SKYFOX WIRELESS, INC.
These Master Terms (“Master Terms”) and all related service order forms ("Service Orders" or "SOFs") and service attachments (“Service Attachments”) and related information appearing at [www.skyfox.com/terms] apply to the receipt or use of any service provided by SkyFox or its Affiliates to Customer or its Affiliates ("Services") not covered by a Tariff. For purposes of this Agreement, the term "Affiliates" means an entity that controls, is under the control of, or under common control with, a party to the Agreement.
The Agreement establishes a framework under which Customer can order Services from SkyFox in the U.S. For purposes of these Master Terms, the term "Agreement" means an agreement for the purchase of Services between the Customer identified on the applicable Service Order and SkyFox. Each resulting Agreement is created by way of Service Order and consists of (a) these Master Terms; (b) the applicable Service Order; (c) the applicable Service Attachments; and (d) the other content incorporated by reference.
Service Order Process. SkyFox will provide Customer a SOF for signature. If SkyFox learns that it cannot fulfill a SOF due to third party issues after Customer accepts the SOF, SkyFox will notify Customer as soon as possible and shall have no further obligation to provide the Service under that SOF.
Effective Date. Subject to the clause entitled “Service Order Process,” a Service Order shall be effective and binding on both parties on the Commencement Date as defined in the applicable SOF.
Order of Precedence
In the event of an inconsistency between the provisions of an Agreement, the following order of precedence applies, with 1 having the highest precedence: (1) the Service Order; (2) the Service Attachments; and these Master Terms. Where applicable, U.S. Service Tariffs take precedence over all other terms to the extent they are required to take precedence by law.
Changes to the Master Terms
SkyFox may amend these Master Terms from time to time. Changes to these Master Terms are effective upon posting at [www.skyfox.com/masterterms], provided that no such modification becomes effective and binding on Customer until it has been posted for at least 30 days. If any material modification made by SkyFox to the Master Terms affects Customer in a material and adverse manner, Customer, as its sole remedy, may discontinue the affected Service without termination liability (except for payment of all charges incurred up to the effective date of such Service discontinuance) by providing SkyFox with written notice of discontinuance within 60 days of the date such change is posted. A “material and adverse” change will not include: (a) the introduction of a new Service element or any new Service feature associated with an existing Service, including all terms, conditions and prices relating thereto; (b) an adjustment (either an increase or a reduction) of a published underlying Service price not expressly fixed in the Agreement; or (c) the introduction or revision of Governmental Charges.
The Master Terms shall continue until terminated in accordance with the Agreement.
Rates and Charges
Service Orders will identify rates and charges which are fixed (i.e., not subject to change except as otherwise stated in the Service Order) for the term of the Agreement ("Term"). Otherwise, SkyFox may change its rates and charges upon 30 days' notice to Customer. SkyFox may give Customer notice of such changes in rates or charges by posting them here http://www.skyfox.com/masterterms/rates. In Agreements that incorporate online pricing, that pricing may be supplemented by the rates and charges for new service options as they become available, such as faster speeds and advanced features. Pricing for such new service options will be clearly distinguished from existing pricing, which will not be affected. Customer may order such new service options at the referenced prices, subject to applicable terms. If Customer’s Agreement does not already contain the appropriate terms, an amendment may be needed.
Services. Charges and rates (including credits and discounts) for Services are provided in the applicable Service Order, Service Attachment, online or Tariff (as applicable). The rates and charges for Services will be effective on the Services Effective Date specified in the Service Order. Except as expressly provided to the contrary in a Service Order, the rates and charges set forth in an Agreement for Services are in lieu of, and not in addition to, any other discounts, promotions and/or credits (Tariffed, standard or otherwise). All rates and charges for Services are subject to change under the terms of the Agreement, Tariff, or other online provisions specifically applicable to Services, except those that are designated as “fixed” in the Agreement or an applicable Tariff. For Services not specifically set forth in an Agreement, SkyFox’s standard rates and terms apply. References in an Agreement regarding standard rates and/or discounts and standard Tariffed rates and/or discounts refer to the corresponding standard charges, rates and/or discounts set forth in http://www.skyfox.com/masterterms/rates., the applicable Tariff, or other SkyFox standard rate tables.
Governmental Charges. SkyFox may adjust or introduce governmental charges ("Governmental Charges") in order to recover amounts it is required or permitted by governmental or quasi-governmental authorities to collect from or pay to others in support of statutory or regulatory programs.
