ii) twenty-four (24) hours from completing the installation of Network Services, in the event that you have not then provided OCEANSAT with a written Acceptance Certificate.
B) Network Services. Unless otherwise agreed in writing by the parties or stated in the proposal or quotation, OCEANSAT will invoice and you will pay, monthly in advance for the Network Services provided by OCEANSAT, including all applicable federal, state, provincial, local and other taxes, including value added tax and fees, including, if applicable, any fees established by any regulatory authority, which may be attributable to the sale or use of Network Services regardless of whether or not an invoice is sent to you by OCEANSAT.
C) Equipment. Unless otherwise agreed in writing by the parties or stated in the proposal or quotation, invoices for Equipment will be sent on or after the date of shipment and will include all applicable federal, state, provincial, local, VAT and other taxes that may be levied upon the Equipment.
D) In the event that any tax, duty, import fee, etc., becomes payable in any territory in accordance with Clauses 9(A) and 9(B) above, either by deduction or otherwise, on or in respect of any amount to be paid by Company to OCEANSAT, or which Company may be required to withhold in respect of any amount due to OCEANSAT, such tax, duty, import fee, etc., shall be for your account and you shall pay to OCEANSAT such an amount as to yield to OCEANSAT a net equal to the amount that but for such tax, duty, import fee, etc., would have been received by OCEANSAT. OCEANSAT will provide reasonable assistance to you to minimize the amount of such withholdings or deductions, including providing any relevant certification of its status as a non-resident or a jurisdiction or of its entitlement to benefits under a treaty.
E) PAYMENTS DUE OCEANSAT
i) You will pay all invoices within thirty (30) days of the date of invoice, and in accordance with the instructions as stated on the invoice.
ii) Amounts not paid within thirty (30) days of invoice date will be subject to an interest charge of the lesser of, (i) one and one-half percent (1.5%) per month, or (ii) the highest rate permitted by law.
iii) You will pay for any and all collection or litigation expenses, including reasonable legal fees, incurred by OCEANSAT in collecting any late payments or late payment fees.
F) OCEANSAT may require you to provide a third party guarantee, deposit, letter of credit, or other credit facility we deem, in our sole discretion, necessary to provide adequate assurance of payment. The provision of such third party guarantee, deposit, letter of credit, or other credit facility does not relieve you of your payment obligations specified herein.
G) All charges will be in accordance with the applicable quotation we have provided to you for the applicable Network Services. Upon expiration of the term of the Network Services (as stated in a quotation), OCEANSAT reserves the right to revise such charges upon notice to You.
H) You must pay all undisputed amounts when due. If any portion of an amount due is in dispute, you must, within thirty (30) days of the invoice date containing such disputed amount, give notice to OCEANSAT of the amount it disputes (“Disputed Amount”) and include in such notice the specific details and reasons for disputing each item. For the avoidance of doubt, claims of unauthorized use, fraudulent use or any other misuse will not constitute a valid basis for dispute of an invoice. If the Disputed Amount is resolved in favor of OCEANSAT, you must pay the Disputed Amount with appropriate late charges, if applicable, upon final determination of such dispute. OCEANSAT will issue credits to you upon resolution of any disputed amounts in favor of you. An invoice is deemed to be accepted if no written notice of a dispute is provided before the date the payment is due.
10. INDEMNITY AND LIMITATION OF LIABILITY
i) The term “OCEANSAT Group” mean OCEANSAT, its subsidiaries and affiliated companies, and the officers, directors, employees, representatives, insurers, consultants and agents of all of the foregoing.
ii) The term “Customer Group” means you, your parent, subsidiaries and affiliated companies, and the officers, directors, employees, representatives, insurers, consultants and agents of all of the foregoing.
B) Neither OCEANSAT Group nor any of its suppliers and their respective officer, directors, employees, representatives, insurers, subsidiaries and affiliated companies will be liable on any basis whatsoever for any indirect, incidental, consequential, reliance, special, punitive or exemplary damages (including but not limited to loss of revenue or profit, loss arising from or attributable to failure to realize anticipated savings, or loss of production, equipment or data) even if a party knew or has been advised of the possibility or likelihood of such damages, in connection with the provision or failure to provide the Network Services, for any reason whatsoever and howsoever arising. OCEANSAT’s liability in contract, tort or otherwise, including any liability for negligence, howsoever arising out of or in connection with the performance of OCEANSAT’s obligations under this agreement will be limited to remedies herein.
