Precision FleetXpress Terms & Condition
The following terms and conditions (“Precision FX Provisioning Terms and Conditions”) apply to “Customer(s)” purchasing or using Fleet Xpress services provided by “Precision” on board “Vessels” (“FX Services”). By using “FX Services” each respective “Customer” unreservedly agrees to be bound by the following Precision FX Provisioning Terms and Conditions.
In these Precision FX Services Terms and Conditions, the following words or expressions shall have the meaning attached to them except to the extent otherwise specified:
“Activation Fee” shall mean a one-off administration fee that applies to each FX Plan when it is first provisioned on the “Inmarsat” satellite network.
“Affiliate” shall mean, in relation to a “Party”, any other entity which directly or indirectly is “Controlled” by, or is under direct or indirect common “Control” with, that “Party” from time to time.
“Commercial Service Introduction” shall mean the date at which the network and infrastructure necessary for the provision of “FX Services” are released by “Inmarsat” and “FX Services” thereby become commercially available.
“Commissioning Date” shall mean the date upon which the “FX Equipment” is activated on the Customer’s “Vessel”.
“Committed Information Rate” (“CIR”) shall mean the minimum data rate “Inmarsat” commits to deliver against a defined service level agreement (“Service Level Agreement”).
“Control”shall mean a holding of securities in a company conferring: (i) the right to exercise over 50% of the voting rights ordinarily exercisable at any general meeting of the company; or (ii) direct or indirect control over the affairs of a company or undertaking; or (iii) control of the composition of the board of directors of a company or undertaking.
“Customer” shall mean the end-user entity, however constituted, using “FX Services” provided by “Precision”. In cases where Customer is a “Vessel(s)” owning entity, however constituted, and a FX Order Confirmation is submitted with Precision by an agent or manager of such Customer and/or such Customer’s vessel(s), whereon Services are to be provided, then such agent or manager shall be bound and shall be jointly and severally liable for any and all obligations arising hereunder towards “Precision” together with the “Vessel(s)” owning Customer (“Principal”) on behalf of which he acts as fully and completely, as if he were himself the Principal, irrespective of whether such Principal be directly or indirectly disclosed to “Precision” and of whether or not such agent or manager purports to contract with Precision, as agent or manager only and/or he declares that he is acting as agent or manager only.
“Earth Stations in Motion” or “ESIM” shall mean terminals with small directional antennas for the provision of broadband communication services, operating within the frequency bands 19.7-20.2 GHz and 29.5-30.0 GHz that are either transportable devices or mounted on moving objects, such as vessels, and may operate in national and international waters.
“Fair Access Policy” or “FAP” shall mean a set of measures applied by “Inmarsat” on data traffic to prevent misuse of the available network capacity by some Fleet Xpress users to ensure that available bandwidth is fairly distributed across all users in general.
“FleetBroadband” means the global data and voice service provided by “Precision” on board “Vessels” over the L-Band broadband network.
“Fleet Xpress” or “FX” means the service managed by “Inmarsat” and provided by “Precision” on board “Vessels” based on “Inmarsat’s” global GX (Ka-Band) and FleetBroadband (L-Band) services, utilizing the “HardNSD” or the “SoftNSD” for pre- and post-pay services.
“FX Equipment” shall mean “Inmarsat” approved equipment used or intended to be used with the FX Services on board “Vessels” as provided in the “Order Confirmation”. The FX Equipment on board a “Vessel” consists of the following main units: an above deck GX antenna, operating in Ka-Band, associated below deck equipment, an Inmarsat FleetBroadband antenna and associated below deck equipment, a “HardNSD” or a “SoftNSD”, as applicable and connecting cables. All FX Equipment components must be type approved by “Inmarsat”.
“FX Installation Accepted Quotation” shall mean the offer submitted by “Precision” and accepted by Customer as part of the Order Confirmation for the purpose of installing the FX Equipment or performing maintenance, where applicable, on board a “Vessel”.
“FX Plan” shall mean the Fleet Xpress Subscription Service Plan that is selected by the Customer in the “Order Confirmation”.
“FX Service(s)” shall mean the Fleet Xpress service(s) provided by “Precision” on board “Vessels” as set forth in the “Order Confirmation”.
“FX Services Contract” shall mean the “Order Confirmation” where, inter alia, the “Service Fee” is set, the “FX Voice rates” and these Precision FX Provisioning Terms and Conditions.
“FX Voice rates”shall mean the price list attached to the “Order Confirmation” where pricing of voice calls is differentiated by destination country/zone and/or by call origination.
“Global Xpress” or “GX” shall mean the high speed global data service provided by “Inmarsat” over the Ka-Band broadband network provided by “Inmarsat”.
