Terms & Conditions
The following terms and conditions (“Terms and Conditions”) apply to individuals and entities (“Customers”) using any services or equipment provided by SkyNet Satellite Communications Pty Ltd, SkyNet Satellite Communications Inc., SkyNet Aviation and /or any affiliated entity (“SkyNet”), which services shall include but not be limited to SkyNet REACH Aero or other Web portal; services, satellite, cellular and Automatic Dependant Surveillance Broadcast (ADS-B) services (including but not limited to Inmarsat, Iridium and GlobalStar services).
- Provision of Services and Equipment by SkyNet
(A)SkyNet shall provide to Customers those services (“Services”) or equipment (“Equipment”) identified by the customer and into which these Terms and Conditions are incorporated, upon acceptance of Customer’s order. Provision of Services and /or Equipment shall be in accordance with these Terms and Conditions. All orders are subject to SkyNet’s receipt and approval of a completed Subscriber Terms of Service from Customer, which may be approved or disapproved in SkyNet's sole discretion. Customer and SkyNet expressly disclaim the applicability of the United Nation’s Convention on the International Sale of Goods with respect to transactions described herein.
(B)In the event that Customer desires to permanently deactivate or temporarily suspend Services, customer will notify SkyNet of the same in writing, and SkyNet will promptly acknowledge receipt of such request and terminate or suspend the Services. There will be no pro-rata refunds in connection with such deactivation or suspension. Notwithstanding any termination or suspension, Customer will remain liable for all charges for the Services and Equipment, including, but not limited to, airtime, lease equipment and monthly access fees up to and including the last day of the monthly billing period in which SkyNet acknowledges receipt of Customer’s written request for permanent deactivation or temporary suspension of Services. All Such requests must be sent to: (Email): [email protected]
- Ordering Services and /or Equipment
Orders may be submitted to SkyNet either through a SkyNet authorised dealer or by contacting SkyNet directly via e-mail at [email protected] Orders are subject to SkyNet’s acceptance in its sole discretion. No purchase order or other document shall be construed to modify, amend or supplement any of these Terms and Conditions. Customer agrees that a purchase order submitted and /or confirmed by electronic means is valid and enforceable, and waives any claim challenging the enforceability of any such purchase order on such basis. Customer is required to complete all applicable paperwork for the Services or Equipment to be provided by SkyNet. Customer hereby authorises SkyNet or its representative to obtain information about Customer’s credit history from credit reporting agencies at any time. Customer understands that a credit inquiry could adversely affect its credit rating. Customer authorises SkyNet to report Customer’s payment record to credit-reporting agencies.
- Billing and Payment
(A) Services. SkyNet will bill and Customer shall pay SkyNet for the services provided by SkyNet and for all applicable federal, state, local and other taxes which may be levied in connection with the Services.
(B) Equipment. Invoices for Equipment will be sent on or prior to the date of shipment and shall include all applicable federal, state, local and other taxes that may be levied in connection with the Equipment.
(C) Payment Terms. Customer shall pay Equipment invoices prior to delivery, and Services invoices within fourteen (14) days after the date of invoice. Overdue payments shall be subject to an interest charge of the lesser of either one and one-half percent (1.5%) per month or the highest rate permitted by law. Customer shall pay for any and all collection or litigation expense, including reasonable legal fees and costs, incurred by SkyNet in collecting any late payments or late payment fees.
(D) SkyNet may require Customer to provide a third party guarantee, deposit, letter of credit, or other credit facility deemed necessary by SkyNet, in its sole discretion, to provide adequate assurance of payment. The provision of such third party guarantee, deposit, letter of credit, or other credit facility does not relieve Customer of its payment obligations specified herein.
(E) All charges will be in accordance with SkyNet’s then current charges as provided to Customer for the applicable Service or Equipment. SkyNet reserves the right to revise such charges from time to time, with 30 days written notice.
(F) Customer acknowledges that if SkyNet provides the services of a third party service provider to Customer, and (i) invoices customer, and / or (ii) receives or processes payments from Customer, for such services on behalf of such third party service provider, SkyNet will charge to customer, and Customer agrees to pay in connection with such services, the amount charged by such third party service provider therefore, plus an administrative fee of twelve and one-half percent (12.5%) administrative fee.
