Occasional Use T&C
1. DEFINITIONS AND INTERPRETATIONS
1.1 For the purpose of these General Terms and Conditions, the following terms shall have the meanings ascribed to them below:
“Affiliate” means with respect to one of the Parties, an entity that directly or indirectly controls, is controlled by, or is under common control with that Party. For the purposes of this definition, control means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of any person, whether through the ownership of voting securities or by contract or otherwise.
“Agreement” means these General Terms and Conditions together with the Specific Conditions and all the attached annexes governing the provision of the Service by IKO to the Customer.
“Capacity” means the space segment resources expressed in Megahertz (MHz) or Megabit per second (Mbit/s), as defined in the Specific Conditions.
“Confidential Information” means any financial, business, technical, strategic or other information or material, including the Agreement, disclosed either in writing or orally, which is proprietary and/or designated as confidential by the disclosing Party, and of which the receiving Party may obtain knowledge through or as a result of the relationship established hereunder with the disclosing Party, access to the disclosing Party's premises, or communications with the disclosing Party's employees or independent contractors.
“CSC” means the Communications System Control Centre of Provider.
“Earth Station” means the antennas, switching facilities and related equipment that form a link between a satellite and terrestrial networks.
“Provider” means Provider SA and/or any of its Affiliates as relevant. Provider SA is the satellite operator responsible for the functionality and operation of satellites which transponder capacity is used for the Service subject of this contract.
“Provider Ground Facilities” means all terrestrial facilities, infrastructures, networks owned, leased or operated by Provider or by third parties under contract with Provider which allow the provision of Ground Services.
“Provider Space Segment” means in-orbit satellites and all other related infrastructure supporting the operation of satellites, owned, leased or operated by or on behalf of Provider.
“Governmental Authority” means any nation, sovereign or government, any state, province, territory or other political subdivision thereof, and any entity or authority exercising executive, legislative, judicial, taxing, regulatory, self-regulatory or administrative functions of or pertaining to government, including a tax administration, central bank or stock exchange.
“Ground Service” means the service provided through the Provider Ground Facilities, as defined in the Specific Conditions.
“IKO Booking Center” means the group dedicated to receive and manage the Customer booking requests
“IKO MCR” means the IKO Monitoring and Control Room Staff, providing the Booking activities and providing hot line services for the technical support.
“Non-pre-emptible Service” means a service which is not subject to Pre-emption.
“Operational Start Date” or “OSD” means the operational start date of a satellite at its assigned orbital position following the launch or the relocation of said satellite. The OSD shall be subject to the successful completion of all in-orbit tests of the satellite at the assigned orbital position and shall be notified to the Customer with reasonable prior notice.
“Pre-emption” means the right of Provider to suspend or to terminate the Service in order to restore a priority service, as more particularly set forth in Article 2.3.
“Pre-emptible Service” means a service which is subject to Pre-emption.
“Satellite” means the satellite of the Provider Space Segment used to provide the Capacity.
“Service” means the booking activity and the provision of satellite space availability, materially reselled by IKO to the Customer
“Service Application Type” means the type of application for which the Service shall be used by the Customer as set forth in the Specific Conditions.
“Service Charges” means the charges to be paid by the Customer to IKO, as set out in the Order Form.
“Term” means the duration of the Agreement, as defined in the Specific Conditions.
“Test” means a 15 minutes booking that adds to each hour of booking in order to examine all services are in place.
1.2 Words in the singular include the plural and vice versa where the context requires.
1.3 The attached annexes form an integral part of and are entirely incorporated into the Agreement. Any reference to the Agreement includes the annexes.
2. CONDITIONS FOR THE PROVISION OF THE SERVICE BY IKO
2.1 Subject to all the terms and conditions set forth herein, IKO shall provide the Customer with the Service on a pay-per use basis for the Term.
2.2 The Specific Conditions (Order Form Part 1) shall set forth the status of the Service, i.e. Non-pre-emptible or Pre-emptible.
2.3 In the event that the Service is defined as Pre-emptible, the Customer undertakes to relinquish the Service within a maximum of one (1) hour after receipt of a pre-emption notification from Provider.
The Customer shall implement all requisite internal procedures and provide all adequate means to ensure that the pre-empted Service is completely relinquished within the above one (1) hour period.
Pre-emption will become definitive six (6) hours after the Customer’s receipt of notice from Provider, unless otherwise specified in writing to the Customer. Definitive pre-emption shall result in the termination of the Agreement.
