SKYNET MAY MAKE FUTURE CHANGES OR MODIFICATIONS TO SUCH MASTER SERVICES AGREEMENT TERMS AND CONDITIONS AT ANY TIME WITHOUT NOTICE, AND YOUR SUBSEQUENT VIEWING OR USE OF SKYNET’S SERVICES WILL CONSTITUTE YOUR AGREEMENT TO THE CHANGES AND MODIFICATIONS.
1.1. Certain Definitions. The following terms shall have the following definitions:
(a) “Affiliate” shall mean, with respect to any entity, any other entity Controlling, Controlled by or under common Control with such entity, whether directly or indirectly through one or more intermediaries.
(b) “Agreement” shall mean the Master Services Agreement, together with these General Terms and Conditions.
(c) “Business Day” or “business day” shall mean any day from Monday through Friday from 09:00 to 17:00 Hours, except any applicable holiday.
(d) “Calendar Day” or “calendar day” shall mean any day from Monday through Sunday, without exceptions.
(e) “Confidential Information” shall mean all non-public and proprietary information, in any form, disclosed by the disclosing Party to the other Party which:
(i) concerns the operations, plans, know-how, trade secrets, business affairs, personnel, customers or suppliers of the disclosing Party; or
(ii) the receiving Party knows or might reasonably expect is regarded by the disclosing Party as the confidential information of the disclosing Party; or
(iii) is designated as confidential, restricted, proprietary, or with similar designation; or
(iv) concerns any of the terms or conditions or other facts with respect to the Transaction Documents.
(f) “Control” and its derivatives shall mean legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting capital stock (or other ownership interest, if not a corporation) of an entity, or actual managerial or operational control over such entity.
(g) “Days” or “days” shall mean calendar days unless otherwise specified.
(h) “Effective Date” shall have the meaning set forth in the Preamble on the first page of the Agreement.
(i) “End User” shall mean the person or entity to which Customer resells or provides equipment, services or space pursuant to the terms of the Transaction Documents.
(j) “Events of Default” shall mean any of the following:
(i) any representation or warranty made by a Party in the Transaction Documents which was incorrect in any respect when made and that could reasonably be expected to have a material adverse effect upon the other Party’s ability to realize the benefits of the Transaction Documents;
(ii) a material breach of the Transaction Documents that is capable of being cured on commercially reasonable terms within thirty (30) Days, which breach is not cured within thirty (30) Days after notice of breach to the breaching Party;
(iii) a material breach of the Transaction Documents that is not capable of being cured within thirty (30) Days and the breaching Party fails to (A) proceed promptly and diligently after written notice to correct the breach, (B) develop within fifteen (15) Days following written notice of breach a complete plan for curing the breach, and (C) cure the breach within sixty (60) Days after notice thereof; or
(iv) Customer’s failure to make any undisputed payment when such payment is due in accordance with any Transaction Document.
(k) “Intellectual Property Rights” shall mean all intellectual property rights, including by way of explanation, but not by limitation, those statutory or common law rights in and relating to copyrights, patents, trademarks, trade secrets, moral rights, or any similar rights.
(l) “Losses” shall mean liabilities, damages and related costs and expenses actually incurred, including, without limitation, fines, levies, assessments, reasonable attorneys’ fees, and disbursements and costs of investigations, litigation, settlement, judgment, interest and penalties.
(m) “Parties” shall mean Customer and SkyNet, together.
(n) “Party” shall mean Customer or SkyNet, individually, as appropriate.
(o) “Service” shall mean any of the services SkyNet provides Customer pursuant to an Exhibit.
(p) “Term” shall have the meaning set forth in Article 3 of the Agreement.
(q) “Transaction Documents” shall mean the Agreement, these Master Services Agreement Terms and Conditions and all Exhibits (including attachments and schedules).
1.2. Other Definitions. Other terms used in this Agreement are defined in the context in which they are used and have the meanings there stated or are defined in the applicable Transaction Document.
2. END USER CHARGES.
If, pursuant to the terms and conditions of the Transaction Documents, Customer resells the Service(s) requested by Customer from SkyNet, Customer shall have the right to establish, in its sole discretion, the prices it charges End Users for the Service(s) resold pursuant to the Transaction Documents.