Accrual of Charges. Except as otherwise stated in the Agreement, Customer is deemed to have accepted a Service upon the Service Activation Date set forth in the applicable Service Order and SkyFox will accrue and invoice the charges as follows: (a) recurring charges accrue from the Service Activation Date and are invoiced in advance; (b) usage-based charges accrue from the Service Activation Date and are invoiced monthly in arrears; and (c) one-time or set-up charges accrue from the Commencement Date (or where there is no Commencement Date the date an order under the Agreement is accepted by SkyFox) and are invoiced at any time thereafter. If a Service Activation Date is delayed because Customer (a) has not met its obligations or done all that is necessary on its part to activate the Services, then SkyFox may deem a date to be the Service Activation Date (whether the Services are ready for use or not) and charges shall commence to accrue in accordance with this clause; or (b) requests a delay, Customer shall be liable for any third party costs and expenses incurred by SkyFox, including but not limited to charges in relation to third party local access, related Services or Service Equipment during the period of delay.
Paper Invoice Charge. A $30 monthly recurring charge applies to every paper invoice provided to a Customer (except invoices solely for US intrastate telecommunications services) in lieu of, or in addition to, an online invoice. This charge does not apply where Customer has established to SkyFox’s satisfaction, or SkyFox determines on its own, that online invoicing is not a reasonable substitute for paper invoicing.
Convenience Payment Charges. A $5 convenience payment charge applies to any Customer payment by ETF or ACH for SkyFox Services that are authorized by telephone. A 3% convenience charge applies to any Customer payment by credit card for SkyFox Services. The charges will be made by the same payment method Customer selected and added to the total payment amount. These charges do not apply to other payment options.
No Fault Found Charge. A non-recurring charge applies when a SkyFox representative is dispatched to Customer’s premises, or performs work remotely, at Customer’s request to investigate a suspected issue with the Services, and the SkyFox representative responds to the request and finds no fault with the proper functioning of the Services or is prevented from resolving the request due to Customer’s failure to provide access or other contractually-required assistance. Examples include (without limitation) situations in which SkyFox determines: (a) the fault is with the Customer/third party vendor-maintained equipment or network; (b) the fault has already been resolved and customer failed to notify SkyFox prior to dispatch of a representative; (c) the fault resulted from an interruption to the power supply to the Service Equipment at the Customer site that was not approved by SkyFox; or (d) the fault was caused by an act or omission of Customer in breach of the Agreement. SkyFox may modify this charge by providing notice to Customer (including by posting online). The following charges apply for each SkyFox response, based on time of the visit:
Time of Day
Normal Working Hours
Then-current rate card rates
Then-current rate card rates
A visit to Customer Site or remote response which begins or ends outside of Normal Working Hours is “After Hours.”
Payment of Invoices.
General. Customer shall pay SkyFox invoices within 30 days of the invoice date.
Amounts not paid or disputed in good faith on or before 30 days from the invoice date will be past due, and interest shall accrue on any past due amount from the due date until payment (whether before or after judgment) at a rate to be determined by SkyFox which may not exceed either (a) 1.5% per month or (b) the maximum amount allowed by applicable law. SkyFox may elect to apply any credit balance(s) to the account(s) with the oldest unpaid charges. SkyFox may invoice Customer up to six months after the date a charge accrues; for charges invoiced after that, Customer may request a credit (except that in cases involving fraud or third party charges, charges may be invoiced without the time limitation stated above applying provided that they are invoiced within a reasonable period after SkyFox becomes aware of and validates the fraudulent nature of such charges).
Without prejudice to any other rights under applicable law, SkyFox also may exercise the following remedies with respect to any past due amount other than amounts disputed in good faith: (i) setting it off against any security deposit and requiring the security deposit to be increased by an additional amount; (ii) terminating the Agreement in accordance with the clauses entitled “Termination Notice” and “Service Suspension;” and/or (iii) exercising any other rights it may have with respect to any surety, security interest or other assurance of payment. Customer agrees to pay SkyFox its reasonable expenses, including legal and collection agency fees, incurred in enforcing its rights under the Agreement.
Credit Check. SkyFox may, at any time, in the reasonable exercise of its discretion, conduct a credit check of Customer, for purposes of which Customer will provide any financial information reasonably requested by SkyFox. SkyFox’s agreement to extend credit to Customer or to vary credit limits already extended (whether up or down) from time to time shall be at SkyFox’s absolute discretion.
Security. In order to reasonably secure payment from Customer, SkyFox may, at any time, request Customer to provide a security deposit or increase an existing security deposit. Customer must comply with any such request.
Disputed Amounts. If Customer notifies SkyFox of a disputed amount within 30 days of the invoice date the disputed amount may be withheld. If SkyFox (in its reasonable opinion) determines a disputed amount is not valid, then any withheld amount will be considered past due and must be paid within five days of notification by SkyFox to Customer of that determination or the current due date under the relevant invoice, whichever is the later. If Customer does not give SkyFox written notice of a disputed amount with respect to charges or the application of applicable taxes within six months of the date of an invoice, the invoice will be deemed to be correct and binding on Customer.
Local Access and Currency. When Customer orders third-party local access ("Local Access") from SkyFox, Customer agrees to pay to SkyFox all charges associated with such Local Access, and to be subject to the third-party’s terms and conditions for such Local Access, that SkyFox has ordered. For this limited purpose only, SkyFox may serve as Customer’s representative in procuring, on Customer’s behalf, domestic and international Local Access Services from such suppliers. Customer will pay any loss arising in the process of converting a foreign carrier’s charges to Dollars, or vice versa, in settlement of such carrier’s charges and in collecting payment from Customer.
