1. AGREE TO PERFORM AND PAY
THE COMPANY agrees to perform services defined in the Attached Proposal, and CUSTOMER agrees to pay the fees for the services in the sums described in the Attached Proposal for the TERM of the Agreement.
2. TERM OF AGREEMENT
The TERM of this Agreement shall be effective for the TERM specified in the contract unless terminated earlier as provided herein. This Agreement shall automatically renew itself for additional terms equal to the length of the original TERM, unless either party gives the other written notice of its desire not to renew CUSTOMER is responsible for full and total payment of TERM regardless of early termination of services.
3. ENTIRE AGREEMENT
The Terms and Conditions contained in this Agreement supersede all prior oral or written understandings between the parties and constitute the entire agreement between them concerning the subject matter of this Agreement and shall not be contradicted, explained or supplemented by any course of dealing between THE COMPANY or any of its affiliates and CUSTOMER or any of its affiliates. There are no understandings or representations, express or implied, not expressly set forth in this Agreement. This Agreement shall not be modified or amended except in writing signed by the parties.
4. PROVIDED INFORMATION
All materials delivered to THE COMPANY by CUSTOMER (“CUSTOMER’s Material”) shall remain the property of CUSTOMER, and THE COMPANY shall not have the right to use the CUSTOMER’s Material except in performing the Development Services for CUSTOMER. The CUSTOMER warrants that all information and any other material provided to THE COMPANY is owned by the CUSTOMER. All Work Product except for the CUSTOMER’s Material shall be the sole property of THE COMPANY, and THE COMPANY reserves all rights in the Work Product, subject to the above license.
5. COMPLIANCE WITH THE LAW
CUSTOMER agrees to comply with all international, federal, state and local laws (“governing law”). In addition, CUSTOMER agrees to comply with governing law as it relates to content and the practice of content distribution thereof. THE COMPANY reserves the right to remove objectionable content on CUSTOMER’s Work Product or any account on THE COMPANY’s servers, routers and any other equipment at THE COMPANY’s sole discretion. CUSTOMER shall not use or permit CUSTOMER end users to use provided services in ways that violate laws, infringe the rights of others or interfere with users of THE COMPANY’s network or other networks. For example, CUSTOMER shall not propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; distribute child pornography, obscenity or defamatory material over the Internet; or infringe copyrights, trademarks or other intellectual property rights.
6. REPRESENTATIONS AND WARRANTIES
THE COMPANY warrants that it is authorized to enter into this Agreement and grant the rights as set forth herein. CUSTOMER represents that it has the authority to enter into this Agreement and is not by law or agreement with others prohibited from entering into this Agreement. OTHERWISE, CUSTOMER AND THE COMPANY DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AGAINST INFRINGEMENT AND OF FITNESS FOR A PARTICULAR PURPOSE. THE CUSTOMER is responsible for the payment of all usage based surcharges that are applied to its account.
Any request or other communication shall be deemed sufficiently given to the addressee and any delivery hereunder deemed made when sent by certified mail addressed to CUSTOMER at its office specified in this Agreement or to THE COMPANY at the appropriate address specified in this Agreement. Each party to this Agreement may change an address by relaying it through written notice to the other party. All notices under this Agreement shall be in writing and shall be given in person, by certified or registered mail or by overnight courier, addressed to CUSTOMER at the address set forth in this Agreement or to such other address as either party may designate by notice pursuant hereto.
No course of dealing, course of performance, or failure of either party strictly to enforce any term, right, or condition of this Agreement shall be construed as a waiver of any term, right, or condition.
This Agreement shall be governed by the laws of England and Wales and the court of England and Wales shall have sole jurisdiction over any conflict and/or dispute arising out of, or in connection to this Agreement.
All headings contained in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement or any clause.
ADDITIONAL TERMS AND CONDITIONS
The Company Viewsat Ltd. (“The Company”) agrees to furnish services to the Customer subject to the following TOS (Terms of Service).
Use of The Company Services constitutes acceptance and agreement to The Company’s AUP (Acceptable Use Policy) as well as The Company’s TOS (Terms of Service).
All provisions of this contract are subject to the Company’s TOS (Terms of Service) and AUP (Acceptable Use Policy). The AUP may be changed from time to time at the discretion of the Company. The Customer understands that change to the AUP by the Company shall not be grounds for early contract termination or non-payment.