3. PAYMENT TERMS.
3.1. Payment. Customer shall pay all undisputed charges for Services as may be set forth in the Transaction Documents. Unless otherwise expressly provided for in an attached Exhibit, the charges due pursuant to the Transaction Documents shall be payable in accordance with the payment terms in this Article 3. SkyNet shall issue invoices to Customer for services rendered as of the 15th and 30th of each month. Payment shall be due and payable no later than fifteen (15) days after the date of issue of the invoice. Customer shall make payments under the Transaction Documents by wire transfer or check of immediately available funds. Any amounts not paid when due shall be assessed interest at a monthly rate equal to one and one half percent (1.5%) or the maximum rate allowed by law, whichever is less, from the date the payment was due. If SkyNet commences legal proceedings to collect any payment due to it under any of the Transaction Documents, Customer shall be responsible for and pay all reasonable attorneys’ fees, court costs and other collection expenses incurred by SkyNet. In the event Customer disputes any amount due under an invoice, it must provide SkyNet a written notice via electronic mail or facsimile explaining the basis for the dispute within fifteen (15) days of the date of the invoice and pay the undisputed amount when due. The Parties will cooperate in good faith to resolve the dispute within thirty (30) days of the date of Customer’s notice. In the event that Customer does not pay for services rendered within the payment terms, Skynet keeps the right to bill consignee for all services, duties and taxes.
3.2. Taxes. All charges to Customer are calculated separately from of any applicable federal, state or local use, excise, value-added, gross receipts, sales and privilege taxes, duties, surcharges, or similar liabilities (other than general income or property taxes imposed on SkyNet) associated with the Services, whether charged to SkyNet, its suppliers or Affiliates, or Customer (“Additional Charges”). Such Additional Charges shall be paid by Customer in addition to all other charges provided for in the Transaction Documents, except to the extent Customer provides to SkyNet, prior to the commencement of Services, as applicable, a valid tax exemption certificate for all federal, state and local jurisdictions relevant to the Service.
3.3 Credit Card Information/Authorization. Customer shall provide SkyNet with any requested credit card information and authorization for the purpose of obtaining payment of any and all Services rendered to Customer by SkyNet. Customer hereby expressly authorizes SkyNet to charge on the credit card provided by Customer any and all Services invoiced by SkyNet due and payable in accordance with Section 3.1 above.
3.4. Deposit. SkyNet reserves the right, in its sole discretion, to require a deposit, letter of credit or similar surety as a condition to the continued provision of service if Customer’s payments are repeatedly and materially overdue.
3.5. Applicant agrees that failure to pay any charges required to be paid to Shipper in the State of Florida shall be deemed an act of breach of this Agreement committed in the State of Florida that in such event if Shipper files suit against Applicant for such payment in one of the aforementioned courts located in Florida, Applicant has expressly waived its right to contest jurisdiction of such court. In the event Applicant is delinquent in payment of freight and other charges, Applicant shall bear all costs of collections plus liquidated damages of eighteen (18) percent of any freight bill as a reasonable estimate of Shipper’s damages which are at this time difficult to ascertain and, not as a penalty, whether suit is brought for such delinquency or a collection agent is employed. Applicant agrees that the shipper, consignee, holder of any applicable bills of lading, and owner of any applicable goods and their principals, shall be jointly and severally liable to Shipper for the payment of all freight, demurrage, general average and other charges due Shipper.
CARRIER shall have a lien on the goods tendered to CARRIER by Shipper, which lien which shall survive delivery, for all charges owed by Shipper to CARRIER, including but not limited to freight, demurrage, detention, damages, loss, charges, expenses and any other sums (including costs, customs fees, attorney fees, and other fees for recovery the sums) chargeable to CARRIER or Shipper in connection with such goods, regardless of whether the charges relate to goods which are presently in the possession of CARRIER or Goods which are not presently in the possession of CARRIER, including both prior and subsequent shipments. CARRIER shall have the right to sell the goods by public auction or private sale without notice to the Shipper in order to enforce said lien. If on sale of the goods the proceeds are insufficient to cover the amount owed, CARRIER shall be entitled to recover the balance from Shipper.
4. CLAIMS PROCEDURES.
4.1. SkyNet must receive notice of a claim due to damage (visible or concealed), delay (including spoilage claims or shortage within 15 calendar days after delivery of the shipment. We must receive notice of all other claims, including, but not limited to, claims for non-delivery or misdelivery, within 45 calendar days after we accept the shipment.
4.2. Notice of claims for which Customer claims more than $100 must be in writing. All claims must be made within the time limits set forth above.
4.3. Your notice of claim must include complete shipper and recipient information, as well as the airway bill or SkyNet tracking number, date of shipment, number of pieces, and shipment weight.
4.4. Written documentation supporting the amount of your claim must be delivered to SkyNet within 30 calendar days after receipt of Customer’s notice of a claim. Such documentation may include original purchase invoices, estimates or invoices for repair, expense statements, appraisals, or other records. These documents must be verifiable to SkyNet’s satisfaction.
4.5. SkyNet reserves the right to inspect a damaged shipment on the recipient’s premises as well as the right to retrieve the damaged package for inspection at the SkyNet facilities. All of the original shipping cartons, packing and contents must be made available for our inspection and retained until the claim is concluded.
4.6. Only one claim can be filed in connection with a shipment. Acceptance of payment of a claim shall extinguish any right of Customer to recover in connection with that shipment.
