Precision VSAT Terms & Condition
The following GT&C apply to Customer and/or its end-user using Precision Infocomm’s Equipment and Services under a Contract. Capitalized terms used in a Contract and herein shall have the meaning set out in the definitions overview of these GT&C. The headings used herein are solely for the purpose of reference and shall have no substantive meaning in construing, interpreting or applying the provisions of the GT&C. These GT&C include and incorporate the following: Exhibit A – Use Policies.
1. Purpose and scope: These GT&C shall control and govern all transactions between the Parties and all Precision Infocomm Equipment and Services provided to or used by Customer under a Contract, and whether or not these GT&C are mentioned in a subsequent VOF. Customer’s request for Equipment and/or Services shall be set out in a Contract. No Equipment and/or Services shall be provided by Precision Infocomm except pursuant to a Contract.
2. Charges, invoices, payment and taxes: 2.1 Invoices shall be sent by Precision Infocomm to the invoice address as provided by Customer. Customer may request to be invoiced on another customer legal entity (a billing entity), however, Customer acknowledges that it will always be ultimately responsible for the invoices. All payments under a Contract to Precision Infocomm shall take place within thirty (30) days of the invoice issue date, without the right to set-off or withhold payment in whatever circumstance. All payments shall be made in the currency as agreed and invoiced. Payments shall be made to the account as designated on the invoice and shall contain a reference to the relevant invoice. Any banking fees must be settled by Customer.
2.2 All prices and/or charges are exclusive of value added tax, other taxes (including but not limited to withholding tax), duties, surcharges and other fees or charges levied by any governmental authority on the Services or the Facilities used to provide and use the Services. Customer is responsible for payment of all such additional charges, in addition to Precision Infocomm’s charges. In the event that Customer is required to make any deduction or withholding in respect of any payment to Precision Infocomm under a Contract, Customer will pay to Precision Infocomm such additional sum as shall enable Precision Infocomm to be paid in full. Payments made to Precision Infocomm, which are subject to a withholding tax, require a certificate of payment of the withholding of Customer.
2.3 The Monthly Fee will be invoiced monthly in advance, whilst any monthly call charges, additional topup plans and/or out of allowance data (if any), Onboard Services, freight costs, travel costs and expenses, other charges and prepaid cards will be invoiced monthly in arrears. If Commissioning does not take place on the first day or if a Contract does not end on the last day of a month, the Monthly Fee will be adjusted pro-rata for the applicable month. For Mobile Satellite services, Precision Infocomm may be billed by a provider for usage incurred by Customer after the usual billing period (‘late billing’), reason why Precision Infocomm is in the position to equally apply such late billing to Customer in accordance with the ITU rules (up to fifteen (15) months from the date of usage).
2.4 In the event that Customer fails to make payment of undisputed (parts of the) invoices to Precision Infocomm by the due date, Precision Infocomm may at its sole discretion choose to suspend its Services to Customer pending receipt of outstanding amounts, including any applicable late payment interest. A notice period of fifteen (15) days shall apply before suspending. If Precision Infocomm determines, in case of proven late payments by Customer, that it is commercially prudent to obtain financial security against Customer, Precision Infocomm shall be entitled to require Customer -at its costs- to provide such financial security in an amount and form that Precision Infocomm deems reasonably appropriate. Failure by Customer to timely provide such exact financial security shall be deemed to be a material breach of Customer’s obligations under a Contract.
2.5 Precision Infocomm has the right to charge payment of interest on any overdue balances, including payments withheld on amounts in dispute which are ultimately held to be due, at one and a half per cent (3%) per month (or part thereof), or the maximum lawful rate. Should the services of an attorney or collection agent be necessary to collect amounts due, Customer will be liable to Precision Infocomm for Precision Infocomm’s costs of collection, including but not limited to reasonable attorney’s fees, court costs, and other such costs as may be incurred.
2.6 In the event that Customer wishes to dispute an invoice, Customer must notify Precision Infocomm in writing of the legal and factual basis for the claim, as soon as possible but no later than sixty (60) days after the invoice issue date. Any claims received by Precision Infocomm after the claim period set out above shall be deemed null and void, unless Precision Infocomm decides to honor such claim. If Precision Infocomm accepts a claim made by Customer, Precision Infocomm shall correct the prior sent invoice. If the claim is disputed by Precision Infocomm, then article 36 (dispute resolution) shall apply.
2.7 Precision Infocomm is entitled to apply indexation to the prices in a Contract upon thirty (30) days’ prior written notice to Customer on a yearly basis. Furthermore, Precision Infocomm will have the right to follow any price increase by the Space Segment Provider for the space segment (Core Service and MSS), or by another connectivity provider for such connectivity, upon thirty (30) days’ notice.
3. Delivery and return of Equipment: Precision Infocomm shall deliver Equipment DAP (Delivered At Place, Incoterms 2010) to the agreed delivery location. In the interpretation of the Parties’ obligations under Incoterms 2010, Precision Infocomm shall assume the role of the seller, and Customer shall assume the role of the buyer, in connection with delivery. Customer shall reimburse Precision Infocomm for any freight charges incurred and shall pay all applicable charges for delivery. Customer shall, on request from Precision Infocomm, provide or adjust the security deposit during the provision of the lease if required. Such deposit shall not be used to offset amounts against Precision Infocomm invoices and shall be kept by Precision Infocomm during the whole duration of the lease. At termination or expiry of a Contract, the security deposit shall be refunded by Precision Infocomm to Customer after receipt of the Equipment in good order.
Customer shall return the Equipment DDP (Delivery Duty Paid, Incoterms 2010), and crated, to a Precision Infocomm warehouse as specified by Precision Infocomm. In the interpretation of the Parties’ obligations under Incoterms 2010, Customer shall assume the role of the seller, and Precision Infocomm shall assume the role of the buyer, in connection with the return of the Equipment. Customer shall return any faulty or replaced part within thirty (30) days of receipt of a spare part, to the address specified by Precision Infocomm. Failure of Customer to comply with its obligation to return any Equipment, shall entitle Precision Infocomm to invoice the replacement value of the unreturned Equipment. Customer shall reimburse Precision Infocomm for any freight charges incurred and shall pay all applicable charges for return of Equipment.
4. Ownership: Customer acknowledges that as between Precision Infocomm and Customer, Precision Infocomm owns and shall continue to own all Equipment, spare parts, supplies, software rights and crew callings, and other property used by Precision Infocomm to provide the Services, including Intellectual Property, and that Customer shall have no right to use or retain possession of any such property following termination of a Contract, except in the event Customer purchases any of such property. Precision Infocomm shall own all right, title and interest, including Intellectual Property in and to any work products that it may develop in the course of providing the Services, including without limitation trade secrets, copyrights, know-how and inventions. Customer acknowledges that a Contract shall not create any third party’s right, title, interest or crew calling in any software, Intellectual Property, invention, idea or know-how unless explicitly stated in writing by Precision Infocomm. Customer shall make known to all third parties to whom notification is necessary in order to preserve the rights of Precision Infocomm that the Equipment and rights are and remain the exclusive property of Precision Infocomm.
5. Purchase of Equipment: Customer can choose to purchase Equipment from Precision Infocomm. Precision Infocomm’s Equipment shall become the property of Customer (“Customer Equipment”) from the moment the related invoice(s) is paid by Customer in full. A partial pre-payment prior to delivery may be applied. Equipment is sold net of tax, shipping or insurance and FCA (Free Carrier, Incoterms 2010) at a Precision Infocomm warehouse. Warranty on purchased Equipment is described in the proposal. In order to provide the Connectivity Services, particular clauses shall apply to Customer Equipment, including but not limited to: article 6 (Use and care of Equipment), article 7 (Obligations), article 8 (Right on inspection), article 13 (Licensing and regulations), and Exhibit A (Use Policies), all for as much as relevant and failing which Precision Infocomm’s Connectivity Service shall be on a reasonable endeavors basis. If Customer wishes Precision Infocomm to maintain the Customer Equipment, Parties shall agree on this and the specifics thereof, in case of which the Service Agreement (including Outage Credits) shall equally apply to Customer Equipment.
