VIASAT MOBILE SATELLITE SERVICES (MSS)

SERVICES AGREEMENT

VERSION 5 POSTED JANUARY 23, 2026

THIS SERVICES AGREEMENT (THE "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN VIASAT, INC. (“VIASAT”) AND THE LEGAL ENTITY REPRESENTED BY THE PERSON AGREEING TO BE BOUND BY ITS TERMS (“CUSTOMER”).

VIASAT SHALL SUPPLY CUSTOMER WITH THE VIASAT MOBILE SATELLITE SERVICES AND ANY OPTIONAL SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT (TOGETHER, "SERVICES") AND ACCESS TO THE S&P PORTAL (DEFINED IN SCHEDULE A AND USE OF WHICH IS GOVERNED BY ITS SEPARATE TERMS OF USE).  THE PROVISION OF SERVICES IS SUBJECT TO CUSTOMER AGREEING TO AND COMPLYING WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, INCLUDING ALL POLICIES INCORPORATED BY REFERENCE HEREIN.

THIS AGREEMENT IS STRICTLY BETWEEN VIASAT AND CUSTOMER ONLY. IT DOES NOT COMPRISE, AND SHALL NOT BE DEEMED TO COMPRISE, AN AGREEMENT OR CONTRACT BETWEEN VIASAT AND CUSTOMER’S OWN SUBSCRIBERS. NOR DOES THIS AGREEMENT VARY, MODIFY OR AMEND ANY PROVISION OF ANY AGREEMENT OR CONTRACT IN FORCE BETWEEN CUSTOMER AND ITS OWN SUBSCRIBERS. ALL AGREEMENTS, CONTRACTS AND TERMS OF SERVICE BETWEEN CUSTOMER AND ITS SUBSCRIBERS ARE THE RESPONSIBILITY OF CUSTOMER. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ANY PROVISIONS CONTAINED IN THIS AGREEMENT THAT ARE REQUIRED TO BE INCLUDED IN ITS AGREEMENTS AND CONTRACTS WITH ITS SUBSCRIBERS IN ORDER TO ENSURE CUSTOMER’S COMPLIANCE WITH THE TERMS HEREOF ARE SO INCLUDED. CUSTOMER MAY NOT RELY ON THE TERMS OF ITS AGREEMENTS AND CONTRACTS WITH ITS SUBSCRIBERS AS A DEFENSE FOR ANY BREACH OR NON-COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.

BY CLICKING “ACCEPT” TO THESE TERMS AND/OR BY OTHERWISE SUBSCRIBING TO SERVICES USING THE S&P PORTAL, CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

_________________________________

1.      DEFINITIONS AND INTERPRETATION

1.1.     Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings given to them in Schedule A.

1.2.     Headings used in this Agreement are for convenience of reference only.

2.      SERVICES AND OPTIONAL SERVICES

2.1.     Viasat shall provide the Services for the duration of the Term, subject to and on the terms of this Agreement.

2.2.     Viasat shall use its reasonable efforts to provide the MSS Services in accordance with the Service Level Targets. Customer’s sole remedy for outages, non-provision of MSS Services or any degradation of MSS Services is set forth in Schedule B. The Service Level Targets may be revised, amended or modified from time to time in Viasat's sole discretion and Viasat shall provide Customer with written notice thereof. Any Optional Services are provided on a reasonable efforts basis only and without any Service Level Assurance and are therefore outside the scope of the Service Level Targets.

2.3.     Viasat reserves the right to offer and sell Services directly and/or indirectly without restriction or limitation and to appoint additional Customers, resellers, distributors, sales representatives, or consultants with a right to sell or offer for sale any or all of the Services.

3.      SUBSCRIPTIONS AND SERVICE PLANS

Subscriptions and Minimum Service Term

3.1.     Services are activated by means of one or more Subscriptions. On activation, each Subscription must be attached to a single Service Plan, to which the  corresponding Rates specified in the Plan and Pricing Sheet shall apply and be payable by Customer, and which Rates are deemed “Fees” for the purposes of Clause 7.4.  

3.2.     When a Service Plan is attached to a Subscription:

(a)     the minimum service term for that Service Plan, as specified in the Plans and Pricing Sheet, shall apply to the Subscription ("Minimum Service Term"). The Minimum Service Term begins on the date (using UTC) that the first Terminal is activated under the Subscription ("Activation Date") and continues for its duration subject only to Termination of the Subscription made in accordance with this Agreement.

(b)    the Rates applicable to the Subscription will remain in force for the Minimum Service Term provided that at least one (1) Terminal remains active under the Subscription, and any changes to the Rates that are notified during the Minimum Service Term shall be effective only on MST Auto-Renewal of the Subscription (if applicable).

3.3.     Unless otherwise set forth in the Plans and Pricing Sheet corresponding to its attached Service Plan, at the end of its Minimum Service Term each Subscription shall automatically renew for another identical Minimum Service Term on the same Service Plan (an “MST Auto-Renewal”), for which the Activation Date is the first calendar day after the day of expiry of the immediately preceding Minimum Service Term, unless Customer gives notice to Viasat in accordance with this Agreement that it will Downgrade, Upgrade or Terminate its Subscription at the end of the then current Minimum Service Term. For the avoidance of doubt, MST Auto-Renewal shall occur at the end of every Minimum Service Term without limitation or restriction on the number of such MST Auto-Renewals subject only to notification by Customer of Downgrade, Upgrade or Termination.

 Termination of Subscriptions and Deactivations

3.4.     Customer may Terminate a Subscription prior to the end of its then-current Minimum Service Term  (“Early Termination”) by (a) giving Viasat not less than thirty (30) days written notice of termination through delivery of a Subscription Termination Notice, and (b) paying the Early Termination Fee (along with any other Fees due pursuant to the terms of this Agreement).

3.5.     Termination of a Subscription at the end of its then-current Minimum Service Term is conditional on Customer giving Viasat not less than thirty (30) days written notice prior to the end date of that Minimum Service Term, through delivery of a Subscription Termination Notice.  Failure to deliver a Subscription Termination Notice will result in an MST Auto-Renewal of the Subscription with its attached Service Plan.

3.6.     Customer may Deactivate one or more, or all, Terminals from an active Subscription, which Deactivation shall not result in Termination of the Subscription unless it is accompanied by a Subscription Termination Notice in accordance with Clause 3.4 or 3.5 (as the case may be). Terminal Deactivation(s) do not result in any variation to the Subscription Usage Allowance or the Rates applicable to and payable for the entire Subscription.

Additional Terminals

3.7.     Customer may add Terminals to an existing Subscription under that Subscription’s attached Service Plan. Except for Upgrades made in accordance with Clause 3.15, the addition of Terminals to a Subscription after its Activation Date does not change the Activation Date or the Minimum Service Term applicable to the Subscription.

Usage Allowances

3.8.     Each Subscription is assigned an overall aggregate usage allowance ("Subscription Usage Allowance"), which is either (i) in the case of Subscriptions with only one (1) active Terminal attached to them, specified on the Plans and Pricing Sheet for the associated Service Plan for that the Subscription, or (ii) in the case of Subscriptions with more than one (1) active Terminal attached to them, calculated by pooling the usage allowance of each Terminal per the Service Plan attached to the relevant Subscription (as specified on the Plans and Pricing Sheet) for all Terminals activated under the same Subscription.

3.9.     Any Unused Subscription Usage Allowance(s) will expire at the end of the applicable calendar month and will not be carried forward to the next month.