(G) Customer acknowledges its responsibility to provide and pay for all equipment and services required to connect Customer-provided Equipment to the Services or Equipment.
(H) Customer will notify SkyNet in writing of any disputes or disagreements with invoiced charges within fourteen (14) days after the date of invoice. Thereafter, Customer shall be deemed to have waived its right to dispute charges. All disputed amounts resolved in Customer’s favour will be credited against amounts owing on subsequent invoices.
- Sale of Equipment
(A) Title/ Delivery/ Freight Charges/ Risk of Loss: Title and Risk of Loss in the Equipment shall transfer to Customer at the time the Equipment has been tendered to the carrier of transport to Customer. Customer shall pay any transportation costs incurred by SkyNet to ship the Equipment to Customer’s designated location, unless otherwise agreed in writing prior to shipment. Any additional delivery terms for Equipment shall be mutually agreed to by SkyNet and Customer. SkyNet shall use commercially reasonable efforts to comply with the delivery terms requested by Customer. In no event shall SkyNet have any liability in connection with any shipment of Equipment, nor shall the carrier be deemed to be an agent of SkyNet.
(B) Partial Shipments: Customer agrees to accept partial shipments unless otherwise specified in writing in advance. In the event that ordered Equipment is not available, SkyNet will maintain a backorder list compiled by date. As backordered Equipment is received, SkyNet will fill orders based on age of order, Customer is responsible for shipping charges for each partial shipment.
(C) Inspection & Acceptance: customer may inspect or test the Equipment that has been tendered for acceptance. Unless Customer notifies SkyNet in writing of the existence of any defects in the Equipment within fourteen (14) days after receipt, such Equipment shall be deemed to be accepted.
(D) Warranty: SkyNet warrants that title to all Equipment delivered to Customer under these Terms and Conditions shall be free and clear of all liens, encumbrances, or security interests. EXCEPT FOR THE FOREGOING OR PURSUANT TO ANY WRITTEN WARRANTIES THAT MAY BE PROVIDED BY THE MANUFACTURER OF EQUIPMENT PROVIDED BY SKYNET (WHICH WARRANTIES ARE SOLELY THOSE OF THE MANUFACTURER, AND WHICH SKYNET DOES NOT JOIN IN MAKING), AND TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. SKYNET MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING SERVICES OR EQUIPMENT. SKYNET DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE SERVICE, NOR THAT THE COMMUNICATIONS UTILISING THE SERVICES OR THE EQUIPMENT WILL BE PRIVATE OR SECURE.
- Operating Procedures
Customers shall follow the procedures (“Procedures”) established by the entities that supply the Services and Equipment to SkyNet (“Suppliers”) and such Procedures may be provided to Customer upon reasonable request to SkyNet. Customer acknowledges that the Procedures may be modified from time to time by Suppliers. SkyNet shall not be liable for Customer’s use of the Services or Equipment in a manner inconsistent with the Procedures provided by Suppliers.
- Service Specific Terms & Conditions
(A) Inmarsat Services: Inmarsat terminals and Services may not be used in the United States unless the Customer has so indicated on its Subscriber Application and Services Agreement.
(B) Services Agreement & Termination: THE CUSTOMER ACKNOWLEDGES THAT SKYNET SATELLITE SERVICES AND EQUIPMENT REQUIRE A MINIMUM SERVICE TERM TO WHICH THE CUSTOMER HAS AGREED, BY SIGNING THE SERVICE ACTIVATION FORM ON COMPLETION OF THE MINIMUM SERVICE TERM THE CUSTOMER AGREES THAT THE SERVICES WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL MONTH TERM AND AFTER EACH EXPIRING MONTH ANNIVERSARY EXCEPT WHERE THE CUSTOMER HAS NOTIFIED SKYNET SATELLITE COMMUNICATIONS ADVISING OF INTENT TO CANCEL ALL OR PART OF THE SERVICES 90 DAYS PRIOR TO TERMINATION OR TO THE EXPIRATION OF THE MINIMUM SERVICE TERM WILL RESULT IN A ONE TIME EARLY TERMINATION CHARGE (“EARLY TERMINATION CHARGE”) EQUAL TO THE MONTHLY SERVICE FEE MULTIPLIED BY THE NUMBER OF MONTHS REMAINING IN THE MINIMUM SERVICE TERM. A CANCELLATION WITHIN AN AUTOMATICALLY RENEWED TERM WILL BE GOVERNED BY THE CONDITIONS OF THE EARLY TERMINATION CHARGE GUIDELINES FOR THE REMAINDER OF THAT MONTHLY TERM. CUSTOMER AGREES TO PAY ANY AND ALL CHARGES FOR USE OF THE SERVICES AND THE EQUIPMENT REGARDLESS OF THE DATE INVOICED FOR SUCH CHARGES, AND EVEN IF INVOICED AFTER TERMINATION OR SUSPENSION OF SERVICES, AS LONG AS SUCH CHARGES ARE OTHERWISE VALID HEREUNDER.