C) Except as otherwise provided in this article, OCEANSAT and you will protect, defend, indemnify and hold harmless each other from all third party claims, demands, causes of action, losses and expenses (including reasonable attorneys’ fees) of every type and character for personal injury, death or loss of or damage to property resulting from the indemnitor’s negligence or willful misconduct. Where such third party's personal injury, death or loss of or damage to property results from the joint negligence or willful misconduct of the parties, the indemnitor’s duty of indemnification will be in proportion to its allocable share of joint negligence or willful misconduct. If either party is held strictly liable under any applicable law, the other party’s duty of indemnification will be in the same proportion that its negligence or willful misconduct contributed to the third party's personal injury, death or loss of or damage to property. For the avoidance of doubt, where OCEANSAT is the indemnitor, the indemnitee is customer group, and where you are the indemnitor, the indemnitee is OCEANSAT group.
D) You agree to indemnify and defend and hold harmless OCEANSAT and its affiliates, directors, officers, agents, employees, assigns and suppliers from and against any and all liability, claims, actions, losses, damages (including damage to property and personal injury) and expenses (including attorneys’ fees) arising out of or relating to (i) your use or misuse of the network services, and/or (ii) your breach of these terms and conditions, except to the extent such claims are based upon the gross negligence or willful misconduct of OCEANSAT, and/or (iii) any claims or actions for libel, defamation, slander, invasion of privacy, patent, copyright or trademark infringement, or the violation of any third-party intellectual property rights, arising in connection with the use or misuse of the network services, and/or (iv) any claim or action for patent infringement resulting from your use (or use by any of its affiliates, or use of by any of its affiliates, agents, subcontractors, employees, assigns or otherwise) of the network services in combination with the equipment, hardware, software, systems, cabling, facilities or services not provided hereunder by OCEANSAT.
E) Except for any indemnity obligations or a breach thereof, the total, aggregate liability of OCEANSAT to you for any and all claims whatsoever related to the network services or these terms and conditions for damages to you (or to any affiliate of you) for any claims whatsoever, regardless of the form of action, whether in contract, tort (including negligence), or otherwise, howsoever arising shall be limited to damages actually proven as directly attributable to OCEANSAT, and further limited to an amount equal to the last three (3) months of payments made by you to OCEANSAT under these terms and conditions preceding the date of any claim made gainst OCEANSAT.
A) The occurrence or happening of any one or more of the following events will constitute an event of default of the Agreement if not remedied within ten (10) days after written notice from OCEANSAT:
i) Use of the Network Services in any manner or for any purpose contrary to the provisions of Article 8 herein (as to which the provisions of Section 11.B below shall apply);
ii) Failure to make any payments when due (as to which the provisions of Section 11.B shall apply);
iii) Discovery by OCEANSAT that any representation or warranty you have made in any document you have furnished to OCEANSAT is incorrect;
iv) Your breach or violation of any of these Terms and Conditions; or
v) Commencement of any proceeding, whether voluntarily or involuntarily, relating to you under any law relating to insolvency, bankruptcy or the protection of creditors' rights generally.
B) In the event you breach any of the provisions of Article 8, or if you commit chronic, repeated or extended failures to make payments when due, OCEANSAT may, at our sole option and without in any way limiting any other rights and remedies we may have, suspend the Network Services without notice. Your obligation to make payments hereunder shall continue during any such periods of suspension.
C) In the event of your default, OCEANSAT may terminate the Agreement and the Network Services immediately. OCEANSAT will bill you and you will pay OCEANSAT, in accordance with Article 9, for all outstanding charges accrued up to and outstanding on the date of such termination. In addition, you agree to pay OCEANSAT immediately a termination fee as liquidated damages and not as a penalty. The termination fee will be equal to the balance of the remaining term multiplied by the monthly recurring fees for Network Services. In all such cases, OCEANSAT will incur no liability whatsoever. You will be liable for all costs and expenses incurred by OCEANSAT due to your default, including but not limited to legal costs.
D) OCEANSAT may, without liability whatsoever, suspend or terminate Network Services to you if we are lawfully ordered to cease operation of such Network Services by the Federal Communications Commission, a state or federal court of law, or any other lawful federal, state or local governmental authority. If at any time during the term of the Agreement any equipment, facilities, or property used by OCEANSAT to provide Network Services to you are taken for a public or quasi-public purpose by a lawful power or authority under the exercise of right of condemnation or eminent domain, OCEANSAT will have the right, upon written notice to you, to terminate Network Services affected by the taking. In any of these events, OCEANSAT will bill you and you will pay OCEANSAT, in accordance with Article 9, for all outstanding charges accrued up to and outstanding on the date of such termination only.