“Hard Network Service Device” or “HardNSD” shall mean the shipboard hardware platform needed for Fleet Xpress. The HardNSD is tightly linked to the Global Xpress shoreside network, which identifies each HardNSD unit and downloads specific configurations settings to it. Additionally, the HardNSD controls the routing of data and voice traffic via either the GX or FleetBroadband satellite networks. The default is Global Xpress. Upon detection of interruption of the service over the GX network, the HardNSD will switch over to FleetBroadband. The NSD will continuously monitor the GX network, and once the network is back to nominal conditions, the HardNSD will switch the transmission of data and voice traffic back to GX. The HardNSD is based on the Cisco Integrated Services Router and by using same Customer unreservedly agrees to be bound by the “Cisco End User Crew Calling Agreement”, which is found at http://www.cisco.com/c/en/us/about/legal/cloud-and-software/software-terms.html and is incorporated herein by reference.
“Inmarsat” shall mean Inmarsat Global Limited, a company established under the laws of England, with registered office at 99 City Road, EC1Y 1AX London, together with its subsidiaries and affiliates, all of which trade, inter alia, as Inmarsat Maritime, being a mobile satellite service network operator offering mobile satellite services over their GX (Ka-Band) and FleetBroadband (L-Band) networks owned and/or operated by them.
“Crew Calling” shall mean any applicable crew calling, authorization, permission or approval (as each may be amended from time to time) under any international or local law(s) and/or regulation(s), or any replacement or re-enactment of any of them, or any similar crew calling, authorization, permission or approval.
“Parties” shall mean “Precision” and Customer and, each, a “Party”.
“Person” shall mean an individual, firm, partnership, company, corporation, or any other body of persons or legal or commercial entity, as appropriate.
“Order Confirmation” shall mean the order detailing the satellite telecommunications FX Services and FX Equipment for the Customer’s “Vessel(s)”.
“Precision” shall mean Precision Infocomm Pte Ltd, a company incorporated under the laws of Singapore, with a registered office at 10 Bukit Batok Crescent #14-03 The Spire Singapore 658079, and/or its Affiliates.
“Service Fee” shall mean the service fee payable according to the Order Confirmation for the provision of the FX Services. The Service Fee includes all fixed monthly payments for the FX Services and data connection. For the avoidance of any doubt the Service Fee does not include the Activation Fee and any other one-off fee(s) payable under an FX Services Contract.
“Soft Network Service Device” or “SoftNSD” shall mean the shipboard software/hardware combination needed for Fleet Xpress consisting of the “SoftNSD Software” and the INFINITY PLUS or CUBE hardware platform, which is provided by Precision and is hosting the “SoftNSD Software”. The SoftNSD is tightly linked to the Global Xpress shore side network, which identifies each SoftNSD unit and downloads specific configurations settings to it. Additionally, the SoftNSD controls the routing of data and voice traffic via either the GX or FleetBroadband satellite networks. The default is Global Xpress. Upon detection of interruption of the service over the GX network, the SoftNSD will switch over to FleetBroadband. The SoftNSD will continuously monitor the GX network, and once the network is back to nominal conditions, the SoftNSD will switch the transmission of data and voice traffic back to GX. The software embedded in the SoftNSD is based on the Cisco 5921 software & VDS-IS (“SoftNSD Software”) and it is hosted in the INFINITY PLUS or CUBE hardware platform, which is designed with certain hardware specifications to support the service. By using the SoftNSD Software Customer unreservedly agrees to be bound by the “Cisco End User Crew Calling Agreement”, which is found at http://www.cisco.com/c/en/us/about/legal/cloud-and-software/software-terms.html and is incorporated herein by reference.
“Term” shall mean the FX Services Contract term as set forth in the Order Confirmation, and the Term for the FX Services shall start on the Commissioning Date.
“Vessel(s)”shall mean the Customer’s vessel(s), which is/are engaged in any type of commercial trade or business involving the transportation of goods on board vessels (other than vessels trading in the fishing and fishery industries) and on board which the FX Services are to be provided under an FX Services Contract. For the avoidance of any doubt the definition of Vessel(s) shall not include vessels operated primarily for pleasure, whether owned, leased, rented, or chartered.
2. Duration of Contract/Upgrades and Downgrades/Subscription Suspension
2.1 The Customer recognizes and acknowledges that the prices specified in the Order Confirmation are only possible in conjunction with the length of the Term and that the pricing would be materially higher in the event that a shorter FX Services contract duration were utilized. The Term is a material component of the determination of the pricing for the FX Services, including the calculation of early termination charges. In the event that any court of competent jurisdiction finds that the Term is contrary to applicable law or otherwise reduces the Term, then Precision shall have the right to adjust pricing upward, proportional to the reduced Term, to permit Precision a commercially reasonable return on its investment for the provision of FX Services.
2.2. The Customer shall select the desired FX Plan on the Order Confirmation. The Customer may request upgrades and/or downgrades to the FX Plan, and Precision shall have seven (7) calendar days from such request to implement any upgrade/downgrade. Upgrades/Downgrades will be subject to the specific terms and condition set out in the relevant Order Confirmation.
3. Nature of the Service/ FX Equipment
3.1 The FX Services provided to the Customer’s Vessel(s) and the fees related to same shall be as set forth in the Order Confirmation. The Service may only be altered by the Customer during the Term by means of a new Order Confirmation (on a per Vessel basis) that is signed and approved by both Parties.