6. Use and care of Equipment: Customer is responsible for the security, protection and care of the Equipment upon leaving Precision Infocomm’s possession and until its return to Precision Infocomm. Customer shall use the Equipment in accordance with (a) these GT&C, (b) the applicable Contract (c) applicable laws, crew callings and regulations, (d) manufacturer’s specifications, (e) a suitable operating environment, and (f) Precision Infocomm polices in effect relating to the use of the Equipment. Any use of the Equipment not in accordance with the preceding shall void applicable warranties provided under these GT&C and/or the applicable Contract, and Precision Infocomm may recover additional fees for Customer’s non-contemplated uses. Customer shall bear the full risk of loss or damage to the Equipment, and Customer will promptly reimburse Precision Infocomm upon invoice.
7. Customer’s general rights and obligations: Customer may use the Connectivity Service with Equipment that has been prior approved and Commissioned by Precision Infocomm. In addition to its other obligations under a Contract and these GT&C, Customer shall at its expense and risk: (i) transport Precision Infocomm personnel to and from any offshore site and provide lodging for Precision Infocomm personnel while offshore; (ii) ensure that the Precision Infocomm technicians enjoy the same subsistence rights and comfort as Customer’s own employees, including food and lodging; (iii) provide such logistical support and assistance (including English speaking personnel) as Precision Infocomm may reasonably request in connection with the installation and de-installation of the Equipment, including lifting the Equipment onboard / off the Vessel and facilitating cabling, all in accordance with the Equipment installation document; (iv) be responsible for all physical modifications to the Vessel as necessary or required for the installation of the Equipment, and upon request provide Precision Infocomm with the general arrangement drawings describing the Vessel’s design to facilitate the installation process; (v) be responsible for providing pedestals on any Vessel, lifting mechanisms for Equipment to be lifted, the positioning of the antenna and required cable penetrations. Customer is responsible for supplying Precision Infocomm with clean power onboard the Vessel and physical space to install hardware in a suitable rack/cabinet; (vi) ensure the provision of Auxiliary Equipment and be responsible for any and all Auxiliary Equipment and services necessary to perform installation and Commissioning, including any welding or other “hot work”, of the Equipment, including cable runs necessary to complete any shipboard modifications; (vii) supply and install various cable runs which are required between the equipment rack and the ship’s power supply, gyro distribution, PABX, and LAN as well as installing cables between the different units of the Equipment; (viii) permit Precision Infocomm to have access to the Vessel following termination of the applicable Contract to remove the Equipment; (ix) be responsible for the interconnection between the Auxiliary Equipment and the Equipment, and for the performance of the Auxiliary Equipment; (x) agree to Precision Infocomm advised maintenance and upgrades; (xi) make a reasonable number of its personnel available for training in the operation and basic troubleshooting of the Equipment, and perform such basic troubleshooting and maintenance in accordance with such training; and (xii) keep the Equipment free and clear from liens and encumbrances in favor of persons claiming against or through Customer. Customer shall reimburse Precision Infocomm for (i) any freight charges incurred in the delivery or return of the Equipment and/or any spare parts, (ii) any custom duties, tariffs and fees related to delivery or return, (iii) any labor charges and travel and subsistence expenses for Precision Infocomm representatives engaged in installation, Commissioning and de-installation services, and for other provided Onboard Services (unless otherwise agreed), and (iv) any charges for third party installation or de-installation costs incurred by Precision Infocomm (if any). Upon successful Commissioning of the Equipment, a Precision Infocomm technician shall sign the respective Handover Document for the Connectivity Services on behalf of Precision Infocomm, and the end-user shall sign same document on behalf of Customer. Customer agrees that Precision Infocomm may include Customer’s name and/or Vessels in Precision Infocomm’s customer listings and/or press releases.
8. Specific Vessel and coverage area, right on inspection, subcontracting: Customer shall use the Equipment and Connectivity Services at the Vessel and in the coverage area provided for in the applicable Contract, and during the agreed contract term. Precision Infocomm has the option to select the satellite and Facilities used to provide the Connectivity Services. At all times, Precision Infocomm shall have the right to inspect the Equipment at its own cost and expense, subject to Customer’s reasonable instructions, Vessel schedules, operations, and safety and security rules. Precision Infocomm shall notify Customer of an inspection with a minimum of ten (10) days notice, and the inspection shall take place within sixty (60) days from such notice, failing which Precision Infocomm may suspend the Connectivity Services. Precision Infocomm may use, in whole or in part, Precision Infocomm employees or appropriately skilled subcontract personnel, at Precision Infocomm’s sole discretion, to fulfill its obligations under a Contract.
9. Importation and exportation of Equipment: 9.1 Customer shall be responsible for all Equipment importation and exportation to and from the Vessel, unless agreed otherwise. In this respect, Customer shall (i) pay all applicable taxes, duties and fees related to the Equipment importation and exportation (also if Precision Infocomm takes responsibility for importation and exportation, when agreed); (ii) obtain at its cost such import and export crew callings and other consents that are required from time to time; and (iii) upon request, make those crew callings and consents available to Precision Infocomm prior to the shipment of the Equipment.
9.2 If Equipment is imported by Customer, the Equipment shall be exported by Customer to the same location from which it was originally shipped or to a location designated by Precision Infocomm, upon Precision Infocomm’s option, at Customer’s expense. Customer shall be responsible for all required documentation for Equipment importation, exportation and movement. Notwithstanding any local law to the contrary, it is the intent of the Parties that the Equipment imported by Customer shall remain the sole property of Precision Infocomm. Customer shall at all times acknowledge and defend Precision Infocomm’s right, title, interest and ownership in and to the Equipment, regardless of where located, and Customer shall execute such documents of title as Precision Infocomm may request, from time to time, evidencing Precision Infocomm’s rights in and ownership of the Equipment.
10. Export controls and sanctioned countries: 10.1 Customer acknowledges that it will comply with applicable export control laws, regulations and sanctions, and will obtain all government crew callings to export, re-export or import Precision Infocomm’s Equipment as may be required, regardless of where Services are provided. Customer will not, without first obtaining any necessary crew callings, export or re-export any of Precision Infocomm’s Equipment, proprietary information or related technical data or technology: (i) to any country subject to comprehensive UN, US, EU and/or UK sanctions, including but not limited to Iran, North Korea, Sudan, and Syria, and any local country sanction law(s) and/or regulation(s) under the jurisdiction of the Vessel; (ii) for any prohibited end uses and/or endusers; (iii) to any prohibited destinations; or (iv) to any individuals or entities that are presently on any denied party lists including (but not limited to) the US Department of Treasury’s Office of Foreign Assets Control Specially Designated National (“SDN”) List, consolidated list of persons, groups and entities subject to US, EU and UK sanctions. In the case of such an export, re-export or import, Customer must provide Precision Infocomm timely adequate information regarding the identification of all parties, end-use, end-users and end-use destinations that are involved in the Customer’s transaction or use of the Vessel prior to engaging in any new transactions, supplies and/or activities that will make use of Precision Infocomm’s Equipment and/or Services in the earlier mentioned sanctioned and/or prohibited destinations. Customer will not cause the Vessel, including Precision Infocomm’s Equipment and Services, to move to or to be used in any sanctioned and/or prohibited destination without Precision Infocomm’s authorization and any applicable government crew callings.
