Terms and Conditions
EQUIPMENT: (a) CLS America, Inc. (CLSA) agrees to sell to you and you agree to purchase from us the equipment identified on the pages of this Agreement or such other comparable equipment (as determined by us) we provide you (the “Equipment”), according to the terms and conditions of this Agreement. (b) The Equipment and the Software (as defined in Section 6 below) are designed and configured for use with the Halios (aka Thorium) Communication Services using the Iridium Satellite constellation. YOU ACKNOWLEDGE THE EQUIPMENT AND/OR SOFTWARE MAY NOT BE COMPATIBLE WITH ANOTHER SATELLITE COMMUNICATION SYSTEM AND CLSA DOES NOT HAVE ANY OBLIGATION TO MAKE SUCH SOFTWARE AND/OR EQUIPMENT COMPATIBLE IN THE EVENT THAT YOU ELECT TO USE ANOTHER SERVICE PROVIDER. UPON TERMINATION OF YOUR HALIOS SERVICE AGREEMENT, YOU ACKNOWLEDGE THAT YOU MAY NOT BE ABLE TO USE THE EQUIPMENT AND/OR SOFTWARE WITH ANOTHER SERVICE PROVIDER. (c) If you are participating in a study or project wherein the equipment is purchased for you, you may still be liable for damage or loss of equipment, for installation or service charges, or other fees related to the VMS/ELB unit’s intended use. You may also be liable for equipment and installation costs if you fail to participate in the intended study or project
Effective Date and Term: For equipment purchases, this Agreement becomes effective on the date CLSA sells any piece of Equipment to you (the “Sale Date”). For service plan purchases, this Agreement becomes effective on the date when your unit is activated for service (the “Activation Date”).
Service Plans: When purchasing either the $69.00/50 kilobyte per month or any of the annual prepay Service Plans, you commit to a minimum contract term of one year starting from the Activation Date described in Section 2 above. You will be charged an Iridium Activation Fee of $60.00 on the Sale Date as shown in Section 5 below. The Ending Date of the service contract will fall on the last day of the month, eleven (11) calendar months after the Activation Date. If you choose the $69.00/50 kilobyte monthly plan and you choose to terminate your service before your Ending Date, you are subject to Early Termination fees described in Section 5 below. If you choose any of the other annual prepayment plans and you choose to terminate your service before your Ending Date, you will NOT receive any refund for unused service time. If you use more than 50 kilobytes of Iridium service in any calendar month under either the $69.00 monthly plan or the $759.00 annual plan, you are subject to Over Usage fees described in Section 5 below. With all service plans, if you terminate or suspend your service, then later wish to resume service, you are subject to an Iridium Re-activation Fee described in Section 5 below. Also, your one year minimum contract term will commence on the date of your Re-activation. At the end of your one year contract term, you will automatically be renewed for another one year plan unless you direct us otherwise.
Equipment Installation: CLSA will deliver the Equipment to the site designated by you. If you are required to have this unit under the auspices of the NOAA regulations concerning Vessel Monitoring Systems (VMS), the Equipment, including but not limited to the power supply circuits, MUST be installed by a “certified marine technician”. If the NOAA regulations do NOT apply to you, CLSA highly recommends using an installer approved by us. If no approved installer is available in your area, you may install the equipment yourself in conformance with our specifications. You will assume any liability that may arise from your installation. If CLS America installs the unit, you authorize CLS America technicians to board your vessel(s) for the purpose of installing the Thorium VMS/ ELB system, and accept responsibility for the installation of the system. Further, you will provide any pertinent information in assistance related to the installation and will ensure that the installation can be performed in a safe and acceptable manner. You will provide direction for (and not hold liable) CLS America or its technicians related to cable routing, system mounting, or power connections. When the system is installed, you will ensure that it does not adversely affect other systems (including navigation systems) onboard the vessel prior to departure
Payments: (a) Equipment price, state sales tax, (if applicable), delivery costs, Iridium activation fees and the first month of service will be charged and invoiced on the Sale Date unless other arrangements have been made with CLSA. (b) You are responsible for any and all installation costs, which is paid directly to the installer. (c) You will be invoiced monthly for Iridium service charges and any overages as described in Section 3 above and any other addendums. Payments are due within 30 days of the date on these invoices. Interest terms for late payment will be specified on your monthly invoice. (d) If you purchased the $759.00 annual prepay Service Plan, you commit to a minimum contract term of one year that starts from the Activation Date described in Section 2 above. If you choose the monthly payment plan and terminate your service before your Ending Date, CLSA will charge an Early Termination Fee of $45.00 per month until the Ending Date of the contract. Cancellations will become effective on the last day of that month’s billing cycle and you are responsible for all charges incurred during that month. (e) If you purchased the Aleutian Service Bundle, you commit to a minimum contract term of one yearthat starts from the Activation Date described in section 2 above. If you terminate your service before Ending Date, CLSA will charge an early termination fee of $90.00 per month until the Ending Date of the contract. Cancellations will become effective on the last day of that month’s billing cycle and you are responsible for all charges incurred during that month. (f) If you terminate or suspend your service, then later wish to resume service, you will be charged an Iridium Re-activation Fee of $60.00. (g) If you use more than 50 kilobytes of Iridium service in any calendar month with either the monthly plan or the annual prepay plan, you will be charged an additional fee of $1.25 per kilobyte used over the 50 kilobyte limit for each month. (h) There is a $10.00 administrative fee for each charge CLSA attempts to make to your credit card or debit we attempt to make against your bank account that is rejected. (i) In the event your account is placed into collections for past due amounts, you shall pay a collection expense charge of $25 for each aggregate payment requiring a collection effort and any attorney’s fees or out of pocket expenses for the collection.
