LINK-SAT Service Agreement -Standard Terms and Conditions
1. Service Description; Term. (A) The Company will provide to and maintain for the Customer the services (“Services”) as described in this Service Agreement (“Agreement”) for the service term (“Term”) set forth on the “Service Agreement – Customer Name – Service Description” schedule. (B) The Customer maintains all the guidelines presented to him at the onset of his contract, he shall ensure that he abides by the contract. (C) He shall truthfully present to the Company his client’s request as regards to bandwidth and activation requirement if he decides to become a Reseller(D) The Company reserves right (reserving all other remedies and rights whatsoever) to cancel A Reseller’s Benefit if found to be in violation of this Agreement.
2. Technical Parameters / Performance Standards. The Reseller must make available to his client the standards and technical parameters set forth in Equipment Requirements and Performance. Both Parties must comply with the minimum technical parameters and use restrictions, and comply with all applicable rules, regulations and policies of the satellite operator providing space segment used for the Services, at all times during the service period, unless otherwise instructed by authorized personnel in writing. For all services which include the use of satellite space segment provided by Company, Company reserves the right to (i) change the frequencies of said service at any time during the term of the Agreement as required by either the satellite operator or Company: (ii) transfer such services to another satellite, provided Customer shall experience no significant interruption in service and such replacement satellite provides performance standards and technical parameters substantially equivalent to the initial satellite; and/or (iii) utilize any other teleport antenna locations in order to fulfill its provision of the Services.
3. Service Changes. In the event that Customer requests of the Company that it make changes to its wiring and/or terminating equipment, or changes in its satellite frequency, or makes any other alteration so as to require a redesign of the Service, and the Company agrees to such service changes, Customer shall pay all costs and expenses incurred by Company for the change in Service.
4. Activation/Deactivation. The customer shall be charged a flat fee of $50 to activate a deactivated site per quarter. The sum of $100 would be charged for any additional activation in a given quarter. A site that remains inactive for 90days (3months) shall be considered as termination of service and shall be subject to termination charges. (Section 7)
5. Service Interruptions and Failures. (A) In the event that Service fails (i) as a result of Customer provided wiring or equipment; provided, that, such failure is not caused by the negligence or willful misconduct of Company; (ii) due to equipment or wiring that has been subjected to Customer’s, or any other third party’s, misuse, neglect, accident, unauthorized modification, or to uses in violation of instructions furnished by Company, a manufacturer or facilities provider (such as a fiber optic or satellite space provider); or, (iii) due to equipment in which the serial number has been removed or altered, then Company shall have no liability to Customer for such failure of Service. (B) A credit shall be applied when Service is interrupted or does not meet performance standards for any period lasting three (3) or more consecutive hours. No credit will be applied if the interruption is caused by (i) the negligence of Customer; (ii) the failure of facilities or equipment provided by Customer or other third party; (iii) Company’s inability to gain access to Customer’s equipment and facilities; or, (iv) Customer’s failure to release the Service, when requested by Company, to perform testing and maintenance, or (v) an event of Force Majeure (as defined herein in section 8) below suspending Company’s future performance obligations as provided in this Agreement for any reason beyond Company’s reasonable control. (C) The amount of the credit shall be equal to the pro-rata monthly recurring charges due for that portion of the service during which a confirmed outage has occurred after the initial three (3) hour. Outages can be confirmed only by a Company employee authorized to make that determination and will be calculated in ½-hour increments; or major fraction thereof, of the interruption. Credits against Customer’s monthly recurring charges will be applied no later than two (2) months from the date of the confirmed outage.
6. Term Expiration; Automatic Extension. Unless provided otherwise herein, if, as of the expiration of the Term, the parties have not agreed to an extension of this Agreement nor to a superseding agreement, then this agreement shall automatically extend for an additional one-year term with all other terms and conditions remaining the same (such an extension hereinafter referred to as an “Automatic Extension”); provided, however, that such an Automatic Extension shall not occur if this Agreement is terminated by either Party upon ninety (90) days’ advance written notice to the other before the end of the Term. In the event that this Agreement is extended pursuant to an Automatic Extension, it may be terminated during such extension upon ninety (90) days prior written notice by one Party to the other., .Any subsequent agreement for an upgrade or downgrade of service will begin a new term and shall not continue with the Term in this Agreement.