10.2 Customer acknowledges that it will not use, directly or indirectly, Precision Infocomm’s Equipment and/or Services in (end-)uses and/or activities prohibited by and/or inconsistent with any applicable export control laws or sanctions. In addition to other rights it may have in law or under a Contract, Precision Infocomm reserves the right to refuse to provide Equipment, Services or any goods and suspend or terminate a Contract in its entirety, without any liability, if Precision Infocomm has a good faith basis for believing Customer or any of its related parties has violated, or intends to violate, any applicable export control laws or sanctions regulations. If Precision Infocomm suspends Services under this article, the term of a Contract shall be extended with the duration of the suspension.
10.3 If Customer causes a Vessel to be moved to a sanctioned or prohibited location, without Precision Infocomm’s authorization and/or proper export control and sanction crew callings, where the use of Precision Infocomm’s Equipment and/or provision of Services to Customer is subject to and in breach of applicable embargoes, sanctions or local country law(s) under the jurisdiction of the Vessel, Precision Infocomm has the right to immediately suspend its obligations with respect to such Vessel as well as terminate the Contract. Precision Infocomm will duly inform the competent authorities regarding the breach and, if permitted so, inform Customer regarding further steps to be taken. If so instructed by Precision Infocomm, Customer shall take actions by disconnecting and removing Equipment, all of which shall be at the expense of Customer. Should Customer not disconnect and remove the Equipment, and the Equipment is subsequently used, exported or re-exported in violation of export control or sanctions laws, Customer agrees to pay to Precision Infocomm an amount equal to three times the book value of the Equipment at the time of entry into sanctioned territory. Any such payment will be payable immediately when so triggered.
10.4 Customer hereby agrees to indemnify, defend and hold harmless Precision Infocomm and its employees from and against any and all claims, demands, damages, costs, penalties and fines arising in connection with any breach by Customer of any customs, export control or sanctions regulations.
11. Compliance with laws: Precision Infocomm and Customer shall each comply with the applicable laws, regulations, and orders pertaining to their activities related to a Contract, including but not limited to those applicable to labor, wages, hours, equal opportunity and other conditions of employment, and the environmental health and safety of personnel. The undertakings and obligations of Precision Infocomm under a Contract are subject to the requirements of applicable US, EU, UK and foreign laws and regulations, and to Precision Infocomm receiving any necessary governmental authorizations, crew callings and approvals, and such permissions remaining available.
13. Licensing and regulations: 13.1 Customer shall be responsible for obtaining any and all crew callings, permits, temporary permits and authorizations and any renewals and costs thereof, required by any jurisdiction for Customer’s performance and/or use of the Services under the applicable Contract (for this article: “Customer Crew Callings”). At its sole risk and expense shall Customer engage, where necessary, the third-party professional of Customer’s choice for procurement of any and all of Customer Crew Callings. Upon request, Precision Infocomm will cooperate with Customer in gathering information by searching a qualified third-party professional. Precision Infocomm shall not be liable for any breach, non-performance or delay in performance related to Customer’s failure to obtain any such required crew callings, permits and/or authorizations. Precision Infocomm shall be responsible for obtaining those crew callings, permits, temporary permits and authorizations (for this article: “Precision Infocomm Crew Callings”) required by any jurisdiction solely related to Precision Infocomm’s performance of the Services under the applicable Contract, however, Precision Infocomm shall not be held in breach of the applicable Contract in the event Precision Infocomm is unable to obtain Precision Infocomm Crew Callings for any Customer Vessel due to circumstances beyond Precision Infocomm’s control. Each Party agrees to cooperate in providing to the other all information required to enable the other to obtain any required crew callings, permits and/or authorizations.
13.2 If either Party is required to pay any fine or penalty or is subject to a claim from the other Party’s failure to comply with applicable laws, rules or regulations, the Party failing to comply shall defend, indemnify and hold harmless the other Party from all damages, fees and/or fines for such failure to the extent of the indemnifying Party’s allocable share of failure to comply. Notwithstanding anything to the contrary, neither Party shall be required to take any action prohibited nor refrain from taking any action required under applicable law.
13.3 Customer shall comply with all applicable governmental laws, rules and regulations, including Earth Stations on Vessels (ESV) regulations and any restrictions on Customer’s receipt of the service applicable in any country in which Customer uses the service. Precision Infocomm’s Service shall be used by Customer solely for transmission of its own telecommunications services in accordance with applicable crew callings. Customer acknowledges that the software, Intellectual Property and third-party services, networks or equipment provided to Customer or made available for Customer’s use, are subject to certain crew callings, restrictions and limitations, and Customer agrees to comply with such crew callings, restrictions, limitations, use requirements and conditions, as indicated by Precision Infocomm or such third-party providers. Precision Infocomm may, without having any liability towards Customer and/or without waiving any rights or electing remedies under a Contract, suspend or terminate the Services to Customer until such time as Customer can demonstrate its compliance with this article 13.
14. Term and termination: 14.1 A contract or VOF shall be valid and effective from the date of the last required signature and shall be valid until the final Vessel is terminated in accordance with these GT&C. A Vessel shall have an Initial Term for the duration as specified in a Contract, starting at the Commissioning Date. Unless timely terminated, a Vessel thereafter shall have renewal terms of twelve (12) months increments (or such duration as stipulated by the service description) (each a Renewal Term). Termination of a Contract for a Vessel requires a written notice.
14.2 Each Party can terminate a Contract for convenience against the end of the then current contract term by providing the other Party with a written termination notice ultimately ninety (90) days prior to the end of the Initial Term or the then current Renewal Term.
14.3 Termination for insolvency, security, change of control, etc. Either Party may immediately terminate the applicable Contract in the event of other Party’s (i) insolvency, (ii) liquidation, cease of business or activities, reorganization or interim judicial management, (iii) filing for protection from creditors, (iv) filing a petition in bankruptcy, or (v) assignment for the benefit of creditors. In the event that Customer fails to pay when due, Precision Infocomm may, at its option, (i) require Customer to provide security if Customer’s invoice payments are late on two or more occasions, (ii) suspend Services according to article 2 – Payment, or (iii) terminate the applicable Contract according to article 14.4 – Termination for material breach. Precision Infocomm may terminate a Contract with immediate effect in case of (i) a change of control or ownership on the Customer side, (ii) any proven incorrect or untrue representation or warranty from Customer, (iii) a Suspension Event which persists for more than fifteen (15) days or (iv) if Customer is subject to criminal, financial or ethical investigation.
14.4 Termination for material breach. In the event of a Party’s material breach or default in the performance of any of its obligations under the applicable Contract that is unrelated to Precision Infocomm’s Core Services as set forth in the Service Agreement and failure to cure such breach within fifteen (15) days after notice specifying each breach in detail from the other Party, such other Party has the right, in addition to any rights or remedies it may have in law or under the applicable Contract, to immediately terminate the applicable Contract by written notice to the breaching Party. Without limiting the foregoing, any failure by Customer to timely pay to Precision Infocomm any amounts owing under the applicable Contract will constitute a material breach.
14.5 Termination due to government action. Precision Infocomm may, with no liability whatsoever, suspend or terminate Services to Customer if lawfully ordered to cease operation of such Services by a state or federal court of law, or any other lawful federal, state or local governmental or regulatory authority. If at any time during the term of a Contract any Equipment, Facilities, or property used by Precision Infocomm to provide Services to Customer 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, Precision Infocomm will have the right, upon written notice to Customer, to terminate Services affected by the taking. This equally applies if Precision Infocomm loses its rights from its Space Segment Provider.