2.4 The operation of the Provider Space Segment and Provider Ground Facilities is subject to all national and international laws, conventions, rules, regulations, licenses and authorizations applicable in any competent jurisdiction. The Agreement may be amended to reflect changes made by any competent authority to applicable national and international laws, conventions, rules, regulations, licenses and authorizations in connection with the operation of the Provider Space Segment and the Provider Ground Facilities.
If the Capacity is allotted in Mbit/s and multiplexed by the Customer, any overuse exceeding the contracted Mbit/s (the “Overuse”) shall be invoiced in an amount equal to 100% of the Service Charges (the “Overuse Charges”), applied pro rata temporis for each 1Mbit/s of Overuse. In the event of substantial Overuse or in the event that the Customer does not diligently pay the Overuse Charges, IKO shall be entitled to exercise its rights to terminate or suspend the Agreement in accordance with Article 9. Overuse may be evidenced by Provider to the Customer at any time during the Term and by any reasonable means.
2.6 Transfer of Capacity
(1) Following Provider requests, IKO reserves the right within the ordinary course of business to transfer the Capacity to other satellites, or to other transponder(s) on the Satellite, and/or to the Satellite located at another orbital location, provided that the new capacity will continue to provide coverage and power sufficient to support pre-existing services using the Capacity. IKO shall provide the Customer with reasonable prior notice of such a planned transfer. In such event, the new capacity shall be deemed to have replaced the Capacity for all purposes under the Agreement, and all the terms and conditions hereof, including, inter alia, the Service Charges, shall remain in full force and effect until the expiry of the Term.
(2) Following Provider requests, IKO reserves the right to change the transmit and/or receive frequency of the Capacity. Any such modification shall be notified to the Customer with reasonable prior notice. IKO shall under no circumstances be held liable for any damage directly or indirectly resulting from such change of frequency with respect to the proper reception of the signals such as, without limitation, interruption in the reception on household decoder-receivers of signals transmitted via the Service which may result therefrom.
3. CONDITIONS FOR USE OF THE SERVICE BY THE CUSTOMER
3.1 By entering into the Agreement, the Customer agrees to purchase the Service from IKO and commits, throughout the Term, to strictly comply with the following conditions:
(1) procure and maintain all licenses, approvals, authorisations and declarations required by applicable laws and regulations, in order to receive, commercialise and use the Service, as well as any services that the Customer markets via the Service, including inter alia all releases, clearances, licenses, approvals and authorizations from any owner and/or beneficiary of the content or data transmitted via the Service. For the purpose of clarification, coverage of a country or territory by the Satellite does not imply that the Service is permissible or authorized to or from the Earth Stations located in that particular country or territory. Notwithstanding the terms of Article 8.2, in the event of Customer’s breach of this Article 3.1 (1), IKO shall be entitled to terminate this Agreement by email with effect upon receipt.
(2) when applicable, install, license, operate and maintain Earth Stations and/or terrestrial facilities necessary to communicate to and from the Satellite. As a prerequisite for access to the Satellite, each Earth Station must be approved in writing by Provider and must be compliant with the technical requirements of the relevant Provider Earth Station Standard (“EESS 502”) and the Provider Systems Operations Guide (“ESOG”) documents, as may be amended from time to time by Provider. These documents are available to the Customer online or upon request.
(3) comply with all technical specifications and operational requirements of Provider or/and IKO as set out in the Agreement or as may be required by Provider or/and IKO during the performance of the Agreement.
The Customer acknowledges and agrees that access to the Service is expressly subject to the approval of a transmission plan by Provider.
The Customer shall ensure that any specifications and requirements set out above are fully complied with by any of its subcontractor(s) and users of the Service. In any event, the Customer shall remain liable for all acts and omissions of any of its subcontractors or users of the Service.
3.2 The Customer expressly undertakes to promptly provide Provider and/or IKO upon request, with copies of all authorisations, copyright clearances, releases, licenses, conventions, declarations, certifications, and any other documentation related to the Customer’s compliance with the aforesaid conditions. In respect of video broadcasting and distribution services, The Customer shall provide to Provider and/or IKO, upon request, a complete, accurate and up-to-date list of all television and radio channels transmitted via the Service and, if applicable, provide Provider and/or IKO with copies of relevant broadcasting or distribution licenses, conventions or declarations.
3.3 The Customer shall maintain a telephone number and email address where the Customer-designated personnel may be reached by Provider and/or IKO on a 24/7 basis.
3.4 The Customer shall comply with the Service Application Type throughout the Term of the Agreement.
4. SERVICE CHARGES AND PAYMENT TERMS
4.1 Unless otherwise specified in the Specific Conditions, invoices for Service Charges shall be issued by IKO on a monthly basis at the end of each month of the provision of the service
4.2 Invoices to be issued by IKO under the Agreement shall be sent by email, regular, or overnight express mail to the Customer’s address specified in the Specific Conditions.
