Marlink (US EEG) Terms & Conditions (Communications)
Effective Date: February 21, 2024
The following terms and conditions (“Terms & Conditions”) apply to any party (“Company”) obtaining Services provided by or Equipment sold or rented by MARLINK or any Affiliate of MARLINK ("MARLINK," “we,” “us” or “ours”) (either individually, a “Party,” collectively, the “Parties”). These Terms & Conditions expressly incorporate by this reference MARLINK’s Acceptable Use Policy (https://marlink.com/itc/acceptable-use-policy/) and MARLINK’s Definitions (Communications) (https://marlink.com/itc/definitions-communications/), both of which MARLINK may update from time to time upon notice to Company.
Administration
1. Purpose & Scope
A. Acceptance of Terms & Conditions: Company’s execution of a Control Agreement (Communications) or Service Order with MARLINK constitutes Company’s acceptance of these Terms & Conditions, which, taken together with MARLINK’s Acceptable Use Policy, the applicable Control Agreement executed by the Parties, Service Orders placed thereunder or independently, and any attachments thereto will govern the provision of Network Services to Company and will constitute a binding agreement in accordance with all such terms (the “Agreement”).
B. Applicability: These Terms & Conditions apply to all Service Orders unless otherwise agreed in writing signed by authorized representatives of both Parties. Service Orders are subject to MARLINK’s acceptance, which we may withhold for any or no reason. Any Service Order prepared by Company will be treated as an administrative document only and, notwithstanding anything therein to the contrary, will not add to, delete from, or change any Agreement, even if such new terms expressly supersede the Agreement and MARLINK executes or otherwise agrees to such Service Order or begins performance thereof.
2. Compliance
A. Importation & Exportation of Equipment: Company will, but MARLINK may elect to, manage the logistics of importation or exportation of Equipment to and from remote sites or local jurisdictions. In either case, Company shall pay all costs associated with such importation and exportation, including but not limited to licenses, taxes, tariffs, or duties. In the event that Company obtains licenses or pays required local taxes, tariffs, or duties, Company will provide documentation and verification thereof upon MARLINK’s request. In the event MARLINK obtains licenses, or pays taxes, tariffs, or duties on behalf of Company, Company will promptly upon notice thereof reimburse MARLINK for said expenses.
B. Export Controls & Sanctioned Countries: Company acknowledges and agrees to comply with all U.S. export control laws and any other applicable export/import control laws. Without limiting the foregoing, in no instance may Services be used in or Equipment imported into the following countries without the express written consent of MARLINK, which will only be provided upon a showing to MARLINK’s discretionary satisfaction that the proposed use or importation is licensed or otherwise authorized by the applicable U.S. government authority: Cuba, Iran, Syria, Sudan, and North Korea.
C. Health, Safety & Environment Compliance: Where required by law or regulations, Company policy, or at the request of MARLINK, Company will install, maintain, and pay reasonable expenses we incur to provide special facilities and protective apparatus for situations including, without limitation, high voltage power, hazardous materials, heights, industrial operations, offshore or cold water environments, etc.
D. Privacy: Company warrants that Company will obtain, whenever required under applicable law, legally binding, effective, and transferable consent sufficient for collection and processing of Personal Data by MARLINK in conjunction with the Network Services provided hereunder and subject to all other terms governing the handling of Personal Data as set forth in the Agreement. Company and MARLINK agree that (a) Company will transfer the consent to MARLINK, as necessary, (b) consent obtained in accordance with this provision shall not exceed the scope and duration necessary to complete the performance under the Agreement, and (c) while performing the Agreement, MARLINK will not exceed the limitations of the consent.
E. Legal & Anti-Corruption Compliance: Both MARLINK and Company will fully abide by all applicable laws, rules, and regulations, including, without limitation, all applicable anti-bribery, anti-corruption, and anti-boycott laws including, without limitation, United States Foreign Corrupt Practices Act, UK Bribery Act, and the Organization for Economic Co-operation and Development’s Anti-Bribery Convention and Anti-Boycott Regulations. If Company receives Service on a Vessel, Company shall comply with all applicable laws of that Vessel’s flag state, but the laws of such flag state will not apply to any disputes arising out of or related to the Agreement. MARLINK will not pay any commissions or fees nor grant any rebates to any of Company’s employees or officers, nor favor any of Company’s employees or officers with gifts or entertainment of other than nominal value, nor enter into business arrangements with any of Company’s employees or officers, other than as Company’s representative, without Company’s prior written approval.
F. Violations: If MARLINK reasonably believes that Company has violated any term in this “Compliance” section, including, without limitation, investigation of Company by any law enforcement or regulatory agency, MARLINK may upon immediately suspend Service or terminate the Agreement or any portion thereof without liability, provided that MARLINK shall notify Company in writing before such suspension or termination if practical to do so and permitted by applicable law. In the event of such suspension, Company shall continue to pay all amounts due under the Agreement. In the event of such termination, Company shall immediately pay MARLINK the Termination Fee.
3. Payment
A. Credit Authorization: MARLINK may require Company to complete a credit authorization form, including audited financial statements, or to provide a third-party guarantee, deposit, letter of credit, or other credit facility we deem, in our discretion, necessary to provide adequate assurance of payment (“Payment Guarantee”). If MARLINK requires any Payment Guarantee, Company may provide it in any form acceptable to MARLINK, which will not unreasonably withhold such acceptance. The provision of such third party guarantee, deposit, letter of credit, or other credit facility does not relieve Company of its payment obligations specified herein.
B. Billing Commencement/Price Indexation: Billing for Services (or any part thereof) will commence upon the Acceptance Date for each network site. All charges will be in accordance with the applicable Service Order for the applicable Network Services. Upon expiration of the applicable term of the Network Services, MARLINK reserves the right to revise such charges upon notice to Company. Marlink Inc may increase prices for Network Services if Marlink Inc’s suppliers increase charges to MARLINK due to any Company-requested changes to the Network Services (e.g., changing the location where Services are used). On a yearly basis, for prices applicable as from 1st of January, MARLINK is entitled to apply indexation to all prices upon thirty (30) days’ prior written notice to Company, following the ‘Producer prices in industry (domestic market, monthly data)’, line item ‘European Union, 27 countries (from 2020)’, as published by ‘Eurostat’ (findable through https://ec.europa.eu/eurostat/databrowser/view/STS_INPPD_M/default/table?lang=en, exact link location may be subject to change), for all Network Services (including Equipment) activated and still to be activated on Vessels and/or sites.
C. Equipment Billing: Unless otherwise agreed in writing by the Parties, invoices for Equipment will be sent on or after the date of shipment and will include all applicable federal, state, provincial, local, VAT and other taxes that may be levied upon the Equipment. MARLINK will bill the Company an ‘order handling fee’ for MARLINK’s logistical services, which fee shall be due irrespective of the cause for the order or shipment. MARLINK will bill a ‘rush order’ fee (if applicable). MARLINK may require pre-payment from Company for the purchase of Equipment unless otherwise specified in an Order, pre-payment terms are as follows: i) MARLINK will invoice fifty percent (50%) of the Equipment purchase price in advance of shipment, ii) after payment has been received by MARLINK the Equipment will be shipped and at delivery MARLINK will invoice thirty percent (30%) to Company, iii) upon Service Activation, MARLINK will invoice the remaining twenty percent (20%) of the Equipment purchase price.
D. Network Services Billing: Unless otherwise agreed in writing by the Parties, MARLINK will invoice and Company will pay monthly in advance for the Network Services provided by MARLINK, including, without limitation, all applicable federal, state, provincial, local and other taxes, including value added tax and fees, including, if applicable, any fees established by any regulatory authority, which may be attributable to the sale or use of Network Services (regardless of whether or not an invoice for such fees is sent to Company by MARLINK). Notwithstanding any language in the Agreement to the contrary, MARLINK may require Company to place a deposit immediately upon execution of any Service Order in an amount to be determined.
E. Payment Terms: Company will pay all invoices within thirty (30) days of the date of invoice and in accordance with the payment instructions as stated on the invoice. Amounts not paid within thirty (30) days of invoice date will be subject to an interest charge of the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law. Company will pay for any and all collection or litigation expenses, including reasonable legal fees, incurred by MARLINK in collecting any late payments or late payment fees or charges.
F. Taxes: In the event that any tax, duty, import fee, custom fee, levy, penalty, etc., becomes payable in any territory either by deduction or for which MARLINK may be required to make a withholding payment, all such taxes, duties, fees, levies, penalties, etc., will be added to Company’s account and be payable to MARLINK in addition to amounts due for services rendered. MARLINK will provide reasonable assistance to Company to minimize the amount of such withholdings or deductions, including providing any relevant certification of its status as a non-resident or its entitlement to benefits under a treaty.
G. Payment Disputes: Company must pay all invoiced amounts when due. If Company disputes any portion of an amount due, Company must, within thirty (30) days of the invoice date containing such disputed amount, give notice to MARLINK of the Disputed Amount and include in such notice the specific details and reasons for disputing each item. For clarity, claims of unauthorized use, fraudulent use, or any other misuse will not constitute a valid basis for dispute of an invoice. If the Disputed Amount is resolved in favor of MARLINK, Company must pay the Disputed Amount with appropriate late charges, if applicable, upon final determination of such dispute. MARLINK will issue credits to Company upon resolution of any Disputed Amounts in favor of Company. An invoice is deemed to be accepted if no written notice of a dispute is provided before the date the payment is due.
4. End of Term & Termination
A. End-of-Term Notification: Unless a Party notifies the other at least thirty (30) days prior to the end of any Service Order Term, that Service Order will automatically renew for up to two successive one year terms (individually or collectively a “Service Order Term”). Upon a Service Order’s termination, Company shall promptly comply with MARLINK’s instructions regarding return of the Equipment.
B. Termination Fee: Unless otherwise stated in the applicable Service Order, the minimum term of Network Services is thirty-six months from the Acceptance Date. Notwithstanding the foregoing, Company may terminate early at any time upon thirty days prior written notice to MARLINK, provided that Company immediately pays MARLINK a Termination Fee, as liquidated damages and not as a penalty, equal to the balance of the applicable remaining Service Order Term (in months or pro-rated portions thereof) multiplied by the monthly recurring fees for the terminated Network Services.
C. Company Default or Breach: The occurrence of any one or more of the following events will constitute an event of default and breach of the Agreement if not remedied within ten days after written notice from MARLINK:
i. Use of the Network Services in any manner or for any purpose contrary to the provisions of these Terms & Conditions or MARLINK’s Acceptable Use Policy, which MARLINK may change at any time for any reason upon notice to Company;
ii. Failure to make any payments when due;
iii. Discovery by MARLINK that any representation or warranty Company has made in any document Company has furnished to MARLINK is incorrect;
iv. Company’s breach or violation of any of these Terms & Conditions; or
v. Commencement of any proceeding, whether voluntarily or involuntarily, relating to Company under any law relating to insolvency, bankruptcy, or the protection of creditors' rights generally; or
vi. Admit to any Person in writing its inability to pay its debts generally as they become due; or
vii. Make a general assignment for the benefit of creditors.
D. Suspension of Services for Breach: In the event of a Company breach of any of the provisions contained in section 4(C) of these Terms & Conditions, MARLINK may, at our sole option and without limiting any other rights and remedies we may have, suspend the Network Services without notice or liability. Company’s obligation to make payments hereunder will continue during any such periods of suspension. MARLINK may immediately suspend all or any portion of Network Services without notice for any violation of MARLINK’s Acceptable Use Policy by Company or any End User until Company rectifies such violation to MARLINK’s reasonable satisfaction.
E. Termination for Breach: In the event of Company’s default or breach, MARLINK may immediately terminate the Agreement, the applicable Network Services or Service Order, or any combination thereof. MARLINK will bill Company and Company will pay MARLINK all outstanding charges accrued up to and outstanding on the date of such termination. In addition, Company agrees to pay MARLINK immediately the Termination Fee. In all such cases, MARLINK will incur no liability whatsoever. Company will be liable for all costs and expenses incurred by MARLINK due to Company’s default, including, without limitation, attorney fees. The rights of termination, restriction or suspension set forth in this article are in addition to any other remedies available to MARLINK under these Terms & Conditions, at law, or in equity.
F. Termination for Legal or Regulatory Requirements: MARLINK may, without liability whatsoever, suspend or terminate Network Services to Company upon receipt of an order that MARLINK reasonably believes to be lawful to cease operation of such Network Services by the Federal Communications Commission, a state or federal court of law, or any other lawful foreign, federal, state, or local governmental authority. If at any time during the term of the Agreement any equipment, facilities, or property used by MARLINK to provide Network Services to Company 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, MARLINK will have the right, upon written notice to Company, to terminate the Network Services affected. In any of these events, MARLINK will bill Company and Company will promptly pay MARLINK for all outstanding charges accrued up to and outstanding on the date of such termination.
5. Confidentiality
A. The Parties may exchange their respective Confidential Information to facilitate performance of the Agreement. Receiving Party agrees (1) not to disclose the Confidential Information to anyone other than those of its employees (or those of MARLINK’s Affiliates) with a need to know the same, except as the Disclosing Party may otherwise agree in writing; (2) to use the same degree of care as it uses to protect its own confidential information (but in no case less than reasonable care) in protecting the Disclosing Party’s Confidential Information; (3) not to copy or reverse engineer any Confidential Information disclosed under the Agreement; (4) not to remove any ownership or confidentiality notice contained within the Confidential Information; (5) to promptly report to the Disclosing Party any actual or suspected breach of this Article; and (6) to take all reasonable steps requested by the Disclosing Party to prevent, control, or remedy any breach of the Agreement.