14.6 Consequences of termination. In the event that a Contract is terminated before or during the Initial Term or Renewal Term for any reason other than Precision Infocomm being the defaulting party or a Force Majeure situation, Customer shall pay Precision Infocomm for the amounts as stipulated in the contract (in the service description or in the service pricing annex), which is provided as liquidated damages and not as a penalty. To calculate the Early Termination Charges under this article 14.6, Precision Infocomm will use the value of the contracted Monthly Fee, or the value of the then current Monthly Fee, whichever is higher. Payment of the Early Termination Charges as specified in this article 14.6 shall be in addition to any other remedy to which Precision Infocomm may be entitled at law or otherwise. Termination or expiration of a Contract in accordance with the GT&C shall not release the Parties from any liability which a Party has already accrued before or on the termination or expiry date or which thereafter may accrue in respect of any act or omission of a Party, or from any obligation which is expressly stated in a Contract to survive such date. After termination or expiry of a Contract, the Parties shall (i) return or destroy all Confidential Information of the other Party in its possession no later than fourteen (14) days following the termination date, (ii) perform a final accounting of all sums due or which shall become due under a Contract, including Early Termination Charges (if any) and Onboard Services charges, within forty-five (45) days of the termination date, which sums shall be offset by amounts (if any) that may become payable under a Contract, (iii) schedule the return of all Equipment at Customer’s expense.
14.7 Notwithstanding the aforementioned, Precision Infocomm may always choose to suspend its Services as a permanent or temporary alternative to termination for as long as Customer is in breach or in default, during which suspension period invoicing to Customer shall continue.
15. Suspension of the Connectivity Services: Precision Infocomm may, at its sole and reasonable discretion and with immediate effect, deny Customer and any end-user access to the Connectivity Services or parts thereof, in the following events (each a “Suspension Event”): (i) if the Space Segment Provider gives notice to Precision Infocomm that Customer or end-user is responsible for any of the following events: a) the use of the Connectivity Services by the end-user threatens the condition or health of the satellite or is causing interference to any other user’s access to the satellite or to any other satellite operated in the area, b) the use of the Connectivity Services by the end-user has resulted in a claim against the Space Segment Provider on the grounds of defamation or illegality of content under any applicable law, or c) the transmissions to and/or from the end-user are being “jammed” by a third party (governmental or otherwise) and such jamming is interfering with the use of or threatens the health of the satellite. Precision Infocomm shall deliver a notification of a denial of access to any enduser as soon as received. Such notification shall clearly state the reasons for such denial. Customer may be denied access until the Space Segment Provider informs Precision Infocomm that the circumstances, justifying the denial of access, cease. Such denial of access shall not constitute a breach of contract. (ii) when necessary for operational reasons, in an emergency, or when Precision Infocomm is required or instructed to do so by any competent regulatory, administrative or judicial authority. Whenever practicable, Precision Infocomm will notify Customer in advance. Precision Infocomm will restore the Connectivity Services as soon as reasonably practicable after such temporary interruption. (iii) if an end-user is found to be using the Connectivity Services in violation of any applicable law or regulation, including the Earth Stations on Vessels (ESV) regulations. Precision Infocomm may maintain the suspension until it receives an acceptable assurance from Customer that there will be no further infringement in this respect. Customer shall immediately cease transmissions from and/or to the Equipment upon notice thereto from Precision Infocomm or the Space Segment Provider, and shall ensure that the end-user complies with all such instructions.
16. Decommissioning: Without waiving any of Precision Infocomm’s rights or remedies, in the event (i) a Vessel is decommissioned or demobilized, (ii) operations at a Vessel are ended, or (iii) Connectivity Services at a Vessel are terminated, do not start or are discontinued, Customer shall refrain from using the Equipment and Connectivity Services (if activated), promptly notify Precision Infocomm in writing and shall pay Precision Infocomm for the demobilization costs of the Equipment from the Vessel according to Precision Infocomm’s current labor rates at the time. Furthermore, Customer shall allow Precision Infocomm prompt access to the Vessel so that Precision Infocomm may recover the Equipment or shall use reasonable endeavors to have the Equipment returned to Precision Infocomm’s warehouse as specified by Precision Infocomm. The Equipment shall be returned in good working order, and at the latest sixty (60) days after the termination or expiry date. Any sums due and outstanding under a Contract remain due, and Customer is obligated to pay the same as stated herein. This article survives the termination or expiration of the applicable Contract.
17. Confidentiality: The Parties agree that all pricing, technical and commercial information related to the applicable Contract and the design of the Services shall be kept confidential and not disclosed, excluding information that (a) is in the public domain without breach of these GT&C, (b) is required to be disclosed under applicable law, stock exchange regulations or by a governmental order, decree, regulation or rule (provided that the receiving party shall use all reasonable endeavors to maintain the confidentiality of any information so disclosed, and give prompt written notice to the other Party prior to such disclosure), (c) is acquired independently from a third party that has the legal right to disseminate such information at the time it is acquired by the receiving party, or (d) is independently developed by the receiving party without the use or incorporation of any confidential information from the disclosing party. The duty of confidentiality shall survive the expiration or termination of a Contract by three (3) years.
18. No third parties use and/or benefits: Customer shall not allow third parties (i.e. entities or individuals not associated with Customer’s operations) to use any component of the Equipment unless such third parties have agreed to pay for access to and accept the terms for the Equipment and Services under and in accordance with an applicable Precision Infocomm Contract. By entering into a Contract, Precision Infocomm only accepts contractual obligations towards Customer. The provisions of a Contract are solely for the benefit of the Parties hereto and their lawful successors and assignees, and no other party may seek to enforce or benefit from any provisions. Precision Infocomm shall only be responsible towards Customer to the extent explicitly provided for in a Contract, and Customer shall indemnify Precision Infocomm from any excess claim from any third party in connection with a contract between Customer and such third party. In the event any mandatory applicable law grants rights to any third party, such third party shall not be entitled to any right of notice or consent with respect to any amendment, cancellation or termination of the applicable Contract.
19. Representations and warranties: PRECISION INFOCOMM MAKES ONLY THOSE WARRANTIES, IF ANY, SET FORTH IN THE SERVICE AGREEMENT AND EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED TO THE EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. PRECISION INFOCOMM DOES NOT WARRANT THAT THE SERVICES PROVIDED UNDER A CONTRACT WILL BE ERROR FREE OR WITHOUT INTERRUPTION. EACH PARTY HEREBY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT (I) IT IS DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF INCORPORATION, (II) THAT IT HAS ALL REQUISITE AUTHORITY AND APPROVALS TO ENTER INTO A CONTRACT AND TO PERFORM ITS OBLIGATIONS THEREOF, AND (III) THAT ALL REQUISITE CORPORATE ACTION HAS BEEN TAKEN FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF A CONTRACT.
20. Service Agreement and Use Policies: Customer acknowledges and agrees to comply with Precision Infocomm’s Service Agreement (in the contract) and Use Policies (attached hereto). The Service Agreement shall govern Precision Infocomm’s Core Service, and Customer shall use all Connectivity Services and Equipment in accordance with the Use Policies.
21. Remedies: The remedies provided in the Service Agreement shall be Customer’s sole and exclusive remedy for any breach of the Connectivity Service warranty, Connectivity Service failure or unavailability, or any delay or failure by Precision Infocomm to repair any failed or unavailable Connectivity Service.
