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.  ITC may increase prices for Network Services if ITC’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 ITC 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 Low Earth Orbit Services (LEO) by Marlink solution can rely on the Starlink Service and is provided by Marlink to Company 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.

Company 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 Company’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 Starlink Service is provided by the Space Segment Provider as a best effort service without specific SLA on availability of the Service.

The Company 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. Company 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.

Company deactivation or suspension can be requested through Marlink with no early termination compensation; however, Company will still be responsible for any annual licensing fees for the entire annual period in which Company terminates the Starlink Service. Notification of deactivation must be received at least 10 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 Company may also request an upgrade or a downgrade of Company’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 Company 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.

As a certified reseller of Starlink services, Marlink has the obligation to specify the cost of Starlink services on its invoices, and additionally Marlink shall itemize separately additional services provided by Marlink, which complement the Starlink services.

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 Company will bear the risk and cost for such new equipment.

Company hereby agrees that:

-           Company’ personnel shall not perform any Preventive Maintenance Service on the Starlink Kit;

-           Company shall contact Marlink for any support requests regarding the Starlink Service (and not the Space Segment Provider nor SpaceX);

-           The Company shall not transfer ownership of Starlink kits unless it is examined and agreed by Marlink, Starlink and the end user under very specific conditions;

-           Starlink does not have a guaranteed connectivity uptime, and as such the Company will not receive any Outage Credits or any other refunds in case of connectivity downtime;

-           Company 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;

-           Company must not use Starlink services for any Ministry of Defense (MoD) or Defense Contractor without prior authorization from Marlink; The Company 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.

-           Company 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.

Company 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 Company 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 Company. Marlink being an authorized Starlink reseller- reserves all rights towards Company 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 Company, by written notice and with immediate effect.

If Company disagrees with any change(s) above, Company's sole remedy is to terminate the Starlink Service in accordance with the above notification to Marlink.

For Starlink services offered by Marlink, Company agrees that in case of any conflict between Marlink general terms and conditions and Starlink services specific terms and conditions the last one shall prevail, and in case of any conflict between these general 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.