3.10.   Usage in excess of the Subscription Usage Allowance ("Overage") will be invoiced over and above the monthly recurring Rates applicable to the Subscription at the Overage price specified in the Plans and Pricing Sheet. Overage charges are pro-rated to increments of a Byte and calculated monthly.

Relocations

3.11.   Customer may relocate a Terminal from one active Subscription ("Transferring Subscription") to another active Subscription. However, the Subscription Usage Allowance and pricing of the Transferring Subscription will remain unchanged subject to the terms and conditions of this Agreement.

Upgrades

3.12.   Upgrades are permitted at any time subject to the terms and conditions of this Agreement.

3.13.   If Customer wishes to Upgrade any Subscription it must provide not less than seven (7) days written notice to Viasat, which notice may be attached to an email to billing@mss.viasat.com.

3.14.   If an Upgrade is effected other than on the first calendar day of a month, Customer shall pay Viasat any incremental increase in the recurring monthly Fees corresponding to the Upgraded Subscription for the part-month in which the Upgrade was in effect, following which the recurring Fees for the Upgraded Subscription shall be invoiced monthly in advance as in accordance with Clause 8. Any Upgrade that is effected during a month is without prejudice to Customer’s liability to pay any Overage corresponding to the period before the Upgrade was effected.  

3.15.    If, instead of requesting Viasat to perform an Upgrade under Clause 3.13, Customer effects an Upgrade by moving Terminals from an existing Subscription to a new Subscription attached to a higher-hierarchy Service Plan, the new Upgraded Subscription will, at Customer’s option (notified through the S&P Portal or by emailing billing@mss.viasat.com) either (a) retain the same Activation Date and remainder of the Minimum Service Term of the existing Subscription or (b) be allocated a new Activation Date and Minimum Service Term corresponding to the new Service Plan attached to the new Upgraded Subscription, provided that absent any notification from Customer to Viasat of its elected option upon transferring the Terminals to the new Upgraded Subscription, option (b) will apply. For the avoidance of doubt, any Terminals remaining in the existing Subscription and which do not transfer to the new Upgraded Subscription shall continue to be subject to the Rates and Minimum Service Term of that existing Subscription.

Customer requested suspensions and Downgrades

3.16.   Customer may not suspend a Subscription or Downgrade it from a higher-hierarchy Service Plan to a lower-hierarchy Service Plan during the corresponding Minimum Service Term.

3.17.   Customer may  Downgrade a Subscription from a higher-hierarchy Service Plan to a lower-hierarchy Service Plan at the end of a Minimum Service Term by providing not less than thirty (30) days’ written notice to Viasat of such Downgrade, upon which (a) the corresponding Subscription shall not be subject to an MST Auto-Renewal, and (b) on expiry of the Minimum Service Term the Subscription shall automatically be Downgraded to the new Service Plan and the Minimum Service Term of the new Service Plan shall apply, and (c) the Activation Date of the new Downgraded Service Plan shall be the day immediately after the expiration date of the expiring Service Plan’s Minimum Service Term.

Reactivations

3.18.   If all or any of Customer’s Services have been suspended by Viasat due to non-payment of Fees or any other breach of this Agreement, any reactivation is conditional on Customer (a) making payment in full of all outstanding balances and/or (b) remedying in full any breach of this Agreement to the satisfaction of Viasat. In addition, Viasat may require Customer to pay a deposit, in an amount to be notified, before reactivating Services. The amount of such deposit will not exceed the value of one (1) year of the monthly recurring Rates estimated by Viasat as being applicable to Customer based on the Service Plan(s) attached to its Subscription(s). Following reactivation of Services, if Customer fails to pay any Fees on or prior to their Due Date, the unpaid amount will be deducted from the deposit held by Viasat, upon which Viasat may require Customer to top-up the deposit amount to the previous level as a condition to continuing to receive Services. Deposit amounts will not earn or accrue interest.

Subscription Services Account

3.19.   Customer may request a Subscription Services Account(s) and S&P Portal Account(s) from Viasat by calling +1-866-862-9624 or +1-760-513-6900 or emailing billing@mss.viasat.com.  

3.20.   Customer’s Subscription Services Account will continue until it is Terminated in accordance with this Agreement. Customer may Terminate its Subscription Services Account subject to (a) payment of the Early Termination Fee in respect of each Subscription that is within its Minimum Service Term, (b) payment in full of any outstanding Fees up to the date of termination, and (c) provision of the required notice period through delivery of a  Subscription Termination Notice for each Subscription in accordance with Clause 3.4 or 3.5 (as the case may be).

4.      CUSTOMER HELP DESK AND GENERAL CONTACT.

4.1.     Viasat, either directly or through one or more designees, shall operate an online customer services center for the benefit of its customers in accordance with information and instructions set forth on the S&P Portal ("Help Center"). Customer shall (i) operate its own online help center for the benefit of its Subscribers, (ii) provide its Subscribers and Viasat with accurate contact information for its customer support, and (iii) direct its Subscribers to exclusively use its own customer support contact information for support. In addition to (and without limitation of) the foregoing, Customer shall use commercially reasonable efforts to prevent its Subscribers from attempting to contact Viasat directly. Customer agrees that Viasat (or its designee) may (but shall not be obligated to) direct all calls and other inquiries received by Viasat from Customer’s Subscribers to Customer’s own customer support telephone number and/or website. If the Help Center is receiving an unreasonable number of calls or contacts from Customer’s Subscribers, Viasat may in its absolute discretion charge Customer a service fee with respect to such calls and contact. Customer acknowledges and agrees that Viasat shall have no obligation to accept or otherwise handle any calls or other inquiries from Customer’s Subscribers and shall have no liability to Customer or its Subscribers whatsoever with respect to any such calls or other inquiries.  

4.2.     For quality assurance, Viasat may record and/or monitor telephone calls between Customers and Viasat agents, employees and/or its Affiliates. By using the Services, Customer (and anyone calling or otherwise contacting Viasat regarding Customer’s Subscription Services Account) consent to any and all call recording and monitoring performed by Viasat or its agents, employees and/or its Affiliates.

4.3.     Customer agrees that by entering into this Agreement and providing Viasat with its phone number(s) and/or e-mail address(es), Viasat or its agents may contact Customer for: (a) any account-related issues by calling or texting Customer at such number(s) using a prerecorded/artificial voice or text message delivered by an automatic telephone dialing system and/or using a call made by live individuals, and/or (b) for any account-related issues or for marketing purposes by sending an e-mail to such e-mail address. The consent provided here continues even if Customer terminates Service. If Customer does not wish to receive marketing emails, Customer may follow the opt-out instructions contained in any such email by making an opt-out request.

5.      S&P PORTAL AND ACCOUNT MANAGEMENT

5.1.     Viasat may, in its sole discretion, make the S&P Portal (the scope and level of access to which is at Viasat’s discretion in accordance with the Terms of Use) available for use by Customer. The S&P Portal and any other online tools provided by or on behalf of Viasat in connection with this Agreement are provided on an "as is" basis with no guarantee or warranty whatsoever, whether express or implied. Viasat may discontinue, replace, add to or revise any or all aspects of the S&P Portal in its sole discretion and without notice, including, without limitation, access to support services, publications and any other products or services ancillary to the S&P Portal and/or Services. Customer acknowledges and agrees that by accessing and using the S&P Portal, Customer is agreeing to the separate Terms of Use as they exist on the date of Customer’s initial access. If Customer does not agree to the Terms of Use, it is not authorized to use the S&P Portal.