B. The obligations under the Agreement shall not extend to Confidential Information that the Receiving Party can demonstrate via written records:
i. was in the public domain at the time it was disclosed; or
ii. becomes part of the public domain at no fault of the Receiving Party including, without limitation to disclosure in a U.S. or foreign patent; or
iii. was known to the Receiving Party at the time of disclosure; or
iv. is independently developed by the Receiving Party’s employees who had no access to the Confidential Information; or
v. is received from a third party not having confidentiality obligations to the Disclosing Party; or
vi. is disclosed by the Receiving Party pursuant to a judicial order, a requirement of a governmental agency, or by operation of law, provided that the Receiving Party gives the Disclosing Party timely notice of such order or requirement; or
vii. is approved for release upon the Disclosing Party’s prior written consent.
C. Receiving Party’s confidentiality obligations under the Agreement shall survive for a period of sixty (60) months following termination of the applicable Control Agreement or final Service Order issued thereunder, whichever occurs later.
D. Confidential Information is provided “AS IS.”
E. The Parties understand that by disclosing the Confidential Information to the Receiving Party, the Disclosing Party does not grant any express, implied, nor other licensing right to use the Confidential Information except as necessary to perform Receiving Party’s duties under the Agreement.
F. The Receiving Party shall comply with all laws, rules, and regulations applicable to the export of the Confidential Information. Furthermore, the Receiving Party shall not export nor re-export such Confidential Information without any applicable approval or license required under such laws, rules, and regulations.
G. Upon the written request of the Disclosing Party, the Receiving Party shall return or destroy all Confidential Information, including all notes and analyses created from information contained in the Confidential Information. Furthermore, the Receiving Party shall provide the Disclosing Party with a written statement certifying that the Confidential Information has been returned or destroyed. Notwithstanding the above, the Receiving Party may retain one (1) copy of the Disclosing Party’s Confidential Information in a secure location within the Receiving Party’s legal department solely for evidentiary purposes. Such copy shall remain expressly subject to the provisions of the Agreement.
H. Non-Solicitation: Company agrees that during the term of service and for a period of twelve (12) months following the termination of Network Services, Company will not solicit or hire any MARLINK employees or those of any MARLINK Affiliate without prior written permission from a member of senior management (i.e., Sr. Vice President or above) of MARLINK.
I. Survival: For avoidance of doubt, the confidentiality and non-solicitation terms and conditions shall survive the expiration or termination of the Agreement.
J. . Publicity: The Company acknowledges that MARLINK may release general publicity or other information relating to the Agreement and the Services provided to the Company into the public domain, such as press releases (excluding, for the avoidance of doubt, Confidential Information) given the prior written approval of the Company. Prior to such release, MARLINK will consult and mutually agree with the Company on the content and timing of such release, including but not limited to news/press releases, written or video testimonials, articles, brochures, advertisements or references in prepared speeches or presentations. The aforementioned prior consent does not apply in case of references made by MARLINK in proposals, tenders or other sales activities towards other or potential customers outside the public domain.
6. Miscellaneous
A. Movement/Additions/Changes: Company agrees to use MARLINK required processes and systems for the notification and execution of any movement of Equipment, additions, or changes to the location of Equipment or Services or specifications of any site location. Company agrees to provide MARLINK with a minimum of thirty days written notice prior to any intended move of a site location or modification of the specifications of any site location. Such moves, additions, and changes may be executed in a shorter time-frame with MARLINK’s consent and subject to payment of applicable Expedite Fees. Such moves, additions, and changes may subject a Company site to additional fees or different pricing for Network Services based on the new location or specifications.
B. MARLINK as Agent of Company: Company may, subject to MARLINK’s consent, appoint MARLINK as its agent for purposes of procuring Facilities to terminate Company’s calls to Company’s designated location. Company will be responsible for payment for all such Facilities. Company will be liable and responsible for all actions and obligations incurred on Company’s behalf by MARLINK in its capacity as Company’s agent pursuant to this Article, and shall accept and pay us for all flow-through costs associated with such Facilities (or the termination of such services), including, without limitation, all installation fees, monthly recurring fees, cancellation or termination fees, plus any applicable taxes.
C. No Right of Resale: Unless the Parties have executed an agreement expressly authorizing Company to resell Network Services, Company agrees that the Network Services provided by MARLINK are for the exclusive use of Company and its End Users and may not be resold or otherwise re-distributed to other third parties without the express written permission of MARLINK. Such permission may be granted, at MARLINK’s sole discretion, and may be subject to additional fees, Company obligations, or exceptions.
Network Services
7. Licensing
A. Licensing: MARLINK may elect to obtain any licenses, permits, or authorizations, and associated expenses, as may be required to operate satellite based communications services in a specific country or jurisdiction where Company intends to utilize MARLINK Services. Absent any such election in writing by an authorized representative of MARLINK, Company shall manage all such logistics. In the event that Company obtains such licenses and permits, Company will provide MARLINK with verification and documentation of such licenses and permits upon request. In the event that MARLINK obtains licenses, permits and other authorizations on Company’s behalf, Company will promptly reimburse MARLINK for all related expenses. Company is ultimately responsible for compliance with all local licensing laws and regulations in any jurisdiction in which Company uses Network Services. If Company obtains any such licenses, authorizations, or permits, Company shall defend, indemnify, and hold MARLINK harmless from and against all claims, liabilities, and fines, including, without limitation, all costs and expenses (including, without limitation, attorney fees) incident thereto or incident to establishing the right to indemnification, arising out of or relating to licenses, permits, and approvals necessary or advisable for resale and use of the Network Services.
B. Local Jurisdiction: MARLINK will not be held responsible for any operational restrictions, customs, or license or permit fees required for operation of the Network Services in the destination country. In addition, MARLINK will have no responsibility for fines associated with terminal seizure for legal ramifications of using Network Services in countries where it is prohibited. Company is advised to contact the embassy or trade office of the destination country prior to entry into that country.
C. Business Licenses & Permits: Each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under the Agreement.
8. Equipment
A. Transfer of Title
i. Purchased: Title to any Equipment purchased by Company will transfer from MARLINK to Company upon our receipt of the full purchase price and any applicable taxes, fees, and freight charges for such Equipment. Until we receive such payment, (i) title to such Equipment will remain with MARLINK, (ii) Company hereby grants to MARLINK a purchase money security interest in such Equipment, and (iii) Company agrees to keep such Equipment free from any liens, claims, or encumbrances.
ii. Rented: MARLINK will retain title to all Equipment that Company rents from MARLINK. Company must ensure that all Equipment is clearly labeled as property of MARLINK at all times except for Equipment Company has purchased and paid for in full. To avoid doubt, under no circumstance or operation of law or equity will any Equipment not purchased and fully paid for by Company be considered property of any entity other than MARLINK. Company shall defend, indemnify, and hold MARLINK harmless from and against all claims, liabilities, and fines, including, without limitation, all costs and expenses (including, without limitation, attorney fees), arising out of or relating to the validity of MARLINK’s title to any Equipment not purchased and paid for in full by Company or incident to establishing such right to indemnification.
B. Risk of Loss
i. Purchased: Risk of loss for Equipment purchased or to be purchased by Company will transfer upon delivery to Company or Company’s shipping agent, whichever occurs first. Unless otherwise agreed in writing, all Equipment will be provided to Company “Ex Works” at an MARLINK facility or premises. If requested and agreed to in writing, we will ship all Equipment from MARLINK’s premises to Company-designated location(s), and all shipping costs will be the sole responsibility of Company. In no event will MARLINK have any liability in connection with any shipment, nor will the carrier be deemed to be an agent of MARLINK. Unless otherwise agreed in writing prior to shipping, Company shall accept partial shipments.
ii. Rented: When Company rents Equipment from MARLINK, risk of loss thereof will transfer upon delivery to Company or Company’s shipping agent, whichever occurs first. Company must keep the Equipment free and clear from all liens, security interests, and encumbrances and may not transfer the Agreement or the Equipment in whole or in part to any other party.
C. Returned Equipment
i. Process: Any Equipment returned by Company must have an MARLINK-issued returned merchandise authorization (“RMA”) number prominently displayed on the packaging and must be returned to the MARLINK facility as directed by MARLINK. An RMA number may be obtained by contacting Company’s respective MARLINK pre-designated sales representative or account manager. Equipment returned without an RMA number will be returned to Company at Company’s expense.
ii. Purchased: There will be no refunds for used Equipment returned to MARLINK. If Company returns unused Equipment to MARLINK in its original package, in its original condition, and it arrives at the applicable MARLINK facility within thirty (30) days of original delivery to Company, MARLINK will refund to Company eighty five percent (85%) of the purchase price, the remaining fifteen percent (15%) of the purchase price representing a restocking fee as liquidated damages and not as a penalty. Company will bear all shipment and insurance costs related to any such return shipment. Company will bear all risk of loss for any such returned Equipment until received and accepted by MARLINK.
iii. Rented: Company shall return, at its sole expense (including, without limitation, all shipment and insurance costs), all rented Equipment to the location(s) designated by MARLINK at the end of the rental term in good condition, normal wear and tear excepted. MARLINK may charge Company and Company will pay MARLINK for the fair market value of the Equipment, in our reasonable determination, if Company fails to deliver the Equipment in such condition to the designated MARLINK facility within thirty (30) days of the end of the rental term. If Company breaches any of the foregoing provisions regarding rental Equipment, we, or our designated agents, may enter Company’s premises where the Equipment is reasonably believed to be located and remove such Equipment without notice. Company shall immediately pay all remaining amounts due for both Equipment and Services. Company will bear all shipment and insurance costs related to such return shipment. In any case, Company will be responsible for ensuring that all Equipment owned by MARLINK is returned to an MARLINK-designated location upon termination of the applicable Service Order.
D. Company Obligations: Company is responsible for the security, protection, and care of all Equipment rented by Company from MARLINK. Company must insure such Equipment against loss by fire, theft, and any other casualty covered by standard fire and extended coverage insurance for the full then-current replacement value. Company shall provide verification of any insurance required under the Agreement in a form reasonably acceptable to MARLINK upon request. Company shall permit MARLINK to clearly mark all MARLINK-owned Equipment with labels or other material as MARLINK deems appropriate to identify MARLINK’s ownership and title to its Equipment. Company will not remove, reconfigure, modify, sell, assign or otherwise transfer Equipment without MARLINK’s prior written consent except for Equipment Company has purchased and paid for in full.
Nonconforming Equipment:
Company shall inspect Equipment received under the Agreement within five business days of receipt (the "Inspection Period") of the Equipment and either accept or, if Company believes any Equipment to be Nonconforming Goods, Company may reject that portion of the Equipment. Company will be deemed to have accepted the Equipment unless it notifies MARLINK in writing of any Nonconforming Goods during the Inspection Period and furnishes written evidence or other documentation as reasonably required by MARLINK. If Company notifies MARLINK of any Nonconforming Goods within the Inspection Period, MARLINK shall determine, in its sole discretion, whether such Equipment are Nonconforming Goods. If MARLINK determines that such Equipment are Nonconforming Goods, it shall either, in its sole discretion, replace the Nonconforming Goods with conforming Equipment or refund the Price for the Nonconforming Goods, together with all shipping expenses incurred by Company in connection therewith. Company shall ship, at MARLINK’s expense, all Nonconforming Goods to MARLINK’s specified facility. If MARLINK exercises its option to replace Nonconforming Goods, MARLINK shall, after receiving Company's shipment of Nonconforming Goods, ship to Company, at MARLINK’s expense, the replaced Equipment to the applicable delivery point. Company acknowledges and agrees that the remedies set out in this section are Company’s exclusive remedy for the delivery of Nonconforming Goods.
9. Installation & Maintenance
A. Environment: Company will provide a proper and suitable environment (including adequate power and appropriate temperature control) for the Equipment, in accordance with MARLINK’s and the manufacturer’s specifications (and any failure to provide such proper and suitable environment will void any warranty on the Equipment, including the warranties set forth herein). To avoid doubt, providing such an environment includes, without limitation:
i. Providing the VSAT ADE mounting pedestal;
ii. Arranging for cranes to lift the ADE onto each Vessel (if installation is needed),;
iii. Providing and installing all interconnect cables on the Vessel;
iv. Providing UPS power in the equipment room in accordance with MARLINK operational requirements
v. Providing BDE rack space;
vi. Providing the onboard infrastructure including, without limitation, PBX, telephones, handsets, cables, and related equipment;
vii. Performing all boring, drilling, and filling (glanding) of openings;
viii. Providing an air conditioned area with power, lights, and secure work area for installation (to make sure technicians have a decent environment);
ix. Providing adequate environment and support for a two man technical crew to installations and testing;
x. Providing access badges and security and safety escorts for MARLINK personnel; and
xi. Providing all Vessel itineraries as far in advance as practicable, including revised itineraries.