4.7. Claims must be sent by e-mail to: firstname.lastname@example.org or send via US Postal Service to:
Skynet Worldwide Express
Miami, FL- 33266
4.8. FAILURE TO COMPLY WITH ANY OF THE ABOVE CONDITIONS WILL RESULT IN THE DENIAL OF CUSTOMER’S CLAIM.
5. INTELLECTUAL PROPERTY.
Each Party retains all right, title and interest in and to its respective Intellectual Property Rights. No licenses will be deemed to have been granted by either Party to any of its Intellectual Property Rights, except as otherwise expressly authorized in the Transaction Documents.
6.1. Confidential Information. Each Party acknowledges that after execution of the Transaction Documents, they may be furnished with, receive, or otherwise have access to Confidential Information of the other Party.
6.2. Exclusion. Confidential Information excludes any particular information that the receiving Party can demonstrate: (a) at the time of disclosure, was in the public domain or in the possession of the receiving Party; (b) after disclosure, is published or otherwise becomes part of the public domain through no fault of the receiving Party; (c) was received after disclosure from a third party who had a lawful right to disclose such information to the receiving Party without any obligation to restrict its further use or disclosure; or (d) was independently developed by the receiving Party without reference to Confidential Information of the disclosing Party.
6.3. Obligations. The following obligations with respect to Confidential Information shall survive the expiration or termination of this Agreement for a period of three (3) years or such longer period as required by regulation, law or court order.
(a) Ongoing Obligation. Except as may otherwise be required by law, each Party shall not disclose the Confidential Information of the other Party to and third party. Each Party's Confidential Information shall remain the property of that Party. Each Party shall use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent unauthorized disclosure of Confidential Information as it employs to avoid unauthorized disclosure of its own Confidential Information of a similar nature. Except as otherwise permitted hereunder, the Parties may disclose such information to entities performing services required hereunder where: (i) use of such entity is authorized under the Transaction Documents, (ii) such disclosure is necessary or otherwise naturally occurs in that entity's scope of responsibility, and (iii) the entity agrees in writing to assume the obligations described in this Article. Any disclosure to such entity shall be under the terms and conditions of this Article.
(b) Remedial Measures for Disclosure. Each Party shall take reasonable steps to ensure that its employees comply with this Article. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the disclosing Party, the receiving Party shall promptly, and at its own expense notify the disclosing Party in writing, and take such actions as may be necessary and cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
(c) Permitted Disclosures. Except as otherwise provided herein, either Party may disclose the terms and conditions of these Transaction Documents to third parties that (i) have expressed a bona fide interest in consummating a significant financing, merger or acquisition transaction between such third parties and such Party, (ii) have a reasonable ability (financial and otherwise) to consummate such transaction, and (iii) have executed a nondisclosure agreement that includes within its scope the terms and conditions of this Article or substantially similar terms and conditions and also includes a procedure to limit the extent of copying and distribution of these Transaction Documents. Each Party shall endeavor to delay the disclosure of the terms and conditions of this Agreement until the status of discussions concerning such transaction warrants such disclosure.
(d) Required Disclosures. If the Confidential Information of the disclosing Party is subject to disclosure pursuant to an order, decree, subpoena or other validly issued judicial or administrative process requiring the receiving party or its respective) to disclose any Confidential Information, the receiving Party shall, if practical, upon receiving such request, and to the extent that it may legally do so, advise the disclosing Party promptly and prior to making such disclosure in order that the disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information
6.4. No Implied Rights. Nothing contained in this Article shall be construed as obligating a Party to disclose its Confidential Information to the other, or as granting to or conferring on a Party any express or implied right or license to the Confidential Information of the other Party.
(a) In the event that either Party commits an Event of Default under Sections 1.1(i)(i) or (iv), then the other Party may, by giving written notice to the defaulting Party, immediately terminate the Transaction Document.
(b) In the event that either Party commits an Event of Default under Sections 1.1(i)(ii) or (iii), then the other Party may, by giving written notice to the defaulting Party, terminate the Transaction Document upon the expiration of the applicable cure period.
(c) In addition to the right to terminate pursuant to subsections (a) and (b) above, the non-defaulting party may pursue any legal remedies it may have under applicable law or principles of equity relating to such breach and subject to the terms of this Section.
7.2. Insolvency. Either Party may immediately terminate the Transaction Documents if the other Party (a) ceases to do business in the normal course for a continuous period of at least thirty (30) Days; (b) becomes or is declared insolvent or bankrupt; (c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntarily or involuntarily) which is not dismissed within ninety (90) Days; (d) makes an assignment for the benefit of creditors; (e) experiences a material adverse change in financial condition which may reasonably be expected to affect its ability to perform; or (f) fails to comply with a written request for reasonable assurances within ten (10) Days or otherwise repudiates the Transaction Documents.
7.3. Effect of Termination. Termination of the Transaction Documents refers to the termination of the Parties’ respective commitments and obligations from and after the date of termination, but does not relieve the Parties of their payment and other obligations incurred prior to the date of termination.