The Company provides 24 x 7 technical monitoring as referred to in the Company’s Terms and Conditions.
Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access. Taking any action in order to obtain services to which such User is not entitled
Notification of Violation:
The Company is under no duty to look at each customer’s or user’s activities to determine if a violation of the AUP has occurred. Nor do we assume any responsibility through our AUP to monitor or police Internet-related activities. The Company reserves the right to amend its policies at any time. All customers of The Company must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate Cancellation. You will be held responsible for your actions in the matter described on these Terms and conditions.
The Company wishes to emphasize that in agreeing to The Company Acceptable Use Policy (AUP) and Terms of Service (TOS), customer indemnifies The Company for any violation of the Acceptable Use Policy (AUP) and Terms of Service (TOS) that results in loss to The Company or the bringing of any claim against The Company by any third-party. This means that if The Company is sued because of a customer’s or a customer of a customer’s activity, the customer will pay any damages awarded against The Company, plus all costs and attorney’s fees.
You must provide us with, and keep current, good contact information for you. E-mail, telephone, and fax contacts are used, in that order of preference. A waiver by the Company of any breach of any provision of this Agreement by Subscriber shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof. The Customer shall not transfer or assign this Agreement without the prior written consent of the Company. Company may assign Agreement at anytime without consent from or notice to Customer. Company reserves right to cancel customers rights under this contract at anytime without further obligation. The Company takes no responsibility for any material input by others. The Company disclaims any responsibility for any inappropriate use and any liability to any person or party for any other person or party’s violation of this policy. The Company is not responsible for any damages your business may suffer. The Company does not make implied or written warranties for any of our services. The Company denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by The Company.
Denial of Service
We reserve the right to refuse service to anyone at any time for any reason.
1.DESCRIPTION OF SERVICE
The Company, either directly or through its affiliates, or through underlying service providers, agrees to provide to Customer the services described in Annex 1 (“Service Description”).
This Agreement shall enter into effect on the Effective Date. The Services shall commence on the Service Start Date (SSD) set forth in Annex 2 or such other date agreed by the parties and end on the Service End Date (SED). The Service Fee set out in Annex 2 shall be payable from the SSD and will be due for the entire term of this Agreement. This Agreement shall continue in effect for a term from the SSD to the SED. Thereafter this Agreement shall automatically be renewed for the same term, unless either Party informs the other Party at least sixty (60) days prior to the expiration of the Initial Term that it does not wish to renew this Agreement. Account Cancellation: Notices of cancellation must be received in writing no less than 30 days prior to cancellation date and are subject to the terms of the Contract/Agreement.
3. PROVISION OF THE SERVICES
3.1. The Customer shall be responsible at its own cost to bring its signal to the Company, as defined in Annex 1.
3.2. Customer represents and warrants that it is a corporation duly registered and has full authority to enter into this agreement. In case the Services include uplink to a satellite of unencrypted signals Customer represents and warrants that it holds a broadcast license issued by a competent governmental authority authorizing Customer to obtain the Services hereunder. Customer shall not use the Services in any manner or for any purpose, which constitutes a violation of the laws of any jurisdiction in which the Services are being provided. Customer is solely responsible to obtain all licenses and permits required in order to provide the Services in any applicable jurisdiction. 3.3. Customer accepts that the Company is free to determine, at its sole discretion, the method by which it will provide the Services. Without prejudice to the generality of the foregoing, Customer accepts that in connection with the performance of the Services, the Company has the right to amend any technical configuration at any time. In addition, it is agreed that the Services may be relocated to an alternative satellite, in the event that the satellites organization replaces the satellite utilized in connection with the provision of the Services with the alternative satellite.
3.4 The Company reserves the right to temporarily suspend the Customer’s access to the Company’s network, without incurring any liability, in order to prevent or to stop, damage or degradation of the network’s integrity, including, but not limited to, spamming, hacking, preclusion of service to a third party caused by the Customer or anyone accessing the Company’s network via the Customer. During any of said interruptions, the Customer shall be liable for the payment of all charges hereunder, it being specified for the avoidance of doubt that these interruptions shall be deemed to be attributable to the Customer.