Taxes. All charges are exclusive of applicable taxes, which Customer will pay. If Customer provides SkyFox with a valid, duly executed tax exemption certificate, SkyFox will exempt Customer in accordance with the law, effective on the date SkyFox receives the exemption certificate. If Customer is required by law to make any deduction or withholding from any payment due hereunder to SkyFox, then, notwithstanding anything to the contrary contained in the Agreement, the gross amount payable by Customer to SkyFox will be increased so that, after any such deduction or withholding for taxes, the net amount received by SkyFox will not be less than SkyFox would have received had no such deduction or withholding been required.
Customer may terminate Services on at least 60 days written notice prior to the end of the then-current term (the “Notice Period”). Termination takes effect on the day that SkyFox actually disconnects Service which will be the date specified by Customer or the end of the Notice Period (whichever is later). Customer will be responsible for applicable charges until such date. Services may immediately be terminated by Customer or SkyFox by written notice to the other party (to the extent permitted by applicable law) if such other party (a) has a receiver or an administrative receiver appointed over it or over any part of its undertaking or assets, or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or (b) becomes subject to an administration order or enters into any voluntary arrangement with its creditors under which it ceases or threatens to cease to carry on business, or (c) undergoes or is subject to any analogous acts or proceedings under any foreign law. The circumstances set forth in the preceding sentence are referred to collectively as “Insolvency Events.” In addition, either SkyFox or Customer may terminate the Agreement immediately by written notice where, after expiration of all Service Commitments, no Services have been provided under the Agreement for a continuous period exceeding three months, or (to the extent permitted by applicable law) if the other party to the Agreement has experienced any of the Insolvency Events. Notwithstanding the foregoing, a court order is not required to effect termination (or suspension) under this clause or any provision of the Termination for Cause and Service Suspension clauses.
Termination for Cause
Either party may immediately terminate the Agreement or a Service Order under the Agreement for Cause. For purposes of this Agreement, "Cause" means breach by the other party of any material provision of the Agreement, which is incapable of remedy or if capable of remedy, remains uncured for thirty (30) days from written notice of such breach or, in the case of Customer’s failure to pay any past due amount, ten (10) days from notice of such failure.
SkyFox may, subject to giving Customer reasonable notice where practicable, suspend one or more Services (or a part thereof) if: (a) Customer is past due on any invoice for Services which has not been remedied within ten (10) days after Customer receives notice of such non-payment; (b) suspension of Services is necessary to prevent or protect against fraud, or otherwise protect persons or property, SkyFox’s personnel, agents, facilities, or services; (c) SkyFox is obliged to comply with an order, instruction or request of a court, government agency, emergency service organization (e.g., police or fire service) or other administrative or regulatory authority; (d) SkyFox needs to carry out Emergency Works: (e) SkyFox has reasonable grounds to consider that use of the Service violates the Acceptable Use Policy or other terms of the Agreement; or (f) Customer fails to provide or increase the security deposit as requested by SkyFox. To suspend Services pursuant to sub-clause (a) above, no notice is required beyond the ten (10) days stated therein. If SkyFox exercises its right to suspend the Services, it will resume the Services as soon as practicable after the reason for suspension no longer exists (subject to the exercise of any termination right on the part of SkyFox). If one or more Services (or part thereof) is suspended as a consequence of the breach, fault, act or omission of Customer or any Customer Affiliate, Customer will pay to SkyFox all reasonable costs and expenses incurred by the implementation of such suspension and/or reconnection of the Service. For purposes of this Agreement, the term "Emergency Works" means works, the execution of which, at the time it is proposed to be executed, is required to put an end to, or prevent, the arising of circumstances then existing or imminent that are likely to cause: (a) danger to persons or property; (b) the interruption of any Services provided by SkyFox; (c) substantial loss to SkyFox or any third party; and/or (d) such other works as in all the circumstances it is reasonable to execute with those works.
Facilities Used for Service
SkyFox determines the facilities it uses to provide Services at all times. Notwithstanding any other provision in the Agreement, SkyFox reserves the right to allocate or limit its facilities available for Services; to substitute facilities (including without limitation local access facilities) with facilities from alternative suppliers; and to deny or discontinue Services (or associated billing options), in whole or in part, in general or to particular Customers, in order to: (a) manage its network in an efficient manner (including by avoiding technical, operational or security problems); (b) meet reasonable customer service expectations; or (c) furnish Services to existing and future customers based on current and projected available capacity.
Notwithstanding any provision to the contrary in the Agreement, SkyFox may terminate Services upon not less than six (6) months written notice whenever SkyFox generally decommissions Services (that is, ceases to provide it on a commercial basis to its customers).