5.2.     Customer agrees to provide (a) true, accurate, current and complete information regarding its Subscription Services Account and (b) maintain and promptly update such information to reflect any changes during the Term. If Customer provides any information that is, or Viasat has reasonable grounds to suspect that the information is, untrue, inaccurate, not current or incomplete, Viasat will make reasonable efforts to notify Customer and provide a ten (10) days cure period. However, Viasat reserves the right to take any action and/or utilize any remedy available to it at law or pursuant to Clause 15.4 if  Customer fails to correct the inaccuracy or again submits inaccurate information after the cure period has elapsed.

5.3.     Customer will be liable for all Fees incurred for and through any fraudulent or otherwise unauthorized use of the Services through its Subscription Services Account and/or S&P Portal Account by any person or entity up to (and including) the date on which Customer notifies Viasat that the security of its Subscription Service Account and/or S&P Portal Account has been compromised, unless otherwise required by applicable law. Customer is responsible for any misuse of the Services, or the Equipment, including any misuse committed by an employee, co-worker, agent, consultant, contractor or other individual with access to Customer’s Subscription Services Account or S&P Portal Account. If Equipment is stolen or otherwise removed from Customer’s (or its Subscribers’) premises or Services are otherwise used without Customer’s (or its Subscribers’) authorization, Customer must (i) if applicable, ensure its Subscriber(s) notifies Customer immediately, and (ii) notify the Help Center immediately.

6.      SUBSCRIBERS.

6.1.     Customer acknowledges and agrees that: (a) purchases made by its Subscribers on or through the S&P Portal  are  transactions between Customer and its Subscribers subject to the terms and conditions of the agreement(s) entered into between them and in no circumstances shall be deemed to be transactions between Viasat and such Subscribers, (b) Customer shall be responsible for all transactions, if any, effected under Customer’s Subscription Services Account(s) on or through the S&P Portal, and (c) Customer shall at all times take reasonable steps to ensure that its Subscribers do not violate the Acceptable Use Policy, to which the provisions of Clause 10 apply.

7.      FEES.

Establishment of Rates and Fee Variations

7.1.     Viasat has the sole right to establish all monthly Rates for the Services.

7.2.     Viasat may in its absolute discretion replace, discontinue, amend, vary, add to or otherwise change the Rates at any time during the Term in its absolute discretion (a “Fee Variation”) provided that Viasat shall provide not less than thirty (30) days’ written notice of any such Fee Variation (a “FV Notice”):

(a)    Except for as set forth in Clause 3.2(b) and 7.2(b), Fee Variations shall be effective on the date following the last day of such notice period and shall apply to all Terminals and Subscriptions activated on or after that date; and

(b)    In accordance with Clause 3.2(b), Fee Variations shall not be applied to an existing Terminal or Subscription during a Minimum Service Term; however, any Fee Variation notified during a Minimum Service Term shall be applied to those existing Terminals and Subscriptions immediately on expiry of that Minimum Service Term and commencement of the MST Auto-Renewal.

7.3.     On receipt of a FV Notice, Customer may notify Viasat that it does not consent to that Fee Variation, such notice to be delivered within ten (10) days of receipt the FV Notice. Customer and Viasat shall use reasonable efforts to reach a mutually acceptable decision regarding the Fee Variation, but if they fail to reach agreement within thirty (30) days after the original FV Notice (the “FV Dispute Period”): (a) Viasat may thereafter terminate this Agreement at any time thereafter by providing Customer fifteen (15) days’ written notice of termination, (b) Viasat, for such period as it chooses to continue to provide the Services instead of terminating the Agreement, may in its absolute discretion and without notice take such actions as it deems appropriate to adjust the Services including without limitation changes to the technical specifications of the Services and throttling speeds. For the duration of the FV Dispute Period (and, if a mutually acceptable resolution to the despite is not reached during that period, for such period thereafter as Viasat chooses to provide the Services instead of terminating the Agreement) the unadjusted Fees (i.e. prior to the Fee Variation) shall remain in effect.

Obligation to pay Fees

7.4.     For the duration of each Minimum Service Term (including each subsequent Minimum Service Term following an MST Auto-Renewal), Customer shall pay, regardless of the amounts charged to or collected by it from its Subscribers, all “Fees” due to Viasat hereunder which comprise:

(a)    All monthly recurring charges due in respect of the MSS Services, as calculated based on the applicable Rates or as otherwise agreed between Customer and Viasat;

(b)    All one-off charges and other non-recurring fees (including without limitation for Overage, any “buy more” data, registration and activation charges) in respect of the MSS Services, as calculated based on the appliable Rates or as otherwise agreed between Customer and Viasat;

(c)    All charges and fees (including any Rates) relating to the Optional Services, including if applicable any charges in respect of government fees relating thereto such as Universal Service Fund fees;

(d)    all other one off and other amounts due hereunder, including without limitation any applicable Early Termination Fees and any Default Fee, Default Interest charges, administrative fees for failed payments and any charges relating to technical support and the Help Center.

7.5.     If an additional Terminal is activated and pooled in an active Subscription after the first day of any billing period, the Subscription Usage Allowance and Subscription charges will be recalculated as of the date of the new Terminal activation. Subscription charges are prorated only for the billing period in which the Terminal is activated based on the date of the new Terminal activation, and these adjusted Subscription charges will appear on Customer’s next invoice. 

7.6.     Fees shall continue to accrue and shall be invoiced by Viasat and be payable in full by Customer irrespective of whether all or any of the underlying Services have been (a) suspended by Customer to its Subscriber for any reason (including by way of Deactivation), or (b) suspended by  Viasat to Customer in accordance with this Agreement (including pursuant to Clause 15.4), or any Viasat policies.

7.7.    Any failure to pay all or any Fees on or prior to their due date(s) constitutes a material breach of this Agreement and the provisions of Clause 7.11 and Clause 15 shall apply, without prejudice to all other remedies available to Viasat hereunder or at law.

7.8.     All Fees shall be paid in full by Customer without any offset, withholding. deduction or counterclaim whatsoever.

7.9.     Viasat reserves the right to set off (without prior notice) any amounts owed by Customer to Viasat (and/or its Affiliates) against any amounts Viasat (and/or its Affiliates) owes to Customer.

Early Termination Fees

7.10.   If Customer Terminates a Subscription prior to completion of its then-current Minimum Service Term, which Termination must be in accordance with Clause 3.4, the monthly recurring Rates and all other recurring Fees for all remaining months of that Minimum Service Term shall be accelerated and be due and payable by Customer in their entirety, without setoff withholding, deduction or counterclaim, prior to the termination date ("Early Termination Fee").

Default Fee and Default Interest

7.11.   If Customer fails to pay any Fees on or prior to their due date, Viasat shall be entitled to charge a late payment fee of 5% of the overdue Fees (the “Default Fee”), plus late payment interest on such overdue Fees at the rate of 1% per month, pro-rated for any part-months, or such other maximum amount allowed by applicable law (plus in all cases reasonable collection charges and attorneys’ fees) (“Default Interest”). Default Interest accrues on and from the day immediately after the due date for the overdue Fees, as set forth on the relevant invoice(s).

Resale Rates

7.12.   In no circumstances shall Viasat be responsible for setting the Resale Rates for Subscribers, which Resale Rates are entirely the responsibility of Customer. 

8.      PAYMENT.

8.1.     Customer is solely and wholly responsible for invoicing and collecting all and any monies owed to it by its Subscribers. Customer bears all credit risk associated with its Subscriber. In no circumstances is non-payment by a Subscriber to Customer a defense pursuant to which Customer may withhold payment to Viasat of all or any Fees due to Viasat.