3.2 All requests for FX Services to be provided under the FX Services Contract shall be made in writing by the Customer to Precision in the form of an Order Confirmation (on a per Vessel basis), and no such requests for Service shall be deemed to be effective and binding until an Order Confirmation has been completed and signed by both parties.
3.3 Precision shall provide the Customer with the FX Services in the general geographical area(s) specified in the Inmarsat FX coverage map. These coverage maps are provided for general illustration purposes only and are subject to change.
3.4 The Customer shall provide access to the Vessel(s) at a mutually agreed time to permit Precision to install and configure the FX Equipment upon notice by Precision. Prior to installation, the Customer is responsible for performing the necessary pre-installation work as instructed by Precision. Further, the Customer is responsible for all charges relative to the pre-installation work and the installation of FX Equipment as set forth in the Order Confirmation and the respective FX Installation Accepted Quotation. Failure of the Customer to permit Precision or Inmarsat access to the Vessel(s) on a reasonable basis for the installation of FX Equipment required for Fleet Xpress will be deemed to be material breach of the FX Services Contract by the Customer, entitling Precision to terminate the FX Services Contract, and the Customer will be liable to pay all termination charges due under the FX Services Contract.
3.5 Suspension/Barring of the Service/Equipment
3.5.1 Inmarsat may temporarily suspend the FX Service for the purpose of repair, maintenance or improvement of any of the telecommunications systems and FX Equipment of Precision or of its suppliers. FX Service may also be temporarily unavailable or limited because of capacity limitations, network equipment failures, distress or any other emergency pre-emption.
Inmarsat may give instructions about the temporary suspension of the FX Service, procedures to be followed by the Customer that Inmarsat believes are reasonably necessary in the interests of safety, or of the quality of the FX Service, or the proper use of the appropriate transmission media, with which the Customer must comply immediately. For the avoidance of doubt, such temporary suspension shall not be regarded as a service failure, outage or a breach of contract.
3.5.2 In addition to 5.9.7 below, and without prejudice to any other right Precision has with respect to its provision of FX Services, Precision may at any time during the Term bar or suspend any FX Equipment (or any SIM card, hardware, software or FX Service, as appropriate) in any country or countries: (a) if in Precision’s reasonable opinion any delay in barring the FX Equipment (or any SIM card, hardware, software or FX Service, as appropriate) may cause loss or damage (including, but not limited to, loss of reputation) to Precision or to its suppliers; (b) if the Customer commits a material breach of the FX Services Contract, and such breach is not remedied within four (4) days after receiving written notice from Precision requiring it to remedy such breach, including but not limited to, any failure by the Customer to obtain and/or comply with governmental and regulatory authorizations; (c) if Precision is instructed to do so by a governmental body, law or regulation; (d) if Precision has reason to believe that the Customer is abusing the FX Services and/or FX Equipment or using them fraudulently or unlawfully; (e) if Precision has reason to believe that the FX Equipment or its use or operation may adversely affect Inmarsat’s network or ability to provide the Services; or (f) in accordance with Precision’s technical and operating procedures (including barring procedures) as may be issued from time to time.
3.6 Satellite Service
3.6.1 Precision and/or Inmarsat shall be entitled to monitor the satellite service to ensure that the technical characteristics of the signal comply with obligations under any applicable Crew Calling.
3.6.2 With respect to the Fleet Xpress Service used over GX or FleetBroadband, the Customer will be allocated one or more unique identification numbers (e.g. IMN, DID, etc.) for use by the Customer. The Customer shall have no property right in the identification number(s) assigned in connection with the Service, and Precision may change such number(s) at such time or times as Precision and/or Inmarsat, each in its sole discretion, considers necessary, with no liability whatsoever.
3.7 Fault Repair
3.7.1 The Customer shall report a fault in the Service by telephoning or emailing Precision. The Customer will provide Precision a contact name and telephone number to enable Precision to advise progress being made to clear the fault.
3.7.2 If the Customer reports a fault in the FX Service, Precision will respond by carrying out one or more of the following actions: Provide assistance by telephone, including advice, where appropriate, as to tests and checks to be carried out by the Customer; where possible, carry out diagnostic checks through its and/or Inmarsat’s facilities; or visit the Customer’s Vessel as detailed in Section 3.8.3 below.
3.7.3 Precision will take all reasonable steps to correct the fault. Visits to the Customer’s Vessel are to be charged as specified in the FX Installation Accepted Quotation.