B. Onsite Equipment Access: Company must provide the following to MARLINK, at Company’s expense: the proper environment (as MARLINK may specify), lightning protection, crane access (if necessary), electrical power, telecommunications connections, equipment space, supporting structures, lighting, inside wiring, unimpeded access to and egress from its premises necessary or appropriate to install, operate, repair, maintain, inspect, re-provision, disconnect, and remove any Equipment utilized in the provision of Services. Company shall comply with any detailed installation requirements specified by MARLINK or as may be generally incorporated by reference into these Terms & Conditions (together, the “Installation Guidelines”). These provisions must be made available to MARLINK in sufficient time to permit the installation, maintenance, or disconnection of any Equipment in accordance with the Service Activation Date. MARLINK’s obligations to perform installation, maintenance, or disconnection will be amended accordingly if Company fails to satisfy these conditions; such amendment will be effective even if unwritten, notwithstanding any requirement that amendments to the Agreement be written and signed by the Parties.
C. Connection to Third Party Equipment: Title to all equipment and facilities that MARLINK uses to provide the Network Services, other than such Equipment explicitly and fully purchased by Company, will remain with MARLINK. If Company connects Company’s own equipment or that supplied by a third party to MARLINK’s network, Company must provide MARLINK with specifications of such non-MARLINK-provided equipment and facilities upon request, and ensure that such equipment is compatible with and does not harm, impair, or interfere with the technical integrity of the Network Services, MARLINK’s network, MARLINK’s supplier network(s), or any other services or customers of MARLINK. Company will provide and pay for all equipment and services required to connect non-MARLINK-provided equipment to the Services and for the costs and expenses of repairing or troubleshooting any problems related to such connection of such Company or third-party provided equipment. Company is responsible for the compatibility of all such non-MARLINK-provided equipment with MARLINK’s network and it will be a material breach of the Agreement if such non-MARLINK-provided equipment fails to perform compatibly within thirty days of initial testing thereof.
D. Implementation Schedule: MARLINK and Company will agree on a mutually convenient for Implementation Schedule, which must include the Service Activation Date. In the event such Implementation Schedule is delayed, MARLINK and Company will agree upon a new Implementation Schedule. Company will adhere to the Installation Guidelines. In no event will MARLINK be liable for failure to meet the Service Activation Date when Company’s act or omission contributes to such failure. Company will reimburse MARLINK for all out-of-pocket expenses incurred by MARLINK for any delay in, or failure to achieve, any implementation in relation to any failure to meet the Service Activation Date arising out of or relating to Company’s act or omission. Company’s sole remedy for a failure by MARLINK to either provide Network Services by the Service Activation Date or to provide Network Services during the contracted term for such Network Services will be for Company to request an outage credit, to the extent the same may be available under the applicable Supplier Agreement or Terrestrial Contract, or as the Parties may mutually agree on a case-by-case basis.
E. Installation: Unless otherwise agreed in writing, installation services will be provided by MARLINK or its subcontractors on a time and materials basis at MARLINK’s then-current rates for labor, or at the rates set forth in the applicable Service Order.
F. Maintenance Windows: MARLINK may periodically be required to perform network maintenance, including but not limited to software/firmware upgrades, radio frequency equipment maintenance, teleport/hub upgrades, terrestrial interconnection upgrades, or other preventative maintenance, which may temporarily suspend service for Company while the maintenance is being performed. MARLINK reserves Saturday between the hours of 12:00AM and 2:00AM Coordinated Universal Time (UTC) as the standard pre-scheduled Maintenance Window. MARLINK will use reasonable efforts to notify Company in advance of the planned implementation of a Maintenance Window.
G. Field Maintenance: MARLINK will provide maintenance services in relation to the Network Services. On-site maintenance will be made available on a time and materials basis at MARLINK’s then-current rates for labor, or at the rates set forth in the applicable Service Order. Company agrees to comply with all reasonable instructions that MARLINK may give, from time to time, and to provide all necessary assistance to MARLINK in diagnosing any Network Service faults.
H. Transportation & Stand-by Time: Notwithstanding anything to the contrary in these Terms & Conditions, and regardless of whether related to any warranty in these Terms & Conditions, under all circumstances arising out of or related to Company’s or Company’s End Users’ use of the Network Services, Company is responsible for all expenses related to the transportation of field technicians and equipment to and from remote sites. Company will bear the cost of all offshore and overseas transportation expenses related to the provision of Network Services and all Stand-By Time incurred by MARLINK or its contractor personnel that is caused by or attributed to Company including, without limitation, where caused by delays to or untimely cancellation of service calls or wait-time for Company supplied transportation. Stand-By Time will be charged at MARLINK’s then-current rates for labor.
MARLINK may, in its sole discretion upon notice to Company, use alternate satellites to provide Service to Customer, provided that any such change of satellite does not adversely impact the quality of Service delivered to Company. Company shall promptly provide all assistance implementing such changes reasonably requested by MARLINK at MARLINK’s cost.
10. Use of Network Services
A. Acceptable Use: Company will use the Network Services in accordance with MARLINK’s Acceptable Use Policy, as well as all applicable U.S. and foreign rules, laws, and regulations. Company will be liable for all use or misuse of the Network Services hereunder (including use or misuse by End Users), irrespective of whether such use or misuse was authorized, fraudulent, or otherwise. Company will not, and will ensure that its End Users do not use the Network Services in an abusive or fraudulent manner, including, but not limited to the following:
i. Accessing or attempting to access Network Services by using any device not authorized by MARLINK or by tampering with or altering Equipment;
ii. Obtaining or attempting to obtain permission to use Network Services by providing false or misleading information;
iii. Obtaining Network Services without having the intent to pay charges incurred;
iv. Intentionally interfering with or causing disruption in the provision of Network Services to other MARLINK customers;
v. Using Network Services to further criminal activity, including, without limitation, 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; or
vi. Using Network Services in a manner that interferes unreasonably with the use of Network Services by one or more other MARLINK customers.
B. Liability: Company will be liable for the actions and inaction of every Person who uses the Network Services as if Company expressly authorized all such actions or inactions. Company is solely responsible for implementing security measures to restrict access to the Network Services, including, without limitation, firewalls, network security, and PBX. Company will be responsible for every such Person whether or not (i) Company has control of such person, (ii) such Person has acted beyond the scope of his or its employment or engagement, or (iii) accessed the Network Services by bypassing Company’s security measures. MARLINK will cooperate with government authorities and private parties who allege breaches. This cooperation includes, without limitation, responding to subpoenas. Company agrees to cooperate with MARLINK with any investigations and Company agrees to defend, indemnify, and hold MARLINK harmless from and against all claims, liabilities and fines, including, without limitation, all costs and expenses (including, without limitation, attorney fees) incident to such investigations, or incident to establishing the right to indemnification, arising out of or relating to use of the Network Services by Company or End Users of Company’s network.
11. Limitations
B. Supplier Availability: Satellite Space Segment may be temporarily unavailable or limited because of capacity limitations, network equipment failures, distress, Events of Force Majeure, or any other emergency pre-emption as may be required by MARLINK or a Satellite Supplier. Satellite Space Segment may also be temporarily interrupted or curtailed due to modifications, upgrades, repairs, or similar activities of the Satellite Supplier. MARLINK has no liability for malfunctions or other performance issues of any Satellite Supplier networks.
C. Supplier Agreement Requirements: MARLINK rents Satellite Space Segment through Supplier Agreements, which agreements contain certain terms and conditions and acceptable use policies that apply to both MARLINK and Company. MARLINK will inform Company of all such terms in writing, for example, in MARLINK’s Acceptable Use Policy. MARLINK reserves the right to update any such policy in response to any changes in such terms imposed by Satellite Suppliers, with such changes effective upon notice to Company, notwithstanding any language in the Agreement requiring that amendments thereto be executed by both Parties.
D. Improper Illumination: MARLINK will immediately notify Company if we detect or are informed of any Improper Illumination of any Service provided under the Agreement. Company will take immediate corrective action to stop the Improper Illumination including, without limitation, any action directed by MARLINK reasonably likely to reduce or eliminate such Improper Illumination. MARLINK may, in its sole discretion, temporarily suspend, without notice and with no liability to Company, any affected Services should Company be unable to rectify the Improper Illumination within four minutes from notification of the Improper Illumination to Company as set forth in this paragraph. Such affected Services will be suspended until Company demonstrates to our sole satisfaction that the Improper Illumination is rectified. Company will be charged and will pay any amount that we are required to pay to our Satellite Suppliers or other telecommunications service provider(s) under any other contract due to any Improper Illumination attributable to Company. MARLINK will timely inform Company in writing of any liability incurred as a result of such Improper Illumination. It is Company’s responsibility to provide MARLINK, on or before the Service Activation Date, with a telephone number(s) at which we can contact Company twenty-four hours per day, 365/366 days per year. In addition, MARLINK has the right, in its sole discretion, to take immediate action, including but not limited to suspending or terminating any affected Service(s), in order to protect our Services or interests.
E. Terrestrial Connections & Services: Company understands and acknowledges that MARLINK does not own or operate Terrestrial Connections & Services and that MARLINK is a reseller of Terrestrial Connections & Services purchased from Terrestrial Suppliers. Terrestrial Connections & Services are provided subject to certain terms and conditions contained in Terrestrial Contracts between Marlink Inc and the Terrestrial Suppliers applicable to MARLINK and Company, which are specified in MARLINK’s Acceptable Use Policy. MARLINK reserves the right to update any such policy in response to any changes in such terms imposed by Terrestrial Suppliers, with such changes effective upon notice to Company, notwithstanding any language in the Agreement requiring that amendments thereto be executed by both Parties. MARLINK makes no warranties or guarantees with respect to the availability of Terrestrial Services. MARLINK has no liability for any Terrestrial Supplier networks, facilities, or services. If any action, inaction, or failure of performance by a Terrestrial Supplier renders Company unable to use the Service, MARLINK will use reasonable efforts to work with that Terrestrial Supplier to restore Company’s access to the Service. MARLINK has no obligation to procure alternate Terrestrial Connections & Services in the event of any such action, inaction, or failure of performance by a Terrestrial Supplier.
F. No Control of Suppliers and Facilities: Company acknowledges and agrees that MARLINK has and will have no liability or responsibility for any action or inaction by any third-party Satellite Supplier, Terrestrial Supplier or Facility. Any service level parameters and related warranties, pricing, surcharges, outage credits, required commitments, termination liability, and other terms relating to the Facilities are those of the third-party provider or carrier of such Facilities, and not MARLINK.
G. No E-911 or Universal Emergency Telephone Number (UETN) Support: Company acknowledges that the Equipment and Services provided by MARLINK are not capable of and do not support “911” (U.S.), “112” (Europe), or “000” (Australia) emergency calls or any other emergency telephone support services (“UETN Services”). Location and call-back telephone number information is not supported and will NOT be forwarded to any emergency call center or public safety answering point. It is Company’s sole responsibility to provide its End Users with an emergency call or support service. Company agrees that MARLINK has no liability whatsoever to Company or any third party for emergency call or response services. UETN Services are offered as part of the VoIP service but subject to limitation. The Federal Communications Commission (“FCC”) requires all Voice over Internet Protocol (VoIP) service providers inform customers/subscribers of any differences between the UETN Services and E911 access capabilities available between the service as compared to traditional wireline non-VoIP telephone service. VoIP UETN Services provided by MARLINK’s VoIP providers are subject to the following limitations:
i. VoIP UETN Services and E911 service may not operate during a power outage.
ii. VoIP UETN Services and E911 service may not operate if your broadband or satellite connection is disrupted.
iii. VoIP UETN Services and E911 service calls may not complete or may be routed to emergency personnel who will not be able to assist if you disable, damage or move the equipment to a location other than the physical location/address you provided to MARLINK or the subcontractor when the service was initiated.
iv. Emergency personnel may not be able to identify your phone number in order to call back.
v. VoIP UETN Services and E911 service calls may be delayed or dropped due to network architecture.
vi. Buyer should maintain alternate means of contacting emergency services.
vii. IN NO EVENT WILL MARLINK, ITS PARENT COMPANY, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS OR ANY OTHER THIRD-PARTY PROVIDER OR VENDOR WHO MAY FURNISH THE SERVICES BE LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS WHATSOEVER ARISING FROM OR RELATING TO 911 OR OTHER UTEN SERVICES DIALING AND COMPANY HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO 911 OR OTHER UTEN SERVICES DIALING.
MARLINK DOES NOT HAVE ANY CONTROL OVER WHETHER, OR THE MANNER IN WHICH, 911 OR OTHER EMERGENCY SERVICE CALLS USING THE VOIP SERVICES ARE ANSWERED OR ADDRESSED BY ANY LOCAL EMERGENCY RESPONSE CENTER. MARLINK DISCLAIMS ALL RESPONSIBILITY FOR THE CONDUCT OF LOCAL EMERGENCY RESPONSE CENTERS AND THE NATIONAL EMERGENCY CALLING CENTER. MARLINK RELIES ON THIRD PARTIES TO ROUTE 911 AND E911 CALL TO LOCAL EMERGENCY RESPONSE CENTERS. MARLINK DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT.
Disputes
12. Party Groups
A. MARLINK. The term “MARLINK Group” mean MARLINK, its Affiliates, and the officers, directors, employees, representatives, insurers, consultants, subcontractors, and agents of each of the foregoing.
B. Company Group. The term “Company Group” means Company, Company’s Affiliates, and the officers, directors, employees, representatives, insurers, consultants, subcontractors, and agents of each of the foregoing.