22. Indemnification: 22.1 PRECISION INFOCOMM SHALL INDEMNIFY, DEFEND AND HOLD FREE AND HARMLESS CUSTOMER GROUP FROM AND AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, INCLUDING ANY MEMBER OF THE CUSTOMER GROUP, ARISING IN CONNECTION WITH SERVICES PROVIDED UNDER A CONTRACT IN FAVOR OF PRECISION INFOCOMM GROUP, ON ACCOUNT OF BODILY INJURY, DEATH OR DAMAGE TO PROPERTY, PROVIDED THAT SUCH INDEMNITY SHALL NOT EXTEND TO CUSTOMER’S DUTY TO REPAIR OR REPLACE PRECISION INFOCOMM EQUIPMENT AS SET OUT ELSEWHERE IN A CONTRACT OR THESE GT&C. PRECISION INFOCOMM’S INDEMNITY UNDER THIS ARTICLE SHALL BE WITHOUT REGARD TO AND WITHOUT ANY RIGHT TO CONTRIBUTION FROM ANY INSURANCE MAINTAINED BY CUSTOMER.
22.2 CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD FREE AND HARMLESS PRECISION INFOCOMM AND PRECISION INFOCOMM GROUP FROM AND AGAINST ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF OR THE NEGLIGENCE OF ANY PARTY OR PARTIES, INCLUDING ANY MEMBER OF PRECISION INFOCOMM AND THE PRECISION INFOCOMM GROUP, ARISING IN CONNECTION WITH SERVICES PROVIDED UNDER A CONTRACT IN FAVOR OF CUSTOMER GROUP, ON ACCOUNT OF BODILY INJURY, DEATH OR DAMAGE TO PROPERTY. CUSTOMER’S INDEMNITY UNDER THIS ARTICLE SHALL BE WITHOUT REGARD TO AND WITHOUT ANY RIGHT TO CONTRIBUTION FROM ANY INSURANCE MAINTAINED BY PRECISION INFOCOMM.
22.3 CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD FREE AND HARMLESS PRECISION INFOCOMM AND PRECISION INFOCOMM GROUP FROM AND AGAINST, AND SHALL PAY ALL EXPENSES (INCLUDING REASONABLE LEGAL FEES) AND SATISFY ALL JUDGMENTS WHICH MAY BE INCURRED BY OR RENDERED IN CONNECTION WITH, ANY CLAIMS BROUGHT AGAINST PRECISION INFOCOMM AND/OR THE SPACE SEGMENT PROVIDERS BY AN END-USER OR THIRD PARTY ARISING FROM OR IN CONNECTION WITH: (I) ANY LIBEL, SLANDER OR INVASION OF PRIVACY OR ANY ALLEGATION THEREOF OR INFRINGEMENT OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS ARISING AS A RESULT OF THE USE OF CONNECTIVITY SERVICES, (II) THE LOSS OF INFORMATION RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS SUFFERED BY THE END-USER WHILE USING THE CONNECTIVITY SERVICES, OR (III) THE FAILURE TO OBTAIN, MAINTAIN IN FORCE OR COMPLY WITH ANY CUSTOMER LICENSES OR AUTHORIZATION REQUIRED FOR UTILIZING THE CONNECTIVITY SERVICES AND/OR EQUIPMENT.
22.4 THIS ARTICLE SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE APPLICABLE CONTRACT.
23. Insurance: From delivery until the date the Equipment is returned to Precision Infocomm, Customer shall maintain insurance for the Equipment with a reputable insurance company. The insurance shall cover against loss of and damage to the Equipment in the event of any claim brought against Customer during the time which the Equipment is at Customer’s risk and expense in accordance with these GT&C. The insurance cover amount (per antenna) shall be: USD 65,000 if the antenna is equal to or smaller than 1 meter, USD 120,000 if larger than 1 meter but smaller than 2.4 meter, and USD 150,000 if equal to 2.4 meter. These amounts shall cover all pieces of Equipment onboard the Vessel. Customer shall provide proof of insurance upon Precision Infocomm’s request. Precision Infocomm shall always have the right, in case of damage or total loss of the Equipment, to invoice Customer the replacement value of this Equipment. Failure of Customer to provide insurance in accordance with this article shall constitute a breach of contract by Customer and will entitle Precision Infocomm to terminate a Contract. In addition, Customer shall maintain such public liability, general commercial liability, property damage, employee liability and compensation insurance as will protect Precision Infocomm from any claims for which Customer is responsible in accordance with these GT&C. The insurance(s) shall support all indemnity and defense obligations under the applicable Contract and shall cause the insurer to waive all rights of subrogation.
24. Limitation of liability: 24.1 NOTHING IN ANY CONTRACT SHALL OPERATE TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY TO THE OTHER FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR (II) FRAUDULENT MISSTATEMENT OR (III) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
24.2 SUBJECT TO ARTICLE 24.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER OR (II) LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OF ASSETS OR LOSS OF PRODUCT OR FACILITIES DOWNTIME (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL), IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE BREACHING PARTY AND WHETHER ARISING IN OR CAUSED BY A BREACH OF CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE.
24.3 SUBJECT TO ARTICLES 24.1 AND 24.2, PRECISION INFOCOMM’S TOTAL AGGREGATE LIABILITY UNDER OR IN RELATION TO A CONTRACT, INCLUDING LIABILITY FOR BREACH OF CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING NEGLIGENCE) OR BREACH OF STATUTORY DUTY SHALL NOT EXCEED THE AMOUNT OF USD 20,000 (TWENTYTHOUSAND UNITED STATES DOLLARS).
24.4 SUBJECT TO ARTICLES 24.1 AND 24.2, EXCEPT TO THE EXTENT CAUSED BY THE WILLFUL MISCONDUCT OF PRECISION INFOCOMM, AND THEN PROVIDED THAT THE LOSS WAS REASONABLY FORESEEABLE AT THE TIME THAT SUCH INJURY OR DAMAGE WAS CAUSED, PRECISION INFOCOMM SHALL NOT BE LIABLE TO CUSTOMER FOR: (I) ANY MAINTENANCE OUTAGES AND/OR UNSCHEDULED OUTAGES; (II) ANY LOSS OF, OR DAMAGE TO, VESSELS OCCURRED IN CONNECTION WITH THE INSTALLATION, COMMISSIONING, OPERATION OR DE-COMMISSIONING OF THE EQUIPMENT, TO THE EXTENT AS ALLOWED BY LAW; (III) ANY FAILURE IN OR BREAKDOWN OF FACILITIES ASSOCIATED WITH THE CONNECTIVITY SERVICES, OR ANY OTHER ACT OR OMISSION OF PRECISION INFOCOMM IN CONNECTION WITH THE CONNECTIVITY SERVICES PROVIDED HEREUNDER, WHATEVER THE CAUSE, AND WHETHER ATTRIBUTABLE TO ANY ACT OR OMISSION OF PRECISION INFOCOMM OR ITS SUBCONTRACTORS OR SUPPLIERS; (IV) ANY MALFUNCTION, BREAKDOWN, LACK OF MAINTENANCE, OUTAGE, FAILURE TO FUNCTION, INCOMPATIBILITY, DAMAGE TO OR DEFECT OF ANY AUXILIARY EQUIPMENT, OR ANY CONSEQUENCE THEREOF, THAT IS NOT CAUSED DIRECTLY BY THE WILLFUL MISCONDUCT OF A PRECISION INFOCOMM TECHNICIAN; (V) ANY LOSS, INJURY, HARM OR DAMAGE ARISING OUT OF ANY USE OF CONNECTIVITY SERVICES TO TRANSMIT ANY MATERIAL OR CONTENT IN VIOLATION OF ANY APPLICABLE LAWS OR THIRD PARTY’S RIGHTS. SUCH MATERIAL OR CONTENT MAY INCLUDE, BUT IS NOT LIMITED TO (A) COPYRIGHTED MATERIAL TO WHICH THE SENDER DOES NOT HOLD THE COPYRIGHT OR HAS NOT CLEARED THE USE OF SUCH MATERIAL WITH THE HOLDER OF THE COPYRIGHT (B) MATERIAL LEGALLY JUDGED TO BE THREATENING, PROHIBITED, OBSCENE OR CONFIDENTIAL MATERIAL THAT THE SENDER IS NOT AUTHORIZED TO SEND; OR (VI) IN THE EVENT THAT A FORCE MAJEURE SITUATION AFFECTS EITHER THE END-USER’S ABILITY TO USE, OR THE QUALITY OF, THE CONNECTIVITY SERVICES.
