EXHIBIT 10.17
GLOBAL ACCESS TELECOMMUNICATIONS SERVICES, INC.
Standard Terms and Conditions
1. Application of Terms and Conditions: Exclusion of Other or Additional
---------------------------------------------------------------------
Terms. These Standard Terms and Conditions are applicable to all Communications
- -----
Services provided by Global Access Telecommunications Services ("GATS") to the
customer ("Customer") pursuant to this Service Agreement ("Agreement").
COMMUNICATIONS SERVICES WILL BE PROVIDED ONLY ON THE FOLLOWING TERMS AND
CONDITIONS AND ANY CONFLICTING, DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS
CONTAINED IN CUSTOMER'S ACKNOWLEDGMENT OR PURCHASE ORDER OR ELSEWHERE ARE HEREBY
OBJECTED TO BY GATS AND SHALL NOT CONSTITUTE PART OF THIS AGREEMENT. This
Agreement contains the full understanding of the parties with respect to the
subject matter hereof and supersedes any previous agreements between the parties
regarding such subject matter. This Agreement may not be amended, nor any of its
provisions waived, except by a writing executed by the party against which such
amendment or waiver is sought to be enforced.
2. Definitions. For purposes of this Agreement, the following terms
-----------
shall have the definitions set forth in this Section 2, as follows:
"Applicable Carrier" shall mean the person, corporation, partnership, firm or
------------------
other entity in control of the satellite, satellite transponder, microwave link,
uplink, downlink, analog copper and/or fiber optic facilities being used to
provide the Communications Services.
"Applicable Carrier's Tariff" shall mean the Applicable Carrier's Tariff for
---------------------------
Allowances for Interruptions, setting forth the policies of the Applicable
Carrier with regard to credits, allowances, refunds or payments in the event of
an interruption of Communications Services caused by the Applicable Carrier or
the Applicable Carrier's equipment, as well as the policies of the Applicable
Carrier with regard to payments, penalties and charges for cancellation of
Communications Services by the Customer.
"Communications Services" shall include (without limitation) satellite
-----------------------
transponder, transponder uplink/downlink, fiber optic, telephone line and/or
microwave capacity, as applicable to the services requested by Customer.
"Customer" shall mean any person, corporation, partnership, firm or other
--------
entity purchasing Communications Services under this Agreement, or any
employees, agents, parents, subsidiaries, affiliates, authorized users or
assigns of such person, corporation, partnership, firm or other entity.
"Customer Agent" shall mean any person, corporation, partnership, firm or other
--------------
entity transmitting signals to, from or via a satellite transponder or using
other Communications Services with the permission of or on behalf of a Customer.
"Exchange Rates" shall mean the rates at which US dollars are exchanged for the
--------------
relevant foreign currency as published in The Wall Street Journal, U.S. Edition.
"Fixed-Term Service" shall mean service contracted for by a Customer pursuant to
------------------
a Communications Circuit Lease Agreement with GATS.
"Occasional Service" shall mean service contracted for by a Customer pursuant
------------------
to the telephone and facsimile inquiry and confirmation process employed by
GATS, including without limitation, those Customers who have not placed a long-
term, full time order for Communications Services with GATS.
"Uplink/Downlink Agent" shall mean the person, corporation, partnership, firm or
---------------------
other entity engaged by Customer to transmit or receive Customer's signal to the
satellite transponder being used to provide the Communications Services.
3. Provision of Communications Services. GATS shall provide Customer,
------------------------------------
and Customer shall accept from GATS, Communications Services as specified by
Customer.
4. Payment of Charges. Customer shall pay all charges for Communications
------------------
Services furnished to or at the request of Customer on the first day of the
calendar period for which those charges are applicable or upon receipt of
invoice. If any payment for Communications Services is not received by GATS
within 30 days after the date of invoice, then such overdue amount shall be
subject to late payment charges at the lower of 18% per annum or the highest
---------
legally permissable rate of interest until the date payment is actually
received.
5. International Service. Rates for international Communications Services
---------------------
are priced to Customer based on the Exchange Rate at the time service is
contracted for, subject to monthly adjustments to reflect changes in the
applicable published Exchange Rate on the first day of each month. Should the
carrier of non-U.S. Communications Services modify its tariff or the technical
parameters for Communications Services during the term of this Agreement, GATS
shall have the right correspondingly to modify the tariff or rate or technical
parameters of its Communications Services to Customer.