HardNSD is offered to the Customer either with a one-off purchase or based on a leasing plan as defined in the FX Order Confirmation. Except as expressly provided herein, risk of damage or loss in the HardNSD, howsoever resulting, will transfer to the Customer upon delivery of the HardNSD to the Customer. The Customer agrees, at the Customer’s sole expense, to: (a) keep the HardNSD free and clear from all adverse liens, security interests and encumbrances; (b) provide a proper and suitable environment (including adequate power and appropriate temperature control) for the HardNSD, in accordance with Precision’s and/or the manufacturer’s specifications; (c) keep the HardNSD in good order and repair and comply with any maintenance instructions given by Precision; (d) ensure that the HardNSD is not reverse engineered or used in conjunction with third party equipment;
In the event HardNSD is under lease program, Precision may charge the Customer, and the Customer will pay Precision, for all monthly payments related to the HardNSD lease due to be paid by the Customer for the remainder of the Term, in Precision’s reasonable determination, if the Customer fails to comply with the provisions of this Section 3.9. Breach by the Customer of any of the foregoing provisions regarding HardNSD will entitle Precision to enter the Customer’s Vessel where the HardNSD is reasonably believed to be located, and remove such HardNSD without any legal process or notice, and without being liable for trespass or damage, and to declare all amounts remaining unpaid to be immediately due and payable by the Customer.
SoftNSD is provided based on a leasing plan as defined in the FX Order Confirmation. Customer acknowledges and accepts the following:
The SoftNSD Software is provided with a limited crew calling to use and a monthly fee will be applicable as detailed in the Order Confirmation.
The SoftNSD Software is provided for exclusive use on Inmarsat’s Global Xpress Network.
The SoftNSD software is requiring specific minimum resources to be used by the INFINITY PLUS or CUBE hosting platform. Such resources refer to CPU (cores), RAM and HDD space. For the proper use of the SoftNSD Software Customer acknowledges and accepts that such resources will be always reserved for the SoftNSD Software continuous and proper operation and cannot be utilized for any other purpose.
Customer acknowledges and accepts that SoftNSD Software may require from time to time updates which are essential for its proper operation. Such updates will be mandatory.
In future versions of SoftNSD Software third party applications may be embedded and/or hosted in the SoftNSD (“Third Party Applications”). These Third-Party Applications shall be at Customer’s discretion to be activated and used and shall be made available on the basis of the crew calling terms of the provider of same.
Customer acknowledges and accepts that has no right and shall not permit any third party to copy, adapt, reverse engineer, decompile, disassemble, modify adapt or make error corrections to the SoftNSD Software.
The SoftNSD Software will be hosted in the INFINITY PLUS or CUBE platform and will be used as part of the Inmarsat’s GX Network. The combination of SoftNSD Software and the INFINITY PLUS or CUBE platform will be used as part of the FX Service provided by Precision. A monthly crew calling fee will be applicable for the use of the SoftNSD Software for the whole duration that the FX Equipment on board the Vessel is active. Precision is providing the SoftNSD Software along with the FX Service. Precision reserves the right to either discontinue the operation of SoftNSD Software or adapt the Soft NSD monthly crew calling fee at its sole discretion in case where the FX Services will not be provided by Precision. For the avoidance of doubt, the Soft NSD Software monthly crew calling fees may be adjusted by Precision at its discretion from time to time upon one month written notice.
Except as expressly provided herein, risk of damage or loss in the SoftNSD, howsoever resulting, will transfer to the Customer upon delivery of the SoftNSD to the Customer. The Customer agrees, at the Customer’s sole expense, to: (a) keep the SoftNSD free and clear from all adverse liens, security interests and encumbrances; (b) provide a proper and suitable environment (including adequate power and appropriate temperature control) for the SoftNSD, in accordance with Precision’s specifications; (c) keep the SoftNSD in good order and repair and comply with any maintenance instructions given by Precision; (d) ensure that the SoftNSD is not reverse engineered or used in conjunction with third party equipment.
4. Charges, Payments and Credit/Financial Security
4.1 Charges and Payment
4.1.1 Precision will provide the Customer with monthly electronic invoices for the Service Fee and all other fees payable for the FX Services as per the relevant Order Confirmation. Each invoice shall be due and payable as per the credit terms specified in the relevant Order Confirmation. Daily interest will be charged on payments outstanding beyond the above referenced due dates at a daily rate equal to 1.5% per month. If so specified in the Order Confirmation, Precision shall include in the first invoice to be issued for the relevant FX Services Contract a charge equal to the first monthly Service Fee payable by the Customer as an administrative fee for the monitoring, collection and allocation of the monthly Service Fees (the “Instalment Fee”), which shall be returned by Precision to the Customer at the end of the Term of the FX Services Contract by way of a set-off upon termination of the cooperation with the last Service Fee payable thereunder.
4.1.2 All charges arising under an FX Services Contract are exclusive of Value Added Tax (VAT) and other applicable taxes, fees or duties, for which, if applicable, an amount will be added to the Customer’s invoice.
4.1.3 All work, material, freight and travel expenses related to the installation or de-installation of FX Equipment, technical service and support will be charged to the Customer in accordance with Precision’s then-current standard prices. Precision can change standard prices upon thirty (30) days prior written notice.
4.1.4 If applicable, any deliveries from Precision’s sub-supplier(s) to the Customer are subject to a handling fee that 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).