24.5 PRECISION INFOCOMM WILL HAVE NO LIABILITY TO CUSTOMER’S CLIENTS, CUSTOMERS, CONTRACTORS, PARTNERS, CO-VENTURERS, OWNERS OR AFFILIATES (“CUSTOMER’S THIRD PARTIES”) ARISING OUT OF OR RELATED TO A CONTRACT, AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD PRECISION INFOCOMM, ITS AFFILIATES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES AND ATTORNEYS, FREE AND HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, CLAIMS, COSTS, EXPENSES, DAMAGES OR DEMANDS, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL LOSS AND REASONABLE ATTORNEY FEES, BROUGHT OR SUFFERED BY ANY CUSTOMER THIRD PARTY ARISING OUT OF OR RELATED TO A CONTRACT.
24.6 ALL CLAIMS MUST BE MADE IN WRITING BY REGISTERED MAIL TO PRECISION INFOCOMM WITHIN SIX (6) MONTHS FROM THE TIME WHICH CUSTOMER BECAME OR SHOULD HAVE BEEN AWARE OF THE EVENT CAUSING THE RELEVANT CLAIM.
25. Force Majeure: Except for obligations related to the payment of money owed, the Parties shall be excused from performing under the terms of a Contract, if and for so long as such compliance is hindered or prevented by occurrences beyond its control, such as but not limited to riots, labor disputes, embargo, strikes, lock-outs, blockade, wars (declared or undeclared), insurrections, rebellions, terrorist acts, civil disturbances, revolution, invasion, orders of governmental authority, whether such authority be actual or assumed, acts or decisions to prevent or mitigate cyber-attack effects (including the shutdown of information systems), externally caused transmission interference, satellite failure, acts of God, fire, explosion, nuclear contaminations, boycott for imported items, flood, hurricanes, storms, tornadoes or other weather events or by any other act or cause which is reasonably beyond the control of such Party, any such event being herein sometimes called “Force Majeure”. In the event that either Party hereto is rendered unable, wholly or in part, by any such occurrence to carry out its obligations under a Contract, it is agreed that such Party shall give notice and details of Force Majeure in writing to the other Party as promptly as possible after its occurrence. In such cases, the obligations of the Party giving the notice shall be suspended during the continuance of any inability so caused. For those events lasting more than thirty (30) consecutive days, either Party shall have the right to terminate the corresponding Services affected by the Force Majeure with no liability to the other Party.
26. Personal Data: For the purpose of this article: “Applicable data protection regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (the “GDPR”) and any other applicable data protection regulation, if any; “Personal Data” means any information relating to an identified or identifiable natural person (the “Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law; “Processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
For the purpose of a Contract: The Customer is acting as a controller and is sole responsible for informing the data subjects of their rights under Applicable data protection regulation, obtaining their consent if needed, and enforcing the rights of the data subjects on their personal data (hereinafter referred to as the “Controller”). Precision Infocomm is acting as a processor for the processing of the communication data records of the data subjects and as the case may be the processing of data traffic as needed for execution of the value added services ordered by Customer (hereinafter referred to as the “Processor”). The Controller recognizes and accepts that personal data may be transferred to the Processor’s subcontractors, subject to the respect of the Applicable data protection regulation by the Processor.
The Processor undertakes that it: (a) processes the personal data only for the purpose of providing communication services and related value added services ordered by Customer under a Contract; (b) ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (c) takes all security measures required pursuant to article 32 GDPR and notifies the Controller without undue delay after becoming aware of a personal data breach pursuant to article 33 GDPR; (d) respects the conditions referred to in paragraphs 2 and 4 of article 28 GDPR for engaging another processor; (e) taking into account the nature of the processing, assists the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR; (f) assists the Controller in ensuring compliance with the obligations pursuant to articles 32 to 36 GDPR taking into account the nature of processing and the information available to the Processor; (g) at the choice of the Controller, but in any case subject to applicable mandatory law concerning storage of communication data records, deletes or returns all the personal data to the Controller after the end of the provision of services relating to processing, and deletes existing copies; (h) makes available to the Controller all information necessary to demonstrate compliance with the obligations laid down in this article and allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller, subject to terms and conditions set forth between the Parties.
27. Notices: Notices, reports and other communications required or permitted by a Contract or these GT&C to be given or sent by one Party to the other shall, except where otherwise provided, be in writing, in the English language and addressed to the contact persons and/or Customer’s invoice address specified in a Contract, which may be changed by written notice to the other Party.
28. Assignment: Neither Party may sell, assign, nor transfer a Contract or any part thereof, nor any money due hereunder, without the prior written consent of the other Party which shall not be unreasonably withheld or delayed; provided however that Precision Infocomm may sell, assign, or transfer a Contract or any part thereof, or any money due thereof, to a Precision Infocomm Affiliate upon advance written notice to Customer. No assignment, sale or transfer a Contract shall relieve the assigning, selling or transferring Party, as applicable, of its obligations under a Contract.
29. No waiver: No waiver by any Party of any one or more defaults by another Party in the performance of any provision of a Contract shall operate or be construed as a waiver of any future default or defaults by the same Party, whether of a like or of a different character. Except as expressly provided in these GT&C, no Party shall be deemed to have waived, released or modified any of its rights under a Contract unless such Party has expressly stated, in writing, that it does waive, release or modify such right.
30. Severability: If any term or provision of these GT&C or a Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction, provided that these GT&C or the Contract without the unenforceable provision(s) is consistent with the material economic incentives of the Parties.
31. Independent contractor relationship: Nothing contained in these GT&C or a Contract shall be deemed or construed by Precision Infocomm or Customer or by any third party to create the relationship of principal and agent, partnership or joint venture in any form, or any other fiduciary relationship or association between Precision Infocomm and Customer.
32. Entire agreement, amendments, order of precedence: The applicable Contract (including its service descriptions) and these GT&C constitute the entire agreement between the Parties with respect to the subject matter thereof, will govern the provision of Equipment and Services to Customer, and supersede and replace any and all other negotiations, conversations, understandings and/or agreements, written, oral, implied or otherwise made by the Parties. Each Party hereto each acknowledge that, in entering into a Contract, it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations which were made by or on behalf of the other Party in relation to the subject matter of a Contract at any time before their respective signature (together, “Pre-Contractual Statements”). Each Party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements but for this article 32. Nothing in this article 32 shall exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment. The applicable Contract may not be modified, amended, altered, supplemented, added to, canceled or terminated except by written agreement signed by the Parties or as per the following. Precision Infocomm may, from time to time, at its option, add, delete or modify the Services available to Customer under these GT&C and/or a Contract if a) there is a new service and/or b) such amendment is imposed by a supplier of Precision Infocomm, with thirty (30) days notice. Any purchase acknowledgment or order form that purports to modify these GT&C is void and hereby rejected. In the event that there is any conflict between documents, the order of precedence shall be (1) the Contract (including its service descriptions) and any amendment(s) thereto, (2) any special terms and conditions (if any) and (3) these GT&C.