E) Early Termination. Unless otherwise stated in the proposal or quotation, the minimum term of Network Services is thirty-six (36) months from the Acceptance Date. Notwithstanding the foregoing, you may terminate early at any time, upon thirty (30) days notice to OCEANSAT; however, if you do terminate early, you will immediately pay us an early termination fee, as liquidated damages and not as a penalty, equal to the balance of the remaining term multiplied by the monthly recurring fees for Network Services.
F) Cancellation; Suspension of Network Services. You are responsible for notifying OCEANSAT, in writing, of any requirement to deactivate or suspend Network Services. Deactivation or suspension of Network Services will be effective only after OCEANSAT’s receipt and written acknowledgement of your written request. You may send such request to support@OceanSat.nl or by facsimile to +31-183-404038. You are hereby notified that we will only process requests received from an authorized representative of the account holder/registered holder of the Network Services. OCEANSAT will make reasonable endeavors to respond to your written request within one (1) business day. If applicable, you may be liable to pay an early termination fee if Network Services are terminated prior to the contracted term (as defined in Article 11(E) above) of such Network Services. Furthermore, You will continue to be liable for payment of Network Services during any period of suspension, unless otherwise agreed to in writing by OCEANSAT.
G) The rights of termination, restriction or suspension set forth in this Article are in addition to any other remedies available to OCEANSAT under these Terms and Conditions, or at law or in equity.
12. INDEPENDENT SERVICE PROVIDER
These Terms and Conditions do not create any partnership, joint venture, agency or employee/employer relationship of any kind between OCEANSAT and you. OCEANSAT is an independent service provider with respect to performance under the Agreement; all persons employed by each party are, and will remain, the employees and agents of that party and are not, and will not become, the employees or agents of the other party. It is expressly understood that neither party’s employees may participate in or receive any benefits from the other party’s employee benefit plans.
A) Definition. “Confidential Information” means any and all non-public, proprietary or confidential information, documents, data and know-how which either party may disclose to the other party pursuant to or in connection with this Agreement relating to its business, customers, prices and requirements.
B) Obligations. The party in receipt of the Confidential Information (the “Receiving Party”) of the other party (the “Disclosing Party”) agrees that it shall use such Confidential Information solely for the purposes of this Agreement and that it shall not, at any time during or after the term of this Agreement disclose such Confidential Information, directly or indirectly, to any third party (other than employees and Permitted Subcontractors and, in either such case, only on a “need to know” basis), or otherwise use such Confidential Information, without the Disclosing Party’s prior written consent.
C) Exclusions. “Confidential Information” does not include that which: (i) is legally in the Receiving Party’s possession at the time of disclosure without the obligation of confidentiality; (ii) is or becomes part of the public knowledge or literature, not as a result of any action or inaction of the Receiving Party; (iii) is approved for release by written authorization of the Disclosing Party or (iv) is independently developed by the Receiving Party without access or reference to the Confidential Information. In the event the Receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such party will promptly notify the Disclosing Party to allow intervention in response to such order.
D) Survival. For avoidance of doubt, this Section 13 shall survive the expiration or termination of this Agreement.
E) Existence of Agreement. Notwithstanding the foregoing, MDA reserves the right to disclose to any third party the existence of this Agreement.
14. FORCE MAJEURE
OCEANSAT will not be liable for any failure of performance hereunder due to causes beyond its reasonable control (“Force Majeure”), including without limitation, acts of God, strikes, lockouts or other labor disputes, acts of public enemy, governmental orders, preemption of existing services to restore service in compliance with Part 64, Subpart D, of the Federal Communications Commission’s Rules and Regulations, wars, riots, terrorist activities, epidemics, unusually severe weather, earthquakes, fires, floods, civil disturbances, explosions, train derailments, failure of or accidents to machinery, pipeline, or materials, and delay in delivery of Equipment, to the extent all such occurrences are beyond the reasonable control of OCEANSAT or you, delay in performance by subcontractors to the extent such delay is beyond our reasonable control, and other delays incurred for reasons beyond our reasonable control, which, by the exercise of reasonable diligence, they are unable to prevent or avoid. OCEANSAT’s obligation to perform will be suspended for the duration of a period of Force Majeure and will resume as soon as reasonably possible, upon the cessation of the event of Force Majeure.
All notices, requests, demands and other communications hereunder will be effective upon delivery. Such notices will be in writing and will be sent by email, facsimile or nationally recognized overnight courier or delivered in person.