7. Termination Liability. In the event that Customer terminates Service prior to the expiration of the Term specified on the appropriate Service Request, or in the event that Company terminates this Agreement as a result of Customer’s failure to abide by the terms and conditions herein, Customer shall immediately pay a one time termination charge equal to 100% of the monthly charges multiplied by the number of months remaining on the Term of the Service Agreement or any additional Service Request, as applicable, which termination charge may be decreased to a net present value by a reasonable, then-current discount factor.
8. Warranties and Limitation of Liability. COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, PROFITS, REVENUE OR GOODWILL. COMPANY SHALL NOT BE LIABLE FOR FAILURE OF PERFORMANCE HEREUNDER DUE TO USE OF BANDWIDTH FOR SERVICES NOT PROVIDED BY THE COMPANY OR FORCE MAJEURE (AS HEREINAFTER DEFINED). COMPANY’S LIABILITY FOR ANY AND ALL CAUSES AND CLAIMS WHETHER BASED IN CONTRACT, WARRANTY, NEGLIGENCE OR OTHERWISE SHALL IN NO EVENT EXCEED (1) AN AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE BY COMPANY TO CUSTOMER FOR THE PERIOD OF SERVICE AFFECTED; OR, (2) IF APPLICABLE, THE REPLACEMENT VALUE OF ANY CUSTOMER EQUIPMENT WHICH IS LOST OR DAMAGED AS A RESULT OF COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, WHICHEVER IS LESS.
9. Force Majeure. Except for the duty to pay for services already received, any failure or delay in the performance by a Party of its obligations hereunder shall not be a breach of this Agreement and shall not constitute a failure for purposes of determining whether a confirmed outage has occurred, if such failure results from any act of God, governmental action, strikes, labor disputes, civil disorder, sun caused outage, service affected by atmospheric or extraordinary weather conditions, floods, explosions, failure of third party facilities not under the direct control of the Party, any act or omission of any other company or carrier furnishing service, facilities or equipment, or any other circumstances reasonably beyond the control of the Party (“Force Majeure”).
10. Indemnification. (A) Customer shall indemnify and hold harmless Company, its agents, employees and contractors from and against any and all claims, liability, damage, loss or expense (including reasonable attorney’s fees) for injury or death to persons or damage to property, either real or personal, arising out of the negligent or intentional acts or omissions of Customer, its agents, employees or contractors. Customer shall also indemnify and hold harmless Company, its agents, employees and contractors from and against any and all liability, damage, loss, or expense incurred by Company as a result of Customer’s improper use or operation of the satellite or other network facilities; such liability shall include, but not limited to be, any liquidated damage penalty Company is required to pay the owner or operators of the satellite as a result of Customer’s improper use of the satellite or transponder or other network facilities.
(B) Customer shall defend, hold harmless and indemnify Company from and against any claims, liabilities, losses, costs, fines, penalties or damages, including without limitation reasonable attorney’s fees and costs, arising out of, or directly or indirectly related to, any transmission or the material contained in any transmission by Customer that is libelous, slanderous, an infringement of any copyright, or which is so alleged, or which is or alleged to be otherwise illegal or improper. (C) Customer shall be responsible for obtaining all foreign authorizations, permits, and licenses required by any governmental entity or authority. Customer shall defend, indemnify and hold harmless Company from and against any claims, liabilities, losses, costs, fines, penalties, or damages, including without limitation reasonable attorneys fees and costs, arising out of Customer’s failure to obtain or maintain any such authorizations, permits, or licenses, or if Customer’s performance hereunder is impaired by any governmental action, regardless of the Customer’s fault or absence thereof.