8. REPRESENTATIONS; DISCLAIMERS.
8.1. Representations. Customer represents and warrants to SkyNet that: (a) it has the requisite corporate power and authority to enter into the Transaction Documents and to carry out the transactions contemplated by the Transaction Documents; (b) the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated by the Transaction Documents have been duly authorized by the requisite corporate action on its part; and (c) the Transaction Documents have been duly executed and delivered, and create lawful, valid and legally binding obligations, in accordance with their respective terms.
8.2. Restrictions. CUSTOMER SHALL NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, TO THIRD PARTIES, INCLUDING WITHOUT LIMITATION, END USERS ON SKYNET’S BEHALF THAT ARE NOT EXPRESSLY AUTHORIZED HEREIN OR THAT MATERIALLY DEPART FROM ANY APPLICABLE SERVICE LEVEL COMMITMENT IN ANY TRANSACTION DOCUMENT.
(a) EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN A TRANSACTION DOCUMENT, ANY SERVICES PROVIDED UNDER THE TRANSACTION DOCUMENTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND NEITHER SKYNET NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS MAKE ANY WARRANTIES TO CUSTOMER OR TO ANY OTHER THIRD PARTY INCLUDING, WITHOUT LIMITATION, END USER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT RELATING TO ANYTHING PROVIDED OR USED UNDER THE TRANSACTION DOCUMENTS OR DESCRIBED THEREIN, AND ANY SERVICES PROVIDED TO CUSTOMER IN ANY MANNER, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
(b) WITHOUT LIMITING THE FOREOING DISCLAIMER, SKYNET FURTHER MAKES NO WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY INFORMATION, PRODUCTS OR SERVICES PROVIDED THROUGH THE INTERNET OR ANY OTHER NETWORK. FURTHERMORE, SKYNET HEREBY DISCLAIMS THAT ANY PRODUCTS OR SERVICES PROVIDED UNDER THE TRANSACTION DOCUMENTS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT CERTAIN RESULTS MAY BE OBTAINED BY ANYONE IN CONNECTION WITH THEIR USE.
8.4 Contingency. SkyNet will provide all Services contingent upon its ability to obtain or maintain any necessary licenses, permits or authorization.
8.5 Use. Customer shall use all Services in accordance with all applicable laws and regulations.
9.1. General Intent. Subject to the specific provisions of this Article, it is the intent of the Parties that each shall be liable to the other only for any direct damages incurred by the non-breaching Party as a result of the breaching Party's failure to perform its obligations in the manner required by the Transaction Documents.
9.2. Liability Restrictions.
(a) NOTWITHSTANDING ANYTHING IN THE TRANSACTION DOCUMENTS TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, WHETHER SUCH CLAIM IS CHOATE OR INCHOATE, WHETHER BY STATUTE, IN TORT, OR IN CONTRACT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT SHALL SKYNET, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ASSIGNS BE LIABLE FOR ANY DEFECT, ERROR, INTERRUPTION, DELAY, OR ATTENUATION OF SERVICES CAUSED BY OR RESULTING FROM AN ACT OR OMISSION OF CUSTOMER.
(c) FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS PROVIDED UNDER ANY TRANSACTION DOCUMENT, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER. CUSTOMER’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID UNDER ANY TRANSACTION DOCUMENT ARE LIQUIDATED, CUSTOMER ACKNOWLEDGES THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OBTAINING AN ADEQUATE REMEDY IS OTHERWISE INCONVENIENT, AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONBALE APPROXIMATION OF THE HARM OR LOSS. CUSTOMER CONFIRMS THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THE TRANSACTION DOCUMENTS SATISFY THE ESSENTIAL PURPOSES THEREOF.
(d) SKYNET’S LIABILITY SHALL BE LIMITED TO THE LESSER OF (I) USD 100.00 PER AIRWAY BILL AS PER THE STANDARD CONDITIONS OR CARRIAGE IN EXHIBIT A (ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE) (II) OR THE ACTUAL VALUE OF THE ITEM. IN THE EVENT OF SKYNET LIABILITY PURSUANT TO THE TRANSACTION DOCUMENTS, SKYNET MAY ELECT, AT ITS DISCRETION AND SOLE OPTION, TO PAY SUCH REQUIRED AMOUNTS OR PROVIDE A CREDIT AGAINST PRODUCTS OR SERVICES.
(e) FOR PURPOSES OF THIS SECTION, ALL AMOUNTS PAYABLE OR PAID TO THIRD PARTIES IN CONNECTION WITH CLAIMS THAT ARE ELIGIBLE FOR INDEMNIFICATION PURSUANT TO THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES.