13. Limitation of Liability
A. NO CONSEQUENTIAL DAMAGES: None of MARLINK Group or any of its respective officers, directors, employees, representatives, insurers, or Affiliates will be liable on any basis whatsoever for any indirect, incidental, consequential, reliance, special, punitive, or exemplary damages (including, without limitation, loss of revenue or profit, loss arising from or attributable to failure to realize anticipated savings, or loss of production, equipment, or data), even if a Party knew or has been advised of the possibility or likelihood of such damages, arising out of, related to, or in connection with the provision or failure to provide the Network Services for any reason whatsoever and howsoever arising. MARLINK’s liability in contract, tort, or otherwise, including any liability for negligence, howsoever arising out of or in connection with the performance of MARLINK’s obligations under the Agreement will be limited to the remedies specified herein.
B. LIMITATION:
EXCEPT FOR INDEMNITY OBLIGATIONS IN SECTION 14(A) OF THESE TERMS & CONDITIONS, THE TOTAL, AGGREGATE LIABILITY OF MARLINK GROUP TO COMPANY FOR ALL CLAIMS WHATSOEVER RELATED TO THE NETWORK SERVICES OR THESE TERMS AND CONDITIONS FOR DAMAGES TO COMPANY (OR TO ANY MEMBER OF COMPANY GROUP) FOR ANY CLAIMS WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, HOWSOEVER ARISING WILL BE LIMITED TO DAMAGES ACTUALLY PROVEN AS DIRECTLY ATTRIBUTABLE TO MARLINK, AND FURTHER LIMITED TO AN AMOUNT EQUAL TO THE LAST THREE MONTHS OF PAYMENTS MADE BY COMPANY TO MARLINK UNDER THESE TERMS AND CONDITIONS PRECEDING THE DATE OF ANY CLAIM MADE AGAINST MARLINK.
14. Indemnity
A. MUTUAL INDEMNITY: EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, MARLINK AND COMPANY WILL PROTECT, DEFEND, INDEMNIFY AND HOLD EACH OTHER HARMLESS FROM ALL THIRD-PARTY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION. REASONABLE ATTORNEY FEES) OF EVERY TYPE AND CHARACTER FOR PERSONAL INJURY, DEATH OR LOSS OF OR DAMAGE TO TANGIBLE PERSONAL PROPERTY, IN EACH CASE, RESULTING FROM THE INDEMNITOR’S NEGLIGENCE OR WILLFUL MISCONDUCT. WHERE SUCH THIRD PARTY'S PERSONAL INJURY, DEATH, OR LOSS OF OR DAMAGE TO PROPERTY RESULTS FROM THE JOINT NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTIES, THE INDEMNITOR’S DUTY OF INDEMNIFICATION WILL BE IN PROPORTION TO ITS ALLOCABLE SHARE OF SUCH JOINT NEGLIGENCE OR WILLFUL MISCONDUCT. IF EITHER PARTY IS HELD STRICTLY LIABLE UNDER ANY APPLICABLE LAW, THE OTHER PARTY’S DUTY OF INDEMNIFICATION WILL BE IN THE SAME PROPORTION THAT ITS NEGLIGENCE OR WILLFUL MISCONDUCT CONTRIBUTED TO THE THIRD PARTY'S PERSONAL INJURY, DEATH, OR LOSS OF OR DAMAGE TO PROPERTY. FOR THE AVOIDANCE OF DOUBT, WHERE MARLINK IS THE INDEMNITOR, THE INDEMNITEE IS COMPANY GROUP, AND WHERE COMPANY IS THE INDEMNITOR, THE INDEMNITEE IS MARLINK GROUP.
B. COMPANY INDEMNITY: COMPANY AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS EACH MEMBER OF THE MARLINK GROUP AND EACH OF THEIR RESPECTIVE SUPPLIERS FROM AND AGAINST ALL LIABILITY, CLAIMS, ACTIONS, LOSSES, DAMAGES (INCLUDING DAMAGE TO TANGIBLE PERSONAL PROPERTY), AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY FEES) ARISING OUT OF OR RELATING TO (I) COMPANY’S USE OR MISUSE OF THE NETWORK SERVICES, (II) ANY CLAIMS OR ACTIONS FOR LIBEL, DEFAMATION, SLANDER, INVASION OF PRIVACY, PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, OR THE VIOLATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS ARISING IN CONNECTION WITH THE USE OR MISUSE OF THE NETWORK SERVICES, (III) ANY CLAIM OR ACTION FOR PATENT INFRINGEMENT RESULTING FROM COMPANY GROUPS’S USE OF THE NETWORK SERVICES IN COMBINATION WITH ANY EQUIPMENT, HARDWARE, SOFTWARE, SYSTEMS, CABLING, FACILITIES, OR SERVICES NOT PROVIDED HEREUNDER BY MARLINK, (IV) ALL BREACHES OF SECTION 2 OF THESE TERMS & CONDITIONS, AND (V) ANY SECTION OF THE AGREEMENT IMPOSING AN INDEMNITY OBLGATION ON COMPANY.
C. INDEMNIFICATION PROCESS
i. To be entitled to indemnification for any loss or cost permitted under the Agreement (a “Claim”), the Party seeking to be indemnified (“Indemnitee”) must promptly (and in any event no later than ten days after Indemnitee first knew of the Claim) notify the indemnifying Party (“Indemnitor”) of that Claim and deliver to Indemnitor copies of all relevant information associated with that Claim, including (without limitation) legal pleadings with respect to the Claim, documents or other evidence substantiating that Claim, sworn statements of relevant persons describing the facts underlying such Claim, or any other information reasonably requested by Indemnitor. If Indemnitee fails to timely notify Indemnitor of a Claim or provide requested information, Indemnitor will be relieved of its indemnification obligations with respect to that Claim to the extent that Indemnitor was prejudiced by that failure. Except as expressly provided in the Agreement, Indemnitor has no obligation to indemnify Indemnitee for Claims caused negligently, recklessly, or intentionally by Indemnitee.
ii. Promptly after receiving notice of a Claim, Indemnitor shall retain to represent it in the Claim independent legal counsel reasonably acceptable to Indemnitee.
iii. Indemnitee may elect to participate in the defense of a Claim. Indemnitee may defend a Claim with counsel of its own choice and cost and without the Indemnitor participating if the Indemnitee notifies Indemnitor that it wishes to defend the Claim upon its initiation or by midnight at the end of the tenth day after Indemnitee notifies Indemnitor of the Claim. If representation of the Indemnitee and Indemnitor by the same counsel would, in the opinion of that counsel, constitute a conflict of interest, Indemnitor shall select and retain separate counsel reasonably acceptable to Indemnitee.
iv. Indemnitor shall pay any reasonable out-of-pocket expense incurred in defending a Claim or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements (“Expenses”) that Indemnitee incurs in connection with defense of the Claim before the Indemnitor assumes the defense of that Claim, except with respect to any period during which Indemnitee fails to timely notify Indemnitor of that Claim. Indemnitor will not be liable for any Expenses that Indemnitee incurs in connection with defense of a Claim after Indemnitor assumes the defense of that Claim, other than Expenses that Indemnitor incurs in employing counsel in accordance with this section.
After Indemnitor assumes the defense of a Claim, Indemnitor may investigate, contest, and pay the Claim in Indemnitor’s discretion, including use of arbitration to determine issues of fact. The rules and location of any such arbitration will be agreed by Indemnitor, Indemnitee, and the other party to such arbitration. Indemnitor may not settle a Claim or admit liability or fault on behalf of Indemnitee without Indemnitee’s prior written consent to such settlement or admission. Any settlement Indemnitor reaches on any Claim must provide that the claimant’s sole relief is monetary damages paid in full by Indemnitor and requires that the claimant release Indemnitee from all liability alleged in the Claim.
15. Governing Law
A. Company’s Base: For the purposes of this section, Company is based in the country of its principle place of business. To avoid doubt, Company’s jurisdiction of formation (e.g., country of incorporation) or registered address for service of process do not determine where Company is based for the purposes of this section.
B. Americas. If Company is based in North America, South America, or Central America and Mexico, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by and construed in accordance with the laws of the state of New York, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Company agrees that state and federal courts in New York will have exclusive jurisdiction in relation to any proceedings arising out of or in relation to any Agreement initiated by Company. MARLINK will have the right to initiate any proceedings arising out of or in relation to any Agreement in any court having jurisdiction.
C. Europe Middle-East Africa. If Company is based in Europe, Middle East, or Africa, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by the and construed in accordance in accordance with the laws of England and Wales, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Company agrees that English courts will have exclusive jurisdiction in relation to any proceedings arising out of or in relation to any Agreement initiated by Company. MARLINK will have the right to initiate any proceedings arising out of or in relation to any Agreement in any court having jurisdiction.
D. Australia Pacific. If Company is based in Australia, New Zealand, or elsewhere in the Asia Pacific region, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by the and construed in accordance in accordance with the laws of Western Australia, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Company agrees that Western Australian courts will have exclusive jurisdiction in relation to any proceedings arising out of or in relation to any Agreement initiated by Company. MARLINK will have the right to initiate any proceedings arising out of or in relation to any Agreement in any court having jurisdiction.
E. Alternate Dispute Resolution:
In the event of any dispute, claim, question, or disagreement arising from or relating to any Agreement or the breach thereof, the Parties shall use their best efforts to settle the dispute, claim, question, or disagreement through a meeting of executives of each Party, without legal counsel present. Such meeting must occur within thirty days of receipt of notice of such dispute, claim, question, or disagreement. Such meeting may occur via telephone if both Parties agree. The Parties shall memorialize the results of such meeting in writing.
16. Warranties
A. Equipment Warranty. MARLINK shall use its best efforts to make all warranties provided by any applicable Equipment manufacturers available to Company. For any repairs not covered by such warranty, MARLINK will provide a quotation for such repairs and if Company accepts and authorizes the work, the repairs will be performed at Company’s expense on a time and materials basis. In any event, Company will bear the transportation cost of returning any Equipment to an MARLINK-designated repair facility and of returning the Equipment to Company’s premises following any such repair. The foregoing is Company’s sole remedy in the event of a warranty claim. Per section 16(C) of these Terms & Conditions, MARLINK makes no warranties for Equipment or Services provided to Company. If Company requires an MARLINK technician to travel to Company’s location to perform repair services, Company is responsible for all costs associated with the travel including, but not limited to, transportation costs, living expenses, etc. We will provide Company a written estimate of such costs upon request.
B. Warranty Exclusions. The foregoing warranty does not extend to Equipment that has been altered in any way, installed by a third party not approved in writing in advance by MARLINK, disassembled, or that fails or is damaged after delivery due to accident, act of God, shipping or handling, or due to storage, operation, use, or maintenance in a manner or environment that does not conform to the Equipment manufacturer's instructions or specifications provided by MARLINK at the time of delivery to Company.
C. Disclaimer:
EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS, MARLINK EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO ANY ASPECTS OF THE NETWORK SERVICES RENDERED OR EQUIPMENT PROVIDED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. MARLINK DOES NOT WARRANT THAT THE EQUIPMENT OR SERVICES WILL MEET COMPANY’S REQUIREMENTS OR THAT THE OPERATION OF THE NETWORK SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ANY WARRANTIES GRANTED HEREIN ARE PROVIDED SOLELY TO COMPANY AND MARLINK MAKES NO WARRANTY OF ANY KIND TO COMPANY’S USERS OR ANY OTHER THIRD PARTIES.
Miscellaneous
17. Force Majeure: MARLINK will not be liable for any failure of performance hereunder due to any Event of Force Majeure. To the extent all such occurrences are beyond the reasonable control of MARLINK, delay in performance by subcontractors to the extent such delay is beyond our reasonable control, and other delays incurred for reasons beyond our reasonable control, which, by the exercise of reasonable diligence, are unable to be prevented or avoided. MARLINK’s obligation to perform its obligations hereunder will be suspended for the duration of a period of Force Majeure and will resume as soon as reasonably possible upon the cessation of the event of Force Majeure. If an Event of Force Majeure prevents Company from using the Service (for example, loss of a necessary license through no fault of either Party) for at least ninety consecutive days, MARLINK may terminate the Agreement upon ten days written notice without any liability to Company.
18. Independent Service Provider. These Terms & Conditions, nor any document that references them, do not create any partnership, joint venture, agency or employee/employer relationship of any kind between MARLINK and Company. MARLINK is an independent service provider with respect to performance under the Agreement; all persons employed by each Party are, and will remain the employees and agents of that Party and are not, and will not become, the employees or agents of the other Party. Both Parties expressly understand and agree that neither Party’s employees may participate in or receive any payment or benefits from the other Party.
19. Intellectual Property. Other than as specifically set forth in the Agreement, no licenses or any rights of any kind under any patent, copyright and rights to create derivative works, trademark, trade secret, service mark, mask works, or other form of intellectual property are granted by either Party or are to be implied by these Terms & Conditions or arise by estoppel.
20. Notices: All notices, requests, demands and other communications under the Agreement will be effective upon delivery to the addresses specified in the applicable Control Agreement or Service Order. Such notices will be in writing and will be sent by email, facsimile, or nationally recognized overnight courier or delivered in person.
21. Existence, Power, and Authority: Each of the Parties represents and warrants to the other that it is (i) duly organized and in good standing, (ii) free to enter into and fully perform the Agreement, and (iii) that there are no restrictions or impediments on its ability or authority to perform fully its obligations under the Agreement.