Consequences of Termination
Without prejudice to any party’s accrued rights or obligations, upon termination of the Agreement, Services shall terminate immediately. If the Agreement or a Service is terminated by (a) Customer for any reason other than for Cause or pursuant to the clauses entitled “Service Level Agreement” or “Force Majeure”, or (b) by SkyFox for Cause, Customer will pay or refund to SkyFox as applicable, without set off or deduction, the following with respect to each of the Services affected by the termination, which Customer acknowledges are liquidated damages reflecting a reasonable measure of actual damages and not a penalty: (i) all accrued but unpaid charges incurred through the date of such termination; (ii) any termination charges or other costs or expenses incurred by SkyFox for the cancellation of the local access circuits or related Services or Service Equipment and other third party services in connection with the affected Service(s); (iii) the Early Termination Charge set forth in the Service Order; and (iv) any other applicable cancellation or termination charges specified in the Agreement. The termination liability provided in this clause is in addition to any other remedies available to SkyFox. Customer’s final invoice after the date of termination will include a charge of $1,500 for each unit of Service Equipment in the possession of Customer used for terminated Services (“Return Equipment”). Upon return of the Return Equipment within fifteen (15) days after the date of termination, Customer’s account will be credited for returned appliances in the amount of $1,500 for each unit of Return Equipment.
Access. Where SkyFox requires access to a Customer site in order to provide a Service (including but not limited to physical changes to local access facilities), Customer shall grant or shall procure the grant to SkyFox of such rights of access to each Customer site, including any necessary licenses, waivers and consents. Customer shall advise SkyFox in writing of all health and safety rules and regulations and any other reasonable security requirements applicable at the Customer site.
Assistance. Customer shall provide SkyFox with such facilities, information and cooperation as SkyFox may reasonably require to perform its obligations or exercise its rights under this Agreement. This includes but is not limited to (a) taking actions needed to enable SkyFox to implement new processes or systems, and to change facilities used to provide Services, and (b) responding promptly to notice from SkyFox requiring Customer action, such as to coordinate Customer-site access needed for a change in facilities at a mutually convenient time within 30 days of such notice from SkyFox.
Service Equipment. Where SkyFox provides Service Equipment, Customer warrants and undertakes that it shall: (a) use the Service Equipment only for the purpose of receiving Services and in accordance with SkyFox’s reasonable instructions from time to time and/or any Software license that may be provided with the Service Equipment; (b) not move, modify, relocate, or in any way interfere with the Service Equipment or SkyFox Facilities; (c) insure and keep insured all Service Equipment against theft and damage; (d) not create or allow any charges, liens, pledges or other encumbrances to be created over the Service Equipment, title to which at all times belongs and remains with SkyFox, a SkyFox Affiliate or their subcontractor or financing partner; (e) permit SkyFox to inspect, test, maintain and replace the Service Equipment upon reasonable notice to Customer; (f) comply with SkyFox’s reasonable instructions, at Customer’s own expense, in relation to the modification of the Customer equipment to enable Customer to receive Services; and (g) upon termination of any of the Services, follow SkyFox’s reasonable instructions with respect to the return of the Service Equipment including allowing SkyFox access to each Customer site to remove the Service Equipment. Should any construction or alteration to a Customer Site have occurred to facilitate any Service, SkyFox is not obliged to restore that Customer site to the same physical state as prior to delivery of Services. Customer is liable for any and all damage to Service Equipment or SkyFox Facilities which is caused by (i) the act or omission of Customer or Customer's breach of the Agreement, or (ii) malfunction or failure of any equipment or facility provided by Customer or its agents, employees, or suppliers, including but not limited to Customer equipment. SkyFox is not liable for any costs incurred by Customer arising out of any malfunction or failure of any such equipment or facility, including Customer equipment. Customer will maintain and protect the Service Equipment in good working condition with the exception of any reasonable wear and tear. Customer will not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy the Service Equipment (including any software or firmware that is part of, incorporated into or running on the Service Equipment). Customer assumes all risk of, loss, damage, theft, or destruction of the Service Equipment while it is in the Customer’s possession or control or that of its agents, including any carrier (except any carrier transporting the Service Equipment from the possession of SkyFox to Customer), and Customer will reimburse SkyFox for any costs of necessary repair (including shipping costs) or, if, in SkyFox's reasonable discretion, the Service Equipment needs replacement, Customer shall pay to SkyFox a liquidated damages amount of $1,500 (the "Liquidated Damage Amount"). THE SERVICE EQUIPMENT IS PROVIDED ON AN “AS IS/WHEREAS” BASIS. In the event the Service Equipment fails to operate substantially in accordance with its technical specifications through no fault of Customer and such failure causes a material adverse effect on Customer’s ability to use the Services, then Customer’s sole and exclusive remedy and SkyFox’ sole and exclusive liability is for Customer to return the Service Equipment to SkyFox and for SkyFox to provide replacement Service Equipment. In the event the Service Equipment fails to operate due to misuse, negligence or damages caused while in the possession of Customer, the Customer will be responsible for all repair costs (including shipping and handling fees) or the Liquidated Damage Amount if the Service Equipment is not reasonably repairable.