Use of Equipment; Risk of Loss: (a) The Equipment shall be operated by responsible, competent, trained personnel in accordance with all operating instructions provided, specifically for the purpose of and in the manner that it was intended. You shall maintain the Equipment in good operating condition and protect it from deterioration. You are responsible for repair and maintenance of the Equipment. (b) You shall not permit any physical alteration or modification of the Equipment, or change the installation site of the Equipment, without our prior written consent. (c) You shall comply with all governmental laws, rules and regulations relating to the use of the Equipment. You are also responsible for obtaining all permits required to operate the Equipment on your vessel. (d) CLSA or our representatives may ask and you shall grant your permission to board your vessel at reasonable times for purposes of inspecting, examining or repairing the Equipment. (e) The Equipment must be deactivated during any transfer of ownership, including, but not limited to, the sale of the vessel to another owner.
Software License: CLSA retains all ownership and copyright interest in and to all computer software, related documentation, technology, know-how and processes embodied in or provided in connection with the Equipment other than those owned or licensed by the manufacturer of the Equipment (collectively “Software”), and you shall have only a nonexclusive license to use the Software in your operation of the Equipment and not otherwise. CLSA hereby assigns to you, to the fullest extent we are authorized, any licenses granted to us by the manufacturer of the Equipment to use software owned or leased by that manufacturer in operation of the Equipment.
Limitation on Liability: CLSA is not liable to you or any other party for any loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment, including any damage or injury to persons or property caused by the Equipment. We are not liable to you or any other party for the use or maintenance of the Equipment, its failure to operate, any repairs or service to it, or by any interruption of service or loss of use of the Equipment or resulting loss of business. Our liability arising out of or in any way connected with this Agreement shall not exceed the aggregate lease amount paid to us for the particular Equipment involved. In no event shall CLSA be liable for any indirect, incidental, special or consequential damages. The remedies available to you under this Agreement are your sole and exclusive remedies.
Warranties: (a) Provided there is no default by you and this Agreement has not been otherwise terminated or expired, CLSA hereby assigns to you all assignable warranties made with regard to the Equipment by the manufacturer. (b) Provided you are not in default, we will not interfere with your quiet use and enjoyment of the Equipment. (c) CLSA is providing the Equipment to you “as is.” Except for the provisions of Section 1(b), CLSA make no express or implied warranties of any kind, including without limitation those of merchantability or fitness for purpose or use, of condition, performance suitability or design, of conformity to any law, rule, regulation, agreement or specification, or of infringement of any patient, trade secret, trademark, copyright or other intangible property right.
Indemnification: Except as may directly result from our gross negligence or willful misconduct, you shall indemnify and hold CLSA harmless from and against any and all claims, losses, liabilities, damages and expenses (including court costs and attorneys’ fees) resulting from (a) the operation, use, condition, liens against, or return of the Equipment, (b) any breach by you of any of your obligations hereunder, except to the extent any losses, liabilities, damages or expenses result from our gross negligence or willful misconduct or (c) otherwise arising out of this Agreement or the Equipment.