4.3 Service Charges shall be paid in full by the Customer, without offset, withholding, counterclaim, or deduction of any kind, in the currency specified in the Specific Conditions and by wire transfer (all related costs being assumed by the Customer) to the account designated in the relevant invoice (referred to as the “Designated Account”).
4.4 Payment is due no later than 15 days as from the date of the relevant invoice (referred to as the “Payment Due Date”).
4.5 Payments are deemed to have been made on the day when the relevant sum is credited to the Designated Account.
4.6 In the event that any sum is not fully paid on the Payment Due Date, IKO shall be entitled, subject to a prior five (5) day written notice, to:
- implement any technical and/or operational measures to limit or interrupt the Service;
- require the immediate payment of all sums invoiced for the Service already provided, even if said sums are not yet due under the Agreement; and
require that the Customer pay a fixed indemnity for recovery costs equal to 5% of the overdue amount, with a minimum of one thousand (1,000) Euros for each payment breach.
4.7 In addition to the foregoing, any payment due from the Customer that is not received on the Payment Due Date shall bear interest per day of delay. Unless otherwise stipulated in the Specific Conditions, late payment interest shall be applied as of the said date in accordance with the following formula:
LPI = UA x [10% + EURIBOR (if Euros) or LIBOR (if United States Dollars)] x ND/365
“LPI” is the Late Payment Interest.
“UA” is the then-current unpaid amount of Service Charges.
“EURIBOR” is the then-current EURIBOR one-year rate as published by the European Central Bank.
“LIBOR” is the then-current USD LIBOR one-year rate as published by the British Bankers’ Association.
“ND” is the number of days after the Payment Due Date.
In addition to the foregoing, the Customer shall pay a debt recovery fee of forty (40) Euros.
4.8 The Service Charges and any other payments hereunder shall be paid to IKO net, i.e. without deduction or withholding of any and all present or future taxes (including, inter alia, VAT or turnover taxes), duties, assessments, levies and any other charges of any nature whatsoever now or hereafter imposed, levied, collected, withheld, or assessed by, or on behalf of, any Governmental Authority, unless such withholding or deduction is required by law (referred to as the “Deducted Taxes”). If by operation of law or otherwise, Deducted Taxes are required to be deducted or withheld from any amount payable to IKO under this Agreement, the Customer irrevocably undertakes to pay such additional amounts to Provider in order that that the net amount actually received by Provider shall be equal to the amount that IKO would have received if Deducted Taxes had not been deducted or withheld from such payment.
4.9. SECURITY – FINANCIAL GUARANTEE
4.9.1 In order to assure that the Customer meets its financial obligations under the Agreement, iKO shall be entitled, at any time during the Term, to require the provision by the Customer of a security cash deposit, first demand bank guarantee, irrevocable standby or documentary letter of credit, escrow account, or any other appropriate security. The amount and nature of said financial guarantee or security, as well as the period of validity thereof, shall be determined by IKO on the basis of objective criteria relating, inter alia, to the then-current financial situation of the Customer, the Customer’s payment history, the volume of traffic required, and the nature and duration of the Service.
4.9.2 Upon any default by the Customer, IKO shall have the right to exercise the financial guarantee or security provided by the Customer to the extent that is necessary to remedy such default. The Customer shall, upon demand by IKO, restore any portion of the financial guarantee or security which may be applied by IKO to remedy any default by the Customer.
4.9.3 The financial guarantee or security shall be released or returned by IKO to the Customer within a reasonable period of time after the expiry of the Agreement. The retention of the Customer's funds shall not preclude IKO from making additional claims for compensation or from recovering other damages that may be available under the Agreement or at law.
5. SERVICE INTERRUPTIONS – LIABILITY OF IKO
5.1 IKO is bound by a standard duty of care, and accordingly shall not be liable for any damage or loss sustained by the Customer as a result of IKO inability, despite its reasonable efforts, to provide the Service.
5.2 Without prejudice to Article 5.1, the Customer acknowledges that the annual performance availability of the Capacity and of the Ground Service (if applicable) is, respectively, 99.7% and 99.9% as per the specifications set forth in the technical annexes attached to the Agreement (hereinafter referred to as the “Annual Availability Rate”). The calculation of the Annual Availability Rate does not take into account interruptions or deterioration of the supply of the Capacity and/or the Ground Service resulting, directly or indirectly, from force majeure, meteorological disturbances, from atmospheric (e.g. rain fade) or extra-atmospheric conditions (e.g. solar storms or flares, and/or solar outages occurring around the equinoxes (the latter lasting a few minutes per day during a maximum period of three (3) to five (5) days and generally occurring at the beginning of March and October)), or preventive maintenance operations carried out after prior notice to the Customer.