9.3. Force Majeure.
(a) Neither Party shall be liable for any default or delay in the performance of its obligations under the Transaction Documents if and to the extent such default or delay is caused, directly or indirectly, by fire, explosion, cable cuts, vandalism, sabotage, power outage, flood, lightning, earthquake, elements of nature or “acts of God”, war, riots, any civil or military authority (by national emergency or acts of third parties), civil disorders, rebellions, revolutions, insurrections, or acts of terrorism, naturally occurring or man-made obstructions to transmissions, provided the existence of such obstructions is beyond the responsible Party’s control, lack of or delay in transportation, government obstructions to transmissions, government codes, ordinances, laws, rules, regulations or restrictions, provided that such default or delay could not have been prevented by reasonable precautions by the Party with the obligation to perform and cannot be reasonably circumvented by the Party with the obligation to perform through the use of alternate sources, workaround plans or other means (a “Force Majeure Event”).
(b) In such event, the Party with the obligation to perform shall as soon as practicable give written notice to the other Party specifying the nature and anticipated duration of the Force Majeure Event and outline its recovery plan, if any. The Party with the obligation to perform shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent reasonably practicable without delay.
(c) The other Party may terminate all or any portion of the applicable Transaction Document if a Force Majeure Event continues for forty-five (45) days. In the event of such a termination, the terminating Party shall be obligated to pay for services properly performed up through the date of termination.
10.1. General. Customer shall, at its expense, indemnify, defend and hold harmless SkyNet and its Affiliates, as well as their officers, directors, employees, managers, contractors, agents, successors, and assigns, from any and all Losses, arising from, relating to, incurred in connection with, or based on allegations including but not limited to: (i) the death or bodily injury of any person caused by the negligence, improper, unlawful or willful misconduct of such Party; (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence, improper, unlawful or willful misconduct of such Party; (iii) any act or omission of such Party in its capacity as an employer of a natural person; and (iv) any breach of the representations and warranties made by such Party in any Transaction Document.
10.2. Transmissions of Shipment Information to Authorities. Customer, at its expense, indemnify, defend and hold harmless SkyNet and its Affiliates, as well as their officers, directors, employees, managers, contractors, agents, successors, and assigns, from any and all Losses, fines, sanctions, penalties, or assessments imposed by corresponding authorities arising from, relating to, incurred in connection with, or based on allegations of, including but not limited to, the failure to, or tardiness or inaccuracy of, any transmission of shipment information to corresponding authorities.
10.3. Intellectual Property Rights.
(a) Obligations. Each Party shall, at its expense, indemnify, defend and hold harmless the other Party, and the other Party’s Affiliates, officers, directors, employees, managers, contractors, agents, successors, and assigns, from and against any Losses and threatened Losses arising from, in connection with or based on any allegations arising under the Transaction Documents of infringement or misappropriation of any Intellectual Property Rights of the owning or controlling Party or any third party, except to the extent that any such allegations arise from (i) modification of such products or services, or any component thereof, by the indemnified Party that is not recommended or otherwise approved by the indemnifying Party, or (ii) use of the products or services by indemnified Party in combination with deliverables furnished by third parties that is not recommended or otherwise approved by indemnifying Party, to the extent that any such claim or allegation is directed to such combination.
(b) Exclusive Liability and Remedy. If any Service provided under any Transaction Document has become (or in SkyNet's reasonable judgment is likely to become) the subject of a third party infringement claim, SkyNet may, at its sole discretion and without further liability, do any of the following, which, together with the obligations set forth under Section 9.2(a) above, shall constitute SkyNet’s sole obligation to Customer hereunder and Customer’s exclusive remedy against SkyNet: (i) at SkyNet's cost, obtain for Customer the right to continue use of the Service; (ii) at SkyNet's cost, replace the Service with comparable or superior services or modify the Service to the least extent possible so that it no longer is subject to the third party infringement claim; or (iii) after giving Customer not less than thirty (30) days notice in writing, terminate all or part of the relevant Exhibit, or component thereof.
10.4. Procedure. The Party to be indemnified under Section 10.1 or 10.2 (“Indemnitee”) shall promptly notify the indemnifying Party under Section 10.1 or 10.2 (“Indemnitor”) in writing of any claim for indemnification. The Indemnitor shall have sole control of the defense and all related settlement negotiations with respect to the claim. The Indemnitee shall have the right, but not the obligation, to participate in the defense of any such claim or action through counsel of its own choosing at its own expense; provided, however, that if the Indemnitor fails to promptly assume the defense of a claim, the Indemnitee may assume the defense at the Indemnitor’s cost and expense. The Indemnitee shall cooperate fully and execute all documents necessary for the defense of such claim. The Indemnitee shall have the right to approve settlement of any claim, such approval not to be unreasonably withheld or delayed, provided that the Indemnitee shall not be required to approve any settlement that involves an admission of liability or wrongful conduct on the part of the Indemnitee or restricts its ability to conduct its business in any material respect. In the event the Parties agree to settle a claim, neither Party shall publicize the settlement without first obtaining the written permission of the other Party, which permission will not be unreasonably withheld or delayed.
