(Covering Blue Sky Network Products and Services)
Upon the signed verification of the attached Quotation by the Customer ("Customer"), the Quotation and these Terms and Conditions shall constitute a binding contract ("Contract") between Customer and Blue Sky Network LLC, a Delaware limited liability company ("Blue Sky") for the purchase of the products and services described in the Quotation. Gilcom Technologies, Inc., a Delaware corporation ("Gilcom") may be the manufacturer of certain products described in the Quotation and is a third party beneficiary to this Contract.
1. PRODUCTS. The Customer is purchasing the products described in the Quotation ("Products") for Customer's own personal use or for use in Customer's business and agrees not to promote, sell or distribute the Products to any other individual or business without prior authorization in writing by Blue Sky.
2. PAYMENT. All payments for Product must be in U.S. Dollars, shall include freight (unless provided by customer account), and must be received in advance of shipment. Risk of loss of any Products shall pass to Customer upon delivery to any commercial common carrier FOB shipping point, San Diego, CA., USA. Any loss due to theft, accident or other incident occurring during shipping is the sole responsibility of Customer. Notwithstanding the termination of services, all sales of Products are final and no returns shall be accepted by Blue Sky.
3. ACKNOWLEDGEMENTS. Customer acknowledges that (i) the Products are intended to be used and installed on aircraft, (ii) installation of the Products and any of their component parts and any other work performed on the airframe during installation of the Products must be performed in accordance with Federal Aviation Administration ("FAA") regulations and all other applicable regulations and may require further FAA certification, and (iii) the Products should be installed by a professional and are intended to be handled and used solely in accordance with FAA regulations and Blue Sky's most recent specifications and instructions. FAA approval of installation is the sole responsibility of the purchaser and installation facility (except for those specific FAA approvals obtained by Blue Sky as indicated by Blue Sky in writing only). Buyer understands Blue Sky assumes no responsibility for these requirements.
4. GILCOM PRODUCT WARRANTY. Blue Sky warrants that those Products manufactured by Gilcom, specifically the D1000 terminal and the C1000 and C1000A fixed installation satellite telephones (collectively, "Gilcom Products"), shall be free from defects in materials and workmanship. This warranty (i) shall apply to Customer (as named in the Quotation) only and no other and (ii) shall not apply to any Gilcom Product which is not stored, handled, installed or used in strict accordance with Gilcom's specifications and instruction manuals, or which is altered without Blue Sky's express consent, or which has been subject to misuse, negligence or accident. Blue Sky's sole obligation shall be to replace or repair defective Gilcom Products covered by this warranty provided that Customer returns such defective Gilcom Product within one (1) year of the date of the Quotation. Customer hereby agrees that the replacement or repair of defective Gilcom Products shall be Customer's sole remedy in the event of a breach of warranty and shall be in lieu of any other remedy. Except as provided above with respect to Gilcom Products only, Blue Sky and Gilcom make no warranties relating to the Products (see section on Warranty Disclaimer/Limitation of Liability).
1. SERVICES. Customer is purchasing the service plan(s) described above. A description of the services, charges and other pertinent details of the service plan are set forth in the service plan materials accompanying the Quotation and this agreement. Customer agrees to maintain service for a minimum Service Commitment of twelve (12) months as set forth on the Quotation. Upon the expiration of the Service Commitment, this Contract shall automatically renew on a monthly basis until notice is given to Blue Sky pursuant to the Service Termination provision. Customer will be assigned a user identification number and password to use the service. Customer shall have no rights in the user identification number or password and cannot obtain such rights through usage, publication or otherwise.
2. BILLING AND PAYMENT.Blue Sky service prices are attached to this Contract. Pricing shall be valid during the Service Commitment only. Thereafter, prices may be adjusted from time to time upon thirty (30) days notice to Customer. Customer agrees to pay Blue Sky for all services used and all related charges at current Blue Sky prices. Blue Sky prices are exclusive of taxes, tariffs and surcharges, if any, arising from the provision of services. Customer acknowledges that Blue Sky is entitled to add to Blue Sky's prices all applicable taxes levied as a result of Customer's usage of services and Customer is liable to pay all such taxes. Blue Sky shall provide Customer with a monthly invoice, for each Customer account, which shall account for all sums due arising from the provision of services. Customer shall pay recurring monthly plan fees in advance and all overages in arrears. Customer will provide Blue Sky with a credit card or advanced payment when establishing service with Blue Sky and Customer agrees Blue Sky may charge this credit card account or prepayment for all charges or other amounts due under Customer's account on or after the relevant monthly invoice date.
3. BILLING DISPUTES. Customer must notify Blue Sky in writing of any disputed charges within thirty (30) days of the date of the bill containing the disputed charges or Customer will have waived the right to dispute such charges. If equipment is lost or stolen, Customer is responsible for all charges incurred on the account number until the theft or loss is reported to Blue Sky.
4. CHANGES TO TERMS AND CONDITIONS. Except as otherwise expressly provided herein, Blue Sky may increase, reduce or otherwise change any terms, conditions, rates, fees expenses, or charges regarding the service at any time. Blue Sky will provide Customer with notice of such changes (other than changes to governmental taxes, tariffs or surcharges) either in the monthly bill or separately. If Blue Sky increases Blue Sky's charges under Customer's service plan, Customer may terminate service within thirty (30) days of the date of the notice.