- Service Availability
The Services are provided on an “on-demand’ basis and are subject to the availability of capacity on the applicable satellite, cellular or ADS-B network. Services may be temporarily unavailable or limited because of capacity limitations, network equipment failures, distress or other emergency pre-emption or circumstances beyond the control of SkyNet, or a Supplier’s network availability may be temporarily interrupted or curtailed due to modifications, upgrades, repairs or similar activities. Customer agrees that SkyNet will not be liable for unavailability or malfunction of Supplier’s networks or SkyNet delivery systems.
- Conditions of Other Contracts
The obligations of SkyNet and the terms of service and sale under these Terms and Conditions are subject to the terms of the agreements under which SkyNet purchases the Services and Equipment from Suppliers (each an “Other Contract”). To the extent fulfilment of any obligation under these Terms and Conditions is not permissible or possible under an Other Contract, The Other Contract shall prevail and such obligation shall be suspended or modified to the extent required by the Other Contract. SkyNet represents and warrants that it is not presently aware of any material respect in which these Terms and Conditions are inconsistent with an Other Contract.
- Abuse/ Fraudulent Use of Services and Equipment
(A) Customer shall not use the Services or Equipment in an abusive or fraudulent manner, which shall include, but not be limited to the following:
(i) accessing or attempting to access Services by using an unauthorised device or by tampering with or altering Equipment;
(ii) obtaining or attempting to obtain permission to use Services or Equipment by providing false or misleading information;
(iii) obtaining Services or Equipment without having the intent to pay charges incurred;
(iv) intentionally interfering with or causing disruption in the provision of Services or Equipment to other Customers;
(v) using Services or Equipment to engage in or further criminal activity;
(vi) using Services or Equipment to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent or to call another person so frequently or at such times of day or in any other manner with intended effect of annoying, threatening or harassing such other persons; or
(vii) using Services or Equipment in a manner that interferes unreasonably with the use of Services or Equipment by one or more other Customers.
(B) SkyNet reserves the right to terminate use of the Services of any Customer engaging in abusive or Fraudulent use of the Services or Equipment provided.
- Default & Termination of Services
(A) SkyNet may limit, suspend or terminate the Services without notice for any reason, including, without limitation, the occurrence or happening of any one or more of the following events, each of which shall constitute an event of default:
(i) use of the Services or Equipment in any manner or for any purpose contrary to law;
(ii) abuse or fraudulent use of the Services and /or Equipment;
(iii) failure to make any payments due as invoiced;
(iv) discovery by SkyNet that any representation or warranty made by Customer in any document furnished by Customer to SkyNet is incorrect;
(v) breach or violation of any of these Terms and Conditions by the Customer; or
(vi) commencement of any proceeding, whether voluntarily or involuntarily, relating to the Customer under any law relating to insolvency, bankruptcy or the protection of creditors’ rights generally.
(B) In the event of default, SkyNet may, as its sole option and without in any way limiting any other rights and remedies it may have, immediately terminate Customer’s Service without notice. SkyNet will bill Customer and Customer shall pay SkyNet, in accordance with Section 3, for all outstanding charges accrued up to and outstanding on the date of such termination. In all such cases, SkyNet shall incur no liability whatsoever. Customer shall be liable for all costs and expenses incurred by SkyNet due to default by a Customer, including but not limited to attorney’s fees and legal costs.