11.1. Binding Nature and Assignment.
(a) The Transaction Documents shall accrue to the benefit of and be binding upon the Parties and any permitted purchaser or any successor entity into which either Party has been merged or consolidated or to which either Party has sold or transferred all or substantially all of its assets.
(b) Except as otherwise expressly provided in a Transaction Document, neither Party may, or shall have the power to, assign the Transaction Documents or delegate such Party's obligations hereunder, in whole or in part, without the prior written consent of the other, except that either Party may assign its rights and obligations under the Transaction Documents without the approval of the other Party to (i) an entity which acquires all or substantially all of the assets of the assignor, (ii) to any Affiliate, in which event the assigning Party shall remain liable as a guarantor of the assignee/Affiliate’s performance of such Party’s obligations hereunder, or (iii) to a successor in a merger or acquisition, provided that such an assignee has the financial, technical and management capacity to perform all of the assignor’s obligations hereunder.
11.2. Notices. Any notices, requests, demands, and determinations under this Agreement (other than routine operational communications), shall be in writing and shall be deemed duly given (a) when delivered by hand, (b) one (1) Business Day after being transmitted via an express, overnight courier with a reliable system for tracking delivery, delivery costs paid (c) when sent by confirmed facsimile with a copy delivered by another means specified in this Section, or (d) on the day an authorized employee of the receiving party accepts receipt in writing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid, to the address listed on the first page of the Master Services Agreement. A Party may from time to time change its address or designee for notice purposes by giving the other prior written notice of the new address or designee and the date upon which it will become effective.
11.3. Counterparts. The Transaction Documents may be executed in counterparts, all of which taken together shall constitute one single agreement between the Parties.
11.4. Relationship of Parties. The Parties are independent contractors, bound to each other only as provided for herein. Neither Party has the authority to bind, act on behalf of or represent the other. Nothing in the Transaction Documents creates a relationship of partnership, employer and employee, principal and agent, master and servant, or franchisor and franchisee. Neither Party shall act or fail to act in a way that could reasonably cause others to believe that it has authority to act on behalf of the other beyond the authority expressly granted herein.
11.5. Severability and Modification.
(a) In the event that any provision of the Transaction Documents conflicts with the law under which the Transaction Documents are to be construed or if any such provision is held invalid by an arbitrator or a court with jurisdiction over the Parties, such provision shall be deemed to be modified to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of the Transaction Documents shall remain in full force and effect.
(b) If any state or federal body of competent jurisdiction determines that any provision of the Transaction Documents violates any applicable rules, policies, or regulations, both Parties shall make reasonable efforts to promptly bring the Transaction Documents into compliance and shall endeavor in those efforts to preserve for both Parties the economic benefits as reflected in the Transaction Documents to the maximum extent possible.
11.6. Consents and Approval. Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, or similar action by either Party is required under the Transaction Documents, such action shall not be unreasonably delayed, conditioned or withheld. An approval or consent given by a Party under the Transaction Documents shall not relieve the other Party from responsibility for complying with the requirements of the Transaction Documents, nor shall it be construed as a waiver of any rights under the Transaction Documents, except as and to the extent otherwise expressly provided in such approval or consent.
11.7. Waiver of Default. No waiver or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such amendment, waiver, or discharge is sought to be enforced. A delay or omission by either Party hereto to exercise any right or power under the Transaction Documents shall not be construed to be a waiver thereof. A waiver by either of the Parties of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant.
11.8. Cumulative Remedies. Except as otherwise expressly provided, all remedies provided for in the Transaction Documents shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
11.9. Survival. Any provision of the Transaction Documents which contemplates performance or observance subsequent to any termination or expiration of the Transaction Documents (in whole or in part) shall survive any termination or expiration of the Transaction Documents (in whole or in part, as applicable) and continue in full force and effect.
11.10. Public Disclosures. Any public use of a Party’s name, trademark, service mark or trade dress, as well as all media releases, public announcements, and public disclosures relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, shall be coordinated with and shall be subject to the prior written approval by each Party prior to release.
11.11. Third Party Beneficiaries. Except as otherwise provided in the Transaction Documents, the Transaction Documents shall not be deemed to create any rights in third parties, suppliers, or other customers of a Party, or to create any obligations of a Party to any such third parties, or to give any right to either Party to enforce this Agreement on behalf of a third party.
11.12. Governing Law and Venue. The Transaction Documents and performance under them shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its choice of law principles or the Convention on Contracts for the International Sale of Goods. The exclusive venue for any legal proceeding arising from or related to the Transaction Documents is the U.S. District Court for the Southern District of Florida or the Florida State courts. Each party irrevocably waives the defense of an inconvenient forum with respect to any such action or proceeding, and agrees that service of process in any such action or proceeding may be made upon such Party by mailing a copy thereof to such Party at its address set forth herein as well as by any other lawful method.