22. Amendments: Except where expressly specified otherwise (for example, changes to the Acceptable Use Policy), all agreements between the Parties that purport to amend, modify, supplement, or augment the Agreement will only be effective if in writing and executed by an authorized representative of each of Company and MARLINK. MARLINK may, with thirty (30) days’ notice, add, delete or modify the prices, terms and conditions, products and/or network Services under the Agreement if a) there is a new or expiring product and/or service, b) such amendment is imposed by a supplier of MARLINK, c) there is an increase of operational cost for MARLINK and/or d) the provisioning of the services is no longer economically viable for MARLINK. After such modification, and when requested by Company, MARLINK may propose an alternative service to Company at similar price level. This amendment right of MARLINK shall not constitute a cause for early termination.
23. Assignment: Company may not assign any of Company’s rights or obligations under the Agreement without the prior written consent of MARLINK, which will not be unreasonably withheld. Nothing herein will prevent MARLINK, without Company’s consent, from (a) assigning its right to receive payment hereunder to a third party, (b) assigning its rights and obligations under the Agreement to a corporation, partnership, or other business enterprise in which we have, directly or indirectly, an ownership interest, including, without limitation, all MARLINK Affiliates, or (c) assigning its rights to a successor in the event of a merger, acquisition or consolidation, or to a purchase of all (or substantially all) of MARLINK’s assets. The Agreement will inure to the benefit of and will be binding on Company’s and MARLINK’s respective successors and permitted assigns.
24. Waiver: None of the conditions or provisions of the Agreement will be held to have been waived by any act or knowledge on the part of either Party except by an instrument in writing signed by a duly authorized officer or representative of such Party. Further, the waiver by either Party of any right hereunder or the failure to enforce at any time any of the provisions of the Agreement, or any rights with respect thereto, will not be deemed to be a waiver of any other rights hereunder or any breach or failure of performance of the other Party nor will it be deemed a continuing waiver.
25. Attorney Fees: If any action at law or in equity is necessary to enforce or interpret the terms of the Agreement, the prevailing Party will be entitled to reasonable attorney fees, costs, and necessary disbursements in addition to any other relief to which such Party may be entitled.
26. Severability: If any provision of the Agreement is declared invalid, illegal, or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. In the event that any such provision will be declared invalid, illegal, or unenforceable due to its scope, breadth or duration, then it will be modified to the scope, breadth or duration permitted by law and will continue to be fully enforceable as so modified.
27. Survivability: All provisions of these Terms & Conditions that would naturally survive the expiration or termination of the Agreement will so survive, including, without limitation, the Articles entitled “Purchase Equipment,” “Rental Equipment,” “Network Services,” “Payment Terms,” “Indemnity & Limitation of Liability,” “End-of-Term Options and Termination of Services,” “Confidentiality,” and “Governing Law.”
28. Effective Period: MARLINK reserves the right to update or modify these Terms & Conditions and any of its policies (including, without limitation, MARLINK’s Acceptable Use Policy), at any time, effective upon notice to Company. These Terms & Conditions are effective as of the Effective Date on page one, and will remain in effect unless modified, revoked, or terminated pursuant to the Agreement.
29. Order of Precedence: To the extent of any conflicts between the terms of documents pertaining to the Agreement, such documents will be interpreted in the following descending order of priority, except to the extent that the inferior term expressly overrules or modifies the superior document: (a) MARLINK’s Acceptable Use Policy; (b) the Master Service Agreement (Communications) and the Reseller Agreement (Communications) equally (as limited by their respective integration clauses); (c) Service Orders; (d) the MARLINK Terms & Conditions (Communications); and (e) any other documents executed by the Parties relating to the Agreement.
30. Headings: The headings of the sections and subsections of the Agreement are for convenience and will not modify, define, limit, or expand the express provisions of the Agreement.
Starlink Services – Specific Terms and Conditions
31. The Starlink by MARLINK EEG solution can rely on the Starlink Service is provided by MARLINK to Customer under the terms and conditions and policies of the Space Segment Provider (named “Starlink”), which can be found at www.starlink.com. The Starlink Service can be sold to commercial companies and governments only and not to residential/consumers.
Customer acknowledges and accepts to be bound by these MARLINK terms and conditions, and the terms and conditions expressly incorporated by this reference of the Space Segment Provider, and SpaceX at www.starlink.com/legal, as follows:
- The ‘Starlink Specifications’ (including the coverage map and other terms defined on Starlink official website);
- The ‘Acceptable Use Policy’;
- The ‘Software License & Usage Terms’;
- The ‘Intellectual Property’ terms;
- The ‘Privacy Policy’, and any relevant supplemental privacy notice or policy (if applicable);
- Any other referenced document on the above-mentioned website,
which content is hereby expressly incorporated by reference. It is noted that the above content may vary per selected region on the Starlink website, and that the content is subject to regular updates from the Space Segment Provider. It is hereby Customer’s sole responsibility to consult the website on a regular basis and agrees and acknowledges to comply with any legal and regulatory requirements for shipment and use of the terminal.
The Customer agrees and acknowledges that the Starlink Service is a developing technology and its coverage maps are subject to ongoing changes, updates, and regulatory approvals from worldwide authorities. Customer is solely responsible for complying with all applicable laws and regulations associated with the use of Starlink and the Starlink Kit, and using the Starlink Service within the eligible service territory, including obtaining any required authorizations, and ceasing use of Starlink or Starlink Kits where necessary.
The service availability is subject to change without prior notification from Starlink, the Space Service Provider. This can be checked on the following website link:
www.starlink.com/maritime for maritime and offshore business and www.starlink.com/map for land and onshore business.
Customer deactivation or suspension can be requested through MARLINK with no early termination compensation; however, Customer will still be responsible for any annual licensing fees for the entire annual period in which Customer terminates the Starlink Service. Notification of deactivation must be received at least five (5) calendar days prior to the end of calendar month to be effective the following month. The service will be deactivated at end of a calendar month following timely receipt of such deactivation request as described herein. Any calendar month that is activated in the middle of the month will be prorated (from the day of activation to the end of the month), and billing will continue after the month of activation only in whole month increments.
The Customer may also request an upgrade or a downgrade of Customer’s subscription package by providing written notice to MARLINK. If a downgrade is selected, the entire current calendar month billing period will be billed and the fee billed will be at the higher price of the package selected (i.e., monthly subscription packages charges will not be prorated for downgrades).
If Customer elects to upgrade its subscription package, the package billing fee will be prorated on the day of month the upgrade is activated; additional data for the subscription upgrade will begin upon such activation date. Notification of bulk upgrades/downgrades requests (for more than 10 subscriptions at once) must be received at least five (5) calendar days prior to the end of calendar month to be effective the following month.
Once the Prioritized Data included in the monthly allowance has been fully consumed, and the Customer has not opted in for Unlimited Priority Data usage, the service will be limited to 1 Mbps download and 0.5 Mbps upload until start of the next billing period. The Customer may choose opt-in or opt-out this option at any time.
Once the Prioritized Data included in the monthly allowance has been fully consumed, and the Customer has opted in for Unlimited Priority Data usage, any additional Priority Data used will be charged at a per 50 GB blocks rate.
If the Customer chooses to upgrade their subscription package and has already consumed Additional Prioritized Data beyond the original allowance, this data will remain chargeable, even after the upgrade to a higher service package. Upgrading the subscription package to a higher plan increases the available data allowance, which will only become effective and usable after the upgrade has been completed.
A Starlink Kit is required to the Starlink Service as specified by MARLINK in its offer along with its associated smart box. Similarly, the Starlink Kit is a newly developed kit, which may be subject to change from time to time. Should new developments or technological enhancements require the procurement of a new Starlink Kit (or part thereof), the Customer will bear the risk and cost for such new equipment.
Customer hereby agrees that:
Customer’ personnel shall not perform any Preventive Maintenance Service on the Starlink Kit;
Customer shall contact MARLINK for any support requests regarding the Starlink Service (and not the Space Segment Provider nor SpaceX);
The Customer shall not transfer ownership of Starlink kits unless it is examined and agreed by MARLINK and Starlink;
Customer must not use Starlink services in conjunction with unmanned aerial or land vehicles or any type of weapons system, unless otherwise expressly agreed by Starlink;
Customer must not use Starlink services for any Ministry of Defense (MoD) or Defense Contractor without prior authorization from MARLINK; The Customer undertakes to notify MARLINK of any change in the use of the Starlink service in this respect. Any such approval will be provided by MARLINK from Starlink.
Customer is strictly prohibited from making custom modifications to Starlink Kits or Starlink software for use in or integration into: (a) military aircraft or unmanned aerial vehicles; (b) naval vessels or submarines; (c) military combat vehicles; (d) other military or intelligence systems or equipment for use in combat scenarios. Any modifications to Starlink Kits or Starlink software requires written approval from Starlink as this may be subject to ITAR or EAR licenses obtained from the U.S. government.
Service Level Commitment for Local Priority and Global Priority Plans
For Local Priority and Global Priority Plans, Starlink commits to providing 99.9% service availability during each full billing period, calculated by accounting for all service outages lasting longer than one minute.
This Service Level Commitment applies to Starlink Standard, Starlink Performance (Gen 1), and Starlink Performance (Gen 2) when subscribed under Global Priority or Local Priority plans.
This Service Level Commitment:
Does not apply to outages occurring when the User Terminal (“UT”) is in power save mode, undergoing a software update, or operating under rate-limited service after exceeding its allocated data allowance.
Applies globally in locations where Starlink service is officially active.
Applies only when the UT is powered on and maintained with an unobstructed line-of-sight to the sky.
For Starlink Standard, the UT must be properly aligned within an acceptable tolerance, and for Starlink Performance (Gen 2), it must be tilted less than the maximum allowable angle from optimal orientation.
For the purposes of this SLA, an “Outage” is defined as any continuous period during which the UT is unable to send or receive network pings to and from Starlink Points of Presence (“PoPs”).
In all circumstances not expressly covered under this Service Level Commitment, Starlink does not guarantee any specific uptime or service availability. Accordingly, the Customer shall not be entitled to receive outage credits, refunds, or any other compensation in the event of service downtime.
Customer nor the end user is entitled to use the trademarks of the Space Segment Provider, or SpaceX.
The Starlink Service may be changed, suspended and/or terminated as follows:
- Originating from the Space Segment Provider directly: any relevant updates (for example via the above links and documents) from the Space Segment Provider shall immediately and automatically apply between Customer and MARLINK and/or the Space Segment Provider and/or SpaceX (including but not limited to: regulatory elements, packages, prices, commitments terms, coverage maps, etc).
- Originating from MARLINK: any relevant updates from the Space Segment Provider towards MARLINK may result in changes made by MARLINK towards Customer. MARLINK being an authorized Starlink reseller- reserves all rights towards Customer in relation to the Starlink Service, for example, but not limited to, regarding amendments, termination, suspension, definition of the Starlink Service and/or Starlink Kit, regulatory elements, packages, prices, and commitments. As such, MARLINK has the right to unilaterally change, suspend, and/or terminate the Starlink Service towards Customer, by written notice and with immediate effect.
If Customer disagrees with any change(s) above, Customer's sole remedy is to terminate the Starlink Service in accordance with the above notification to MARLINK.
For Starlink services offered by MARLINK, the Customer agrees that in the event of any conflict between MARLINK’s General Terms and Conditions and Starlink Services -Specific Terms and Conditions the last one shall prevail, and in case of any conflict between these Starlink Services – Specific Terms and Conditions above and the Starlink generic terms and conditions as mentioned on the Starlink website (www.starlink.com and www.starlink.com/legal), the latter shall prevail, except for services that can only be provided directly by Starlink, where MARLINK cannot guarantee the service, and for Starlink services provided exclusively by MARLINK, where the Starlink Services – Specific Terms and Conditions would be in benefit of the Customer.
EEG General Terms and Conditions
ARTICLE 1: DEFINITIONS
MARLINK: means Marlink Group.
COTP: Communication on the Pause
COTM: Communication on the Move
Customer: means the recipient of MARLINK’s Services who is placing an Order with MARLINK.
GTC: means the present General Terms and Conditions.
Goods: means any and all equipment, hardware, material, software and/or products, that MARLINK is required to supply or deliver to the Customer under the terms of the Order. For the purposes of this contract, the terms Goods, Equipment and Hardware shall be used interchangeably and shall have the same meaning.
On Service Date (OSD): shall mean the day the acceptance record is signed by the Parties, if MARLINK is responsible for the on-site installation, on case by case basis). Otherwise it shall mean from the day MARLINK has provided all equipment and Satellite resources (i.e. frequencies) to the Customer.
Order: means the written Contract between the Customer and MARLINK which engages MARLINK and the Customer.
Party or Parties: means collectively or individually MARLINK and/or the Customer.
Satellite: means the satellite utilized by MARLINK for providing Service to Customer at any given time.
Service(s): means the service(s) to be furnished as described in the SLA including any required preliminary or ancillary services, such as engineering services, start-up services, maintenance services, installation services and the like.
SLA: means the Service Level Agreement provided in Annex B of the Order.
Site(s): means the location(s) where the remote VSAT terminals are installed.
Smart Edge: means the proprietary Marlink equipment allowing management of WAN and QoS specifics among other features deployed with Marlink solutions.
Space Segment Provider: means the legal entity that owns, operates and/or accesses the satellite(s) that provide(s) the actual space segment capacity for the Services.