4.1.5 In the event of default on payments of any outstanding monies from the Customer to Precision, Precision reserves the right to suspend Service under the FX Services Contract until the outstanding balance is settled. A written notice will be given prior to such FX Service suspension. This does not exclude any other remedies under the FX Services Contract.
4.1.6 Precision shall be entitled to invoice 50% of the Service Fee to the Customer (which shall be paid by the Customer) with effect from fifty (50) calendar days after the date that the FX Equipment is dispatched by Precision or any other supplier where delay to installation and commissioning of the FX Equipment are due to factors outside the control of Precision.
4.2 Customer Credit/Financial Security
4.2.1 Extension of a credit line to the Customer, including shipment of rental Equipment to the Customer’s site or Vessel and the provision of Services, is subject to credit approval by Precision. The credit approval is decided by Precision based on available information of all sorts and origins, and if available, previous credit experience with the Customer. If no credit line is awarded or only a limited line is awarded, a prepayment from the Customer may be required prior to commissioning of the Service.
4.2.2 If Precision determines, as a condition of entering into the FX Services Contract or at any time during the Term, that it would be commercially prudent to obtain financial security against the Customer failing to perform any of its obligations under the FX Services Contract, Precision shall be entitled, following reasonable consultation with the Customer, to require the Customer to provide such financial security in an amount and form that Precision, acting reasonably, deems appropriate.
Failure by the Customer to provide such financial security within and for the time period stipulated by Precision shall be deemed to be a material breach of the Customer’s obligations under the FX Services Contract.
5. Fundamental Obligations of the Parties
5.1 Precision agrees to provide the Customer with the FX Service as described in the Order Confirmation in accordance with the provisions herein.
5.2 Subject to the FX Services Contract (including, but not limited to the performance and observance by the Customer of its obligations hereunder), Precision shall from the Commissioning Date, and at all times thereafter during the Term, make the FX Service available to the Customer on a 24-hour basis.
5.3 The Customer shall obtain, maintain and comply with any Crew Calling that is required in order to receive and utilize the FX Service or any part of it. Where the FX Service provided requires a Crew Calling, Precision may assist in making the appropriate application if requested; provided, however, that it shall be the Customer’s sole obligation to ensure that it obtains/maintains all Crew Callings required in connection with the operation of the FX Service and FX Equipment in all jurisdictions in which the Customer’s Vessel(s) operate(s), and Precision shall not be liable for any error or omission in any application or in respect of any failure to obtain or maintain any Crew Calling.
5.4 The Customer shall purchase or lease the Hard NSD or shall undertake the payment of the monthly crew calling fee of SoftNSD required for the FX Service throughout the Term as detailed in the Order Confirmation. The Customer shall have no ownership interest in the HardNSD under lease, which shall remain the exclusive property of Precision until the end of the leasing term and subject to the payment of all the lease fees related to the HardNSD to Precision. The Customer shall not charge, mortgage or otherwise provide as security the leased HardNSD.
5.5 The Customer shall at all times comply with the requirements directed by Precision for the FX Equipment installation and shall utilize the Services and FX Equipment in accordance with the terms and conditions of the FX Services Contract. Appropriately trained Customer staff shall thereafter maintain and operate the FX Equipment (or cause the FX Equipment to be maintained and operated) at all times to and in accordance with the standards and procedures as directed by Precision.
5.6 If Precision is required to modify, vary or amend characteristics of any of the FX Services, up to and including shut down of said FX Services, the Customer must comply with said requirements. Likewise, if Precision assesses that there is a risk to other users of the satellite or FX Services, the Customer shall comply with any Precision instructions to modify, vary or amend characteristics, up to and including shut down of said FX Services. The Customer’s operations staff for the terminal must be suitably qualified, having completed appropriate training on the FX Equipment, which will be provided by Precision during the installation process at the rates specified in the FX Installation Accepted Quotation. If requested by Precision, approved routine maintenance and/or occasional short-duration link tests shall be performed, at mutually agreed times and with agreed test FX Equipment, to ensure continued satisfactory and safe operation of the FX Services. All maintenance and repair activities shall be carried out exclusively by Precision or by technicians approved by Precision.
5.7 The Customer’s responsibilities under this Section 5 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 earthing arrangements at points and with connections specified by Precision) on board the Vessel, to enable the provision of the Services.
The Customer shall, at its own expense, afford anyone authorized by Precision reasonable access on board the Vessel for all relevant purposes under the FX Services Contract, and the Customer must obtain any other permission which may be needed to achieve such access. Where special safety practices for access onboard the Vessel are required, these shall be agreed between Precision and the Customer within thirty (30) days of Precision’s acceptance of the FX Order Confirmation for the Service. If Precision and the Customer are unable to agree upon the appropriate special safety practices, Precision shall have the right to cancel the FX Order Confirmation for the FX Services or terminate the provision of the FX Services.
5.8 The Customer shall not incur any obligation on behalf of Precision, nor pledge the credit of Precision, nor in any way hold itself out as a representative, agent, partner or joint venture of Precision.