(C) SkyNet may also terminate Services in the event that an Other Contract for purchase of Service and /or Equipment expires or is terminated, provided that termination of the Services shall only be with respect to the specific service previously provided pursuant to such Other Contract.
- Indemnity and Limitation of Liability
(A) SKYNET SHALL NOT BE LIABLE TO CUSTOMER, ANY USER, OR OTHER PERSON FOR:
(i) INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST BUSINESS, OPPORTUNITIES, GOODWILL AND /OR PROFITS), SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF NOTICE WAS GIVEN OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE;
(ii) ANY ACTS OR OMISSIONS OF A TELECOMMUNICATIONS CARRIER UNAFFILIATED WITH SKYNET WHOSE FACILITIES, EQUIPMENT OR SERVICES ARE USED IN PROVIDING THE SERVICES;
(iii) ANY ACTS OR OMISSIONS OF A THIRD PARTY MANUFACTUREER OF EQUIPMMENT;
ANY CLAIMS OF DEFAMATION, INVASION OF PRIVACY, SLANDER, LIBEL, HARASSMENT OR COPYRIGHT INFRINGEMENT ARISING FROM MATERIAL TRANSMITTED OR RECEIVED HEREUNDER; OR
(iv) INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY ARISING FROM USE OF THE SERVICES OR EQUIPMENT OR THE USE OF THE SERVICES OR EQUIPMENT
(B) IN ADDITION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES PROVIDED BY SKYNET DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY TRANSMISSIONS TO ANY TYPE TO OR FROM HOSPITALS, LAW ENFORCEMENT AGENCIES, MEDICAL CARE UNITS OR ANY TYPE OF EMERGENCY SERVICES OF ANY KIND, AND THAT SKYNET IS NOT LIABLE IN ANY MANNER FOR SUCH TRANSMISSIONS, IN THE EVENT THAT ANOTHER USER USES CUSTOMER’S ACCOUNT, CUSTOMER IS RESPONSIBLE TO INFORM SUCH USER OF THESE RESTRICTIONS.
(C) CUSTOMER AGREES THAT NEITHER SKYNET, SKYNET’S SUPPLIERS NOR ANY OF THEIR RESPECTIVE AFFILIATES, RESELLERS OR AGENTS SHALL BE LIABLE ON ANY BASIS WHATSOEVER (INCLUDING IN CONTRACT AND IN TORT) TO CUSTOMER OR CUSTOMER’S CUSTOMERS FOR ANY LOSS OR DAMAGE ARISING FROM OR IN CONNECTION WITH (i) ANY UNAVAILIBILITY, DELAY, INTERRUPTION, DISRUPTION OR DEGRADATION IN OR OF THE SPACE SEGMENT OR OF ANY TELECOMMUNICATIONS CARRIED ON IN THE SPACE SEGMENT, REGARDLESS OF CAUSE INCLUDING, BUT WITHOUT LIMITATION, EQUIPMENT FAILURE OR MALFUNCTION; (ii) THE SUSPENSION BY SKYNET OR SKYNET’S SUPPLIERS OF THE MOBILE EARTH STATION’S AUTHORISATION TO USE SERVICES PROVIDED BY SKYNET OR SKYNET’S SUPPLIERS, DUE TO ANY CAUSE WHATSOEVER; OR (iii) ANY SERVICE OUTAGE OR DEGRADATION IN A SUPPLIER’S NETWAORK DUE TO SATELLITE MALFUNCTION OR ANY OTHER CAUSE.
(D) NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, IN THE EVENT THAT SKYNET IS HELD TO BE LIABLE FOR ANY LOSS OR DAMAGE WHATSOEVER UNDER THESE TERMS AND CONDITIONS, IN NO EVENT SHALL SKYNET’S TOTAL LIABILITY WITH RESPECT TO SUCH LOSS OR DAMAGE EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT ACTUALLY PAID TO SKYNET BY CUSTOMER UNDER THESE TERMS AND CONDITIONS FOR THE SERVICES AND /OR EQUIPMENT TO WHICH SUCH LIABILITY RELATES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(E) CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD SKYNET AND ITS OFFICERS, EMPLOYEES, SUPPLIERS AND AGENTS HARMLESS FROM AND AGAINST ALL CLAIMS, ACTIONS, LOSSES,COSTS AND DAMAGES BROUGHT OR SUFFERED BY THIRD PARTIES ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES AND EQUIPMENT BY CUSTOMER.