Software and Documentation. SkyFox software not otherwise subject to a separate agreement or a license ("Software") is provided to Customer subject to SkyFox’s standard Software license terms as follows. In consideration for payment of any applicable fees, Customer is granted a personal, non-exclusive, non-transferable non-sublicensable license to use the Software, in object code form only, solely in connection with Services for Customer's internal business purposes on Customer-owned or Customer-leased equipment (the “License”). Customer may not use the Software either in connection with the products and/or services of any third party or to provide services for the benefit of any third party, including without limitation as a service bureau. Customer may not: (a) attempt to reverse engineer, decompile, disassemble or otherwise translate or modify the Software in any manner; or (b) sell, assign, license, sublicense or otherwise transfer, transmit or convey Software, or any copies or modifications thereof, or any interest therein, to any third party. All rights in the Software, including without limitation any patents, copyrights and any other intellectual property rights therein, remain the exclusive property of SkyFox and/or its licensors. Customer agrees that the Software is the proprietary and confidential information of SkyFox and/or its licensors subject to the provisions of this Agreement pertaining to “Confidential Information.” Except to the extent otherwise expressly agreed by the parties in writing, SkyFox has no obligation to provide maintenance or other support of any kind for the Software, including without limitation any error corrections, updates, enhancements or other modifications. The License will immediately terminate upon the earlier of: (i) termination or expiration of any contract between SkyFox and Customer pertaining to the Software; (ii) termination of the Services with which the Software is intended for use; or (iii) failure of Customer to comply with any provisions of this clause. Upon termination of any License, Customer will promptly cease all use of the Software, destroy all copies of the Software in Customer's possession (if any), and certify the same to SkyFox in writing.
Intellectual Property Rights. All intellectual property, including without limitation trade secrets, know-how, methodologies and processes related to any SkyFox Service or product or otherwise made known to Customer in connection with any SkyFox Service or product shall at all times remain the exclusive property of SkyFox or its suppliers (as the case may be).
Service Marks, Trademarks and Name. Neither SkyFox nor Customer may: (a) use any service mark or trademark of the other party; or (b) refer to the other party in connection with any advertising, promotion, press release or publication unless it obtains such other party’s prior written approval.
Service Level Agreement (“SLA”). SkyFox reserves the right to amend any applicable SLA from time to time effective upon posting of the revised SLA to the URL where the SLA is set out or other notice to Customer of the change, provided that in the event of any amendment resulting in a material reduction of the SLA’s service levels or credits, Customer may terminate Services without early termination liability (except for payment of all charges up to the effective date of the termination of any such Services) by providing SkyFox at least 30 days written notice of termination during the 30 days following posting of such amendment. SkyFox may avoid such termination if, within 30 days of receipt of Customer’s written notice, SkyFox agrees to amend the relevant SLA so that the affected SLA service levels and credits are not materially reduced for Customer. The SLA sets forth Customer’s sole remedies for any claim relating to Services or SkyFox Facilities, including any failure to meet any standard set forth in the SLA. SkyFox records and data shall be the basis for all SLA calculations and determinations.
Disclaimer of Certain Damages
No party is liable to any other for any indirect, consequential, exemplary, special, incidental or punitive damages, or for loss of use or lost business, revenue, profits, savings, or goodwill, arising in connection with the Agreement, these Master Terms, the Services, related products, or documentation, even if the party has been advised, knew or should have known of the possibility of such damages.
Limitation of Liability
Without limiting the provisions of the Disclaimer of Certain Damages clause above, the total liability of either: Customer or SkyFox to the other in contract, warranty, tort or otherwise (including negligence, strict liability, misrepresentation, and breach of statutory duty) in connection with the Agreement and the Services provided thereunder is limited to the lesser of: (a) direct damages proven by the moving part(ies); or (b) the aggregate amounts due from Customer to SkyFox under the Agreement for the six months prior to accrual of the latest cause of action for which the limitation of liability under this clause is being calculated. SkyFox's liability with respect to individual Services may also be further limited pursuant to other terms and conditions of the applicable Service Order. The liability restrictions and liability and warranty disclaimers in this section apply equally to SkyFox’s suppliers and contractors as they do to SkyFox. Customer acknowledges and accepts the reasonableness of the disclaimers, exclusions, and limitations of liability set forth in this clause.
The clause entitled “Limitation of Liability” does not limit: (a) any party's liability (i) in tort for its willful or intentional misconduct, (ii) for bodily injury or death or loss or damage to real property or tangible personal property proximately caused by a party's gross negligence (or “negligence” where the concept of “gross negligence” is not recognized in a particular jurisdiction), or (iii) where mandatory local law does not allow the limitation; or (b) Customer payment obligations under the Agreement; or (c) SkyFox obligations to provide credits and waivers under an applicable Service Attachment; or (d) Customer indemnification obligations under the Agreement.
EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, SKYFOX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SKYFOX SERVICES, SOFTWARE OR DOCUMENTATION. SKYFOX SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
No cause of action, howsoever arising, which accrued more than one year prior to the institution of a legal proceeding alleging such cause of action, may be asserted by any party against another, to the extent permitted by law.
SkyFox exercises no control over and has no responsibility for the accuracy, quality, security or other aspect of any Content accessed, received, transmitted, stored, processed or used through any Service (except to the extent a particular Service explicitly states otherwise). Customer accesses, receives, transmits, stores, processes, or uses any Content at its own risk. Customer is solely responsible for selecting and using the level of security protection needed for the Content it is accessing, receiving, storing, processing or using, including without limitation Customer Data, individual health and financial Content. SkyFox is not responsible if the level of security protection Customer uses for any particular Content is insufficient to prevent its unauthorized access or use, to comply with applicable law, or to otherwise fully protect the interests of Customer and others in that Content. For purposes of the Agreement, “Content” means anything that can be accessed, received, transmitted, stored, processed or used via any Service – (whether actively or passively) - including any form of information, audio, image, computer program or other functionality. “Customer Data” means information regarding Customer, its employees and users, including personal and/or private information, voice and data transmissions and the originating and destination numbers and IP addresses, date, time, duration, and other data necessary for the establishment, billing or maintenance of such transmissions.
Any delay in or failure of performance by any party under the Agreement (other than a failure to comply with payment obligations) is not a breach of that Agreement to the extent that such delay or failure is caused by events beyond the reasonable control of the party affected, including, but not limited to, acts of God, embargoes, governmental restrictions, strikes, riots, insurrection, wars or other military action, civil disorders, acts of terrorism, rebellion, fires, explosions, accidents, floods, vandalism, and sabotage. Such an event is hereinafter referred to as a “Force Majeure Event.” Market conditions or fluctuations are not Force Majeure Events. A party whose performance is affected by such Force Majeure Events will promptly provide relevant details to the other party to the Agreement and the obligations of the party giving such notice will be suspended to the extent caused by the Force Majeure Event so long as the Force Majeure Event continues, and the time for performance of the affected obligation will be extended by the delay caused by the Force Majeure Event. If the affected party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, then either party may in its sole discretion immediately terminate the affected Service by giving notice of termination to the other party, provided that in the case of termination by Customer, Customer first provides SkyFox a reasonable opportunity to replace affected Services with comparable Services. Upon such termination, SkyFox is entitled to payment of: (a) all accrued but unpaid charges incurred through the date of such termination; and (b) any termination charges or other costs or expenses incurred by SkyFox for the cancellation of the local access or related Services or equipment and other third party services in connection with the Service. The parties shall otherwise bear their own costs and SkyFox shall be under no further liability to perform the Services affected by the Force Majeure Event.
Customer Indemnification. Customer will defend, indemnify and hold harmless SkyFox, its Affiliates, officers, directors, employees, successors and assigns (collectively, the SkyFox Indemnitees"), from and against any claims, suits, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses), and costs (including allocable costs of in-house counsel) asserted against or incurred by any of the SkyFox Indemnitees arising out of any of the following allegations by a third party: (a) Customer's connection of Services to any third party service or network; (b) violation, misuse or misappropriation by Customer, users of the Services, or Customer's customers, of the trademarks, copyrights, trade secrets, or other proprietary rights or intellectual property rights of SkyFox, SkyFox's Affiliate or of a third party (other than a third party claim that SkyFox does not own SkyFox service marks or trademarks); and (c) Customer’s use of Services, or Customer’s customers’ violation of the Acceptable Use Policy; or (d) the unauthorized use of or access to Service or SkyFox facilities by any person using Customer’s systems or network. Notwithstanding any other provision of the Agreement, Customer shall pay all expenses and costs, including costs of investigation, court costs, and reasonable legal fees and expenses (including allocable costs of in-house counsel) incurred by SkyFox Indemnitees in enforcing this provision. SkyFox holds the benefit of this sub-clause on trust for the other SkyFox Indemnitees. SkyFox shall be entitled to participate, in a non-interfering manner, in the defense of any such claim, action, or suit, at its own cost.
Notice, Cooperation, Control and Consent to Settlement.
Excuse from Obligations. Customer is excused from its obligations relating to any claim, action or suit under the clause entitled “Customer Indemnification” if SkyFox fails to: (a) provide prompt written notice of the third party claim, action, or suit to Customer, provided that the failure of SkyFox to provide such notice materially prejudices Customer’s defense and/or settlement of such claim, action or suit; (b) cooperate with all reasonable requests of Customer in connection with the defense and/or settlement of such claim, action or suit, at Customer’s reasonable expense; and/or (c) surrender exclusive control to Customer of the defense and/or settlement of such claim, action, or suit.