5.3 In the event that the Service is unavailable for fifteen (15) or more consecutive minutes, the Service shall be deemed to have suffered an interruption (hereinafter referred to as the “Service Interruption”). A Service Interruption shall commence when the Service fails to meet its specifications as provided in the technical annexes, as demonstrated by documentary evidence and confirmed by IKO. A Service Interruption shall end when IKO notifies the Customer or the Customer has actual knowledge that the Service has been restored to its specifications as provided in the technical annexes, it being specified that the databases and records of IKO shall prevail in such event.
In case of any Service Interruption, the Customer shall immediately notify Provider’s CSC and/or IKO MCR, which will make its best efforts to identify the cause thereof.
5.4 A Service Interruption shall give rise to a credit for interruption (hereinafter referred to as the “Interruption Credit”) provided that:
1) a Service Interruption must be caused by unavailability or under-performance of the Service, in relation to the specifications set out in the technical annexes; and
2) a Service Interruption shall not be taken into account for periods during which technical and operational measurements are being performed, as set out in the technical annexes.
5.5 Subject to the above conditions, IKO shall grant to the Customer an Interruption Credit equal to the pro rata amount of Service Charges due for the duration of the Service Interruption. Any Interruption Credit granted to the Customer shall be offset by IKO against the next invoice.
5.6 IKO shall only be liable for damages directly resulting from a breach of its obligations. In any case, any and all sums which may be claimed by the Customer to remedy damages resulting from a breach by IKO of any of its obligations under the Agreement shall not exceed in the aggregate two (2) months of Service Charges for each contractual period of twelve (12) months for any and all causes hereunder.
5.7 Exclusions of Liability
IKO shall not be liable for any unavailability or under-performance of the Service resulting, directly or indirectly, from:
1) failure, breakdown, loss or destruction of the Satellite for reasons not attributable to IKO or Provider;
2) failure, breakdown, malfunctioning, loss or destruction of the equipment and/or the software used for monitoring, maintaining or controlling the Satellite or for the provision of the Ground Services, if said failure, breakdown, malfunctioning, loss or destruction is not attributable to Provider;
3) atmospheric (e.g. rain fade) or extra-atmospheric conditions (e.g. solar storms or flares, and/or solar outages occurring around the equinoxes (the latter lasting a few minutes per day during a maximum period of three (3) to five (5) days and generally occurring at the beginning of March and October));
4) jamming, modification or modulation of the transmit frequencies of the Satellite, if said jamming, modification or modulation is not attributable to Provider or if the cause or origin thereof is unknown;
5) any act or omission of the Customer.
5.8 IKO shall not be liable for any damages incurred by any third party, including, inter alia, any user of the Service, in connection with this Agreement and arising out of Provider’s performance hereunder.
5.9 It is expressly agreed between the Parties that any action or claim by the Customer against IKO must be initiated within one (1) year from the day the Customer knew or should have known of the facts entitling it to exercise such action or claim.
6. SATELLITE ANOMALY
6.1 In the event that Provider is compelled to replace the Capacity due to an operational anomaly, or in the event that such operational anomaly is, in Provider’s reasonable opinion, likely to occur, IKO shall use reasonable endeavours to provide the Customer with alternative capacity in accordance with the conditions set forth below (hereinafter referred to as the “Replacement Capacity”).
6.2 following Provider requests IKO shall notify the Customer as soon as reasonably practicable of the technical and operational characteristics of the Replacement Capacity (the “Notification”). The Replacement Capacity shall be either on other transponder(s) on the Satellite, on the Satellite at another orbital location, or on another satellite then in orbit.
6.3 If Provider succeeds in replacing the Capacity with Replacement Capacity following Notification, such Replacement Capacity shall be deemed to have replaced the Capacity or the affected part thereof for all purposes under the Agreement, and all its terms and conditions hereof, including, inter alia, the Service Charges, shall remain in full force and effect until the expiry of the Term.
6.4 The Customer may reject the Notification, in writing, within forty-eight (48) hours of receipt on the grounds that the characteristics of the Replacement Capacity deviate materially from the initial Capacity characteristics (as specified hereinafter), failing which the Customer shall be deemed to have accepted the Replacement Capacity.