8.2.     Viasat shall invoice Customer in respect of Fees as follows:

(a)    all monthly recurring Fees, along with any other applicable advance charges, shall be invoiced and be payable by Customer monthly in advance.

(b)    all non-recurring Fees, along with any other Fees that have not been invoiced in advance, shall be invoiced and be payable by Customer monthly in arrears.

(c)    Viasat shall deliver invoices to the email address designated in Customer’s Subscription Services Account. Customer understands and agrees that it will not receive a paper statement.

(d)    The initial invoicing period following entry into this Agreement shall commence on the Activation Date of the initial Subscription, with the invoicing period for any Optional Services commencing on any activation thereof.

Payment Due Date

8.3.     All Fees shall be paid in full by Customer no later than thirty (30) days following the date of the corresponding invoice. All Fees shall be paid without set-off, deduction, withholding or counterclaim.

Payment Instructions

8.4.     All Fees and any other payments made under this Agreement must be made in US Dollars and in accordance with the payment instructions found at the S&P Portal Help Center under the heading “How do I make my invoice payments to Viasat?”. All amounts payable to Viasat by Customer hereunder or in connection with this Agreement may be collected either by Viasat directly or by a third-party payment processor, as determined in Viasat's sole discretion.

8.5.     If Customer chooses to pay all or any portion of an invoice using electronic funds transfer out of its bank account (“EFT Payment”) or a credit card or debit card (“Card Payment”), it authorizes Viasat to initiate an EFT Payment or charge its credit card or debit card. Each time Customer provides Viasat with an EFT Payment, it consents to Viasat verifying with a consumer reporting agency that the bank account it has provided is valid, available and acceptable to Viasat for electronic payments on its billing account. Customer must provide current, complete, and accurate information for its billing account, and promptly update any changes (such as a change in billing address, credit card number, credit card expiration date, bank account number) and contact email address. If Customer fails to provide Viasat with any of the foregoing information such failure shall be deemed a default by Customer on a material obligation and Viasat may elect to (a) take any of the actions set forth in Clause 15.4, or (b)  continue to supply the Services, pursuant to which Customer shall continue to be liable and invoiced for all such Services so provided.

8.6.     If Viasat is unable to process Customer’s EFT Payment or Card Payment at any time and Viasat therefore does not receive electronic payment for Fees from Customer by their due date (a) Customer shall be deemed to have failed to pay Fees and the provisions of Clause 15 shall apply, (b) the Default Fee and Default Interest may be applied by Viasat on the overdue balance, and (c) Customer shall further be liable to pay Viasat for any administrative charges incurred by Viasat due to the failed payments.

8.7.     Viasat is not responsible for any expenses that Customer may incur resulting from overdrawing its bank account or exceeding its credit limit as a result of any charge made under this Agreement.

8.8.     Customer must promptly notify Viasat of any change in its credit card information by calling Viasat at +1-866-862-9624 or +1-760-513-6900. Credit card information should not be notified to Viasat by email.

Invoice errors and disputes

8.9.     Viasat reserves the right to correct and charge under-billed or unbilled Fees for a period of twelve (12) months after (a) any incorrect invoice was issued or (b) an invoice should have been issued. Payment of such corrected or new invoice is due within thirty (30) days of issuance in accordance with Clause 8.3.

8.10.   If Customer, acting in good faith, reasonably believes an invoiced charge is incorrect or if it requires more information on any charges applied to its Subscription Services Account, it must contact Viasat by calling +1-866-862-9624 or +1-760-513-6900 or emailing billing@mss.viasat.com in any case within thirty (30) days of delivery of the invoice to which the alleged error or query relates. Viasat shall investigate the error or query in good faith and shall use its best efforts to respond within sixty (60) days. Viasat’s response and decision in relation to the alleged error or query is final.

8.11.   Customer is not entitled to any interest on any overcharged amounts later refunded or credited to Customer or any other compensation or similar in relation thereto.

Credit inquiries, partial payments, collections

8.12.   Customer authorizes Viasat to make inquiries and to receive information about Customer’s credit experience from third parties, including without limitation credit reporting agencies, to enter this information in Customer’s file and to disclose this information concerning Customer to third parties for reasonable business purposes. In the case of late payment or non-payment of Fees, Viasat may report such late payment or non-payment to credit reporting agencies.

8.13.   Viasat may, but is not required to, accept partial payments from Customer. If partial payments are made, they will be applied to amounts owed by Customer starting with the oldest outstanding amount. If Customer sends Viasat checks or money orders marked "payment in full" or otherwise labeled with a similar restrictive endorsement, Viasat may, but is not required to, accept them, without waiving any of its rights to collect all amounts owed by Customer under this Agreement.

8.14.   If Viasat chooses to use a collection agency or equivalent to collect money that Customer owes to Viasat or to assert any other right that Viasat may have against Customer, Customer agrees to pay the reasonable costs of collection or other action including, without limitation, collection agency fees, reasonable attorney's fees, and court costs.

9.      TAX

9.1.     All Fees (including without limitation all Rates) are exclusive of Sales Tax, VAT, GST, any other form of sales tax, duties, levies and similar charges that Viasat is legally required to collect from Customer and any other applicable Taxes.

9.2.     Other than as expressly set out in this Agreement, if any Party is required to withhold taxes, levies, imposts, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental fiscal or other authority from any payments (if any) made to the other Party under this Agreement that Party shall pay such additional amounts as may be necessary to ensure that the other Party receives a net amount equal to the full amount which it would have received had such payment not been made subject to such deduction or withholding. If a double taxation convention has been concluded between the states of residence of the two Parties, each Party agrees to inform and support the other Party by providing reasonable assistance in good faith throughout any possible procedure that enables that Party to avoid or minimize the withholding taxes applicable to it.  

9.3.     For the entirety of the Term, Customer hereby indemnifies on a continuing basis, defends and holds Viasat, its Affiliates, and its/their officers, directors, employees, partners, shareholders, and agents, harmless from and against any and all Losses that arise out of, or are connected to, Customer’s failure to remit any applicable Taxes and fees in full to any Governmental Authorities.

9.4.     Customer shall pay in a timely manner all applicable foreign, national, state and local Taxes, fees and surcharges related to its use of the Services, provision of services, software or hardware or the use of the Services by Subscribers.

10.    NETWORK MANAGEMENT AND ACCEPTABLE USE

10.1.   Viasat MSS is a shared network. At any given time, Subscribers within a given geographic area must share available network capacity. Viasat aims to provide each Subscriber with a fair share of that capacity, whilst providing all Subscribers with a high quality experience. To achieve these goals, Viasat employs network management practices designed to prevent any Subscriber from placing a disproportionate demand on network resources. Certain of these practices will be used only when the Service is congested; others will be used more generally. Network traffic levels are usually below a congestion point that would have a significant impact on the user experience. Under these normal traffic conditions, it is not necessary for Viasat to employ congestion management practices. While network capacity is robust, it is not unlimited. At times, simultaneous transmissions from multiple subscribers result in a total demand for capacity exceeding that available on the network, resulting in congestion. When the network experiences congestion, Viasat implements congestion management practices, including, but not limited to, prioritizing network traffic during periods of congestion based on subscribers’ data usage. Even with these network management practices, traffic levels depend on other users and Customer’s network capacity may be impacted based on other users' performance.

10.2.   Customer shall cooperate with and implement (and shall ensure its Subscribers cooperate with and implement) such response and reporting procedures as may be requested by Viasat from time to time in connection with preventing and remedying violations of the Acceptable Use Policy.