Representations and Warranties: You represent and warrant for the benefit of CLSA that (a) your business is in good standing under the laws of your jurisdiction of organization, (b) you have adequate authority or power of agency to enter into and perform this Agreement, (c) you use no trade names in operating your business, except as indicated on the cover page of this Agreement, (d) this Agreement has been duly authorized, executed and delivered by you and constitutes a valid, legal and binding agreement of you, enforceable in accordance with its terms, (e) no approval, consent, or withholding of objection is required from any governmental authority or instrumentality with respect to the entry into or performance of this Agreement, (f) entry into and performance of this Agreement will not violate any judgment, order, law or regulation applicable to you or any provision of your articles or incorporation or bylaws or result of any breach of, or constitute a default under, or result in the creation of any lien, charge or security interest or other encumbrance upon any of your assets under or pursuant to, any instrument to which you are a party or by which you or your assets may be bound, (g) there are no suits or proceedings pending or threatened against or affecting you, which if determined adversely to you will have a material effect on your ability to fulfill your obligations under this Agreement, and (h) you will use the Equipment for the express purpose that it was intended and not for any unlawful act.
Default; Remedies: (a) If you fail to pay CLSA any amounts due hereunder when due, or if you default in any material respect in the performance or observance of any obligation or provision of this Agreement or any agreement with us or any of our affiliates or joint ventures, which default is not cured within ten days after notice from us to you, or any representation made by you in this Agreement shall be untrue in any material respect, or you commence any proceedings in bankruptcy or insolvency or for the winding up of your business or have any such proceeding commenced against you which is not dismissed within sixty days, any such event shall be a default hereunder. Upon the occurrence of any default, CLSA may at our option, effective immediately without notice, disconnect your service if your service account is 45 days past due. Upon any such termination for default, we may proceed in any lawful manner to obtain satisfaction of the amounts owed to us and, if applicable, recovery of the Equipment, including entering onto your premises to recover the Equipment and you hereby authorizes us to do so. You will be responsible for our costs of collection, court costs and reasonable attorneys’ fees, as well as applicable shipping, repair and refurbishing costs of recovered Equipment. You agree that CLSA shall be entitled to recover any amounts due to us under this Agreement by charging your credit card or bank account or any other funds of yours that come into our possession or control, or within the possession or control of our affiliates or joint ventures, or by setting off amounts that you owe to us against any amounts we may owe to you, in any case without notifying you prior to doing so. Without limiting the foregoing, you agree that we are entitled to recover amounts owed to us under this Agreement by obtaining directly from an affiliate or joint venture to which we are a party any amounts due to you from them. (b) If you are participating in a study or project you may be responsible for equipment, installation, service, de-installation, and recovery costs associated with your unit for failure to participate.
Assignment: You may not assign or transfer this Agreement, by operation of law or otherwise, without our prior written consent. CLSA may assign or transfer this Agreement and our rights and obligations hereunder, in whole or in part, to any third party without the necessity of obtaining your consent.
Effect of Waiver: (a) No delay or omission to exercise any right or remedy CLSA has upon breach or default by you shall impair any such right or remedy or be construed as a waiver of any such breach or default, nor shall the waiver of a single breach or default be construed as a waiver, or impair our rights and remedies with respect to, any other breach or default. Any waiver, permit, consent or approval by us of any breach or default, or of any provision or condition of this Agreement, must be in writing and shall be effective only to the extent expressly provided in such writing. (b) Should you fail to make any payment or do any act herein provided, CLSA shall have the right (but not the obligation), without releasing you from any obligation, to make such payment or perform such act. Any sums expended in connection therewith by us shall be immediately due and payable by you to us.
Governing Law; Miscellaneous: This Agreement shall be governed by and will be construed in accordance with the laws of the State of Maryland (without applying its conflicts of laws principles). If any part of this Agreement is not enforceable, the remaining provisions will remain valid and enforceable.
Dispute Resolution and Arbitration: If the parties disagree as to any matter governed by this Agreement, the parties shall promptly consult with one another in an effort to resolve the disagreement. If such effort is unsuccessful, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except that equitable relief may also be sought in any court of competent jurisdiction.
Notices: All notices must be in writing, and shall be given (a) if sent by mail, when received, and (b) if sent by courier, when delivered; if to you, at the address appearing on this Agreement, and if to CLSA, at: 4300 Forbes Boulevard. Suite 110, Lanham, Maryland, 20706, Attn: CLS America Customer Service and (c) if sent by email, when acknowledgement is received; if to you, at the email address appearing on this Agreement and if to CLSA at: firstname.lastname@example.org.
Entire Agreement: This Agreement constitutes the entire Agreement between the parties with respect to its subject matter, supersedes any previous agreements and understandings and can be changed only by a written agreement signed by all parties. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.