6. Limitation of GATS' Liability. (a) EXCEPTING ONLY LIABILITY FOR GATS'
-----------------------------
RECKLESS OR WILLFUL MISCONDUCT, GATS' LIABILITY ARISING OUT OF ITS PROVISION OF
COMMUNICATIONS SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO LIABILITIES
ARISING OUT OF GATS' NEGLIGENCE, MISTAKES AND OMISSIONS, INTERRUPTIONS, DELAYS,
ERRORS, OR OTHER DEFECTS IN THE COMMUNICATIONS SERVICES OR BREACH OF CONTRACT OR
ARISING OUT OF THE FAILURE TO FURNISH COMMUNICATIONS SERVICES, WHETHER CAUSED BY
ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE EXTENSION OF ALLOWANCES
FOR INTERRUPTIONS AS SET FORTH IN SECTION 10 BELOW. SUCH ALLOWANCES FOR
INTERRUPTION SHALL BE THE SOLE REMEDY OF CUSTOMER, AUTHORIZED USER OR JOINT USER
AND THE SOLE LIABILITY OF GATS HEREUNDER. GATS' LIABILITY FOR DAMAGES OR LOSSES
OF ANY KIND ARISING OUT OF ITS FURNISHING COMMUNICATIONS SERVICES SHALL IN NO
EVENT EXCEED AN AMOUNT EQUAL TO ITS FIXED MONTHLY OR OTHER CHARGE ALLOCABLE TO
THE FAULTY OR DEFECTIVE SERVICE.
(b) NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING SUBPARAGRAPH, GATS
SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY AUTHORIZED OR JOINT USER FOR ANY LOSS
OF, DEFECTS IN OR ANY INABILITY TO FURNISH SERVICE DUE TO ACTS OF GOD, ACTS OF
GOVERNMENT, WARS, RIOTS, STRIKES, FAILURE OF A TRANSPONDER, FAILURE OF A
SATELLITE, FAILURE OF ANY OTHER TRANSMISSION EQUIPMENT OR OTHER CAUSES BEYOND
GATS' CONTROL.
(c) ANY AND ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SATELLITE
TRANSPONDERS. UPLINKS/DOWNLINKS, FIBER OPTIC SERVICE OR OTHER COMMUNICATIONS
SERVICES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A SPECIFIC PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL GATS
BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS), REGARDLESS OF THE FORESEEABILITY THEREOF, OCCASIONED
BY THE TERMINATION OF CUSTOMER'S RIGHTS TO USE, OR THE PREEMPTION OF OR THE
FAILURE OF, OR LOSS OF TECHNICAL QUALITY OF, THE SATELLITE TRANSPONDERS,
UPLINKS/DOWNLINKS, FIBER OPTIC SERVICE, OR OTHER COMMUNICATIONS SERVICES OR BY
ANY DELAY IN COMMENCEMENT OF THIS AGREEMENT OR BY ANY OTHER CAUSE OR MATTER
WHATSOEVER. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS GATS FROM ANY
CLAIMS MADE UNDER A WARRANTY OR REPRESENTATION MADE BY CUSTOMER TO ANY THIRD
PARTY WITH RESPECT TO THE COMMUNICATIONS SERVICES.
7. Claims. GATS shall be indemnified, defended and saved harmless by
------
Customer from and against all loss, liability, damage and expense, including
reasonable attorneys' fees, due to claims arising out of the content of any
programming transmitted over GATS' facilities pursuant to this Agreement
including without limitation, any claim for libel, slander, or infringement of
copyright and any other claim resulting from any act or omission of Customer
arising from the use of GATS' facilities or Communications Services.
8. Obligations of the Customer. Customer shall make all arrangements with
---------------------------
other common carriers, stations, networks, sponsors, music licensing
organizations, performers, representatives or other parties for the
authorizations necessary to avail itself of the Communications Services. GATS
shall be indemnified, defended and saved harmless by Customer from any liability
arising out of failure to make such arrangements. Customer shall not use
Communications Services for an unlawful purpose, including (without limitation)
any use which constitutes a violation of any state or federal obscenity laws.
GATS shall have the right to terminate this Agreement and the Communications
Services provided hereunder without liability to Customer in the event that
GATS, its officers, employees or agents, or the Applicable Carrier, its
officers, employees or agents, becomes the subject of any investigation, or is
threatened with or made a party to any administrative proceeding or litigation,
related to the alleged illegal use of the Communications Services by the
Customer.