11.13. Amendment. The Transaction Documents shall not be modified, amended or in any way altered except by an instrument in writing signed by both Parties.
11.14. Assignment. Customer shall not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer this Agreement or delegate any of its obligations under this Agreement without SkyNet’s written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, SkyNet, or its permitted successors, assignees or transferees, may assign or transfer this agreement or delegate any rights or obligations hereunder without consent to any entity controlled by, or under common control with SkyNet or its permitted successors, assignees or transferees; and either Party, or their permitted successors, assignees or transferees, may assign or transfer this Agreement or delegate any rights or obligations hereunder without consent in connection with a merger, reorganization, transfer, sale of substantially all of the assets or product lines, or change of control or ownership of the Party, or its permitted successor, assignees or transferees. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
11.15. Incorporation by Reference and Order of Precedence.
(a) All Exhibits are incorporated by reference into this Agreement. Any amendments to this Agreement (including with respect to exhibits and schedules) that are agreed upon by the Parties subsequent to the Effective Date, shall likewise be incorporated by reference into this Agreement.
(b) Any conflict among or between the documents making up the Transaction Documents will be resolved in accordance with the following order of precedence (in descending order of precedence): (i) the Master Agreement, (ii) this Agreement, and (iii) the Exhibits.
11.16 Section Headings. The section headings contained in this Agreement are for convenience only and are without substantive meaning or content and are not a part of the Agreement between the parties hereto.
11.17. Export Control. The export and/or import of certain products, including items to be resold under any attached exhibits and/or Confidential Information may be subject to domestic and/or foreign government export and/or import laws, rules, policies, procedures, restrictions and regulations. The Parties represent and warrant that they will comply with all applicable governmental laws, statutes, ordinances, administrative orders, procedures, policies, rules, regulations and restrictions including, without limitation, those related to the export and/or import of encryption items and technical materials. Each Party shall provide the other Party with prompt written notice of any export or import restrictions relating to the products and/or Confidential Information.
11.18. Supplemental Services. Subject to the terms and conditions set forth in the Agreement, SkyNet may, from time to time, provide Customer with certain limited services and equipment needed and requested by Customer on a “one-off” or emergency basis (“Supplemental Services”) where such services are not included within the scope of the Services purchased by Customer. Customer will be charged for all Supplemental Services provided Customer. SkyNet has no obligation to determine the need for or provide Supplemental Services. All Supplemental Services are provided on an “as is” basis and exclude warranties of any kind, whether express or implied.
STANDARD CONDITIONS OF CARRIAGE
By the Conditions set out below Sky Net and its servants and agents are not to be liable at all for certain losses and damage and if they are to be liable the amount of liability is in all circumstances limited to the amount stated herein. Shippers are therefore advised to seek their own insurance coverage in any areas in which liability and fault are not clearly accepted by Sky Net. 1- Any business undertaken by Sky Net is carried out subject to the conditions hereinafter set out each of which shall be deemed to be incorporated in and to be a condition of any agreement whether written, oral or implied between Sky Net and Shipper. Sky Net shall not be bound by any agreement purporting to vary these conditions unless such agreement shall be in writing, and signed on behalf of Sky Net by competent officer thereof. In the absence of any such written agreement to the contrary these conditions shall constitute the entire agreement between Sky Net and shipper.
2- Sky Net is not a common carrier and will only carry documents or goods subject to these conditions which can only be altered in accordance with clause 1 above. Sky Net reserves the right to refuse the carriage or transportation of any documents or goods for any person firm or company and the carriage or transportation of any class documents or goods at its absolute discretion.
3- In accordance with the 49 C.F.R. § 1548.9, the SHIPPER authorizes SkyWorld International Couriers, Inc. DBA SkyNet Worlwide Express to act on its behalf to search and inspect any documents or goods for any person firm or company.
4- Sky Net undertakes subject to payment in accordance with rules notified to the shipper from time to time, to carry the shipper documents or goods between destinations agreed between Sky Net and the shipper. Sky Net reserves the right to carry the shippers documents or goods by any route and procedure and by successive carriers and according to its handling storage and transportation methods.
5- Sky Net will notify Shipper form time to time of any materials which are not accepted by Sky Net for carriage (and in this regard see clause 12) Sky Net reserves the right to inspect all documents or goods consigned by Shipper to ensure that all documents or goods are capable of carriage to the countries of destination within the standard operating procedures, customs, declaration and handling methods of Sky Net. In making this reservation Sky Net does not warrant that any particular item to be carried is capable of carriage and delivery without infringing the law of any country or state from, to, or through which the item may be carried.