(F) EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS AGAINST SKYNET ARISING IN CONNECTION WITH THE SERVICES OR THE EQUIPMENT MUST BE BROUGHT WITHIN 1 YEAR OF THE DATE THE CLAIM ARISES.
- Confidential Information/ Privacy and Data protection
Each party will comply fully with all applicable privacy and data protection laws and regulations, and will provide such assistance to the other party as is reasonably necessary to assist the other party in complying with such laws and regulations. Customer will indemnify SkyNet against claims by third parties resulting from inadequate observance of the provisions of this Section.
All notices, requests, demands and other communications hereunder shall be effective upon delivery. Such notices shall be in writing and shall be sent by facsimile, email, nationally recognised overnight courier or delivered in person, addressed as follows:
For Customer Service and Billing Inquires:
Accounts, PO Box 63 Hamilton, Brisbane, AUSTRALIA 4007
Email: [email protected]
T: +61 7 3860 5511
- Applicable Law
These Terms and Conditions shall be governed by the laws of the State of Queensland, Australia, excluding its conflicts of laws provision. Customer agrees to abide by all of the regulations in effect in countries where the Services or Equipment may be used, including licensing requirements. SkyNet shall not be held responsible for any operational restrictions, customer, license or permit fees required for operation in the destination country. In addition, Skynet shall have no responsibility for fines associated with equipment seizure nor for legal ramifications of using Equipment in countries where it is prohibited. Customer is advised to contact the embassy or trade office of the destination country prior to entry into that country. Customer agrees to comply with relevant export and import laws in Australia and United States of America and other countries to ensure the Equipment is not transferred in violation of such laws and to obtain any required export/ import licenses or authorisations.
SkyNet may, without the consent of Customer, (a) assign its right to receive payment hereunder to a third party and (b) assign its rights and obligations hereunder to a corporation, partnership or other business enterprise in which SkyNet has directly or indirectly, an ownership interest. Customer shall not assign its rights and obligations hereunder without the prior written consent of SkyNet. These Terms and Conditions shall inure to the benefit of, and shall be binding on Customer’s and SkyNet’s respective successors and permitted assigns.
- Force Majeure
SkyNet shall not be liable for any loss or failure of performance hereunder due to causes beyond its reasonable control (“Force Majeure”), including, without limitation, acts of God, fire, explosion, satellite failure, vandalism, cable cut, storm or other catastrophes, national emergency, insurrections, riots, wars or strikes, lock-outs, work stoppages or other labour disputes or any law, order, regulation, direction, action or request of any government or authority or instrumentality thereof. SkyNet’s obligation to perform shall be suspended for the duration of a period of Force Majeure and shall resume as soon as reasonably possible, upon the cessation of the event of Force Majeure.
- Waiver of Compliance
The waiver or the failure of SkyNet to enforce any of the provisions of these Terms and Conditions or to exercise any right or privilege hereunder, shall not be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder.
- Entire Agreement
These Terms and Conditions constitute the entire agreement between SkyNet and Customer relating to the subject matter hereof and supersede all prior agreements between the parties with respect to such subject matter. There are no other oral or implied agreements, warranties or understandings between SkyNet and Customer with respect to such subject matter.
If any provision of these Terms and Conditions shall be declared invalid, illegal or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In the event that any such provision shall be declared invalid, illegal or unenforceable due to its scope, breadth or duration, then it shall be modified to the scope, breadth or duration permitted by law and shall continue to be fully enforceable as so modified.
- Effective Date
The Terms and Conditions set forth above are effective as of 1st September 2019 and shall remain in effect unless modified, revoked or terminated by SkyNet in its sole discretion, which may be accomplished without prior notice.