9. Non-Interference for Satellite Transmissions and Use of Other
-------------------------------------------------------------
Communications Services. (a) All transmissions to and from the satellite
- -----------------------
transponder or other use of Communications Services made by Customer and/or a
Customer Agent in connection with use of Communications Services pursuant to
this Agreement shall comply with all of the rules and regulations of the Federal
Communications Commission ("FCC"), other governmental agencies, carriers or
other authorities applicable to Customer and/or each Customer Agent with respect
to the Satellite Transponder or the Communications Services. Customer and each
Customer Agent will follow the established practices and procedures of the
Applicable Carrier for frequency coordination and will not utilize the
Communications Services in a manner which, under standard engineering practice,
would or might interfere with the use of or cause physical harm to any satellite
transponder, the satellite or any other communications facility. If, in GATS',
the Applicable Carrier's or other carrier's judgment, Customer's or any Customer
Agent's transmissions to or from or utilization of the satellite transponder or
other Communications Services (whether directly or through a Customer Agent),
interferes with or causes physical harm to any satellite transponder, the
satellite or any other communications facility, Customer agrees to cease or
cause to be ceased immediately all transmissions to and utilization of the
satellite transponder or other Communications Services upon notice thereof by
GATS or the carrier until such time as such transmission or utilization shall
not, in GATS' or the carrier's judgment, interfere with and shall not cause
physical harm to any satellite transponder, the satellite or any other
communications facility. In such event and in addition to GATS' other rights and
remedies hereunder, Customer agrees that
its rights to use a portion of the satellite transponder or other Communications
Services in accordance with this Agreement shall be subject to GATS' right to
terminate this Agreement and all of Customer's rights hereunder without
liability to Customer and to take such action as may be necessary, appropriate
or desirable to terminate any such interference or physical harm by Customer and
each Customer Agent.
(b) To ensure that Customer and each Uplink/Downlink Agent's transmissions
to and from the satellite transponder and Customer's utilization of the
Communications Services (whether directly or through an Uplink/Downlink Agent)
does not so interfere with or cause physical harm to any transponder or
satellite, Customer and each Uplink/Downlink Agent, prior to any transmission to
the satellite transponder, must satisfy the uplink access requirements set forth
by the Applicable Carrier. Further, without limiting the generality of the
foregoing, if Customer's use involves video broadcasting, Customer agrees to
comply in all respects with Section 25.308 of the FCC rules regarding the
Automatic Transmitter Identification System.
10. Pre-emptible Nature of Communications Services. The satellite
----------------------------------------------
transponder and other Communications Services provided herein are not normally
protected and may be preempted and Customer acknowledges and agrees that it
sometimes may be necessary or advisable for the Applicable Carrier or other
carrier deliberately to preempt or interrupt Customer's use of the
Communications Services in order to protect the overall performance of each
satellite, fiber optic network or other communications facility, to comply with
its contractual obligations to third parties or for business or other technical
reasons. Such decisions shall be made by the owners or operators of the
satellite, fiber optic network or other communications facility at their sole
discretion and GATS shall have no liability to Customer as a result of such
decisions.
11. Allowances for Interruption. (a) Allowances for interruption of
---------------------------
Occasional Service usage will be in accordance with the Applicable Carrier's
Tariff. In the absence of an Applicable Carrier's Tariff, GATS policy for
allowances for interruption of Occasional Service shall apply as follows: (i)
When an interruption of an Occasional Service occurs for a period of 60 seconds
or more, credit is allowed on the basis of 5 minutes for each 5 consecutive
minutes or fraction thereof of interruption; (ii) Two or more interruptions
occurring during any period of 5 consecutive minutes shall be considered as one
interruption; (iii) Allowances will be based on the rate applicable to the
service being provided which was interrupted. The amount of the allowance is
proportionate to the total number of minutes in the applicable order which
includes the portion of service affected by the interruption; (iv) An
interruption of either the audio or video portion of the Communications Service
shall be considered an interruption of both; and (v) Other than the allowances
herein, GATS shall not be held liable for interruptions of service.
(b) Allowances for interruption of Fixed Term Service usage will be in
accordance with the Applicable Carrier's Tariff. In the absence of an
Applicable Carrier's Tariff, GATS' policy shall apply as follows: (i) When an
interruption of a Communications Service occurs for a period of 60 seconds or
more, credit is allowed on the basis of 5 minutes for each 5 consecutive minutes
or fraction thereof of interruption; (ii) Two or more interruptions occurring
during any period of 5 consecutive minutes shall be considered one interruption;
and (iii) An interruption of either the audio or visual portion of the
television channel shall be considered an interruption of both.
(c) An allowance will not be made where Customer fails to transmit or
receive a television, data or voice channel as a result of, or attributable in
whole or in part to: (i) Customer's negligence or willful acts, or the
negligence or willful acts of its officers, directors, agents, employees,
subsidiaries, parents, affiliates, customers, authorized users and viewing
subscribers, or any of them; (ii) The failure of local channels, transmission
lines or equipment provided by Customer, its subsidiaries, parents, affiliates,
authorized users, viewing subscribers, Customer Agents or any of them; (iii) Sun
outages, heavy precipitation or heavy cloud cover; or (iv) Customer's failure to
use the channel ordered.