10.3.   Customer hereby indemnifies (and shall keep indemnified on a continuing basis), defends, and holds Viasat, its Affiliates, and its and their officers, directors, employees, partners, shareholders, and agents, harmless from and against any and all Losses that arise out of, or are connected to, any and all actions or omissions that are in breach of the Acceptable Use Policy.

11.    PRIVACY AND SECURITY

11.1.    The terms of Schedule C apply to all processing of data and related security matters and are binding on the Parties.  

12.    INTELLECTUAL PROPERTY

12.1.   All Intellectual Property Rights related to the Services remain with the originating party. Viasat grants to Customer a worldwide, limited, non-exclusive, non-sublicensable, non-transferable right and license during the Term to the Intellectual Property Rights to access and use the Services for its own use only, except as otherwise permitted by Viasat. On termination of all Customer’s Subscriptions, all and any licenses provided to Customer under this Agreement or the Terms of Use shall immediately terminate.

12.2.   Customer shall respect the Intellectual Property Rights of Viasat, its MSS Partners, its third-party content providers, and any other owner of intellectual property whose protected property may be provided, appear on or be displayed in association with the Services.

13.    DISCLAIMER

13.1.   CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT ITS SOLE RISK. VIASAT AND VIASAT'S SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY “VIASAT’S REPRESENTATIVES”) HEREBY EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL WARRANTIES IMPLIED BY LAW OR OTHERWISE THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE AS WELL AS ANY AND ALL WARRANTIES AS TO ANY RESULTS TO BE OBTAINED FROM USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY MINIMUM UPLOAD OR DOWNLOAD SPEEDS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF INFORMATIONAL CONTENT, NON-INFRINGEMENT OR OTHERWISE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY VIASAT OR ANY OF VIASAT'S REPRESENTATIVES OR MSS PARTNERS SHALL CREATE A WARRANTY, NOR SHALL CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. BECAUSE CUSTOMER MAY PROVIDE ITS SUBSCRIBERS WITH ELECTRONIC ACCESS TO CONTENT AVAILABLE ON PUBLIC AND PRIVATE NETWORKS THROUGH THE USE OF THE SERVICES, VIASAT AND VIASAT'S REPRESENTATIVES CANNOT AND DO NOT WARRANT THE ACCURACY OF ANY OF THE INFORMATION TO BE OBTAINED THROUGH THE SERVICES. VIASAT AND VIASAT'S REPRESENTATIVES SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM USE OF THE SERVICES.

13.2.   Viasat does not warrant that any information, graphic depictions, product and service descriptions or other content of the S&P Portal is accurate, complete, reliable, updated, current, or error-free. Despite Viasat’s efforts, it is possible that a price for a product or service offered on the S&P Portal may be inaccurate or the product or service description may contain an inaccuracy. In the event Viasat determines that a product or service contains an inaccurate price or description, Viasat reserves the right to take any action it deems reasonable and necessary, in its sole discretion, to rectify the error, including without limitation cancelling any order, Subscriptions or services, unless prohibited by law.

13.3.    Without prejudice to Fee Variations made pursuant to Clause 7 or Changes made pursuant to Clause 16, Viasat may make improvements or changes to any of its content, or to programs described on the S&P Portal at any time without notice.

13.4.   Customer shall use commercially reasonable efforts to notify Viasat immediately if it becomes aware of any pricing or descriptive errors or inconsistencies with any products or services ordered through the S&P Portal and to comply with any corrective action taken by Viasat. 

14.    CONFIDENTIALITY

14.1.    Customer acknowledges that it will have access to certain Confidential Information of Viasat, its Affiliates and its /their MSS Partners (together, the “Disclosing Parties”).  During the Term and thereafter Customer hereby agrees not to, directly or indirectly, disclose, divulge, reveal, report, publish, transfer or use, for any purpose whatsoever, any Confidential Information of a Disclosing Party, except to the extent necessary, in its reasonable, good faith business judgment and with due regard to the best interests of the Disclosing Party in protecting and maintaining the confidentiality of the Confidential Information, to its employees and representatives, including without limitation its legal counsel and accountants.

14.2.   For the purposes hereof, “Confidential Information” means all confidential or proprietary information of the Disclosing Party in oral, written, graphic, electronic or other form including, but not limited to, past, present and future business, financial and commercial information, business concepts, trade secrets, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formulae, analyses, trade secrets, ideas, methods, processes, know-how, computer programs, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings, and any other similarly sensitive data.

14.3.   Notwithstanding the foregoing, “Confidential Information” shall not include information which: (a) becomes generally available to the public through no wrongful act of Customer, its Affiliates or their Subscribers; (b) is already lawfully in the possession of Customer and not subject to an existing agreement of confidentiality; (c) is lawfully and rightfully furnished to Customer by a third party free from any duty of confidentiality to Disclosing Party; or (d) is disclosed pursuant to the binding order of a government agency or a court so long as, to the extent permissible under Law and/or governmental instruction, Customer provides notice to Disclosing Party prior to any such disclosure and uses reasonable efforts to obtain confidential treatment for the information.  For avoidance of doubt, Customer will disclose any information regarding its Subscribers and their traffic if so requested by Viasat or any Authority.

14.4.   Customer and its Affiliates shall ensure that Confidential Information is protected with at least the same degree of care it/they uses to protect its/their own information of like nature, but no less than a reasonable degree of care, taking into account the competitive nature of the information.  Customer specifically agrees that all materials (and all copies thereof, written as well as electronic, however and wherever maintained) relating to Confidential Information, are and remain the sole and exclusive property of Disclosing Party and are used by it solely and exclusively in the performance of its obligations and duties as described in this Agreement and that all Confidential Information and copies thereof is to be returned to Disclosing Party immediately following the end of the Term.

14.5.   Customer agrees that any breach of its obligations set forth in this Clause will cause substantial and irreparable harm and injury to the Disclosing Party for which monetary damages alone would be an inadequate remedy, and which damages are difficult to accurately measure.  Accordingly, Customer agrees that the Disclosing Party shall have the right to seek injunctive relief.  The rights in this Clause 14 are in addition to (and not in lieu of) any other rights and remedies available to the Disclosing Party at law, in equity, under this Agreement, or otherwise.

14.6.   The provisions of this Clause 14 shall survive for a period of five (5) years from termination or expiry of this Agreement.

14.7.   Upon request of Viasat, Customer shall promptly take reasonable steps to:

(e)    return all records, documents and materials (including all copies) in its (or its Affiliates’) possession and control containing, reflecting, incorporating or based on such information, or (if the person to which such information relates so requires) dispose of such records, documents and materials;

(f)     erase all Confidential Information from its computer systems (to the extent possible and excluding back up systems); and

(g)    certify in writing to Viasat that it has complied with the requirements of this Clause 14.7.

14.8.   All Confidential Information is and shall remain the property of the Disclosing Party.

15.    TERM AND TERMINATION.

15.1.   This Agreement shall commence on the Effective Date and shall continue and remain in effect, until Terminated by either Customer or Viasat in accordance with this Clause 15 (the “Term”).

15.2.   Either Customer or Viasat (a “Terminating Party”) may Terminate this Agreement with immediate effect and in part or in its entirety (save for Surviving Provisions) by giving notice to the other, in the following circumstances:

(a)    If it becomes illegal for the Terminating Party to provide or receive (as the case may be) the Services (provided that if the provision or receipt of only some of the Services is illegal, the termination shall relate only to those Services); or

(b)    A Force Majeure Event occurs and is continuing, preventing the Terminating Party performing its obligations under this Agreement (other than any obligation to pay Fees) for a continuous period of not less than ninety (90) days. 