SkyNet Commercial ADS-B | Appendix 2
SkyNet Commercial - Automatic Dependant Surveillance Broadcast (ADS-B) service is a fully integrated technology with SkyNet REACH Aero web portal service. Offering high speed position reporting for supplemental or primary tracking position updates up to once per second where aircraft are fitted with serviceable ADS-B Out equipment and within available coverage areas.
Service Summary: The SkyNet Commercial ADS-B network is provided as a ground based terrestrial service and is very robust and reliable, although may include minor service interruptions from time to time depending on quality of remote sites mains power and data service availability to transfer data ie. Infrequent loss of Internet service or Power supply to receivers from which may preclude data being received by SkyNet for use in the Customer’s service in a timely manner. SkyNet recommends overlapping coverage to mitigate any minor loss of individual site connections. SkyNet Commercial ADS-B may be used in conjunction with a Customer’s current aircraft Satellite tracking solution providing a Hybrid dual source of available tracking data and offers increased tracking redundancy. Aircraft altitude is an important consideration to the available range of the ADS-B service and where terrain or other physical features may preclude extended coverage in some instances.
Equipment Lease: SkyNet will supply the Customer with an agreed number of ADS-B receiver kits at an agreed once off perpetual Lease cost per unit. Additional ADS-B Receivers will also be available as required for custom coverage; SkyNet will supply ADS-B receivers at an agreed price per receiver on a perpetual lease basis until expiration of the service contract (TOS) Agreement or cancellation by either party. ADS-B Service cancellation will require a notice period in writing of 90 days prior to cancellation effect to provide sufficient time to decommission and return the Leased equipment to SkyNet at the Customer’s expense. The Customer will be required to continue monthly service payments until all equipment is returned to SkyNet in accordance with the services agreement currently held. Failure to return the Leased ADS-B receivers within the 90 day cancellation period will incur an additional service charge equal to the original once off equipment Lease amount per device not returned. SkyNet will warrant and service repair receivers on a 'return to base basis' at Customer’s freight expense. The Customer will be responsible and must provide to the ADS-B receiver an Internet service for the purpose of transmitting the flight data to SkyNet via either; 3/4G Cellular data or Ethernet network for each receiver and sufficient capacity for data transfer to SkyNet. The Customer will provide reliable 240VAC power to the ADS-B receivers and will be responsible for installation of equipment from SkyNet. SkyNet will provide suitable instructions for equipment installation. The Customer will be responsible for the site location and all work performed and ensure all work safe practices are adhered to for the installation site. SkyNet will not accept any legal liability for negligence, personal injury or property damage caused by the Customer’s installation or lack of adherence to any government, council or regulatory authority for the competent installation of any equipment. The Customer will be responsible for any physical loss or damage by accident or wilful damage to the equipment or any property to a maximum limit of the replacement cost of each ADS-B receiver.
Disclaimer of Warranties - SkyNet uses its best efforts to provide accurate data.
However, except as otherwise provided herein, the data provided per this agreement is on an “as is” basis. Except as otherwise provided herein, neither SkyNet, its research partners, licensors, nor data providers make any warranty, either implied or express, of merchantability or fitness for a particular purpose, including, but not limited to, the accuracy, timeliness, completeness, reliability, or availability of SkyNet data, applications, or services accessible through or made available by SkyNet. Customer acknowledges that SkyNet receives data from multiple sources it may or may not control, and that, except as otherwise provided herein, data integrity/accuracy cannot be guaranteed.
Indemnification - To the extent allowed by law, Customer will indemnify, defend and hold harmless SkyNet from all liabilities, claims, demands, costs, judgments, damages, losses and expenses relating to any claim brought by a third party arising out of or in connection with Customer’s use of the data in a manner not in conformance with this Agreement or if the Services infringe or misappropriate any patent or copyright of such third parties (each, an “Infringement Claim”). In the event of any such Infringement Claim, SkyNet may, at its option: (A) obtain a license to permit Customer the ability to continue using the Services; (B) modify or replace the relevant portion(s) of the Services with a non-infringing alternative having
substantially equivalent performance within a reasonable period of time; or (C) terminate this Agreement by providing notice to Customer, and provide Customer with a refund of any prepaid, unearned fees. In no event shall either party be liable to the other party or any third party for any indirect, consequential, incidental, special or punitive damages, arising from Customer’s use of the data or under this Agreement.