(d) In no event shall GATS be liable for allowances for interruption
unless the claim for such allowance is made within fifteen (15) days after the
date Customer became aware or should have become aware of the interruption.
12. Denial of Service. In the event of nonpayment of any sum due, or of
-----------------
any violation of the Communications Act of 1934, as amended, or any Rules,
Regulations or Orders of the FCC or of the terms of this Agreement by Customer,
or the imposition by the FCC or any governmental authority having jurisdiction
of conditions on the provision of Communications Services which are unacceptable
to GATS or the Applicable Carrier, GATS may either temporarily deny service or
terminate the service without incurring liability to Customer.
13. Cancellation by Customer. (a) Occasional Service may be cancelled
------------------------
only by advance notice by Customer to GATS and upon payment of any applicable
cancellation charges. The specific charges to Customer, if any, will be those
of the Applicable Carrier's Tariff in effect at that time. In the absence of an
Applicable Carrier's Tariff, GATS' policy in effect at that time shall apply.
(b) Except as specifically provided herein, Fixed-Term Service may only be
cancelled upon the occurrence of all the following: written notice to GATS;
payment of total hourly, monthly or annual charges due for service previously
provided and for scheduled service that has not been provided as of the date of
cancellation; and payment of all other sums otherwise due through the term of
the Fixed-Term Service to be provided pursuant to this Agreement.
14. Taxes. If any sales taxes or similar charges or impositions are
-----
asserted against GATS after, or as a result of Customer's use of the
Communications Services, by any local, state, national, or international, public
or quasi-public governmental entity, Customer shall be solely responsible for
such taxes, charges or impositions.
-16-
15. Title to Communications Facilities. This Agreement shall not, and
----------------------------------
shall not be deemed to, convey to Customer title of any kind to any of the
satellite transponders, transponder uplinks/downlinks, fiber optic links,
telephone lines, microwave facilities or other facilities utilized in connection
with the Communications Services.
16. No Transfer. Customer shall not, and shall not have the right to,
-----------
grant, sell, assign, encumber, permit the utilization of, license, lease,
sublease or otherwise convey, directly or indirectly, in whole or in part,
voluntarily or by operation of law, any of its rights under this Agreement
without the express written permission of GATS and/or the Applicable Carrier.
17. No Third-Party Beneficiary. The provisions of this Agreement are for
--------------------------
the benefit only of the parties hereto, and no third party may seek to enforce,
or benefit from these provisions, except that GATS and Customer acknowledge and
agree that the provisions of Section 9(a) hereof are intended for the benefit of
GATS, the Applicable Carrier and other carriers, and all other transponder,
fiber optic network and communications facility owners, users or transferees.
Both parties hereto agree that any other such transponder, fiber optic network
or communications facility owner, user or transferee shall have the right to
enforce, as a third-party beneficiary, the provisions of Section 8(a) hereof,
against Customer, directly in an action brought solely by such other
transponder, fiber optic network or communications facility owner, user or
transferee, or may join with GATS or any other transponder, fiber optic network
or communications facility owner, user or transferee in bringing an action
against Customer for violation of such Section.
18. Legal Expenses. If any proceeding is brought for the enforcement of
--------------
this Agreement, or because of an alleged or actual dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees
and other costs and expenses incurred in such action or proceeding in addition
to any other relief to which such party may be entitled.
19. Miscellaneous. (a) This Agreement shall be governed and interpreted
-------------
by the laws of the Commonwealth of Massachusetts applicable to agreements made
and fully performed therein, except to the extent that the parties' respective
rights and obligations are subject to local, State and Federal laws or
regulations. Customer hereby consents to the jurisdiction of the federal and
state courts having a situs in Suffolk County, Massachusetts over any proceeding
-----
initiated with respect to the enforcement or interpretation of this Agreement.
Nothing in this Agreement shall be deemed to create any joint venture or
principal-agent relationship between GATS and Customer.
(b) Except as provided in Section 16, this Agreement shall insure to the
benefit of and be binding on the respective successors, permitted licensees and
permitted assigns of the parties hereto.
(c) All notices, consent, waivers or other communications given under this
Agreement shall be in writing, and be given by personal delivery, mail, telegram
or private wire, at the respective addresses of Customer and GATS set forth here
or at the most current address as may be supplied by such party to the other for
notice. Notice given by mail shall be considered to have been given three (3)
days after the date of mailing, postage prepaid certified or registered mail.
Notice given by telegram shall be considered to have been given on delivery of
such telegram to a telegraph office with charges therefore prepaid or to be
billed to the sender. Notice given by private wire shall be considered to have
been given when transmitted prepaid. Notice given by fax shall be considered to
have been given when actually received by the party to whom the fax is delivered
and receipt is telephonically confirmed.