15.3.   Either Customer or Viasat may, in the absolute discretion of either Party, at any time Terminate all or any Subscriptions and, following termination of all Subscriptions, Terminate Customer’s Subscription Services Account and this Agreement, in each case for convenience, as follows (a) termination for convenience by Customer, to be effected by Customer in accordance with Clauses 3.4 or 3.5 (as the case may be) and, strictly subject to Customer complying with Clause 15.6; and (b) termination for convenience by Viasat, to be effected by Viasat giving Customer not less than ninety (90) days written notice.

15.4.   Viasat may, in its absolute discretion, at any time during the Term take all or any of the following actions:

(a)    Terminate this Agreement in its entirety;

(b)    Suspend or Terminate all or any Subscriptions;

(c)    Deactivate all and any Terminals attached to a Subscription;

(d)    Suspend all and any access, whether by Customer, a Subscriber or any other user,  to the Services;

(e)    Suspend all and any access, whether by Customer, a Subscriber or any other user,  to the S&P Portal,

in each case if Customer at any time:

(a)    fails to pay any Fees due hereunder or under any related payment plan or similar agreement when due, and such payment default is not cured within five (5) days following receipt of notice of such failure (which notice may be delivered solely by email);

(b)    defaults on any material obligation (other than a failure to pay Fees, to which Clause 15.4(a) above applies) or otherwise materially breaches any representation, warranty or covenant in this Agreement and such default or breach is not capable of remedy, or if capable of remedy is not cured within thirty (30) days following receipt of written notice of such breach or default (which notice may be delivered solely by email);

(c)    engages in any prohibited activity, as described in the Acceptable Use Policy, or otherwise uses the Equipment or Services in a way which is contrary to any policy of Viasat;

(d)    makes any misrepresentation as to Viasat, or  any of its Affiliates or any of its or their MSS Partners;

(e)    fails to provide true, accurate and complete information regarding its Subscription Services Account in accordance with Clause 5.2;

(f)     is, or is deemed for the purposes of Laws to be, unable to pay its debts as they fall due or to meet its current liabilities out of available assets or to be otherwise insolvent, or admits inability to pay its debts as they fall due or to meet its current liabilities out of available assets;

(g)    is subject to any order or resolution is for, or any step (including petition, proposal or convening a meeting) with a view to, the rehabilitation, administration, custodianship, bankruptcy, liquidation, reorganization, winding-up or dissolution of Customer or any other similar insolvency proceedings involving Customer.

15.5.   Viasat may cease to provide Services at any time during the Term if an MSS Partner (or other provider) ceases providing or restricts provision of the related satellite services used by Viasat or its Affiliates to deliver the Services, or if Viasat is unable, despite having used all reasonable efforts, to use or access such satellite services. In such event, Viasat shall provide Customer with as much written notice as is reasonable under the circumstances and will use commercially reasonable efforts to negotiate with the MSS Partner to provide Services to Customer for any remaining Minimum Service Term attaching to any Subscriptions. Customer acknowledges and accepts that such continuity of service is beyond Viasat’s control and, if it cannot be assured, Viasat may in its absolute discretion Terminate this Agreement without any liability to Customer or its Affiliates (a “Capacity Constraint Termination”).

15.6.   For the avoidance of doubt, on any Termination pursuant to this Clause 15 other than a Capacity Constraint Termination or termination for convenience by Viasat pursuant to Clause 15.3(b), Customer remains fully liable to pay all Fees accrued up to the date of Termination and, with respect to any Subscription in relation to which the Minimum Service Term has not fully expired, the applicable Early Termination Fee in respect thereto. In no circumstances shall Customer be entitled to any pro-rata refund for any pre-paid Fees.

15.7.    Viasat has no liability to Customer or any third party (including any Subscriber) for damages of any kind, including without limitation, incidental or consequential damages (including, without limitation, for loss of goodwill, prospective profits, or anticipated revenue, or on account of any expenditures, investments, leases or commitments made by Customer or its Affiliates), relating to the expiration, suspension or Termination of this Agreement (or any Subscription thereunder), Deactivation of Terminals, suspension or termination of Services or suspension of access to the S&P Portal, in each case for any reason. Customer hereby irrevocably waives any and all rights it may have for itself and its Affiliates to receive any such damages, compensation or reparations.

15.8.    The exercise of any right or remedy under this Clause 15 shall be without prejudice to any other rights and remedies under this Agreement or at law or under equity.

15.9.   The following Clauses shall survive termination of this Agreement: Clauses 1, 2.2, 3.3, 3.4, 4.3, 6.1, 7, 8, 9, 13, 14, 17, 18, 21, 22 (“Surviving Provisions”).

16.    CHANGES TO SERVICES, THIS AGREEMENT AND RELATED DOCUMENTS

16.1.    Without prejudice to the provisions of Clause 7.2 relating to Fee Variations, Viasat may also replace, amend and/or otherwise modify any aspect of this Agreement, the Services (including any specifications relating thereto) and all and any related matters ("Changes") upon notice published on the S&P Portal and/or by e-mail or other electronic notice (“Change Notice”):

(a)    Except for as set forth in Clause 16.1(b), Changes shall be effective on the date following the last day of such notice period and shall apply to all Terminals and Subscriptions activated on or after that date; and

(b)    Changes shall not be applied to an existing Terminal or Subscription during a Minimum Service Term; however, any Change notified during a Minimum Service Term shall be applied to those existing Terminals and Subscriptions immediately on expiry of that Minimum Service Term and commencement of the MST Auto-Renewal.

16.2.   If Customer does not consent to the Changes it must notify Viasat of its objection in writing within thirty (30) days of Viasat having uploaded the Change Notice to the S&P Portal. Customer and Viasat shall use reasonable efforts to reach a mutually acceptable decision regarding the Change, but if they fail to reach agreement within thirty (30) days after the original Change Notice (or such longer period as Viasat may permit) (the “Change Dispute Period”):

(c)     Customer may notify Viasat no later than five (5) days following expiry of the Change Dispute Period (“Change Termination Deadline”) through delivery of a a Subscription Termination Notice that it shall terminate this Agreement and all of its Subscriptions at the end of the then-current Minimum Service Term(s) of those Subscription(s). From the date of the Subscription Termination Notice up to and including the date of expiry of the last of Customer’s Subscriptions, Customer is not permitted to activate any new Subscriptions under its Subscription Services Account.

(d)     If Customer does not deliver a Subscription Termination Notice in accordance with the foregoing, it shall be deemed to have accepted the Changes, and the Changes shall be effective from(a) the Change Termination Deadline, for all Terminals and Subscriptions activated on or after that date, and (b) immediately on expiry of each then-current Minimum Service Term for each existing Terminal and Subscription.

16.3.    Notwithstanding any of the foregoing, if Customer purchases any new Subscription, activates any new Terminals, makes any Upgrades or activates any new Service Plans following delivery of a Change Notice, Customer is deemed to have accepted the Changes in their entirety and any objection notification otherwise delivered to Viasat shall be deemed withdrawn in its entirety and the Changes shall take effect in accordance with this Clause.