DTN Weather WARRANTY, LIMITATION OF LIABILITY, AND INDEMNIFICATION
(a) WARRANTY. It is understood and agreed that any DTN Services provided to SKYNET by DTN pursuant to this Agreement are only advisory in nature. As in the case of similar products or services provided by the meteorological consulting industry, such products or services are in part based on data provided by third parties, including the U.S.
National Weather Service.
Therefore, SkyNet or DTN cannot and does not warrant or assume responsibility for the accuracy of the DTN Services, and such services may be updated or modified at DTN’s sole discretion. DTN assumes no
responsibility for the correctness or accuracy of the same, except to the extent such inaccuracies are caused by the gross negligence or wilful misconduct of DTN. SkyNet or DTN shall not be liable for any damages or penalties for delay in delivery or use of DTN Services, or for failure to give notice of delay, when such delay is due to any cause or condition
outside of DTN’ direct control, including, but not limited to: (i) acts of God, civil or military authority; (ii) actions or inactions of any governmental entity (foreign or domestic) or its agencies and departments, the U.S. National Weather Service, or the National Oceanic and Atmospheric Administration; (iii) acts of a public enemy; (iv) suspension, interruption, or unavailability of data communicated to DTN from any governmental or private sources; or (v) accidents, fires, explosions,
earthquakes, floods, energy shortages, other elements of nature. The scheduled delivery or performance date shall be extended by a period of time equal to the time lost because of any such delay.
SKYNET will communicate this language, thereto, when providing DTN Services to all Subscribers.
(b) DISCLAIMER, LIMITATION OF LIABILITY, AND INDEMNIFICATION. EXCEPT TO THE EXTENT SET FORTH IN THE
WARRANTY SECTION ABOVE, DTN MAKES NO OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO THE DTN SERVICES, SOFTWARE, OR INFORMATION TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, DTN MAKES NO WARRANTY AS TO THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE DTN SERVICES, SOFTWARE, OR INFORMATION FURNISHED UNDER THIS AGREEMENT FOR ANY PARTICULAR USE OR PURPOSE. DTN WILL NOT BE LIABLE IN ANY EVENT FOR ANY LOSS, LIABILITY, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE OR NON-PERFORMANCE BY DTN, UNLESS SUCH LOSS, LIABILITY, DAMAGE OR EXPENSE SHALL BE DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF DTN. DTN WILL NOT BE LIABLE IN ANY EVENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFIT OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF THE DTN SERVICES HEREUNDER. SUBSCRIBER ACKNOWLEDGES THAT ITS EXCLUSIVE REMEDY IN THE EVENT OF ANY MATERIAL AND CONTINUING NON-CONFORMITY, DEFECT OR ERROR IN THE PROVISION OF THE DTN SERVICES, SHALL BE FOR DTN TO TAKE REASONABLE CORRECTIVE ACTIONS UPON DISCOVERY OF THE PROBLEM. DTN DOES NOT WARRANT THAT THE DTN SERVICES WILL BE UNINTERRUPTED. SUBSCRIBER WILL INDEMNIFY AND HOLD HARMLESS DTN AND ITS SUPPLIERS FROM ANY CLAIM (NOT EXCLUDING THE RIGHT OF DTN OR ITS SUPPLIERS TO PARTICIPATE) DUE TO SUBSCRIBERS BREACH OF ANY PROVISION UNDER THIS
AGREEMENT, OR DUE TO ANY DELAY, INACCURACIES, ERRORS, OR OMISSIONS OF DTN SERVICES, SOFTWARE, OR INFORMATION PROVIDED BY DTN, AND SHALL PAY FOR ALL EXPENSES AND ATTORNEY’S FEES RELATING TO SUCH CLAIM. IN NO EVENT SHALL DTN’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID TO DTN BY SKYNET. SKYNET WILL COMMUNICATE THIS LANGUAGE, OR LANGUAGE SUBSTANTIALLY SIMILAR THERETO, WHEN PROVIDING DTN SERVICES TO ALL SUBSCRIBERS.
Effective: 1st November 2019