Special Conditions: means the special terms which are specified by MARLINK, either in the SLA or in the Order, whatever their nature may be (technical, quality of service, commercial, administrative).
System: means the Goods and Services altogether functioning in good order in a satellite communications system according to the parameters stipulated in the SLA.
Terminal: means the VSAT/Starlink terminal using the Service (indoor and outdoor equipment).
ARTICLE 2: APPLICABILITY
2.1. The present GTC shall apply to any supply and/or delivery of whatever nature by MARLINK. In case of contradiction between the Special Conditions and the present GTC, the Special Conditions, as described above, shall prevail over the present GTC.
2.2. The Customer’s GCP are not accepted by MARLINK, nor shall they apply to an Order, except in the case, and to the extent that MARLINK expressly agrees to their application.
ARTICLE 3: PLACING AN ORDER AND PROVISION OF THE SERVICES
3.1. The addressee will be referred to as “the Customer” after confirmation of the Order by MARLINK.
3.2. An Order from the Customer constitutes binding acceptance of the present GTC.
3.3. The duration of the Services as defined in the Order, begins on the OSD of the first deployed Site (the Start of the Services). The invoicing will begin, at the latest, on the OSD.
3.4. MARLINK may change Customer’s space segment allocation on the Satellite identified in the Order, move the Service to a different satellite, or alter the method by which it provides Service (e.g. change the Terminal and/or teleport used for the delivery of the Service), provided that alternative solution (“Alternative Solution”) is provided to Customer which is of equivalent performance and meet the SLA requirements. MARLINK shall notify Customer of any such change at least fifteen (15) days prior to the projected change date and will minimize disruption of Service during such change.
The Customer may reject the Alternative Solution by written notice to MARLINK within five (5) working days of receipt of MARLINK’s notification, on the grounds that either:
- The characteristics of the Alternative Solution deviate materially from the allotted capacity characteristics, or
- The performance of the Alternative Solution cannot meet the scenario performance and SLA requirements as described in the relevant Order.
Failing such written notice Customer shall be deemed to have accepted the Alternative Solution. In case the Customer rejects the offer of Alternative Solution, the Parties may agree to terminate the Order without default of one or the other Party.
The article 3.4 does not apply to Starlink services with specific terms and conditions.
ARTICLE 4: PRICES
4.1. The prices for Services and/or Goods are as specified in the Order.
4.2. On a yearly basis, for prices applicable as from 1st of January, Marlink is entitled to apply indexation to all prices upon thirty (30) days’ prior written notice to Customer, following the ‘Producer prices in industry (domestic market, monthly data)’, line item ‘European Union, 27 countries (from 2020)’, as published by ‘Eurostat’ (findable through https://ec.europa.eu/eurostat/databrowser/view/STS_INPPD_M/default/table?lang=en, exact link location may be subject to change), for all Services (including Equipment) activated and still to be activated on Vessels and/or sites.
4.3 The customer acknowledges that pricing of the Goods (also referred to as Equipment or Hardware) are exclusive of any changes in taxes and/or tariffs imposed on such Goods, duly authorizing Marlink to change/ increase the price of the hardware supplied from certain countries where such would be applicable, even during the validity period of the contract.
ARTICLE 5: PAYMENT AND TAXES
5.1. Terms of Payment: The terms of payment are as defined in the Order. MARLINK will require pre-payment from Customer for the purchase of Goods unless otherwise specified in an Order, pre-payment terms are as follows: i) MARLINK will invoice fifty percent (50%) of the Goods purchase price in advance of shipment, ii) after payment has been received by MARLINK the Goods will be shipped and at delivery MARLINK will invoice thirty percent (30%) to Customer, iii) upon Service activation, MARLINK will invoice the remaining twenty percent (20%) of the Goods purchase price.
5.2. Invoicing: Payments shall be made within thirty (30) days from the date of issue of the corresponding invoice (the “Payment Due Date”) by wire transfer (all related costs being assumed by the Customer) to MARLINK’s account specified in the Order. Payment is considered to have been made on the day when the relevant sum is received in MARLINK’s account. In the event that full payment has not been made within fifteen (15) days after the Payment Due Date, a late penalty equal to the interest rate applied by the European Central Bank to its operation of refinancing, increased by 10 percent shall be applied to the unpaid amount. The late penalties begin to accrue on, and shall be considered due as of, the day after the Payment Due Date.
MARLINK reserves the right to invoice the Customer up to twelve (12) months after the actual month such invoice relates to.
5.3. Taxes: All prices are quoted without taxes, tariffs, and/or duties. The Customer shall pay any and all taxes, tariffs and/or duties of any nature whatsoever levied on any Service, except for taxes and/or duties imposed upon, or measured by, MARLINK’s income in any jurisdiction governed by the laws of the country where the MARLINK contracting entity is registered as of the invoice date. If any taxes and/or duties are required to be withheld from amounts payable to MARLINK, or to the extent MARLINK is required to pay or actually pays any taxes, tariffs and/or duties in the first instance, MARLINK shall have the right to increase the amounts payable by the Customer, and the Customer shall pay an amount equivalent to the taxes and/or duties paid by MARLINK.
5.4. If a payment remains unpaid in part or in whole fifteen (15) days after the Payment Due Date, MARLINK reserves the right to suspend and/or interrupt the Service(s) until the payment of the corresponding unpaid amount. In the event of a suspension of Services, the Services will continue to be invoiced until the termination date of the Order and any late penalties will continue to accrue.
ARTICLE 6: MARLINK OBLIGATIONS
6.1. MARLINK shall organize the progress of the installation by holding meetings with the Customer according to times and dates agreed upon in advance by the Parties.
6.2. MARLINK shall deliver to the Customer technical documents corresponding to each type of equipment delivered.
6.3. MARLINK shall inform Customer of each delivery of Goods and shall give all the relevant information which will allow the Customer to prepare for customs and import formalities.
6.4. MARLINK shall guarantee to the Customer the availability of the Service in accordance with the SLA.
ARTICLE 7: CUSTOMER OBLIGATIONS
7.1. The Customer shall obtain all of the authorizations, permits, licenses, and/or consents (internal and/or external to its company as well as governmental or non-governmental) that are necessary for placing an Order and its subsequent performance according to the laws and regulations applicable and in force in the country of operation of the Terminal(s). The Customer shall be responsible for arranging all the formalities related to importing the Goods and Services and shall bear all relevant costs and customs duties resulting therefrom (together the “Formalities”). Shall the Start of the Services be delayed because of failure of the Customer to fulfil the Formalities, MARLINK shall reserve its right to initiate invoicing, provided to have given the Customer a one (1) week prior notice to fulfil the Formalities.
7.2. The Customer shall submit to MARLINK all data and relevant information which MARLINK reasonably requires to enable it to provide the Services, including full details of the technical characteristics of the equipment which the Customer intends to use to receive or transmit communications using the Services.
7.3. The Customer shall use each Terminal according to the technical requirements of the satellite operator. MARLINK will communicate, at the request of the Customer, these technical requirements by e-mail and/or mail.
7.4. The Customer shall be exclusively responsible for adherence to all applicable laws, regulations and other legal bases for the use of the Service. The Customer is responsible for the fact that the respective specific use, in particular, data transmission, corresponds to all applicable national and international laws, in particular, the REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 (the “GDPR”) as may be amended, and any applicable national law where the Customer uses the Services. This Article applies, in particular, the transfer of data and information, and to the adherence to copyright and patent laws.
7.5. The Customer shall stop any transmission or use of the Services within one hour of a request by MARLINK in consequence to a decision or request made by the satellite operator. MARLINK will justify its request by furnishing a copy of the Satellite operator’s request.
7.6. As a condition precedent to access to the Services, every Terminal must be registered by the Customer with MARLINK and approved according to the requirements of the satellite operator.
7.7. The Customer shall be responsible of the physical integrity of all the Terminals; even in case of leasing of the Goods.
7.8 Leasing of the Goods. The Customer shall be responsible to send the leased Goods at the end of the Contract (initial term or renewed term) to Marlink premises at its own expenses. If need be Marlink can offer the Customer to buy the Goods to become the owner; offer will be made on request.
7.9. The Customer shall be responsible of the preparation of Site(s) as defined in the special conditions of the present Contract.
ARTICLE 8: WARRANTY OF GOODS
8.1. MARLINK warrants that the Goods supplied are new, have never been used, are of the best quality, and conform to the technical specifications set forth in the SLA.
8.2. MARLINK warrants that the Goods supplied are free of material defects, manufacturing defects, and any anomaly which might develop during the normal, foreseeable and intended use of the Goods.
Goods Purchased by Customer
8.3. MARLINK warrants each item of the purchased Goods for one (1) year after date of delivery of said item to Customer (the “Warranty Period”).
8.4. During the Warranty Period, MARLINK will repair or replace any defective Goods in order to maintain the performance levels of the System. The Customer will send the defective Goods to Marlink premises on its own expenses and MARLINK will send back repaired and/or replaced Goods DAP to Customer premises on its expenses. If Customer desires MARLINK to maintain Customer purchased/owned Goods beyond the Warranty Period, Customer may subscribe to a maintenance plan for an additional monthly fee.
8.5. Goods which are repaired or replaced during the Warranty Period shall benefit from a warranty which expires at the earliest of the following dates:
(i) expiration date of the Warranty Period; or
(ii) six (6) months from the date of repair or replacement.
8.6. The warranty shall only apply for defects of which the Customer informs MARLINK in writing within fifteen (15) days of their discovery.
8.7. The warranty shall not cover:
(i) consumable Goods and any Goods whose replacement is necessary in the course of its normal use;
(ii) Goods repaired or modified by the Customer or any third party without the prior written consent of MARLINK.
8.8. The warranty shall only apply in case the Customer has followed the instructions given by MARLINK regarding installation and use of the Goods and/or System as defined in the special conditions of the Contract.
Goods Rented by Customer
8.9. In the event the equipment is remaining Marlink properties (i.e. renting of the Goods), MARLINK shall manage the Goods and shall replace the defective rented Goods at MARLINK’s cost, unless the Customer has damaged such Goods. MARLINK will not provide unlimited replacement of defective or damaged Good(s) for longer than the Warranty Period stated above in Section 8.3 (i.e. 1 year). If Customer desires unlimited replacement of units of Goods beyond the Warranty Period, Customer must subscribe to a maintenance plan from MARLINK for an additional monthly fee that is in addition to the monthly rental fee for rented Goods.
8.10. Unless otherwise stated in an Order, Customer shall pay logistical costs for shipping of the respective replacement Goods at MARLINK’s cost plus 16%. Customer will be responsible for providing proper protection, warehousing, and storage of deinstalled Rented Goods and will be responsible for any damage as long as Marlink’s Rented Goods are in the care, custody, and control of Customer, until such time as the equipment is collected by MARLINK.
8.11. If Customer receives rented Goods prior to activating the Services, Customer must pay in full the monthly fees for such rented goods, and such billing will begin the following calendar month of delivery.
ARTICLE 9: INTELLECTUAL PROPERTY
MARLINK warrants the Customer against patent infringement and against actions for infringement of intellectual property rights held by third parties concerning the Goods and/or software provided under the following conditions:
9.1. MARLINK may choose:
(i) to obtain, at MARLINK’s cost, the right for Customer to use the infringing Goods and/or software, or
(ii) to modify or replace the infringing Goods and/or software, provided that the modification or replacement does not hinder their proper functioning; or
(iii) should options (i) and (ii) prove to be unreasonable for technical or economic reasons, to reimburse the Customer for the infringing Goods or software (at a price corresponding to the sales price depreciated on a base of a constant depreciation over a period equivalent to the duration of Services provided under the Order).
9.2. MARLINK’s warranty is conditioned upon:
(i) Customer’s written notification to MARLINK, sent without delay, that an action could be brought against the Customer or MARLINK, and
(ii) the absence of a declaration by Customer regarding the infringement of third-party intellectual property rights which could be detrimental to the defence of said claim or cause of action, and
(iii) Customer’s authorization for MARLINK to manage and conduct, at MARLINK’s cost, the action or negotiations to resolve the claim or action.
9.3. The warranty shall not apply:
(i) when the equipment or software have not been used in a manner or for an end which was not foreseeable; and/or
(ii) when the equipment or software have been assembled with, function with, or have been used with equipment or software not provided by MARLINK; and/or
(iii) when the equipment or software have been modified by Customer or a third party without MARLINK’s prior written consent; and/or
(iv) when the infringement does not occur in a country where a Site is located.
9.4. MARLINK’s liability is exclusive of all immaterial or indirect damages, lost profits and/or lost revenues.
ARTICLE 10: TRANSFER OF PROPERTY / TRANSFER OF RISK
10.1. Transfer of property of the Goods shall occur only after the full payment of their price. This clause shall not prevent the transfer of risk to the Customer of loss, deterioration or damage to the Goods during shipment.
10.2. The transfer of risk to the Customer occurs the moment the delivery the Goods are handed over to the first carrier.
10.3. Except for delivery DAP and DDP (Incoterms 2010), Goods travel at the risk and peril of Customer, who will have to exercise its own recourse against carriers, whether these are chosen or not by MARLINK, in case of delay, loss or damages.
10.4. Unless otherwise requested by the Customer, shipment of Goods will be made by the means of transport judged most suitable by MARLINK. MARLINK shall incur no liability for its choice of the means of transport.