Prior Consent Required. Customer shall secure the prior written consent of SkyFox before settling any claim, action or suit that includes an admission of liability or imposes material obligations on SkyFox other than cessation of infringing activity, confidential treatment of the settlement, and/or payment of money that is fully indemnified by Customer under the clause entitled “Customer Indemnification.” SkyFox shall not unreasonably withhold or delay consent.
Except as required by law or regulation, each party to the Agreement promises that while any Services are being provided and for three (3) years after, it will use the other party’s Confidential Information only for purposes of such Agreement, as applicable, not disclose it to third parties except as provided below, and protect it from disclosure using the same degree of care it uses for its own similar Confidential Information (but no less than a reasonable degree of care). Such a party may disclose the other party’s Confidential Information to its employees, agents, and/or financing sources, suppliers and subcontractors (including professional advisors and auditors), and to those of its Affiliates, who have a need to know and who are bound to protect it from unauthorized use and disclosure under the terms of a written agreement at least as protective of the other party’s Confidential Information as set forth herein. In any case, a party is responsible for the treatment of Confidential Information by any third party to whom it discloses it under the preceding sentence. In addition, information, whether or not Confidential Information, may be disclosed by a receiving party as may be required or authorized by applicable law, rule, regulation, or lawful process provided that the receiving party, to the extent practicable and permitted by applicable law, rule, regulation or lawful process, first notifies the disclosing party in order to permit the disclosing party to seek protective arrangements. Confidential Information remains the property of the disclosing party and, upon written request of the disclosing party, must be returned or destroyed. If there is a breach or threatened breach of this confidentiality provision, the disclosing party may be entitled to seek specific performance and/or injunctive or other equitable relief as a non-exclusive remedy. This clause does not prevent a party from announcing the existence of the Agreement internally (e.g., to its employees and Affiliates). In the event the parties have signed a separate confidentiality agreement which applies to Services, the terms of this clause will take precedence over that agreement to the extent of any inconsistency.
Customer acknowledges that SkyFox, SkyFox Affiliates and their respective agents will, by virtue of the provision of the Service, come into possession of Customer Data.
Protection Measures. SkyFox will implement appropriate technical and organizational measures to protect “Regulated Customer Data” against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access and against other unlawful forms of processing, which measures may for example relate to data handling practices and transmission security. “Regulated Customer Data” means Customer Data the use, processing or transfer of which is regulated by law or regulation as “personal data.”
Access But No Monitoring. Customer may access Regulated Customer Data as reasonably required to provide the Services, but in no event shall SkyFox actively monitor Regulated Customer Data and Customer is responsible for complying with all applicable laws, rules and regulations with regard to the Regulated Customer Data.
Withdrawal of Consent. Customer may withdraw consent for such use, processing or transfer of Customer Data as set out above, except as it is required to (a) provision, manage, account or bill for the Service; (b) carry out fraud detection; or (c) comply with any statutory or regulatory requirement or the order of a court or other public authority, by sending written notice to SkyFox in the prescribed form, available from SkyFox on request.
Customer Consent. Customer warrants that it has obtained or will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Customer Data as described in this section.
Acceptable Use Policy (“AUP”)
Compliance. Use of SkyFox Services must comply with the applicable, then-current version of the AUP of the countries from which Customer uses such Service (in the event no AUP exists for a country, the U.S. AUP shall apply). The applicable AUP is available at the following URL: http://www.skyfox.com/terms or other URL designated by SkyFox. Customer shall ensure that each user of the Services complies with the AUP.
AUP Changes. SkyFox reserves the right to change the AUP from time to time, effective upon posting of the revised AUP at the designated URL or other notice to Customer.
Any IP addresses assigned to Customer by SkyFox must be used solely in connection with the Service for which they are assigned. If such Services are terminated, Customer’s right to use the IP addresses ceases immediately and the IP addresses immediately revert to SkyFox.
General. Any notice required to be given under the Agreement will be in writing, in English, and transmitted via any of email, overnight courier, hand delivery, a class of certified or registered mail, that includes return of proof of receipt, or for SkyFox only, invoice message, to a party at the addresses set out in the applicable Service Order or such other addresses as may be specified in accordance with this clause. Notice from Customer must reference the applicable Service Order ID. Notice sent in accordance with this clause will be deemed effective when received, except for email notice which will be deemed effective the day after being sent. A party may from time to time designate another address or addresses by written notice to the other party in compliance with this clause.
Use of Subcontractors/Affiliates
Without releasing it from any of its obligations, SkyFox may at any time, and without notice, utilize the services of one or more SkyFox Affiliates or subcontractors (as well as interconnecting carriers) in connection with the performance of its obligations.
Nothing in the Agreement, and no action taken by the parties under it, creates a partnership, agency, association, joint venture or other co-operative entity between the parties.
No Third party Beneficiaries
Nothing in these Master Terms or otherwise in the Agreement confers any rights or other benefits in favor of any person other than the parties.