5.9 Limitation on Use of the Service and Equipment
5.9.1 The Customer shall: (a) assume responsibility for the content of any transmission made over Inmarsat’s network using the Services and shall ensure that all such transmissions comply with all applicable laws and regulations; (b) not use the Services for any unlawful, abusive, indecent, defamatory, offensive or fraudulent purpose including, without limitation, using the Service in a way that: (i) interferes with Precision’s ability to provide services to its customers; (ii) avoids its obligation to pay for the Service; or (iii) causes annoyance, inconvenience or needless anxiety; (c) comply with all government export laws and regulations applicable to the Services and/or use of the FX Equipment; and (d) comply with all relevant data protection legislation and obtain all registrations under relevant data protection legislation.
5.9.2 Following the Commissioning Date, it is the Customer’s sole obligation and responsibility to ensure that all FX Equipment and associated computer hardware and software are properly configured with respect to the FX Services being used and that only authorized users are permitted access to the FX Equipment.
5.9.3 All use of the FX Services and FX Equipment shall be in full compliance with the requirements of any applicable Crew Calling as well as all applicable laws and regulations in the jurisdiction in which the FX Service and FX Equipment are being used.
5.9.4 The Customer shall adhere to and comply with the provisions set forth in the Fleet Xpress Data Policies for Retail Solutions published by Inmarsat as amended from time to time and available upon request. Violation of the foregoing policies may result in additional airtime charges being assessed by Precision and/or restriction in bandwidth. This does not exclude any other remedies under the FX Services Contract.
5.9.5 The power supply to the antenna should always be connected on board and may not be switched off without notifying Precision in advance. The Customer is responsible for all damages caused by the failure to abide by this requirement.
5.9.6 The Customer understands and agrees that the failure to abide by the provisions in this Section 5.9 will result in poor quality and degradation of FX Service. PRECISION RESERVES THE RIGHT TO MODIFY THE SELECTED PRICING OF THE FX PLAN AND ASSOCIATED DATA SERVICES IN CASE OF A VIOLATION OF THE PROVISIONS OF THIS SECTION 5.9.
5.9.7 If the Customer is in breach of any of the conditions mentioned in this Section 5.9, Precision may terminate or temporarily suspend supply of the Service by giving written notice to the Customer. Further, Precision can refuse to restore the Service until Precision receives an acceptable assurance from the Customer that there will be no further breach(es).
5.9.8 Precision’s rights under this Section 5.9 do not prejudice any other rights of Precision under the FX Services Contract.
6. Confidentiality; Privacy
Each Party agrees to keep confidential all information and intellectual property whatsoever obtained under or in connection with the FX Services Contract or in respect of the other Party’s affairs or business and shall not use the information or intellectual property for any other purpose than to fulfil the FX Services Contract, or disclose such information or intellectual property or any part thereof without the prior written consent of the other Party. For the avoidance of any doubt any and all information with respect to the commercial agreement of between the Parties for the provision of the Services (including but not limited to any and all quotations offered by Precision to the Customer, irrespective of whether same have been accepted or not, the Activation Fee, the Service Fee, the FX Plan, the FX Voice Rates and the FX Installation Accepted Quotation) are to be treated as confidential information in accordance with this Section 6.
The foregoing provisions shall not apply to information which: (a) is or becomes public knowledge without breach of the FX Services Contract; (b) is already known to the receiving Party at the time of its disclosure by the disclosing Party and was not otherwise acquired by the receiving Party from the disclosing Party under any obligations of confidence; (c) a Party is compelled by legal process or government regulation or order to disclose; (d) a Party, or an associated company (an ultimate holding company or any subsidiary thereof of any tier), shall be required to disclose by a listing authority in connection with a stock exchange listing, or as a result of any debt financing process, or other securities filings as may be required in the UK, US or elsewhere. This obligation set forth in this Section 6 shall apply during the Term and shall continue to apply for a period of two (2) years after the expiration or termination of the FX Services Contract, unless and until such time as such information comes into the receiving Party’s lawful possession independent of disclosure in connection with the FX Services Contract, or otherwise lawfully comes into the public domain.
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. The Customer will indemnify and hold Precision harmless against claims by third parties resulting from improper disclosure of a third party’s intellectual property, or improper use of data, failure to limit access to personal information or data, security breach or another omission which compromises data, failure to cooperate, failure to adhere to data protection guidelines, and/or inadequate observance of the provisions of the FX Services Contract.
Any notice to be served by either Party to the other in relation to the FX Services Contract shall be in writing and delivered in-person or by fax, email or prepaid postage to the other Party at its respective address. Operating messages, including, but not limited to, any upgrade of products, invoices with specification of telephony usage and service requests may be transmitted via the Precision electronic customer portal, for which the Customer is responsible for administering access to trusted employees. It is hereby agreed by the Customer, that persons authorised to sign purchase orders and/or Order Confirmation are also authorized to access the Precision electronic customer portal. Each Party is responsible to inform the other Party of any changes in address and/or contact information in accordance with this Section 7.