17.    INDEMNIFICATION.

17.1.   Customer hereby indemnifies and shall keep indemnified on a continuing basis, holds harmless and defends Viasat, Viasat’s Affiliates, its/their MSS Partners and its/their directors, officers, employees, agents, successors and assigns, and stockholders without limitation in time from and against any and all Losses suffered or incurred by any of them arising out of, in connection with, or based on allegations of, or caused by: (a) all and any use of the Services in violation of this Agreement, including any policies referenced in this Agreement; (b) any breach or violation of any representations, warranties, covenants, agreements or other obligations under this Agreement; (c) any claim made by a third party, including a Subscriber, arising out of or in connection with the provision of the Services or any of Viasat’s obligations under this Agreement; (d) third-party claims resulting from acts or omissions committed or alleged to have been committed by Customer or its Affiliates or any of its/their employees, agents, subcontractors or other representatives; (e) any contracts, debts or obligations of Customer; (f) a violation or alleged violation by Customer or any Customer Affiliate of a third party’s rights of privacy under any Laws; (g) negligence or willful misconduct of Customer or breach by the Customer of Laws; (h) all costs incurred by Viasat in enforcing this Agreement against Customer.

17.2.    Promptly after receipt of any notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which Viasat may seek indemnification pursuant to this Agreement from Customer, Viasat shall notify Customer of such claim in writing. No failure to so notify Customer shall relieve it of its obligations under this Agreement except to the extent that it can demonstrate actual damages attributable to such failure. Customer may, at its option, undertake the defense of any such claim but shall invite Viasat to participate therein. Customer shall not settle any claim without Viasat’s prior written approval.

18.    LIMITATION OF LIABILITY.

18.1.    TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF GOODWILL OR REPUTATIONAL DAMAGE) FOR BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT OR ARISING OUT OF THE PROVISION OR USE OF THE SERVICES OR INABILITY TO USE THE SERVICES, OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY SET FORTH HEREIN.

18.2.   EXCLUDING (A) ANY DIRECT DAMAGES DUE TO FRAUD OR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY IN PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT (B) A PARTY’S LIABILITY UNDER ANY INDEMNITY SET FORTH IN THIS AGREEMENT (WHICH SHALL BE UNLIMITED SAVE FOR AS SET FORTH IN CLAUSE 18.1) (C) CUSTOMER’S OBLIGATION TO PAY FEES AND (D) ANY MATTER RELATING TO ACCESS TO OR USE OF THE S&P PORTAL OR INABILITY TO USE THE S&P PORTAL, OR OUT OF OR IN CONNECTION WITH ANY OF THE SOFTWARE OR CONTENT THEREOF (WHICH IS GOVERNED SOLELY BY THE TERMS OF USE), TO THE EXTENT PERMITTED BY APPLICABLE LAWS THE TOTAL AND AGGREGATE LIABILITY OF A PARTY TOGETHER WITH ITS AFFILIATES FOR ANY CLAIMS, LOSSES, JUDGMENTS OR OTHER DIRECT DAMAGES SUFFERED BY THE OTHER PARTY OR ITS AFFILIATES RELATING TO OR ARISING FROM THAT PARTY’S (OR ITS AFFILIATES’) ACTS OR OMISSIONS MAY NOT EXCEED IN THE AGGREGATE A SUM EQUAL TO THE AGGREGATE AMOUNT OF THE INVOICES PAID BY CUSTOMER TO VIASAT UNDER THIS AGREEMENT DURING THE 12 (TWELVE) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE FORMAL NOTIFICATION OF CLAIM WAS MADE.

19.    EXPORT CONTROL LAWS.

19.1.   Customer expressly acknowledges that the Services are provided subject to compliance with all applicable export control and trade sanctions laws and regulations (together “Trade Restrictions”).  These Trade Restrictions include, but are not limited to, the EU Dual-Use Regulation, the U.S. Export Administration Regulations, the U.S. Foreign Assets Control Regulations and other U.S. EU and UK regulations and other applicable trade and financial sanctions. Customer shall comply with all applicable Trade Restrictions relating to its handling of the Services provided hereunder and in the performance of its obligations hereunder.  Customer is responsible and acknowledges its responsibility under this Agreement to determine the applicable Trade Restrictions with which it must comply, noting that Viasat is subject to, among others, US Trade Restrictions, including without limitation applicable sanctions.

19.2.   Under no circumstances shall Customer export, re-export, or transfer the Services, directly or indirectly: (1) to or for use in any country or territory subject to comprehensive EU, UK, U.S. and, as applicable, other sanctions or trade embargo; (2) to any person or entity on any EU, UK, U.S. or, as applicable, other government restricted party list (together “Restricted Person”); or (3) to any end user or for any end use related to the design, development, production, or use of weapons of mass destruction including nuclear, chemical, or biological weapons, and/or missile technology; except in full compliance with Trade Restrictions, including but not limited to licensing requirements.  Failure by Customer to comply with Trade Restrictions shall constitute a material breach of this Agreement and the provisions of Clause 15 shall apply, without prejudice to all other remedies available to Viasat hereunder or at law.  Upon written notice from Viasat, Customer shall provide such information as Viasat shall reasonably consider necessary to verify compliance by Customer with the provisions of this Clause 19.2.

19.3.   Customer expressly agrees and acknowledges that Viasat’s ability and obligation to perform under this Agreement is subject to Viasat’s compliance with Trade Restrictions.  Customer agrees that any refusal or failure by Viasat to perform its obligations hereunder on account of compliance with Trade Restrictions will not constitute a breach of any obligation under this Agreement and hereby waives any and all claims against Viasat for any legal recourse, including, but not limited to, injunctive or declarative relief, loss, cost or expense, including consequential damages, that Customer may incur or be subject to by virtue of such refusal or cancellation.

19.4.   Customer shall not cause Viasat or its Affiliates to be in breach of applicable Trade Restrictions due to Customer’s act or failure to act, and Customer shall protect, indemnify and hold Viasat and its Affiliates harmless from any claim, damages, liability, costs, fees and expenses incurred by Viasat and its Affiliates as a result of the failure of Customer to comply with all applicable Trade Restrictions.

19.5.   Customer shall ensure that its Subscribers comply with the provisions of this Clause 19.

19.6.   Viasat may terminate the Agreement immediately by written notice if Customer becomes a Restricted Person. This Clause shall survive the expiration or termination of this Agreement.

20.    COMPLIANCE AND REGULATORY

20.1.   Each Party warrants and represents on behalf of itself, its agents and Affiliates that it has complied with all Anti-Corruption Laws. Each Party undertakes that it will, and will procure that its Agents and Affiliates will, in performing its obligations under this Agreement: (a) comply with the Anti-Corruption Laws; (b) not, directly or indirectly, take any act that would cause the other Party to be in violation of the Anti-Corruption Laws, including any act in furtherance of an offer, payment, promise to pay, authorization, or ratification of payment, directly or indirectly, of any money or anything of value (including any gift, sample, rebate, travel, meal and lodging expense, entertainment, service, equipment, debt forgiveness, donation, grant, or other thing of value, however characterized) to any official of a Governmental Authority or any person to secure any improper advantage or to obtain or retain business improperly; and (c) maintain adequate procedures in relation to the conduct of its own business, designed to prevent any conduct that may give rise to a breach of the Anti-Corruption Laws. For the purposes of this Clause 20.1, “Anti-Corruption Laws” means any foreign or domestic anti-bribery and/or anti-corruption laws and regulations applicable to a Party, and including always the UK Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 and any applicable laws and regulations intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

20.2.   Customer shall (i) comply with all applicable laws, rules and regulations in connection with its use and resale of the Services and performance of this Agreement;  (ii) obtain and maintain, before any use or resale of the Services and at its own costs and expenses, all  licenses and other authorisations and registrations (“Governmental Authorisations”) requisite to the usage, resale and provision of the Services to Subscribers in each jurisdiction and territory in which it operates, (iii) furnish, upon Viasat request copies of and/or such documentary proof as reasonably requested to document that such Governmental Authorisations have been obtained by Customer, (iv) cooperate in good faith with Viasat with such information and/or documentation as Viasat may require from Customer to comply with applicable laws and/or to obtain or maintain such Governmental Authorisations as Viasat may require under this Clause 20.2, and (v) not to object to filings or applications of Governmental Authorisations that Viasat may request. If Customer becomes aware that any of its Governmental Authorisations have not been obtained or renewed, or if the same have been removed or refused, it shall promptly notify Viasat. In such circumstances Viasat in its absolute discretion may cease to provide the Services without liability if it becomes illegal or non-compliant to do so or for Customer to use or sell the Services.