No Resale of Services
Except as otherwise specified in the applicable Service Order, Customer may not resell, charge, transfer or otherwise dispose of Services (or any part thereof) to any third party.
Either party may assign the Agreement or any of its rights thereunder to an Affiliate or successor upon written notice to the other party. A Customer Affiliate or successor must be a U.S. legal entity and meet SkyFox’s creditworthiness standards for the assignment to become effective. All other assignments without prior written consent are void.
The Agreement may be modified only by the mutual written agreement of the parties.
Failure or delay by any party to exercise or enforce, or a partial exercise of, any right under the Agreement is not a waiver of that right.
Certain provisions of the Agreement shall have full force and effect after the expiration or termination, including but not limited to the clauses entitled: “Disclaimer of Certain Damages/Limitation of Liability,” “Indemnification,” “Confidentiality,” “Customer Data,” this clause “Survival” and any other clauses which by their nature should survive, including those relating to governing law.
If any provision of the Agreement is held by any entity of competent jurisdiction to be unenforceable, the remainder of the Agreement remains enforceable.
Compliance with Laws
SkyFox will comply with all applicable laws and regulations including all mandatory legal and regulatory requirements in the jurisdiction where Services are to be provided. Customer will comply, and ensure that users of the Services comply, with all applicable laws and regulations including without limitation: (a) local license or permit requirements; (b) applicable export/re-export (including U.S. export regulations), sanctions, import and customs laws and regulations; and (c) data protection requirements. SkyFox makes no representation as to whether any regulatory approvals required by Customer to use the Services will be granted. Customer warrants that it holds and shall continue to hold such licenses and/or other authorizations as are required under any relevant legislation, regulation or administrative order, to receive the Services and to run and connect the Customer equipment to SkyFox facilities and Service Equipment. SkyFox reserves the right to disconnect any Customer equipment where Customer has failed to comply with the provisions of this clause and in no event will SkyFox be liable in respect of Customer’s failure to comply with this clause.
The export, import, and use of certain hardware, Software, and technical data provided by SkyFox are regulated by the United States and other governments. Customer agrees to comply with all applicable laws and regulations, including the U.S. Export Administration Act, the regulations promulgated thereunder by the U.S. Department of Commerce, and any other applicable laws or regulations. Customer represents and warrants that Customer is not subject to any government order suspending, revoking or denying export or import privileges necessary for the performance of Customer’s or SkyFox’s obligations under any Agreement.
Governing Law and Venue for U.S. Services
This Agreement will be governed by and construed in accordance with the domestic law of New York, without regard to its choice of law principles, except that where the Communications Act of 1934 (as amended) applies, those Agreements will be governed by and construed in accordance with that Act. For any such dispute, the parties waive any and all objections to venue in New York, United States District Court for the District of New York and the courts of the State of New York in New York, New York.
Any controversy, claim, or dispute (“Disputed Claim”) arising out of or relating to the Agreement (including incorporated terms), except for claims relating to indemnity, infringement, or confidentiality obligations or matters relating to injunctions or other equitable relief (together “Equitable Claims”), are first subject to a 30-day negotiation period between SkyFox and Customer in which each shall disclose to the other all such documents, facts, statements and any other information which are reasonably requested and are relevant to the dispute in question. If such negotiations fail to resolve the dispute within 30 calendar days, Disputed Claims must be resolved by binding arbitration of a single arbitrator in accordance with the rules of the American Arbitration Association. The decision of the arbitrator must be based upon the Agreement and applicable law. The decision of the arbitrator must be reduced to writing, is final and binding except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in any court having jurisdiction. In all arbitrations, the arbitrator must give effect to applicable statutes of limitation subject to limitation of actions terms in the Agreement, and has no authority to award relief in excess of what the Agreement provides or to order consolidation or class arbitrations. The arbitrator has no authority to award punitive damages in any Disputed Claim. Any such claims arising under the Agreement must be pursued on an individual basis in accordance with the procedure noted above. Even if applicable law permits class actions or class arbitrations, the dispute resolution procedure specified here applies and SkyFox and Customer waive any rights to pursue any claim arising under the Agreement on a class basis. The arbitration will be held in a mutually agreed-to location, and is final and binding.
The Agreement may, where applicable, be executed in counterparts each of which when executed by the requisite parties shall be deemed to be a complete original agreement. A facsimile copy or scanned copy of the executed Agreement or counterpart shall be deemed, and shall have the same legal force and effect as, an original document.
The Agreement: (a) expresses the entire understanding of the respective parties with respect to its subject matter; (b) supersedes all prior or contemporaneous representations, solicitations, offers, understandings or agreements regarding their subject matter which are not fully expressed herein; and (c) contains all the terms, conditions, understandings, and representations of the parties. Any terms and conditions sent to SkyFox by Customer as a purchase order or otherwise, are void and of no effect and, will not supersede any terms and conditions in the Agreement.