The Customer may not assign, transfer or dispose of any of its rights and obligations under, or any interest in, the FX Services Contract, without the prior written consent of Precision.
Precision may at any time, without the prior written consent of the Customer, assign, transfer or novate the FX Services Contract or any of its rights and obligations under the FX Services Contract to: (a) its parent or any of its parent’s subsidiaries, (b) any affiliated entity, (c) a bank or financial institution, or (d) any successor in interest due to the purchase of substantially all of its assets or as a result of a name change.
Precision may at any time, with the prior written consent of the Customer (not to be unreasonably withheld or delayed and to be deemed to be granted within five (5) days of receipt of the request, unless expressly refused within such time) assign, transfer or novate any of its rights and obligations under the FX Services Contract to any other Person.
Except as otherwise provided herein, the FX Services Contract may only be amended by a written instrument duly executed by both Parties.
10. Force Majeure, Interference and Obstructions
10.1 As used in this Section 10 and except for the Customer’s obligations under Section 4 above in relation to which this Section 10 shall not apply, the term “force majeure” refers to events extrinsic to the FX Services Contract that are beyond the reasonable control of, and not attributable to the fault or negligence of the Party relying on such events to excuse its failure to perform. Subject to the foregoing, force majeure events shall include, without limitation, an 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, Precision’s compliance with any statutory obligation or an obligation under a statute, industrial dispute of any kind (whether or not involving Precision employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, acts or omissions of Persons for whom Precision is not responsible (including in particular other telecommunication systems) or any other cause whether similar or dissimilar outside Precision’s reasonable control.
Precision is not liable for any breach of FX Services contract where the breach is caused by force majeure and shall be excused from performance of its obligations under the FX Services Contract until full recovery has occurred.
10.2 FleetBroadband and Fleet Xpress Interference: On Ka-Band and L-Band satellite based broadband services, interference in harbor or coastal areas or near rigs and other Vessels could occur and are defined as local environmental occurrence that is not controllable by Precision, and therefore, not defined as a service fault or outage. Radars, Radio links, WiMAX, Radius and other equipment transmitting or generating harmonic products in the Ku-Band, C-Band or L-Band are typical devices that could be sources of such interference. Fail over between GX and FleetBroadband could reduce such impact on connectivity.
10.3 For use of terminals in the United States and U.S. waters, the Customer acknowledges that third-party terrestrial telecommunications systems using L-Band spectrum may on occasion have the potential to cause interference with L-Band terminals where such terminals are in close proximity to terrestrial L-Band base stations. The Customer agrees that Precision shall not be liable or responsible for any impact that such interference may have on any terminal or related service.
10.4 FleetBroadband and Fleet Xpress Obstructions: Obstructions causing blind sectors to the Ka-Band and L-Band link are defined as local environmental occurrence that is not controllable by Precision, and therefore, not defined as a service fault or outage. Such obstructions could be the vessels masts, other antennas, other vessels, nearby rigs, buildings or mountains when operating in coastal areas. Fail over between Ka-Band and L-Band could reduce such impact on connectivity.
11. Limitations of Liability and Warranty
11.1 Precision’s duty in performing any obligations under the FX Services Contract is to exercise the reasonable skill and care of a competent telecommunications company. Precision makes no other, and specifically disclaims all other warranties, both express and implied.
Precision’s responsibility for the FX Service under these conditions applies only for that part of the FX Service that is provided by means of telecommunication systems that are exclusively operated and owned by Precision, if applicable. Precision is not responsible for any service problems occurring or associated with the Customer’s end-user equipment. In addition, Precision is not responsible for any service failure which is caused by a telecommunications provider or other third party.
11.2 Precision’s entire liability to the Customer in respect of the subject matter of the FX Services Contract, whether arising in contract, tort, negligence, misrepresentation (including negligent misrepresentation), for breach of duty or howsoever otherwise arising, shall be limited to the agreed remuneration for the FX Service in the quarter in which the event that gave rise to the liability first arose, and Precision’s liability for any series of events shall not exceed the fees actually paid by the Customer to Precision in the previous six (6) months for the particular Vessel in which or with respect to which the event that gave rise to the liability arose.
11.3 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 whatsoever, except as expressly stated in the FX Services Contract.
12.1 The Customer shall indemnify and hold Precision harmless against any claims or legal proceedings arising from the Customer’s use of the FX Service or FX Equipment or use of the Service or FX Equipment by the Customer’s end-users or affiliates, which are brought or threatened against Precision by the Customer’s end-users or affiliates.
12.2 The Customer shall be responsible for and hold harmless and indemnify Precision 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 Precision.
13.1 For the purposes of this Section 13, termination of the FX Services Contract refers to termination on a Vessel by Vessel basis or for an entire fleet of Vessels, as applicable.
13.2 Either Party will be entitled to terminate the FX Services Contract in the event that: (a) one Party is in material breach of any term of the FX Services Contract and fails to remedy the breach within sixty (60) days of notice of the breach with reference to this Section 13; or (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 or has a petition filed in respect of any of the above in any jurisdiction.