11. Billing and Payment. (A) Customer will pay the Company monthly in U.S. dollars for the Service provided including all applicable taxes, franchise fees, right-of-way fees and right of entry fees, if any. Payment is due at the first day of the month for that month of service. The Company will attempt to invoice Customer approximately thirty (30) days prior to the due date of such invoice, but the non-receipt of any such invoice shall not constitute a defense for non-payment thereof. Balances which remain unpaid ten (10) days after the due date may be subject to late charges of 1-½% per month, or the maximum rate as allowed by law, whichever is less. Customer agrees to pay all costs and expenses, including without limitation reasonable attorneys fees, incurred by Company in collecting past due balances. (B) Billing for Service will commence twenty-four (24) hours after the Company makes Service available to Customer and notifies Customer of service availability. Unless written notice of a dispute as to the charges for the Service rendered is received by Company within ten (10) business days after the Statement date, such statement shall be deemed to be correct and payable in full by Customer. Detailed information regarding any dispute shall be provided by Customer upon request of Company. Customer agrees to cooperate with Company in any investigation of disputed matters. (C) Customer agrees to the requirements for a cash deposit and/or an irrevocable standby Letter of Credit as set forth in this Agreement (which, if not there or otherwise provided, shall be an amount equal to three months’ service charges) which shall be provided to Company upon Customer signature of this Agreement. Company receipt of the deposit or Letter of Credit does not constitute acceptance of this Agreement. In the event that Company does not accept the terms of the Agreement, Company will return the deposit or Letter of Credit within five (5) business days. In the event that Customer fails to provide Company with the required deposit or letter of credit prior to the beginning of the Term, the Company shall have the right to delay activation until receipt, and in such event the term shall commence upon receipt, and the termination date shall be extended by a period equal to such delay. (D) The deposit or Letter of Credit, as the case may be, and as set forth in the Material Terms may be drawn upon by Company in accordance with its terms. The proceeds of any drawing shall be applied to the obligations of Customer referred to in this Agreement. In the event that the deposit or Letter of Credit or any renewal or replacement thereof is drawn upon, Customer shall cause the deposit or Letter of Credit then in effect to be renewed or replaced such that the original amount required is fully restored. Failure to deliver to the Company a renewal or replacement of the full obligation of the deposit or Letter of Credit within five (5) business days from the date of each such drawing shall entitle the Company to draw upon the deposit or Letter of Credit then in effect and to hold the proceeds of such drawing as a security deposit, to be held and applied to the monthly recurring charges for the final month(s) prior to the projected termination date, or, in the event of termination of any Agreement prior to its projected termination date, to the liabilities of Customer, if any, arising out of such termination. (E) The deposit or Letter of Credit may be made to be a collective security for this Agreement together with all other service agreements (“Other Agreements”) between Customer and Company. In the event of Company drawing upon the deposit or letter of Credit for reason of arrears with respect to Other Agreements, Company may draw upon the entire total amount of the deposit or Letter of Credit
(F) In the event that Customer fails to make payment for services under this agreement when due, makes an assignment for the benefit of creditors, files a petition in bankruptcy or generally cannot pay its debts as they become due, the Customer shall be deemed to be in material breach of this agreement, and the Company thereupon shall have the right to terminate or suspend the Services upon five (5) days written notice to Customer in the case of domestic U.S. Customers, and upon ten (10) days written notice in the event of non-U.S. Customers. The Customer shall be entitled to no credit or other form of compensation for any period during which the Services are not provided due to a suspension or termination in accordance with this Section.
12. Subject to Laws. This Agreement is subject to all applicable foreign and indigenous federal, state and local laws, and regulations, rulings and orders of governmental agencies, including, but not limited to, the Communications Act of 1934, as amended, the Rules and Regulations of the FCC, Company’s applicable tariffs, if any, and the obtaining and continuance of any required approval or authorization of the FCC or any governmental body. The Company may terminate its obligations under this Agreement if ordered to do so by the final order or ruling of a court or other governmental agency or if such order or ruling would make it impossible for the Company to carry out its obligations under this Agreement. The failure by Customer to comply with and maintain in good standing all required indigenous and foreign government authorizations, permits and licenses shall be grounds for termination of this Agreement by the Company.