ARTICLE 11: INSURANCE OF GOODS
11.1. MARLINK shall take out the necessary insurance covering, until the arrival at the destination indicated by the relevant Incoterm 2010, all material or physical damages, loss or injury to the Customer’s Goods, or those of third parties, or all other persons, including Customer’s employees or its subcontractors, which arise from the execution of the Order and is caused by an act of negligence on the part of MARLINK, MARLINK’s personnel, or its subcontractors.
11.2. The insurance described above shall cover the following risks:
(i) transport of Goods
(ii) accomplished work
(iii) work accidents
(iv) injuries to third parties
(v) interventions by MARLINK during the Warranty Period
(vi) any other insurance which MARLINK may judge is useful for the good execution of the Order.
11.3. The transport insurance shall cover an amount at least equal to 100% of the value of transported Goods.
11.4. The insurance policy (or a certificate of coverage), a copy of which shall be provided to Customer upon request, shall be taken out with a company of good reputation and under appropriate conditions considering the nature of the material and business usages, and other circumstances affecting the risk.
ARTICLE 12: INTERRUPTION OF SERVICES
12.1. MARLINK has the right, under the following circumstances, to interrupt or suspend the Services, either in whole or in part:
if so ordered by public authorities who have jurisdiction over MARLINK and/or the satellite operator; and/or
in the event that the Customer’s use of the Services infringes national (including all jurisdictions affected by the Customer’s usage) or international provisions. In such a case, a copy of the relevant national or international authority’s notice must be provided; and/or
upon a decision by or request from the satellite operator.
Customer in default of payment when due (see Article 5), and /or of any one or more of its obligations.
12.2. In so far as the cause for such an interruption of the Order is not due to an MARLINK default, a Service interruption or suspension due to the above-mentioned circumstances shall not be recognized grounds for termination of the Order.
12.3. MARLINK will make its best efforts to minimize the duration of such Service interruptions or suspensions.
12.4. Interruptions or failures, which are based on or result from the conditions indicated in the SLA, shall not be considered to constitute failures or interruptions of MARLINK Services.
ARTICLE 13: GUARANTEE / COMPENSATION
13.1. MARLINK’s guarantee of the service levels indicated in the SLA is restricted to the provision, availability and quality at its direct disposal of the facilities in its possession, in so far as these are located within MARLINK’s site. MARLINK gives no guarantee for failures and/or faults, the causes of which are based on the operation of the satellite and/or terrestrial connections existing beyond the MARLINK’s site.
13.2. Each failure or interruption of MARLINK Services not caused by fault of the Customer or by a Force Majeure Event shall be exclusively and finally compensated by service credits as specified in the SLA. If no credits are mentioned in the SLA, none would be applied.
13.3. The total value of any services credits issued under Article 13.2 above shall be limited to the amount indicated in Article 14.5 of the present GTC.
13.4 MARLINK does not guarantee, nor shall it be liable for, the suitability of the Services provided for the Customer’s purposes, the correctness of the data related to the Customer’s use of the Services, or for results which are generated from a use that is not revealed to and accepted by MARLINK.
ARTICLE 14: LIABILITY
14.1. GENERAL LIABILITY
14.1.1 MARLINK and the Customer shall at all times be acting as independent contractors and nothing in the Order or the execution thereof shall be construed as constituting a partnership, joint venture, agency, or employer-employee relationship between the Customer and MARLINK or any of MARLINK's employees or its sub-contractors' employees. The Parties agree, therefore, that there is no express or implied joint and several liability between MARLINK and Customer.
14.1.2. MARLINK shall not in any event be liable for unforeseeable damages, a lack of economic success, consequential damages, and/or follow-on damages – in particular, financial loss – or for damages from claims by third parties, in so far as such liability is not prescribed by statute or operation of law.
14.1.3. MARLINK’s liability is excluded in so far as and to the extent to which:
a) Damages are the result of malfunctions of facilities provided by the Customer or are erroneously operated,
b) Damages are the result of faulty, erroneous, or delayed information from the Customer, in so far as the latter is contractually obligated to provide information to MARLINK. Customer’s information is considered as having been transmitted late when it has not been transmitted within three (3) working days from the date it should have been transmitted under the present GTC.
14.1.4. Customer shall be liable for any damage to property resulting from any improper or non-authorized use of the Services, as well as for any injuries to persons caused by the Customer’s negligent or intentional behaviour related to its use of the Services.
14.1.5. Without prejudice to the foregoing and except with respect to any liability of MARLINK which may arise by operation of law, MARLINK’s total, aggregate liability shall be limited to the equivalent of the price for three (3) months of Services, unless lower cap stated in the SLA.
14.2. MARLINK LIABILITY FOR FUNCTIONABILITY OF THE SATELLITE
14.2.1. The Customer is aware that for the performance of the Services, the conclusion of contracts with independent providers, in particular, the satellite operator, is necessary. In the event that such providers do not, for whatever reason, render their services properly, MARLINK shall be expressly excluded from any liability resulting therefrom. The above case includes, but not shall be not limited to, launch failure or in-orbit failure of the satellite and/or the transponder(s) intended for use in providing Services to the Customer. The Customer accepts that in the event of a failure of the satellite or transponder designated to provide Services to Customer, MARLINK has no obligation beyond making reasonable efforts to find replacement or substitute satellite capacity for the Customer.
14.3. DISCLAIMER FOR CYBERSECURITY SERVICES
14.3.1. Cybersecurity threats are extremely complex and managed services depend on the involvement and collaboration between provider and customer resources as well as the provision of accurate and detailed information about the environment by the customer.
14.3.2. While Managed Services are executed with care and skill in accordance with industry best practices, Marlink strives to provide a reasonably accurate view of the threats as defined by both parties in order to mitigate risk. Marlink shall not be liable if the Managed Service fails to discover and identify all aspects of risks and future prevention thereof.
14.3.3. If the Managed Service also includes Marlink's advice on how to mitigate or remedy a risk, Marlink shall not be liable for any damage caused by the effects of the advised or applied remedy. In order to limit any damage, the remediation process and its conditions will be defined between the customer and Marlink during the service construction phase.
14.3.4. Furthermore, the customer is solely responsible for the proper protection and backup of data and/or equipment and cannot hold the provider responsible for any data loss, replay time, inaccurate output, work delays, system failure, business interruption, loss of profit and the like.
ARTICLE 15: CONFIDENTIALITY
15.1. Unless the disclosing Party consents in writing, or disclosure is made pursuant to a legal proceeding, the receiving Party shall keep confidential all information or data furnished by the disclosing Party or otherwise acquired by the receiving Party throughout the negotiation and performance of an Order. Such information will not be released by the receiving Party to anyone other than:
(i) a person who, in the reasonable judgment of the receiving Party, is acting as an agent of the disclosing Party;
(ii) to the commissioning entity or MARLINK’s supplier or another telecommunications service provider, provided that the information is to be used for the provision of Services and disclosure is made on a confidential basis with the use of the information being solely for that purpose;
(iii) an agent retained by MARLINK to collect outstanding balances owed to MARLINK by the Customer; or
(iv) to a law enforcement agency whenever the receiving Party has reasonable grounds to believe that the disclosing Party has knowingly supplied the receiving Party with false or misleading information or is otherwise involved in unlawful activities.
15.2. Each Party will comply fully with all applicable privacy and data protection laws and regulations and will provide such assistance to the other Party as is reasonably necessary to assist the other Party in complying with such laws and regulations. The Customer will indemnify MARLINK against claims by third parties resulting from any breach or inadequate observance by the Customer of the provisions of this Article.
15.3. The confidentiality obligations of this Article shall survive for two (2) years after the latter of either the completion or termination of the Services.
ARTICLE 16: EXPORT CONTROLS AND SANCTIONED COUNTRIES
16.1. Customer acknowledges that it will comply with applicable export control laws, regulations and sanctions, and will obtain all government licenses to export, re-export or import Marlink’s Equipment as may be required, regardless of where Services are provided. Customer will not use, directly or indirectly, Marlink’s Equipment and/or Services:
(i) in any country subject to comprehensive UN, US, EU and/or UK sanctions, including but not limited to Belarus, Cuba, Iran, North Korea, Russia, Ukraine’s occupied regions (Crimea/Donetsk/Kherson/Luhansk/Zaporizhzhia) and Syria, and any local country sanction law(s), unless the Customer has obtained all necessary licenses or authorizations to operate in such countries;
(ii) in any prohibited end uses and/or end-users;
(iii) in any prohibited destinations; or
(iv) in 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 EU and UK sanctions. In case of such an export, re-export or import, Customer must provide Marlink 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, supplies and/or activities that will make use of Marlink’s Equipment and/or Services in the earlier mentioned sanctioned and/or prohibited destinations.
16.2. In addition to other rights, it may have in law or under contract, Marlink reserves the right to refuse to provide Equipment, Services or
any goods and suspend or terminate this Contract in its entirety, without any liability, if Marlink 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.
16.3. Customer hereby agrees to indemnify, defend and hold harmless Marlink 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.
ARTICLE 17: TERMINATION
17.1. Termination for MARLINK Default
The Customer may terminate the Order for reason of MARLINK’s default on the following grounds:
(i) commencement of any proceeding, whether voluntarily or involuntarily, relating to MARLINK under any law relating to insolvency, bankruptcy or the protection of creditors' rights generally;
(ii) MARLINK causes a non-excusable delay to the global execution of the Order for more than sixty (60) days;
(iii) MARLINK is not in conformity with the terms and conditions of the Order and fails to remedy the situation within fifteen (15) days after receipt of a letter with proof of delivery calling for MARLINK to remedy.
MARLINK shall pay for all costs and expenses reasonably incurred by Customer as a result of MARLINK’s default, including but not limited to Goods and Services delivered up to the time termination takes effect and any costs and/or expenses reasonably incurred by Customer in relation to its subcontractors.
MARLINK shall retain its warranty obligations for any part of the Order already delivered to and paid for by Customer upon the date of termination.
Customer shall pay for all Services rendered and all Goods up to and including the date on which termination takes effect.
Goods in the process of being shipped when termination takes effect shall not be included in the calculation of the amount due by the Customer to MARLINK, and such Goods shall be returned to MARLINK.
Any payments already made by the Customer upon the date termination takes effect shall be considered as having been made finally and definitively for the benefit of MARLINK.
17.2. Termination for Customer Default
17.2.1. In case of interruption or suspension of Service attributable to the Customer which lasts longer than ten (10) calendar days, MARLINK shall have the right to terminate the Order if the Customer has failed to remedy the problem causing the interruption or suspension fifteen (15) calendar days after receipt of a written notification with proof of delivery requesting the Customer to remedy the problem. The termination shall take effect on the sixteenth (16th) day after receipt of notice unless the Parties otherwise agree in writing.
17.2.2. The occurrence of any one or more of the following events will constitute an event of Customer default giving MARLINK the right to terminate if not remedied within ten (10) days after written notice with proof of delivery is sent by MARLINK:
(i) failure to make a payment when due and/or any other contractual obligation(s);
(ii) discovery by MARLINK that any representation or warranty made by the Customer is incorrect;
(iii) commencement of any proceeding, whether voluntarily or involuntarily, relating to the Customer, under any law relating to insolvency, bankruptcy or the protection of creditors' rights generally.
The termination takes effect on the eleventh (11th) day after reception of notice.
Customer shall pay for all costs and expenses reasonably incurred by MARLINK as a result of Customer’s default, including but not limited to Goods and Services delivered up to the time termination takes effect and any costs and/or expenses incurred by MARLINK in relation to its subcontractors.
17.3. Termination prior to expiry of the Initial Term
The Customer shall notify MARLINK of its intention to terminate the Contract before the Initial Term with a minimum of three (3) months prior written notice.
In case of early termination, the Customer will be liable for an early termination liability of thirty percent (30%) of the remaining Monthly Fees due under the Contract until the conclusion of the Initial Term.
In case of early termination where the Customer is leasing Goods from Marlink, the Customer will have the obligation to ship back all Marlink equipment on its costs in a timely manner. If shipping back is not an option, the Customer will have to pay for the Goods values remaining on the site.
In case of early termination where the Customer is paying Goods over several months (payment facility option of the Goods), the Customer will be invoiced of the remaining value of the Goods.
17.4. Automatic Renewal
The Contract shall be valid and effective for the Initial Term and shall automatically be renewed thereafter in subsequent twelve (12) month increments (each a “Renewal Term”), unless terminated earlier by one of the Party providing the other Party with a minimum of ninety (90) days written notice prior to the expiration of the Initial Term or the current Renewal Term.
ARTICLE 18: FORCE MAJEURE
18.1. A Force Majeure Event means an event over which a Party has no control, could not anticipate or avoid, and whose effects render the performance of that Party’s contractual obligations impossible or impracticable even if that Party had taken reasonable measures to avoid the effects of said event. Force Majeure Events include, but are not limited to, the total unavailability or the destruction of the satellite, fires, climatic events considered to be natural catastrophes, flooding where the Services are rendered, ecological disasters, acts by relevant, competent authorities (local, national and/or international), wars, riots or terrorist attacks.
18.2. The Party whose obligations are impaired by a Force Majeure Event shall notify the other Party in writing within two (2) working days from the date that such event occurs. This notification shall describe the Force Majeure Event. Any proof available to the Party affected by a Force Majeure Event which permits an accurate appreciation of its consequences upon the execution of the obligations of the Order shall be attached to said notice.