33. Surviving clauses: The provisions of these GT&C, which by their nature and the context in which they appear, would reasonably be expected to survive termination or expiration of a Contract, including, but not limited to, those relating to warranty, ownership and return of Equipment, service remedies, indemnity, limitation of liability, waiver of consequential damages, confidentiality and governing law and dispute resolution, will survive its termination or expiration.
34. Interpretation: Should any provision of these GT&C require interpretation; it is agreed that the court interpreting or considering the provision shall not apply any presumption that the terms of these GT&C shall be more strictly construed against the drafter.
35. Counterparts: A Contract may be executed in two or more counterparts, each of which shall constitute one and the same original. A facsimile or electronic signature shall be as valid as an original.
36. Governing law and dispute resolution: 36.1 A Contract and these GT&C shall be construed and interpreted in accordance with the applicable laws where Precision Infocomm is registered. The governing law shall be the laws of Singapore.
36.2 In the event that a dispute arises with respect to the interpretation or implementation of any provision of a Contract or these GT&C, the Parties agree to use all reasonable efforts to resolve such dispute amicably through negotiations. The language of any legal proceeding shall be English, for as much as permitted.
Definitions: The following words, when capitalized herein, shall have the meaning stated below. Unless otherwise specified, words in the singular include the plural and vice versa.
“Affiliate” shall mean any corporation, partnership, limited liability company or association, trust or other entity or organization which, directly or indirectly, controls, is controlled by, or is under common control with, Precision Infocomm and/or Customer. For purposes of the preceding sentence, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any entity or organization, shall mean the possession, directly or indirectly, of the power (i) to vote more than fifty percent (50%) of the securities having ordinary voting power for the election of directors or comparable individuals of the controlled entity or organization, or (ii) to direct or cause the direction of the management and policies of the controlled entity or organization, whether through the ownership of voting securities or by contract or otherwise.
“Auxiliary Equipment” shall mean all material, equipment and software on board the Vessel excluding the Equipment and Customer Equipment, but including and not limited to the gyro, private branch exchange (PBX), local area network (LAN), interconnection equipment, WiFi access points, personal computers, mobile devices and any additionally required software for use of the Equipment.
“Commissioning” shall mean the testing and activation of Equipment by Precision Infocomm at a Vessel.
“Commissioning Date” shall mean, with respect to each Vessel or Connectivity Service, the earlier of: (i) the date Connectivity Services are commissioned by Precision Infocomm; (ii) the date any Connectivity Service is used by Customer for purposes other than testing; or (iii) if applicable, the date the Handover Document is signed by the Parties’ representatives.
“Confidential Information” shall mean all information (written, oral, electronic, photographic or other form) that (i) relates to the technical, financial and business affairs, customers, suppliers, products, developments, operations, processes, data, trade secrets, know-how and personnel of a Party or (ii) is disclosed to the other Party in connection with any Contract, including information disclosed according to a Non-Disclosure Agreement executed by the Parties prior to the effective date of the applicable Contract, which should reasonably be understood by the recipient to be confidential, either due to the nature of the information, the circumstances of its disclosure, or notices appearing on or given in connection with the information.
“Connectivity Service(s)” shall mean the Core Services and/or MSS services and/or any other connectivity services provided by Precision Infocomm to Customer.
“Contract” shall mean a contract (including its annexes), VOF, subscription form or quotation applicable between Customer and Precision Infocomm, as may be amended from time to time in accordance with the provisions of these GT&C.
“Core Service(s)” shall mean Precision Infocomm’s VSAT Service or FX service, excluding the other Connectivity Services and/or value added services.
“Customer” shall mean the legal entity which has entered into a contract with Precision Infocomm. If Customer allows other customer legal entities (sub-contracted customer entities) to sign a VOF under the contract, such sub-contracted customer entity shall be primarily responsible for the VOF it signed (and ultimately Customer shall be responsible).
“Customer Group” shall mean Customer and its Affiliates’ employees, officers, directors, invitees, customers and their employees, third parties and subcontractors and their employees.
“Early Termination Charges” shall mean the amounts to be paid by Customer to Precision Infocomm in the event a Vessel is terminated before the end of the commitment period for any reason other than Precision Infocomm becoming a defaulting party or Force Majeure.
“Equipment” shall mean the equipment, materials and devices, including associated software, provided by Precision Infocomm and/or installed at any Vessel, described in any Contract or used by Precision Infocomm to provide the Connectivity Services. Equipment does not include purchased goods by Customer or other Customer provided ADE / BDE equipment or items, which will be referred to as “Customer Equipment”. The Equipment shall remain under Precision Infocomm’s title and ownership during all times, except if it is sold to Customer. “ADE” shall mean above deck equipment (the antenna) and “BDE” shall mean below deck equipment (the rack including its Precision Infocomm provided equipment).
“Facilities” shall mean teleports, satellites, ground stations and switching facilities used to provide the Connectivity Services.
“Force Majeure” shall have the meaning as stipulated in article 25.
“GT&C” shall mean these Precision Infocomm general terms and conditions applicable to a Contract.
“Handover Document” shall mean the report that shall be completed and signed by Customer to document that the antenna installation and shipboard configuration has been completed and that all Commissioning and acceptance testing procedures required by Precision Infocomm prior to activation of the Connectivity Services have been satisfied. It is available on request to Precision Infocomm.
“Initial Term” shall mean the minimum contract term per Vessel as defined in a Contract or, if no term is defined therein, sixty (60) months as from the Commissioning Date.
“Intellectual Property” shall mean all rights conferred under any applicable law in relation to trade secrets, copyrights, inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, knowhow, confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
“Precision Infocomm” shall mean Precision Infocomm AS, Precision Infocomm CG Ltd or Precision Infocomm Inc., or if agreed otherwise any of their Affiliates.
“Precision Infocomm Group” shall mean Precision Infocomm and its Affiliates, and Precision Infocomm and its Affiliates’ employees, officers, directors, invitees, customers, suppliers, Space Segment Providers, sub-contractors, agents and their employees, third parties and subcontractors and their employees.
“Monthly Fee” shall mean the fixed monthly charge for the Connectivity Service, and when applicable any ordered value added service(s) and/or Equipment as contracted.
“Onboard Services” shall mean the Preventive Maintenance Services and On-Call Repair Services.
“On-Call Repair Service(s)” shall mean any repair service visit to the Vessel.
“Outage Credit” shall mean the proportional part of the Monthly Fee as agreed for the Core Services which is Outage Time on a vessel-by-vessel basis, which shall be credited to Customer, as specified in the Service Agreement in the contract.
“Outage Time” shall occur if the Core Service is not available to the Vessel due to a failure of the Equipment for at least one (1) consecutive hour within the contracted coverage area, under the stipulations of the Service Agreement in the contract.
“Party” or “Parties” shall mean Customer and/or Precision Infocomm. Precision Infocomm and Customer will be referred individually as a ‘Party’ and collectively as the ‘Parties’.
“Preventive Maintenance Services” shall mean any onboard routine inspection and preventive servicing of the Equipment.
“Renewal Term” shall mean the twelve (12) months extension period of a Contract for a Vessel automatically following the Initial Term or a Renewal Term.
“Roll Out Period” shall mean the period of six (6) months, or other agreed term, following the effective date of a Contract, in which Customer shall make the Vessel(s) available for installation and Commissioning. If the installation or Commissioning is not performed during the agreed Roll Out Period, for reasons attributable to Customer, Precision Infocomm may start invoicing the agreed Monthly Fee.
“Service Desk” shall mean Precision Infocomm’s helpdesk for the Connectivity Services.