13. Additional Charges. Except for taxes based upon the Company’s net income and except with respect to ad valorem personal and real property taxes imposed on the Company’s property, Customer shall be responsible for payment of all sales, use, gross receipts, excise, access, bypass, franchise or other local, state, and federal taxes, fees (including, without limitation, the FCC’s Universal Service Fee), charges, or surcharges, however designated, and regardless if the Company or Customer is the party obligated to remit the same, which are imposed on or based upon the provision, sale or use of the service delivered by the Company hereunder (including, but not limited to, taxes and fees lawfully assessed by nations outside customer’s indigenous country ). Any state or local tax, fee, charge, or surcharge shall be payable only for services that are subject to local imposition, and shall be paid by the Customer in addition to the regular charges under this Agreement.
14. Prohibited Actions. It shall be a breach of this Agreement if Customer engages in any of the following behaviors:
(a) any course of action which compromises the performance, security or integrity of servers or other computers or any other devices or software connected directly or indirectly to the Internet; (b) any material increase in traffic levels for malicious purpose or with the result that the traffic level causes a substantial degradation or denial of service to Company, its clients or affiliates; (c) any type of invasion or unauthorized tampering with system security, password protection or encrypted information; (d) infringement of the legal rights of other Internet users, service providers, content providers and users of the Company’s Internet access; (e) any prohibited or unreasonably excessive use of electronic mail or similar information delivery system; (f) any other activity prohibited by applicable law including, but not limited to, obscenity, defamation, infringement of trademark, copyright, or telecommunications laws of the United States. If Customer operated hardware or software that the Company determines may cause hazard, interference or service interruption to Company-provided equipment or services or the Company network, Customer shall immediately remove the offending hardware or software upon notice.
15 General. (A) Each party represents and warrants to the other that it has the right, power and authority to enter into, and perform its obligations under this Agreement; and it has taken all requisite action to approve execution, delivery and performance of this Agreement, and this Agreement constitutes a legal, valid and binding obligation upon the parties in accordance with its terms and conditions. (B) Service shall not be used for any illegal or unlawful purpose. (C) This Agreement shall be governed by the laws of the Commonwealth of Virginia, and all actions brought hereunder shall be sited in the appropriate Virginia courts (D) This Agreement shall not be assigned by either Party without the prior express written consent of the other Party, such consent not to be unreasonably withheld (E) This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and assigns. (F) All provisions of Company’s applicable tariffs, if any, are incorporated herein by this reference. (G) Title to, and ownership of, all equipment and facilities used by Company to provide Service shall remain Company’s. (H) Neither party shall disclose the contents of this Agreement, nor release any publicity or other public disclosure, without the prior express written consent of the other party. (I) In the event that any one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and shall remain in effect and be binding upon the parties. (J) Customer agrees during the Term and for a period of two (2) years thereafter not to directly or indirectly solicit for employment or hire any employee of the Company. (K) Customer understands that, if applicable, Company may allocate Internet protocol (“IP”) network numbers from Company’s assigned address space to the Customer for the duration of the Service. Customer agrees to return those numbers to Company upon the termination of the Agreement. . Company allocates IP network numbers according to the American Registry of Internet Numbers (“ARIN”) guidelines and Company’s IP addressing policies. Company may assign additional IP addresses to Customer as Customer’s requirements grow, provided Customer adequately justifies the additional addresses in accordance with such guidelines and policies.
16 Notices. Written notices given hereunder shall be deemed given when hand delivered or when received via fax, postage prepaid by certified mail, return receipt requested or by a recognized overnight delivery service, addressed to the Party set forth in the “Notice To” section on the “Customer Name” schedule of this Agreement.
17 Interpretation: The words and phrases used herein shall have the meanings generally understood in the telecommunications and computer industries. This Agreement shall be construed in accordance with its fair meaning and not for or against either party on account of which party drafted this Agreement.
18 Entire Agreement. The parties shall not be bound by any agent’s or employee’s representations, promises or inducements not set forth herein. This Agreement supersedes and replaces all prior agreements, understandings or arrangements, whether oral or written, made between the Parties and relating to the subject matter herein, and together with the exhibits and addenda attached hereto constitutes the entire understanding of the parties with respect to the subject matter herein. This Agreement shall not be modified, changed, altered or amended except by an express written agreement signed by the Parties hereto.
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25 April 2005