18.3. If the suspension of the execution of the Order due to a Force Majeure Event exceeds three (3) weeks, either Party shall have the right to terminate the order without fault.
ARTICLE 19: NOTICES
All notices, requests and other communications hereunder will be effective upon delivery. Such notices shall be in writing and shall be sent by email, internationally recognised overnight courier service or delivered in person, to the relevant person and address as set forth in the Order. Proof of delivery is required where indicated in the present GTC. Either Party may, at any time, amend the name or address of its designated recipient for notices via written notice to the other Party.
ARTICLE 20: GOVERNING LAW AND DISPUTE RESOLUTION
20.1. The Order and any Services furnished hereunder shall be governed by laws laws of the country or State where Marlink is registered, without application of its conflicts-of-laws rules.
20.2. In the event of any dispute arising in connection with the performance, interpretation and/or termination of the Order and/or the Services furnished hereunder, MARLINK and the Customer shall try to resolve such dispute amicably and in good faith.
20.3. If MARLINK and the Customer fail to resolve such dispute amicably within one (1) month following notice given by a Party stating that a dispute exists and a description thereof, such dispute shall be definitively settled under the competent courts of the country or State where the Marlink entity is registered.
ARTICLE 21: MISCELLANEOUS
21.1. Entire Agreement: The Order placed by the Customer and confirmed by MARLINK in accordance with the present GTC represents the entire understanding and agreement of the Parties with respect to the subject matter of the Order and supersedes and cancels all prior representations, negotiations, commitments, undertakings, communications, whether oral or written, acceptances, understandings and/or agreements between the Parties with respect to, or in connection with, the Order.
21.2. Amendments: No amendment or modification of the Order shall be binding or effective unless made in writing and signed on behalf of the Parties by their respective duly authorised representatives. MARLINK may revise the GTC at any time and without the consent of the Customer. MARLINK will notify the Customer at least fifteen (15) calendar days in advance of any such changes to the Contract.
21.3. Assignment: The Customer shall not assign its rights and obligations arising under the Contract without the prior written consent of MARLINK, which consent shall not be unreasonably withheld or delayed, provided however that an assignment shall not relieve the Customer of its obligations and liabilities under this Contract, without the express written consent of MARLINK. Notwithstanding the above, MARLINK may assign or transfer its rights and obligations to an affiliate or to a third party together with the business comprised by the Contract, without consent from the Customer.
21.4. Publicity: The Customer acknowledges that MARLINK may release Customer’s company name, logo, images, solution details, other general publicity or information relating to the Contract and the Services provided to the Customer (excluding, for the avoidance of doubt, Confidential Information). into the public domain, including but not limited to news/press releases, written or video testimonials, articles, brochures, advertisements or references in prepared speeches or presentations, and social media.
The Customer shall also obtain MARLINK’s prior approval before releasing any publicity or announcement concerning the Contract or the Services. MARLINK reserves the right to refuse, amend, or delay publication in the event that such publication, in MARLINK’s sole opinion, may (i) be misleading, inaccurate or in breach of any laws or regulations, (ii) cause material damage or loss to MARLINK or any of its affiliates’ reputation, business or operations, or (iii) breach any term of this Contract.
21.5. Severability: Should any provision of the Order prove to be unenforceable, invalid, void, or impracticable, or subsequently become unenforceable, invalid, void, or impracticable, whether in whole or in part, the validity of the remaining provisions of the Order shall not be affected. In such a case, the Parties shall negotiate in good faith a valid, enforceable, and practicable provision which most nearly fulfils the purpose of the invalid, unenforceable or impracticable provision.
21.6. Public Notice: No Party shall make any public disclosure or issue any press release pertaining to the specific terms and existence of the Order, to the discussions and negotiations related to the Order, and/or to any Services and/or Goods related thereto, without having first obtained the consent of the other Party, except for communications with governmental agencies or courts of law as may be legally required or necessary.
21.7. Traffic monitoring: MARLINK may monitor Customer’s traffic in order to detect threats related to cyber security risks. For such processing, MARLINK acts as a data controller with regard to the applicable data protection regulation and MARLINK shall comply with its obligations under such regulation. As MARLINK does not have a direct link with the data subjects, it is Customer’s responsibility to inform the data subjects of their rights, by referencing MARLINK’s Privacy Policy on www.marlink.com.
21.8. Business ethics: Both Parties shall uphold the highest standard of business ethics in the performance of a contract. The Parties therefore commit to the ‘Marlink Group Code of Conduct’, to be found on www.marlink.com and which terms are fully incorporated herein. At request, Marlink shall send a copy of the Code of Conduct to Customer.
21.9. Use Policies: MARLINK use policies specify the actions approved and prohibited by MARLINK to Customers and users of MARLINK’s various Equipment, software, Services, and the Internet Protocol network, whether by purchase or lease. MARLINK reserves the right to modify the Use Policies at any time, effective when distributing the modified Use Policies to its Customers. Customer shall ensure that its users of the MARLINK Equipment, software, Services, and Network are informed regarding, and shall comply with, these Use Policies. Customer’s and user’s use of the Equipment, software, Services, and Network constitutes acceptance of and agreement to the terms and conditions of these Use Policies.
ARTICLE 22: STARLINK SERVICES - SPECIFIC TERMS AND CONDITIONS
The Starlink by MARLINK EEG solution can rely on the Starlink Service is provided by MARLINK to Customer under the terms and conditions and policies of the Space Segment Provider (named “Starlink”), which can be found at www.starlink.com. The Starlink Service can be sold to commercial companies and governments only and not to residential/consumers.
Customer acknowledges and accepts to be bound by these MARLINK terms and conditions, and the terms and conditions expressly incorporated by this reference of the Space Segment Provider, and SpaceX at www.starlink.com/legal, as follows:
- The ‘Starlink Specifications’ (including the coverage map and other terms defined on Starlink official website);
- The ‘Acceptable Use Policy’;
- The ‘Software License & Usage Terms’;
- The ‘Intellectual Property’ terms;
- The ‘Privacy Policy’, and any relevant supplemental privacy notice or policy (if applicable);
- Any other referenced document on the above-mentioned website,
which content is hereby expressly incorporated by reference. It is noted that the above content may vary per selected region on the Starlink website, and that the content is subject to regular updates from the Space Segment Provider. It is hereby Customer’s sole responsibility to consult the website on a regular basis and agrees and acknowledges to comply with any legal and regulatory requirements for shipment and use of the terminal.
The Customer agrees and acknowledges that the Starlink Service is a developing technology and its coverage maps are subject to ongoing changes, updates, and regulatory approvals from worldwide authorities. Customer is solely responsible for complying with all applicable laws and regulations associated with the use of Starlink and the Starlink Kit, and using the Starlink Service within the eligible service territory, including obtaining any required authorizations, and ceasing use of Starlink or Starlink Kits where necessary.
The service availability is subject to change without prior notification from Starlink, the Space Service Provider. This can be checked on the following website link:
www.starlink.com/maritime for maritime and offshore business and www.starlink.com/map for land and onshore business.
Customer deactivation or suspension can be requested through MARLINK with no early termination compensation; however, Customer will still be responsible for any annual licensing fees for the entire annual period in which Customer terminates the Starlink Service. Notification of deactivation must be received at least five (5) calendar days prior to the end of calendar month to be effective the following month. The service will be deactivated at end of a calendar month following timely receipt of such deactivation request as described herein. Any calendar month that is activated in the middle of the month will be prorated (from the day of activation to the end of the month), and billing will continue after the month of activation only in whole month increments.
The Customer may also request an upgrade or a downgrade of Customer’s subscription package by providing written notice to MARLINK. If a downgrade is selected, the entire current calendar month billing period will be billed and the fee billed will be at the higher price of the package selected (i.e., monthly subscription packages charges will not be prorated for downgrades).
If Customer elects to upgrade its subscription package, the package billing fee will be prorated on the day of month the upgrade is activated; additional data for the subscription upgrade will begin upon such activation date. Notification of bulk upgrades/downgrades requests (for more than 10 subscriptions at once) must be received at least five (5) calendar days prior to the end of calendar month to be effective the following month.
Once the Prioritized Data included in the monthly allowance has been fully consumed, and the Customer has not opted in for Unlimited Priority Data usage, the service will be limited to 1 Mbps download and 0.5 Mbps upload until start of the next billing period. The Customer may choose opt-in or opt-out this option at any time.
Once the Prioritized Data included in the monthly allowance has been fully consumed, and the Customer has opted in for Unlimited Priority Data usage, any additional Priority Data used will be charged at a per 50 GB blocks rate.
If the Customer chooses to upgrade their subscription package and has already consumed Additional Prioritized Data beyond the original allowance, this data will remain chargeable, even after the upgrade to a higher service package. Upgrading the subscription package to a higher plan increases the available data allowance, which will only become effective and usable after the upgrade has been completed.
A Starlink Kit is required to the Starlink Service as specified by MARLINK in its offer along with its associated smart box. Similarly, the Starlink Kit is a newly developed kit, which may be subject to change from time to time. Should new developments or technological enhancements require the procurement of a new Starlink Kit (or part thereof), the Customer will bear the risk and cost for such new equipment.
Customer hereby agrees that:
- Customer’ personnel shall not perform any Preventive Maintenance Service on the Starlink Kit;
- Customer shall contact MARLINK for any support requests regarding the Starlink Service (and not the Space Segment Provider nor SpaceX);
- The Customer shall not transfer ownership of Starlink kits unless it is examined and agreed by MARLINK and Starlink;
- Customer must not use Starlink services in conjunction with unmanned aerial or land vehicles or any type of weapons system, unless otherwise expressly agreed by Starlink;
- Customer must not use Starlink services for any Ministry of Defense (MoD) or Defense Contractor without prior authorization from MARLINK; The Customer undertakes to notify MARLINK of any change in the use of the Starlink service in this respect. Any such approval will be provided by MARLINK from Starlink.
- Customer is strictly prohibited from making custom modifications to Starlink Kits or Starlink software for use in or integration into: (a) military aircraft or unmanned aerial vehicles; (b) naval vessels or submarines; (c) military combat vehicles; (d) other military or intelligence systems or equipment for use in combat scenarios. Any modifications to Starlink Kits or Starlink software requires written approval from Starlink as this may be subject to ITAR or EAR licenses obtained from the U.S. government.
Service Level Commitment for Local Priority and Global Priority Plans
For Local Priority and Global Priority Plans, Starlink commits to providing 99.9% service availability during each full billing period, calculated by accounting for all service outages lasting longer than one minute.
This Service Level Commitment applies to Starlink Standard, Starlink Performance (Gen 1), and Starlink Performance (Gen 2) when subscribed under Global Priority or Local Priority plans.
This Service Level Commitment:
• Does not apply to outages occurring when the User Terminal (“UT”) is in power save mode, undergoing a software update, or operating under rate-limited service after exceeding its allocated data allowance.
• Applies globally in locations where Starlink service is officially active.
• Applies only when the UT is powered on and maintained with an unobstructed line-of-sight to the sky.
• For Starlink Standard, the UT must be properly aligned within an acceptable tolerance, and for Starlink Performance (Gen 2), it must be tilted less than the maximum allowable angle from optimal orientation.
• For the purposes of this SLA, an “Outage” is defined as any continuous period during which the UT is unable to send or receive network pings to and from Starlink Points of Presence (“PoPs”).
In all circumstances not expressly covered under this Service Level Commitment, Starlink does not guarantee any specific uptime or service availability. Accordingly, the Customer shall not be entitled to receive outage credits, refunds, or any other compensation in the event of service downtime.
Customer nor the end user is entitled to use the trademarks of the Space Segment Provider, or SpaceX.
The Starlink Service may be changed, suspended and/or terminated as follows:
- Originating from the Space Segment Provider directly: any relevant updates (for example via the above links and documents) from the Space Segment Provider shall immediately and automatically apply between Customer and MARLINK and/or the Space Segment Provider and/or SpaceX (including but not limited to: regulatory elements, packages, prices, commitments terms, coverage maps, etc).
- Originating from MARLINK: any relevant updates from the Space Segment Provider towards MARLINK may result in changes made by MARLINK towards Customer. MARLINK being an authorized Starlink reseller- reserves all rights towards Customer in relation to the Starlink Service, for example, but not limited to, regarding amendments, termination, suspension, definition of the Starlink Service and/or Starlink Kit, regulatory elements, packages, prices, and commitments. As such, MARLINK has the right to unilaterally change, suspend, and/or terminate the Starlink Service towards Customer, by written notice and with immediate effect.
If Customer disagrees with any change(s) above, Customer's sole remedy is to terminate the Starlink Service in accordance with the above notification to MARLINK.
For Starlink services offered by MARLINK, the Customer agrees that in the event of any conflict between MARLINK’s General Terms and Conditions and Starlink Services -Specific Terms and Conditions the last one shall prevail, and in case of any conflict between these Starlink Services – Specific Terms and Conditions above and the Starlink generic terms and conditions as mentioned on the Starlink website (www.starlink.com and www.starlink.com/legal), the latter shall prevail, except for services that can only be provided directly by Starlink, where MARLINK cannot guarantee the service, and for Starlink services provided exclusively by MARLINK, where the Starlink Services – Specific Terms and Conditions would be in benefit of the Customer.