6.5 The Replacement Capacity shall be deemed to deviate materially from the initial Capacity characteristics only if at least one of the following occurs:
· the Replacement Capacity Equivalent Isotropic Radiated Power (“EIRP”) is more than 2 dB lower than the EIRP of the initial Capacity for more than three (3) locations as indicated in the annex setting out the technical and operational characteristics of the Capacity attached to the Agreement;
· the Replacement Capacity Figure of Merit (“G/T”) is more than 2 dB lower than the Figure of Merit of the initial Capacity for more than three (3) locations as indicated in the annex setting out the technical and operational characteristics of the Capacity attached to the Agreement.
7. OBLIGATIONS AND LIABILITIES OF THE CUSTOMER
7.1 The Customer shall be liable to Provider for any loss, damage and expenses suffered by Provider in connection with the Satellite or any equipment, material, or other element which is part of the Provider Space Segment and the Provider Ground Facilities and/or arising out of non-compliance by the Customer with any of the provisions of the Agreement (including, without limitation, damages resulting from any act or omission of the Customer or use of the Service by the Customer, or from the operation of Earth Stations owned, controlled by, or registered under the name of the Customer or its customer(s)).
7.2 The Customer shall be liable to Provider, for acts or omissions of the Customer or its customer(s) resulting in the degradation, interruption or corruption of any services, content or data transmitted via the Provider Space Segment, the Provider Ground Facilities or any telecommunications network.
7.3 The Customer shall stop any transmission via the Service within one (1) hour of request of Provider and /or IKO in the event that such transmission by the Customer or by any third party accessing Provider’s network via the Customer, (i) causes harmful interference to, or otherwise negatively impacts the operation and/or provision of services within the Provider’s network, or (ii) causes damage to or degradation of the network’s integrity or security. In the event that the Customer does not comply with the foregoing, IKO reserves the right to suspend the Customer’s access to the Service. During any of said interruptions, the Customer shall be liable for the payment of all Service Charges hereunder, it being specified that these interruptions shall be deemed attributable to the Customer.
7.4 IKO shall not be liable for the information and/or content transmitted via the Service by the Customer or users of the Service.
7.5 The Customer undertakes not to transmit or broadcast, or cause to be transmitted or broadcast, via the Service, content which would be deemed to be a violation of international public order or the laws of the countries or territories to which such content is accessible, including but not limited to, EU Directive No.2010/13 of 10 March 2010, as amended, and French Law n° 86-1067 of 30 September 1986 (including without limitation Articles 1, 3-1 or 15), as amended, prohibiting the broadcasting of programs that:
1) endanger public policy, public health, public security or the protection of consumers;
2) violate the human dignity of individual persons;
3) include incitement to hatred or violence based on origin, sex, religion or nationality;
4) seriously impair the physical, mental or moral development of minors, notably programs containing scenes of a pornographic nature or depicting gratuitous violence. Pursuant to said texts, the broadcasting of programs which may impair the physical, mental or moral development of minors is subject to specific conditions to be strictly complied with by the Customer in case of broadcasting or distribution of audiovisual services.
7.6 IKO and /or Provider shall be entitled to discontinue or require the Customer to discontinue, within one (1) hour of request, any transmission, programming or broadcasting via the Service or to terminate the Agreement by email with effect upon receipt:
1) if said transmission, programming or broadcasting violates international public order, national public order or the laws of the countries or territories in respect of which said transmission, programming or broadcasting is accessible or transmitted (including without limitation Articles 1, 3-1 or 15 of French Law N° 86-1067 of 30 September 1986), or is considered unlawful in any way whatsoever from any competent public authority (including notably any judge or regulatory authority such as the CSA); and/or
2) if any relevant broadcasting license, authorization, convention or declaration in respect of any transmission or programming is revoked, provisionally suspended, or no longer in effect; and/or
3) if the activity of the Customer and/or its customer(s) is deemed to be illegal; and/or
4) if the Customer and/or any of its customers becomes subject to, or is directly or indirectly Controlled by any entity which becomes subject to, restrictive measures under any EU, UN or other applicable national or international regulation and/or sanction; and/or
5) if, as a result of said transmission, programming or broadcasting, Provider is, or would be subject to, any civil, administrative or criminal action, that may result in sanctions, fines, damages or other liability and/or the revocation or withdrawal of any authorisations, permits or licences granted to IKO in connection with the provision of the Service.
During any of said interruption of Service, no indemnity whatsoever shall be due by IKO and the Customer shall be liable for the payment of all Service Charges hereunder. The Customer hereby holds IKO harmless from any and all liability arising therefrom, it being specified that these interruptions shall be deemed attributable to the Customer.
7.7 The Customer shall indemnify and hold harmless Provider from any loss, damage, or expense suffered as a result of claims, actions, allegations or proceedings brought by any third party against Provider and/or any of its Affiliates, arising out of Provider’s performance hereunder, the Customer’s use of the Service and the Customer’s obligations, duties, undertakings, representations and/or warranties set forth in this Agreement.