3.5 Where applicable the Customer accepts that the Company has the option and discretion to delegate a third-party internet web streaming application partner/provider to enable provision of internet web streaming applications as and when deemed necessary to distribute the Customer’s channel content on such applications.
3.6 The Customer agrees and acknowledges that the Company has the right and permissions to transmit the audio and the video without any changes to the channel content. The Company and its technical partners/providers shall also have the right and permissions to publish the Customer’s channel content across its multiple platforms and included it in any of the Company’s applications.
4. PRICING AND BILLING
4.1. In consideration of the provision of Service by the Company hereunder, Customer shall pay the Company the Monthly Fee as set forth in Annex 2.
4.2. In order to ensure the payment of the Monthly Fee, Customer shall, upon execution of this Agreement, pay to the Company a deposit in the amount set forth in Annex 2 (“Deposit”). Subject to Customer’s compliance with its payment obligations hereunder, the Deposit shall be credited against Customer’s payments owed at the end of the term of this Agreement.
4.3. On a monthly basis, the Company shall submit an invoice to Customer for the Monthly Fee. Unless otherwise stated in Annex 2, the Company shall submit the monthly invoice to Customer during each calendar month preceding the month during which the Services are to be provided, and Customer shall pay the invoiced amount no later than the 10 days prior to the month in which the Services are to be provided.
4.4. In no event shall the Company be liable for any amounts which Customer is unable to collect for usage on its network from its customers, end users or others, and such inability shall not affect the Monthly Fee.
4.5. All pricing and charges are exclusive of all applicable taxes, including value-added tax, sales taxes, and duties or levies imposed by any authority, government or government agency, all of which shall be paid by Customer.
4.6. All pricing and charges are exclusive of all applicable bank charges, any such bank charges incurred for payments made by the Customer will be borne by the Customer for electronic transfer of funds for service fees.
4.7 All amounts due hereunder to the Company by Customer that are not paid when due shall accrue interest at a rate of ten percent (10%) per month, compounded on a monthly basis until paid in full.
4.8 The Customer shall be liable to the Company for charges incurred in recovering any unpaid invoices for services provided under this Agreement. The charges will include but not limited to attorney/lawyers’ fees and charges, tracing fees, court fees and any other costs incurred as disbursements.
4.9 In the event of any debt recovery action against the Customer for unpaid service fees or invoices payable to the Company, the Customer and signatory shall in addition to the debt and interest be liable to pay the Company any commission payable to a Debt Collector for recovery of the debt.
4.10 Where the Customer is an unregistered organization or entity the Customer and the signatory of this Agreement shall be both jointly and severally be liable to the Company under this Agreement and its terms and conditions therein.
4.11 The CUSTOMER shall pay to THE COMPANY any reasonable out-of-pocket expenses it incurs in connection with its performance of this Agreement. All sums described herein and due to THE COMPANY hereunder shall be paid in U.S. dollars. Taxes, surcharges, and/or shipping, and other applicable governmental charges are additional costs that will be charged to CUSTOMER in addition to charges stated in the Attached Proposal.
4.12 The CUSTOMER is responsible for the payment of all usage based surcharges that are applied to its account.
5.1. The Company shall be entitled to interrupt the Services and/or terminate this Agreement, at the Company’s discretion, without liability to Customer, immediately upon notifying Customer, in the following events:
5.1.1 If Customer is in breach of any of its obligations and warranties contained in this Agreement, including, without limitation, Customer’s payment obligations. Prior to any such interruption and/or termination, the Company will notify Customer and will provide Customer with seven (7) days to take corrective action.
5.1.2 If Customer becomes insolvent or ceases paying its debts generally as they mature and/or if bankruptcy proceedings, or similar proceedings under bankruptcy laws, are initiated by or against Customer and/or a receiver or trustee is appointed over the business and/or property of Customer.
5.2. Sections 4.6, 5.2, 6, 8, 11, 12 and 13.3 shall survive the termination of this Agreement for any reason whatsoever.
5.3 Should the service be terminated the Customer has a period of 30 days to arrange collection of any Customer owned hardware/software assets and content that were in the possession of the Company for the duration of the provided service. After the 30days period the Company will dispose of all Customers owned assets/content without any liability to the Customer unless otherwise specifically agreed with the Company.