“Service Agreement” shall mean the support services as agreed in the annex of the contract called “Service Agreement”.
“Services” shall mean the provision of Connectivity Services, Onboard Services and any other services by Precision Infocomm to Customer as set forth in a Contract.
“Space Segment Provider” shall mean the legal entity that owns, operates and/or accesses the satellite(s) that provide(s) the actual space segment capacity for the Connectivity Services.
“Suspension Event” shall mean the events stipulated in article 15.
“Use Policies” shall mean the Precision Infocomm Use Policies attached hereto as Exhibit A.
“Vessel” shall mean the vessel, platform or other Customer location(s) where Services are to be provided.
“Vessel Order Form” or “VOF” shall mean the order form, subscription form or purchase order executed by the Parties describing the Equipment and Connectivity Services to be provided by Precision Infocomm to a Vessel, the corresponding pricing to be paid by Customer and the applicable special provisions, if any.
EXHIBIT A USE POLICIES
These Use Policies specify the actions prohibited by Precision Infocomm to Customers and users of Precision Infocomm’s various Connectivity Services, software and products, including the Internet Protocol network (the “Network”) and Precision Infocomm-provided Equipment, whether by purchase or lease. Precision Infocomm reserves the right to modify the Use Policies at any time, effective when distributing the modified Use Policies to its Customers.
Use of Network The Network may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other Intellectual Property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control and sanction laws. Further examples of impermissible uses include, without limitation, the following:
I. obtaining services or software without the intention of paying incurred charges; II. using the Network, its software or services to further criminal activity; III. using the Network, its services or software to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent or to communicate with 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; IV. sending data, images and programs that are libelous, defamatory, obscene, or pornographic; V. using the Network, its services or software in a manner that interferes unreasonably with the use of the Network, its services or software by one or more other customers; VI. violating certain generally accepted guidelines on internet usage, such as restrictions on mass e-mailings and mass advertising, or posting to inappropriate newsgroups; and VII. using the Network its services or software to gain or attempt to gain unauthorized access to any systems, networks or data (“hacking”).
Precision Infocomm reserves the right to terminate a Customer’s use of the Network immediately if an unauthorized or illegal use is reasonably evident, in Precision Infocomm’s sole discretion.
Fair Use Policy for the Core Service As further detailed per service in the contract or service descriptions.
System and Network security Violations of system or network security are prohibited, and may result in criminal and/or civil liability. Precision Infocomm will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
I. allowing unauthorized third-parties to utilize the Network; II. unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; III. unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network; IV. interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; V. forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting; VI. engaging in any activity which threatens the integrity of any computer system, or violates generally accepted standards of internet conduct and usage, including but not limited to
“denial of service” attacks, web page defacement, hacking, port and network scanning, “phishing” or the fraudulent use of email messages that appear to come from legitimate businesses for the purpose of identity theft, unauthorized system penetrations or distributing bugs, viruses, worms, Trojan Horses or such other harmful elements; VII. engaging in any of the foregoing activities by using the service of another provider, by channeling such activities through any of Precision Infocomm’s IP addresses as a mail drop for responses or otherwise by using the services of another provider for the purpose of facilitating any of the foregoing activities if such use of another party’s service could reasonably be expected to adversely affect the Connectivity Services; or VIII. reselling any Precision Infocomm services or software to any third parties without prior express written consent from Precision Infocomm.
Acceptable use of Equipment Customers shall not use Equipment in an illegal, abusive or fraudulent manner, including but not limited to the following:
- tampering with or altering Equipment except as specifically agreed to between Customer and Precision Infocomm;
- tampering with or altering configuration settings of the modem, router and/or Precision Solutions except as specifically agreed to between Customer and Precision Infocomm;
- obtaining or attempting to obtain permission to use Equipment by providing false or misleading information;
- obtaining Equipment without having the intent to pay charges incurred;
- intentionally interfering with or causing disruption in the provision of Equipment to other customers;
- using Equipment to further criminal activity;
- using Equipment to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent or to call another person so frequently or at such times of day or in any other manner with the intended effect of annoying, threatening or harassing such other persons; and
- using Equipment in a manner that interferes unreasonably with the use of Equipment by one or more other customers.
Customer shall ensure that any part of the Equipment which is regarded as computer equipment, including the BDE, shall be installed in a suitable environment with appropriate cooling and protection. Customer shall undertake to implement all software and hardware upgrades when instructed by Precision Infocomm or the manufacturer. Except for upgrades ordered by Precision Infocomm, all costs related to such upgrades shall be borne by Customer. Precision Infocomm disclaims all liability if Customer did not implement such upgrade(s).
Precision Infocomm advises Customer on the positioning and installation of the Equipment and Customer shall follow such advices and/or any manufacturer’s advices. Not following such instructions shall result in the exclusion of any and all liability of Precision Infocomm for any service outages and the exclusion of the any warranty on the Equipment. Installation of Customer Equipment or other Customer provided equipment by Customer or a third party on board the Vessel is the sole responsibility of Customer. Customer shall ensure that any future mounting of Auxiliary Equipment or other items on the Vessel will not obstruct or disturb the ADE. If Customer is uncertain of the installation conditions, it shall contact Precision Infocomm for information before mounting any equipment or items. Customer acknowledges and agrees that Commissioning constitutes a procedure specific to the Vessel on which the Equipment is installed, and that any relocation of the Equipment will require separate Commissioning and prior approval by Precision Infocomm. All costs for such relocation shall be borne by Customer.
Customer agrees to abide by all of the current regulations in effect in countries where the Equipment may be used, including licensing requirements. Customers are advised to contact the embassy or trade office of the destination country prior to entry into that country.
Intellectual Property Customers must respect the Intellectual Property rights of Precision Infocomm, its vendors, third-party providers, and any other owner of Intellectual Property whose protected property may appear through the use of the Network, Equipment, or any other software or service provided in connection an agreement with Precision Infocomm. Except for material in the public domain, all material displayed in association with the Network or Equipment is copyrighted or trademarked and may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner. The Precision Solutions comprises Precision Infocomm’s and third party’s software. Customer acknowledges that it shall retain no ownership over the software or its source code. Moreover, part of the software is published under an open-source crew calling publicly available and Customer acknowledges that no warranty is provided for this software.
Business ethics Both Parties shall uphold the highest standard of business ethics in the performance of a Contract. The Parties therefore commit to the ‘Precision Infocomm Group Code of Conduct’, to be found on www.Precision Infocomm.com and which terms are fully incorporated herein. At request, Precision Infocomm shall send a copy of the Code of Conduct to Customer.
Safety and travel restrictions Precision Infocomm may at its discretion deny a request for specific Onboard Services under a Contract if the provision thereof would cause unreasonable burdens or risks to Precision Infocomm or its employees. Such reasons include but are not limited to complex or lengthy processes on visa requirements for the Precision Infocomm technicians, travel to locations for which a restricted travel advise has been issued by a Ministry of Foreign Affairs or any other relevant governmental authority, or which in Precision Infocomm’s opinion entails an unacceptable risk to the health and/or safety of the Precision Infocomm technicians.
A REPEAT OR REPEATED INDIRECT OR ATTEMPTED VIOLATIONS OF THE USE POLICIES, AND A REPEAT OR REPEATED ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON BEHALF OF CUSTOMER OR CUSTOMER’S END-USER, SHALL BE CONSIDERED VIOLATIONS OF THE USE POLICIES BY CUSTOMER OR END-USER IF CUSTOMER HAS RECEIVED PRIOR NOTICE FROM PRECISION INFOCOMM OF A PRIOR VIOLATION OF THE SAME OR SIMILAR NATURE.
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PRECISION General Terms and Conditions