8.1 In the event of material breach by the Customer, IKO shall be entitled to immediately implement any technical and/or operational measures to limit or interrupt the Service.
8.2 Except as otherwise provided in this Agreement, in the event of material breach by either Party, the non-breaching Party shall be entitled to terminate the Agreement on fourteen (14) calendar days’ notice delivered to the defaulting Party, if the defaulting Party fails to remedy said material breach within the aforesaid notice period.
8.3 Upon expiry or early termination of the Agreement, the Customer shall cease, and cause its customer(s) to cease, all transmissions and use of the Service. IKO shall be entitled, inter alia, to discontinue the provision of the Service by all technical and operational means, upon expiry or early termination of the Agreement. In the event of non-compliance by the Customer with the foregoing, and without prejudice to any other damages, IKO shall be entitled to require that the Customer pay a penalty in an amount equal to five (5) times the pro rata Service Charges for each twenty-four (24) hour period during which the Customer continues to use the Service in whole or in part after expiry or early termination of the Agreement. This payment shall be applied pro rata to any period that is less than twenty-four (24) hours.
9 PRESS RELEASES
Neither Party nor the Customer’s customer(s) may issue any press release or any other public announcement in connection with the Agreement without prior written consent of the other Party.
10.1 Each Party undertakes not to disclose under whatever form, without the prior written consent of the other Party, any Confidential Information obtained, directly or indirectly, during the negotiation and performance of the Agreement.
10.2 Confidential Information shall not include: (i) information already known by the receiving Party before its transmission by the disclosing Party; (ii) information developed independently by the receiving Party; (iii) information lawfully received from a third party not under an obligation of confidentiality; (iv) information which has entered into the public domain (save through the fault of either Party); (v) information which is approved for release in writing by the disclosing Party; or (vi) information disclosed pursuant to law, judicial order or governmental regulation.
10.3 The obligations contained in this Article shall survive the expiry or early termination of the Agreement for a period of three (3) years. Upon expiry or early termination of the Agreement, the Parties shall each return to the other, if requested by the disclosing Party, or destroy all Confidential Information belonging to the other Party. Any destruction of documents must be confirmed in writing to the disclosing Party.
11 REPRESENTATIONS AND WARRANTIES
11.1 IKO hereby represents and warrants to the Customer as follows:
1) the execution, delivery and performance of the Agreement have been duly authorized by all necessary corporate action on the part of IKO;
2) the Agreement constitutes a legal, valid and binding obligation on IKO.
11.2 The Customer hereby represents and warrants to IKO as follows:
1) the execution, delivery and performance of the Agreement have been duly authorised by all necessary corporate action on the part of the Customer;
2) the Agreement constitutes a legal, valid and binding obligation on the Customer;
3) the Customer holds all applicable clearances, licences, consents and approvals in order to perform all of its obligations hereunder.
11.3 Each Party expressly represents and warrants to the other that all their actions in concluding and performing the Agreement have been and shall be in compliance with applicable laws and regulations concerning child labour, basic human rights, health and safety of employees, and environmental protection requirements.
11.4 Each Party shall be liable to the other Party, and shall indemnify and hold the other Party harmless from, any breach of their respective representations and warranties as set forth in the Agreement.
12 FORCE MAJEURE
12.1 Neither Party shall be liable for any failure to perform its obligations under the Agreement or any other service order, if it is prevented or delayed in performing those obligations by an event of force majeure.
12.2 An event of force majeure is an event or circumstance which is beyond the control and without fault or negligence of the Party affected and which, notwithstanding the exercise of reasonable diligence, the Party affected was unable to prevent.
12.3 If either Party is prevented or delayed in the performance of any of its obligations under the Agreement due to an event of force majeure, it shall immediately provide written notice thereof to the other Party, specifying in reasonable detail the nature, extent and effect of the force majeure, as it is aware of at the time of the notice, and shall also notify the other Party in writing of the cessation of the event of the force majeure.
12.4 Upon removal or cessation of the event of force majeure, all obligations under the Agreement shall resume.
12.5 However, in the event that force majeure event exceeds thirty (30) consecutive days, then following such thirty (30) day period, the Parties shall meet and negotiate, inter alia, the conditions for the termination or amendment of the Agreement.
The Customer shall not be entitled to assign this Agreement, including any or all of its rights and obligations hereunder, to any third party, unless if agreed upon in writing by IKO. Provider may assign this Agreement, including any or all of its rights, duties and obligations hereunder, to any present or future Affiliate of Provider, to any third party in connection with the merger or acquisition of part or all of its satellite services business or assets, or as part of the reorganization of its business.