5.4 If the service is terminated for any reason the Customer shall ensure all outstanding/due payment are settled in full prior to any retrieval of Customer owned assets or content.
5.5 The Company shall be entitled to recover from the Customer all promotional discounts or free of charge services offered to the Customer under this Agreement where this Agreement is terminated either by the Company or the Customer for any reason based on a pro rata billing rate
5.6 Suspension of Service or Cancellation: The Company Systems reserves the right to suspend network access to any customer if in the judgment of the Company Systems network administrators the customer’s server is the source or target of the violation of any of the other terms of the AUP or for any other reason which The Company Systems chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The customer will not be credited for the time the customer’s machines were suspended.
6. LIMITATION OF LIABILITY
6.1. Customer acknowledges that the Company has no control over how a foreign administration or third party carrier establishes its own rules and conditions pertaining to international telecommunications services. Accordingly, Customer agrees that the Company shall not be liable for any loss or damages sustained by Customer, its interconnecting carriers or its end users due to any failure in or breakdown of the communication facilities associated with providing the Services, for any interruption or degradation of the Services, whatsoever shall be the cause or duration thereof, or for any other cause or claim whatsoever arising under this Agreement.
6.2. In no event, shall the Company be liable to Customer for consequential, special or indirect losses or damages, howsoever arising, whether under contract, tort or otherwise, including, without limitation, third party claims, loss of profits, loss of customers, or damage to reputation or goodwill, even if the Company is advised of the possibility of such damages.
6.3. The Company shall not be liable to Customer for any damage caused to Customer and/or its end-users as a result of hacking of the encryption system used for encrypting Customer’s channel.
6.4. The Company shall have the right to terminate this Agreement without liability to Customer on account of such termination, at any time, in the event that the Company received a request to terminate the Services from the service provider, carrier, copyright holder and/or any regulatory or governmental authority, or in the event that the Company’s lease of the capacity expires or is terminated for any reason.
6.5 The Company hereby indemnifies the Customer for any advance payments and deposits paid by the Customer should the Allotment Agreement for the transponder with the satellite owner be terminated for any reason.
6.6. In the case of transmission failure only, where all or part of any transmission fails, and provided that Customer promptly notified the Company in writing of such failure, the Company shall credit the customer future invoices per the service corresponding to the number of hours for which it was inactive in excess of the aforesaid percent . Customer shall not have the right to set-off any credit owed to Customer against the Monthly Fee due by Customer hereunder without the Company’s prior written consent.
6.7. In any event, and without derogating from the foregoing, the Company’s liability will be limited to the pro rata portion of the monthly fee for the period of interruption or failure and the Company’s maximum aggregate liability arising out of or in connection with this Agreement shall not exceed one (1) Monthly Fee.
7. PROGRAM CONTENT RESPONSIBILITY
7.1. The Parties agree that the full responsibility for all program content supplied by the Customer to the Company for transmission under this Agreement (“Content”) rests with the Customer. Customer represents that it holds the rights in and/or is licensed to use and distribute the Content, as provided under this Agreement.
7.2. The Company may have access to the Content to verify the successful transmission of the signal and the Company must use its best endeavors to ensure that its access to the Content under this clause does not interfere with access to the Content by customers of the Customer.
7.3. Customer guarantees to the Company that its Content will not breach or infringe upon:
(i) any act or regulation of international law or any regulation of any competent governing and regulatory authority in any jurisdiction to which Content is transmitted to, including, without limitation, such laws pertaining to copyright and/or other intellectual property rights, slander, defamation or obscenity;
(ii) any guideline for television or video program content or distribution issued by any competent authority in any jurisdiction in which the Content is transmitted to; or (iii) rules relating to content issued by the streaming service provider or carrier. Should any of the above infringements take place the Company has the right to suspend the transmission until the issue is resolved.
7.4. If the carrier that provides the Company with access to its servers or other telecommunications infrastructure for the purpose of this Agreement, requests the Company to suspend or terminate the Service for any reason relating to the Content, Customer agrees that the Company will comply immediately with that request and that the Company will have no liability of any kind whatsoever to Customer in connection with the foregoing.