You may not assign any of your rights or obligations under the Agreement to a third party without the prior written consent of OCEANSAT. OCEANSAT may, without your consent, (a) assign its right to receive payment hereunder to a third party, or (b) assign its rights and obligations under the Agreement to a corporation, partnership or other business enterprise in which we have, directly or indirectly, an ownership interest, or (c) assign its rights to a successor in the event of a merger, acquisition or consolidation, or to a purchase of all (or substantially all) of OCEANSAT’s assets. The Agreement will inure to the benefit of, and will be binding on your and OCEANSAT’s respective successors and permitted assigns.
17. WAIVER OF COMPLIANCE
The waiver or the failure of OCEANSAT to enforce any of the provisions of these Terms and Conditions or to exercise any right or privilege hereunder, will 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. GOVERNING LAW / RULES & REGULATIONS
A) For Network Services being provided in North America, South America or Central America and Mexico, these Terms and Conditions will be governed by and construed in accordance with the laws of the state of Florida, excluding any choice law rule thereof that would direct the application of the laws of another jurisdiction.
B) For Network Services being provided in Europe, Middle East, Africa and Asia Pacific, the Agreement will be governed by and construed in accordance with the laws of England and Wales. You irrevocably agree that English courts shall have exclusive jurisdiction in relation to any proceedings arising out of or in relation to the Agreement initiated by you. OCEANSAT shall have the right to initiate any proceedings arising out of or in relation to these Terms and Conditions in any court having jurisdiction.
C) For Network Services being provided in Australia, New Zealand or elsewhere in the Asia Pacific region, the Agreement will be governed by and construed in accordance with the laws of Australia. You irrevocably agree that Australian courts shall have exclusive jurisdiction in relation to any proceedings arising out of or in relation to the Agreement initiated by you. OCEANSAT shall have the right to initiate any proceedings arising out of or in relation to these Terms and Conditions in any court having jurisdiction.
D) Both OCEANSAT and you will fully abide by all applicable laws, rules and regulations, including but not limited to all applicable anti-bribery or anti-corruption laws. OCEANSAT will not pay any commissions, fees or grant any rebates to any of your employees or officers, nor favor any of your employees or officers with gifts or entertainment of other than nominal value, nor enter into business arrangements with any of your employees or officers, other than as your representative, without your prior written approval.
E) You agree to strictly adhere to the requirements and restrictions of the Dutch export and embargo laws and regulations, and any similar laws and regulations of other countries as applicable, in respect of the Network Services. You agree to obtain, at your sole expense, all necessary licenses, approvals, permits, consents and governmental authorizations that may be required for your use of the Network Services. You may only use the Network Services in the region or with the satellite identified on the proposal or quotation. You may acquire the right to use the Network Services in other regions from OCEANSAT; however, an additional fee for reconfiguration and/or different price for the Network Services may apply.
F) OCEANSAT will not be held responsible for any operational restrictions, customs, license or permit fees required for operation of the Network Services in the destination country. In addition, OCEANSAT will have no responsibility for fines associated with terminal seizure for legal ramifications of using Network Services in countries where it is prohibited. You are advised to contact the embassy or trade office of the destination country prior to entry into that country.
If any provision of the Agreement is declared invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. In the event that any such provision will be declared invalid, illegal or unenforceable due to its scope, breadth or duration, then it will be modified to the scope, breadth or duration permitted by law and will continue to be fully enforceable as so modified.
All provisions of these Terms and Conditions which would naturally survive the expiration or termination of the Agreement will so survive, including but not limited to the Articles entitled “Services Terms and Conditions”, “Equipment”, “Use of Network Services”, “Payment Terms”, “Indemnity & Limitation of Liability”, “Termination”, “Confidentiality”, and “Governing Law” and “Rules and Regulations”.
21. RESTRICTED DESTINATIONS
No Services shall be used in, or Equipment imported into, any country where doing so is a violation of applicable Dutch law, and no Services shall be used by, or Equipment transferred to, any person or entity identified on the Dutch Specially Designated Nationals (SDN) List. Without limiting the foregoing, in no instance shall Services be used in, or Equipment imported into, the following countries without the express written consent of OCEANSAT, which will only be provided upon a showing that the proposed use or importation is licensed or otherwise authorized by the applicable authority: Cuba, Iran, Syria, Sudan and North Korea.
22. EFFECTIVE DATE
These Terms and Conditions are effective as of 1st July 2012, and will remain in effect unless modified, revoked or terminated by OCEANSAT.