Precision will be entitled to terminate the FX Services Contract in the event that Customer is in breach of its obligations under Section 4 above or any other financial obligations under the FX Services Contract towards Precision and fails to remedy such breach within fourteen (14) days of notice of same with reference to this Section 13.
13.3 The Customer is entitled to terminate the FX Services Contract without cause, subject to the early termination charge, which shall consist of a payment equal to all monthly payments due to be paid by the Customer for the remainder of the Term. Such early termination charge shall be paid to Precision within thirty (30) days after the effective date of the termination.
13.4 If Precision terminates the FX Services Contract in accordance to Section 13.2, the Customer shall pay to Precision an early termination charge, which shall consist of a payment equal to all monthly payments due to be paid by the Customer for the remainder of the Term. Such early termination charge shall be paid to Precision within thirty (30) days after the effective date of the termination.
13.5 Termination of the FX Services Contract for any reason whatsoever shall be without prejudice to the Parties’ rights and remedies accrued prior to termination.
No failure or delay by either Party in exercising any of its rights under the FX Services Contract shall be deemed to be a waiver of that right, and no waiver by either Party of any breach of the FX Services Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
15. Rights of third parties
A third party that is not a Party to the FX Services Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the FX Services Contract, but this does not affect any right or remedy of a third party that exists or is available apart from that Act or any right of a Party to the FX Services Contract to enforce any term of the FX Services Contract for and on behalf of such third party where applicable, except that any Precision Affiliate may enforce the rights and benefits granted to it under the FX Services Contract.
16. Modification of T&Cs
Precision reserves the right in its discretion to modify these Terms and Conditions from time to time, subject to prior notice to the Customer.
17. Legal/Governing law
17.1 No FX Service shall be used in, or FX Equipment imported into or provided to, any country where doing so is a violation of applicable Norwegian, U.K., E.U., U.S., or other applicable law, ordinance, or regulation, pertaining to importing/exporting or otherwise, and no FX Service shall be used by, or FX Equipment transferred to, any Person identified on the U.S. Specially Designated Nationals (SDN) List or other denied parties list maintained by applicable government entities. Without limiting the foregoing, in no instance shall FX Service be used in, or FX Equipment imported into (nor used aboard vessels sailing under the flag of), the following countries without the express written consent of Precision, which will only be provided upon a showing that the proposed use or importation is crew callingd or otherwise authorized by the applicable authority: Cuba, Iran, Syria, Sudan and North Korea. This Section 17.1 may be modified from time to time by Precision upon thirty (30) days’ notice to the Customer.
17.2 ESIM Regulations: USE OF THE FX SERVICE IS CURRENTLY PROHIBITED WITHIN 12NM OF THE COAST OF A COUNTRY UNLESS THE REGULATORY REQUIREMENTS OF THAT COUNTRY FOR OPERATING MARITIME ESIM WITHIN THE TERRITORIAL WATER LIMIT (APPLICABLE AT THAT TIME) ARE MET. IT IS THE CUSTOMER’S SOLE OBLIGATION TO UNDERSTAND AND COMPLY WITH THE LICENSING REQUIREMENTS OF ALL APPLICABLE COUNTRIES, AS MAY BE AMENDED FROM TIME TO TIME. The Customer acknowledges that ESIM Regulations may be amended from time to time and impose restrictions on the provision and use of the FX Service, and that ESIM Regulations may vary for different jurisdictions and depending on the geographical location of the Vessel. It is acknowledged that compliance with ESIM Regulations may include Precision shutting off transmission of the FX Service to the Customer’s Vessel when it is within a specified territorial limit of a governing jurisdiction. It is strictly prohibited for the Customer to interfere with the FX Equipment to disable or circumvent any functionality which allows and/or enforces compliance with the then current ESIM Regulations. Precision shall have no liability to the Customer for any suspension of Service that is necessitated to ensure that the provision and/or use of the Service do not violate applicable law or regulations, including ESIM Regulations. Failure of the Customer to comply with this Section 17.2 shall give Precision the right to suspend and/or bar the Service and shall be regarded as a material breach of the FX Services Contract by the Customer. The Customer shall indemnify and hold Precision harmless for any costs incurred by Precision in connection with the Customer’s breach hereof. The Customer shall indemnify and hold Precision harmless for any violation of this Section 17.2 caused by the Customer or any of its agents, officers, employees or contractors.
17.3 The FX Services Contract shall be governed by the laws of Singapore. Any dispute, controversy, or claim arising out of or relating to the FX Services Contract, or the breach, termination, or invalidity thereof, shall be subject to the exclusive jurisdiction of the English courts. The court proceedings shall be conducted in the English language. Notwithstanding the foregoing, Precision will be entitled to initiate any proceedings arising out of or in relation to these Precision FX Provisioning Terms and Conditions in any court having jurisdiction.
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Precision FleetXpress Services Agreement