Any amendment of the terms and conditions of the Agreement shall be in writing and signed by a duly authorized representative of both IKO and the Customer. To the extent permitted by applicable law, the Parties hereby expressly acknowledge and agree that the Agreement shall not be subject to revision, amendment, modification or termination, in the event of hardship suffered by either Party, “frustration of the contract” or any other comparable legal or equitable theory.
Should any provision of the Agreement be found to be invalid, illegal or unenforceable under the laws of any relevant jurisdiction, the invalid or unenforceable provision shall be given no effect but the remaining provisions of the Agreement shall remain in full force and effect. The Parties shall forthwith enter into good faith negotiations to amend the Agreement so that the invalid, illegal or unenforceable provision is replaced by a valid, legal, and enforceable provision, which conforms to the extent possible to the intended purpose of the former provision.
No delay by any Party in exercising, or failure to exercise any right or remedy set out in this Agreement shall constitute a waiver of any of the Party’s rights or remedies hereunder.
17 GOVERNING LAW
The Agreement and the relationship between the Parties shall be governed by and construed in accordance with the laws of England.
18 SETTLEMENT OF DISPUTES
The Commercial Court of England has exclusive jurisdiction over any and all disputes and legal actions, which cannot be settled amicably within thirty (30) days from notification of a contracting party to the other, relating, directly or indirectly, to the execution, construction, performance and/or termination of this Agreement, including, inter alia, in the event of warranty claims, plurality of defendants, and/or emergency proceedings, and more generally, over any disputes and legal actions relating, directly or indirectly, to the past business relationship between the Parties, its performance, terms and conditions, or the consequences of any termination thereof, whether based on contract or tort liability, anti-trust, economic laws and regulations, or any other legal doctrine or theory.
Any contractual notice served under the Agreement including invoices, shall be in writing and shall be given by any of the following methods: email, international courier, certified or registered mail to the addresses specified in the Specific Conditions, or such other address as may be notified by either Party in writing to the other Party. Each notice which shall be delivered, shall be deemed received at such time as it is delivered to the addressee Party, with the return receipt, messenger receipt or delivery receipt being deemed conclusive evidence of said receipt.
The Agreement has been written in the English language. In the event that translations of the Agreement are made into other languages, the English language version shall prevail in all circumstances.
22 ANTI-CORRUPTION OBLIGATIONS
22.1 Each Party hereby undertakes throughout the Term hereof:
- to comply, with all applicable laws and regulations prohibiting bribery, corruption, influence peddling and money laundering, and;
- to carry out all necessary actions to keep its employees duly informed of the risks of corruption and implement a compliance program.
22.2 Each Party hereby represents and warrants that neither it, nor, to the best of its knowledge, anyone acting on its behalf, has offered, paid, promised to offer or pay, either directly or indirectly, an employee or agent of the other Party, a public official or any third party, for the purpose of obtaining an unjust or illegal advantage within the framework of the Agreement.
22.3 At any time during the Term of the Agreement, each Party shall be entitled to require from the other Party to promptly respond to any reasonable inquiry addressed to it in order to ensure its continued compliance with any of the foregoing representations, warranties and undertakings.
22.4 In case of breach of any representation, warranty or undertaking set forth above which is, or would be subject to, any action that may result in sanctions or other liability, and/or threaten to harm the other Party, the non-defaulting Party shall notify the defaulting Party in order to remedy said breach without delay. In the event that no remedial action is taken within a cure period of fourteen (14) days, the non- defaulting Party may terminate this Agreement without incurring any liability. The defaulting Party shall prevent the loss or destruction of any documentary evidence in connection with the breach.
22 ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES
The Agreement and its annexes constitute the entire agreement and understanding between the Parties in respect of the subject-matter hereof, and expressly replace any previous written or verbal agreements, understandings, protocols, or otherwise relating thereto.
SPECIFIC TERMS AND CONDITIONS FOR OCCASIONAL USE AND RESERVATION BY SUBSCRIPTION SERVICES
This document outlines the procedures for ordering occasional use and reservation by subscription services offered by IKO (hereinafter respectively referred to as “OU Service” and “RBS Service” and, collectively as the “Service”) and shall be read in conjunction with the General Terms and Conditions attached to this Service Agreement entered into by IKO and the Customer.
B. SERVICE REQUESTS
The Customer’s request to procure RBS Service shall be addressed directly to IKO in accordance with the aforesaid conditions.
Each request for RBS Service is made for a minimum duration commitment of 15 (fifteen) minutes.