6- Any rates quoted by SkyNet for carriage are inclusive of local airport taxes but exclusive of any value added tax, duties, levies, imposts, deposits or outlays incurred in respect of carriage of the Shipper’s documents of goods. Shipper shall always be primarily responsible for all charges, including customs duties, penalties, fines, taxes and our attorney’s fees and legal cost related to this shipment. Shipper will also be liable for any charges incurred by SkyNet in returning Shipper’s shipment to SkyNet’s warehouse: shipping it back to shipper or storing it in SkyNet’s warehouse. Should the shipper fail to check the “Free Domicile” box on the face of this sky bill, the recipient/consignee indicated on the face of this Sky Bill shall be responsible for all duties customs assessments, governmental penalties and fines, taxes, and our lawyers fee and legal cost related to this shipment, however, should the Recipient/Consignee default in its payment of any of these charges. Shipper shall be liable for such payment, SkyNet will no be liable for any penalties imposed or loss or damage incurred due to the shipper’s documents or goods being impounded by customs or similar authorities and the customer hereby indemnifies and holds harmless SkyNet against any such penalty or loss.
7- The packaging of the shipper’s document or goods for transportation is the shipper’s responsibility including the placing of the documents or goods in any container, which may be supplied to the shipper by SkyNet. SkyNet accepts no responsibility for loss of damage to documents of goods caused by inadequate or inappropriate packaging. It sis the sole responsibility of the shipper to address adequately each consignment of documents or goods to enable effective deliver to be made. SkyNet shall not be liable for delay in forwarding or delivery resulting from the shipper’s failure to comply with its obligations on this respect.
8- The shipper is liable for all losses, damages and expenses arising as a result of its failure to comply with its obligations under this agreement or as a result of its negligence.
9- SkyNet will only carry documents or goods which are the property of the shipper and the shipper warrants that it is authorized to accept and accepting these conditions not only on behalf of itself but also as agent for and on behalf of all other persons who are or may hereafter become interested in the documents of goods. The shipper hereby undertakes to indemnity SkyNet against any damage costs and expenses resulting from any breach of this warranty.
10- SkyNet is responsible for the shipper’s documents or goods which are within its custody or control and shall be liable subject to clause 11, hereof for loss sustained by the shipper due to damage to or loss of the documents or goods which is in Sky net’s custody provide that such loss or damage was due to the negligence of SkyNet its servants of agents. SkyNet shall not be liable in respect to the documents or goods carried by it and particular shall not be able for consequential loss however it shall arise. The parties agree that consequential loss shall be deemed to include without restriction commercial, financial or other direct loss including loss of interest and utility. SkyNet shall not be liable for any loss or damage incurred by the customer due to any delays in the carriage of delivery of documents or goods, which are beyond the control of SkyNet. Notwithstanding anything to the contrary stated herein, SkyNet shall maintain any unclaimed shipments in its warehouse for a period not to exceed sixty (60) days from the date such shipment was to be accepted by Recipient/Consignee. If after such period has expired, Shipper or Recipient/Consignee has not taken possession of the shipment, SkyNet may dispose of such shipment and shall not be liable to Shipper or any loss or damages thereto.
11- Unless Shipper elects to purchase supplemental insurance as indicated on the face hereof, the liability of SkyNet under these conditions shall be limited to the payment by SkyNet by way of damages or a sum not exceeding US $100 or its equivalent per consignment. For the purpose of establishing the amount of SkyNet’s liability under this clause the value of a document or the goods shall be ascertained by reference to their replacement of reconstitution value at the time and place of shipment without reference to their commercial utility to the shipper or other third party and other items of consequential loss.
12- Any claim brought by a shipper against SkyNet hereunder in respect of duties and liabilities must be notified by the Shipper to an office of SkyNet in writing with 28 days of the day when the documents or goods should have reached their destination.
13- SkyNet will not carry (in addition to those items mentioned in clause 2 hereof) dangerous, hazardous, combustible or explosive materials, gold and silver bullion, coin dust cyanides, precipitates, or any form of un-coined gold of silver bullion, platinum and other precious metals, precious and semi precious stones including commercial carbons or industrial diamonds, currency (paper or coin) of any nationally, negotiable securities, stock bonds, certificates, un-cancelled postage or revenue stamps, was savings or thrift stamps, blank or endorsed bank cashier’s checks, money orders or travelers checks, letters, antiques, pictures, livestock or plants and in the event that any shipper should consign such items with SkyNet, the customer shall indemnity SkyNet for all claims, damage and expenses arising in connection therewith and SkyNet shall have the right to deal with such items as it shall see fit including the right to abandon carriage of the same immediately upon SkyNet having knowledge that such item infringes these conditions. The right of inspection referred to in clause 4 shall also apply for the purpose of this clause.
14- SkyNet is not undertaking air transport within the Warsaw Convention 1929 and subsequent air carriage, treaties and legislation SkyNet acts as agents for its shippers when consigning documents or goods with a particular airline for onward carriage, and without prejudice to its general right of subrogation hereunder SkyNet shall have the right to recover compensation from any airline for loss, damage or expense incurred by any shipper on behalf of that shipper.