5. AVAILABILITY OF SERVICE. Blue Sky does not guarantee uninterrupted service. Customer acknowledges that the quality, functionality and availability of services may be affected by factors outside the control of Blue Sky and that occasionally, services may be suspended temporarily in order to modify, expand, maintain or repair system components. If service is interrupted for twenty-four (24) continuous hours or more due to causes within Blue Sky's control, Blue Sky may issue, upon request, a credit equal to a pro-rata adjustment of the monthly service fee for the time period service was unavailable, not to exceed the monthly service fee. An interruption is measured from the time Customer reports it to Blue Sky. Blue Sky may require that the credit request be in writing.
6. EQUIPMENT/SOFTWARE. Customer shall be responsible for the installation, operation and maintenance of any equipment and software (including Blue Sky Products) used in connection with the services and for ensuring that all equipment and software used in connection with the services is compatible with the services.
7. SERVICE TERMINATION. Either party may terminate the services at any time after the Service Commitment ends by giving at least thirty (30) days notice to the other party. Blue Sky may terminate or interrupt service without notice for any conduct Blue Sky believes violates this Contract, including, without limitation, the failure to pay when due any charges owed to Blue Sky, or, if the service is used in violation of applicable governmental rules and regulations.
1. WARRANTY DISCLAIMER/LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH HEREIN WITH RESPECT TO THE GILCOM PRODUCTS, NO WARRANTIES APPLY (AND BLUE SKY AND GILCOM SPECIFICALLY DISCLAIM ALL WARRANTIES), WHETHER EXPRESS, IMPLIED OR ARISING BY OPERATION OF LAW (INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). IN NO EVENT, WHETHER DUE TO BREACH OF WARRANTY HEREUNDER OR ANY OTHER CAUSE WHATSOEVER, SHALL BLUE SKY OR GILCOM BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, COST OF SUBSTITUTE PRODUCTS AND PERSONAL INJURY OR PROPERTY DAMAGE, WHETHER SUCH CLAIM IS BASED ON CONTRACT OR TORT OR ANY OTHER THEORY OF LAW. Blue Sky's only duties in connection with the sale of the Products shall be to honor the limited warranty for the Gilcom Products as set forth herein. To the extent assignable, any manufacturer warranty for Products other than the Gilcom Products shall be assigned by Blue Sky and passed through to the Customer. Blue Sky's sole liability, if any, for loss or damage arising out of mistakes, omissions, interruptions, errors or any other causes relating to the services, INCLUDING THE NEGLIGENCE OF BLUE SKY, shall be limited to the credit for service interruption for each separate period of interruption as described in the section on Availability of Service. EXCEPT FOR THE FOREGOING, CUSTOMER WAIVES ANY RIGHT OF RECOVERY AGAINST BLUE SKY OR GILCOM FOR ANY CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LOSSES, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES OR COSTS) ("CLAIMS") BY OR DUE TO THIRD PARTIES AND SUFFERED BY CUSTOMER, DIRECTLY OR INDIRECTLY RELATING TO OR ARISING FROM THE NEGLIGENCE OF BLUE SKY OR GILCOM OR THE MANUFACTURE, DISTRIBUTION, SALE, USE OR INSTALLATION OF ANY PRODUCT OR THE PROVISION OF THE SERVICES. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS BLUE SKY AND GILCOM AGAINST ANY AND ALL CLAIMS BY THIRD PARTIES RELATED TO OR ARISING FROM THE SALE OF THE PRODUCTS OR PROVISION OF THE SERVICES DESCRIBED HEREIN. The provisions of this section shall survive termination of services. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES OR LIMITS ON REMEDIES FOR BREACH; THEREFORE, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. THIS CONTRACT SETS FORTH SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
2. INDEPENDENT ARBITRATION. PLEASE READ THIS PARAGRAPH CAREFULLY AS IT AFFECTS RIGHTS CUSTOMER MIGHT OTHERWISE HAVE. The parties agree to arbitrate any and all disputes and claims arising out of or relating to the services, purchase or use of Products or this Contract. All such claims and disputes (including any tort or statutory claim) shall be arbitrated under the Commercial Arbitration Rules of the American Arbitration Association in San Diego California, before one arbitrator. The arbitrator may reward interim and final injunctive relief and other remedies. Customer acknowledges that arbitration is final and binding and subject to only very limited review by a court. Any award of the arbitrator (including awards of interim or final remedies) may be confirmed or enforced in any court having jurisdiction. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If for some reason this arbitration clause is at some point deemed inapplicable or invalid, the parties agree to waive, to the fullest extent allowed by law, any trial by jury. In such case, a judge shall decide the subject dispute or claim. The provisions of this section shall survive the termination of the services.
3. NOTICE. Any notice required hereunder shall be written and may be sent by fax or email (followed by a fax if Customer seeks to terminate service) at the contact information set forth for each party in the Quotation (unless such contact information is changed by notice as required hereunder).
4. MISCELLANEOUS. This Contract, including the signed Quotation and these Terms and Conditions, and the terms included in the service plan materials accompanying the Quotation, constitute the entire and complete agreement between Customer and Blue Sky, and supersede any and all prior agreements and understandings relating to the subject matter of this Contract. If any provision of this Contract is found to be unenforceable by a court or agency of competent jurisdiction, the remaining provisions will remain in full force and effect. Blue Sky may assign this Contract. Customer may not assign or transfer this Contract without Blue Sky's prior written consent. Service is subject to the jurisdiction and regulations of the Federal Communications Commission, the Federal Aviation Administration and state and other regulatory agencies. California law (without regard to the doctrine of conflicts of law) shall govern this Contract.