Customer will indemnify the Company, including its shareholders, directors, officers and employees, and keep it harmless from and against any Proceedings brought against the Company, its shareholders, directors, officers and/or employees by any government authority or any third party, which arises from the Content and/or Customer’s breach of this Agreement and/or Customer’s negligence or willful misconduct. In this Agreement, the term “Proceedings” includes all actions, prosecutions, demands and/or claims for damages or imposition of a fine or other penalty against the Company.
This Agreement is personal to the Parties hereto and may not be assigned or transferred by either Party without the prior written consent of the other Party, except that the Company may at any time assign this Agreement without the consent of the Customer to any affiliated entity of the Company or in connection with the acquisition of the Company or its business and/or a merger of the Company with the assignee.
10. FORCE MAJEURE
No failure or omission by the Company to carry out or observe any of the terms and conditions of this Agreement shall give rise to any claim against the Company or be deemed a breach of this Agreement if such failure or omission arises from any cause beyond the control of the Company, including without limitation natural catastrophes such as fire, flood or earthquakes; meteorological or astronomical disturbances; acts of government; acts of war or terrorism; general strikes, lockouts or work stoppages; or any acts of God.
11.1. The Parties shall maintain the confidentiality of all information or data of any nature provided by one Party to the other, and shall not disclose it to any third party, except to their employees who have a need to know for the purpose of performing their obligations under this Agreement. The above obligation shall not apply to information which:
(i) at the time of disclosure was generally available to the public, or becomes thereafter generally available to the public through no fault of the receiving party;
(ii) was prior to its disclosure in the possession of the receiving party, as evidenced in its written records;
(iii) is received from a third party who is not under confidentiality obligations towards the disclosing party, as evidenced by written records; or
(iv) either Party is obligated to disclose pursuant to a court order and/or requirement of any administrative agency or governmental body, provided that the receiving party shall notify the disclosing party in writing prior to making such disclosure.
11.2. Neither Party shall make any press release or any other public announcement regarding this Agreement without first obtaining the other Party’s written consent. Notwithstanding the foregoing the Company may use the Customer name and/or trademark in its customers list.
12.1. Any notices required to be given under this Agreement shall be in writing, addressed to the Company as follows:
Viewsat Limited Building CH1, Normandy Business Park, Cobbett Hill Road, Normandy, Surrey GU3 2AA United Kingdom
Tel: +44(0)1483 231 946 Fax: +44 (0)1483 431 911
FAULT REPORTING PROCEDURES TO MASTER CONTROL ROOM (MCR)
Customer will promptly report any fault to the Company’s MCR either by email or phone on the following numbers (available 24 hours a day / 7 days per week):
Telephone: +44 1483 231 940;
Please Note: if MCR has identified a fault with the Services it will log the fault and also issue a reference number.
The parties agree that the time recorded in the Fault Reporting Log following a fault report from either the Company or customer is used for timing any Unavailability of the Service.
12.2. All notices shall be delivered by hand, registered post, overnight courier or sent by facsimile or email. Unless proved to be the contrary by the recipient, all notices shall be deemed to have been received when delivered (if
delivered by hand or overnight courier) or on the date on which they would be received in the normal course of posting (if posted) or when the proper answer back code or confirmation is received by the sender (if sent by facsimile or email).
13.1. This Agreement constitutes the entire agreement with respect to the subject matter hereof, and supersedes and replaces any prior or contemporaneous oral or written agreements, understandings or warranties of the Parties.
13.2. The Company is an independent contractor. Nothing herein shall be construed to create an employer-employee relationship, partnership and/or joint venture between the Parties.
13.3. This Agreement shall be governed by the laws of England and Wales and the courts of England and Wales, shall have sole jurisdiction over any conflict and/or dispute arising out of, or in connection to, this Agreement.
13.4 In the event that the Customer defaults in payment as agreed by the parties under this Agreement, in addition to Company exercising the powers under this Agreement to file and recover under the Laws of England and Wales, it is herein agreed by the Parties that the Company shall also have the option if it so desires by itself, its Agents or its Lawful Attorneys in the Customers jurisdiction to institute an action for the recovery of all outstanding debts from the Customer in the Courts in the Customers jurisdiction provided always that nothing herein contained shall empower the Customer to institute any action whatsoever against the Company in that jurisdiction.