In order to reserve RBS Service, the Customer shall provide IKO with the following information:
1. The contract reference as indicated on the first page of the Service Agreement (Part 1)
2. Date and time of the service UTC - GMT
3. Origination point (uplink location)
4. Destination point (downlink location(s))
6. Transmit Earth Station Provider code
7. Description of the event or special event name, if applicable
C. BOOKING PROCEDURES
Each request for OU Service or RBS Service is made for a minimum duration commitment of 15 (fifteen) minutes. Subject to availability of satellite capacity, IKO shall send a notice confirming the booking to the Customer (the “Firm Booking”), save expressly in respect of a Pencil Booking as described below.
The Customer acknowledges and agrees that it shall only be entitled to modify the start time of the transmission, as set out in the Firm Booking, provided that (i) at least 4 (four) hours prior notice is sent to IKO and (ii) the effective start time shall be no more than 72 (seventy-two) hours after the previous start time of the transmission
2. In the event that the Customer is not certain to use the OU Service or RBS Service, a pencil booking may be requested (the “Pencil Booking”). Pencil Booking must be confirmed 48 (forty-eight) hours prior to the scheduled start time of the transmission, otherwise such Pencil Booking shall be automatically cancelled.
Pencil Booking shall be registered in the scheduling system of Provider but not confirmed by Provider in writing. Pencil Booking can be challenged at any time by any third party request to procure the satellite capacity subject to a Pencil Booking by the Customer. In such a case, Provider shall inform the Customer and the Customer must confirm its concerned Pencil Booking, otherwise the Customer shall be deemed to have waived its right to convert its Pencil Booking into a Firm Booking and the said Pencil Boking shall be cancelled.
Subject to the foregoing, the Customer may modify a Pencil Booking at any time before the scheduled start time of the transmission without incurring charges.
2. Cancellation of Firm Booking for RBS Service
In the event that the Customer cancels a Firm Booking for a RBS Service less than 24 (twenty-four) hours prior to the scheduled start time of the transmission, the Customer shall incur a cancellation fee equivalent to 100 % of the total Services Charges, as set forth in the Firm Booking.
In the event that the Customer cancels a Firm Booking for a RBS Service no later than 24 (twenty-four) hours prior the scheduled start time of the transmission, the Customer shall incur a cancellation fee equal to 20% of the total Services Charges, as set forth in the Firm Booking.
3. Special conditions
When reserving the Satellite Capacity under the RBS Service, the Customer may request that the Satellite Capacity be blocked for itself at the end of the scheduled end time of the transmission for an additional period not exceeding 25% of the scheduled duration of the Firm Booking (“Approx. Out”). Approx Out period can only be requested in respect of a booking equal to or exceeding one hour. The maximum duration of the Approx. Out period will be one hour, regardless of the scheduled duration of the booking.
In the event that a Firm Bookingas made with an Approx. Out period, the scheduled end time of transmission and the maximum duration of the Approx. Out period following said time will be specified in the cover email sent by Provider to the Customer with the Firm Booking.
The Customer will be charged in full for the whole of the Approx. Out period in the event that:
(i) the Approx. Out period is used partially or in full by the Customer at the end of the Firm Booking time; or
(ii) the Customer fails to call the Provider Sales & Reservations Centre at the end of the scheduled end time of the transmission at the latest in order to inform Provider of its intent to stop using the Satellite Capacity as from said time.
Application of hourly and minute rates
For any booking of capacity the appliable rates will be based on
Price per minute: for bookings with duration of less than one hour
Price per hour: for bookings with duration of one hour or more including 5 minutes minimum increments over one hour, with pro rata application
Price per day: for bookings with duration of 24 hours or more including 5 minutes minimum increments over the 24 hours with pro rata application
Price per week: for bookings with duration of 7 days or more including 5 minutes minimum increments over the 7 days with pro rata application
Price per month: for bookings with duration of 30 days or more including 5 minutes minimum increments over the 30 days with pro rata application
For tests performed on same day of a specific event, the test will be charged at prorata of the hourly rate at the condition that:
- Test & main feed/match are requested simultaneously
- Test is to be performed on the same day of the main feed/match (one test per match is to be considered)
E. END OF SERVICE
On the scheduled end time of the transmission as set out in the Firm Booking, the Customer shall cease all transmissions and use of the Service.
In the event of non-compliance by the Customer with the aforesaid provision, and without prejudice to any other damages, Provider shall be entitled to require that the Customer pay a penalty in an amount equal to 2 (two) times the pro rata Service Charges for each additional minute during which the Customer continues to use the Service beyond the scheduled end time of the transmission, as well as a fixed penalty of 150 (one hundred fifty) Euros.