20.3.   The MSS Services are provided by Viasat to Customer for its use and resell in the jurisdictions and territories where (a) Viasat has , directly or indirectly, all and any landing rights, spectrum and other space segment permissions and licenses required for it to provide the Services to Customer, and (b) Customer has all required Government Authorisations for the use, resale and provision of the Services to Subscribers . Customer may request Viasat’s confirmation regarding (i) the landing rights, spectrum and other space segment permissions and licenses it holds under Clause  20.3(a) and (ii) the capacity available to Viasat to provide the MSS Services to Customer in a given jurisdiction or territory.

21.    GENERAL PROVISIONS.

21.1.   All terms contained herein, which by their nature, language or context are intended to survive, shall survive any termination of this Agreement.

21.2.   Customer may not  assign this Agreement in whole or part without Viasat’s express prior written consent. Unauthorized assignment shall be void and of no effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties' respective successors and authorized assigns.

21.3.   Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise between the Parties. Neither Party shall have the authority to act or create any binding obligation on behalf of the other Party.

21.4.   Where notification by Viasat is contemplated by or related to this Agreement, notice may be made by any commercially reasonable means, including, without limitation, e-mail or publication via the S&P Portal. A printed version of this Agreement and of any notice given in electronic form by Viasat shall be admissible in judicial, arbitration, or administrative proceedings relating to or based upon this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Notifications from Customer to Viasat must be delivered as follows: (a) in respect of changes to Customer’s credit card information, e-mail or postal address -  by calling Viasat at +1-866-862-9624 or +1-760-513-6900; (b) for all other notices required to be sent to Viasat under this Agreement, by pre-paid postage or courier to Viasat, Inc., 6155 El Camino Real, Carlsbad, CA 92009, Attention: General Counsel (Enterprise) and with electronic copies of the same (which of themselves shall not constitute notice) to be delivered to all of legal@viasat.com, eu.legal@viasat.com and  billing@mss.viasat.com. All notices required or permitted under this Agreement shall be in writing, published or sent to the address of the applicable Party as set forth in this Clause and will be deemed delivered: (i) when actually delivered if delivered in person; (ii) one day after being deposited with a recognized overnight courier service for overnight delivery; (iii) three (3) days after being deposited in the United States mail, postage prepaid; or (iv) by Viasat upon e-mail transmission, with delivery verified, and/or notice via the S&P Portal. Either Party may change its address or email address for notice purposes by notifying the other Party in accordance with this Clause 21.4. Customer shall provide Viasat with any change in Customer’s address prior to the effective date of any such change.

21.5.   Each Party acknowledges that it and its legal counsel have had an opportunity to review this Agreement, and the Parties agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting Party shall not be applicable in the interpretation of this Agreement.

21.6.   Failure by either Party to exercise any right or remedy under this Agreement in any one or more instances shall not constitute a waiver of such right or remedy in any other instance. Waiver by a Party of any default under this Agreement shall not be deemed a waiver of any other default or any subsequent default of the same or similar nature.

21.7.   If any provision of this Agreement is declared illegal, invalid, or unenforceable, in whole or in part, by a court of competent jurisdiction, all other provisions of this Agreement shall remain in full force and effect.

21.8.   The provisions of this Agreement are only for the benefit of the Parties hereto, and unless specifically stated to the contrary no third party may seek to enforce or benefit from such provisions.

21.9.   This Agreement, as well as the documents published on the S&P Portal which are hereby deemed specifically incorporated into and shall form an intrinsic part of this Agreement, constitutes the entire agreement between the Parties regarding the use of the Services, applicable also to all users of Customer’s Subscription Services Account. This Agreement supersedes all previous communications, representations, or agreements, either oral or written, by and between Customer and Viasat with respect to the subject matter hereof.

22.    GOVERNING LAW AND DISPUTES

22.1.    This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA.

22.2.   The Parties agree that any legal or equitable claim relating to this Agreement, any addendum, or the Services (referred to as a "Claim") will be resolved as follows: the Parties shall first use all reasonable efforts to resolve any Claim informally. Accordingly, neither Party may start a formal proceeding until at least sixty (60) days after one of the parties notifies the other of a Claim in writing ("Notice") in accordance with Clause 21.4. If the Parties are unable to resolve the Claim within sixty (60) days after Notice is received, the Claim shall be deemed to be a “Dispute”.

22.3.   If Customer is a United States entity, the parties acknowledge and agree that the appropriate courts sitting in San Diego County, California, U.S.A., shall have sole and exclusive authority to hear and adjudicate any dispute arising out of or related to the Agreement and each party hereby irrevocably consents to the jurisdiction of such courts. If Customer is a non-United States entity, all disputes, claims or controversies arising under or in connection with the Agreement and its interpretation or performance, including the validity, scope and enforceability of this paragraph shall be settled by arbitration held in San Diego, California, under the Commercial Arbitration Rules of JAMS in effect on the date a Dispute Notice is given under Clause 22.2 (the “Procedures”). The arbitration proceedings and all communications related thereto shall be in English. If the Parties are unable to agree on a single arbitrator within five (5) days from the date of commencement of any such arbitration, each Party shall select an arbitrator and the two arbitrators shall mutually select a third arbitrator, the three of whom shall serve as the arbitration panel. The arbitrator’s decision shall be final and binding. Judgment on the award may be entered in any court of competent jurisdiction.  Notwithstanding the foregoing, either Party may obtain preliminary or temporary injunctive relief at any time from a court of competent jurisdiction; provided, however, that requests for permanent injunctive relief shall be arbitrated pursuant to this Clause.  

22.4.   Any Dispute brought by Customer must be instituted within one (1) year after the claim or cause of action has arisen or it will be barred.

23.    ELECTRONIC SIGNATURES 

23.1.   BY CLICKING THAT CUSTOMER ACCEPTS THESE TERMS OR BY USING THE SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES, THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. The use of Customer’s electronic signature in establishing a Subscription Services Account or purchasing a Subscription constitutes Customer’s agreement to be bound by the terms and conditions of this Agreement and all other documentation, information and specifications (including Rates) provided through the S&P Portal as they exist on the date of Customer’s electronic signature and subject to Viasat’s rights herein to update, vary and change all or any of the foregoing.

SCHEDULE A: ADDITIONAL DEFINITIONS

“Acceptable Use Policy” means Viasat’s Acceptable Use Policy  available at https://www.viasat.com/legal/, as updated by Viasat from time to time in its absolute discretion and without any requirement for notice, and which is hereby deemed incorporated into this Agreement.

“Affiliates” means, in relation to any Party, any entity controlling (directly or indirectly), controlled by or under common control with that Party.  For the purposes of this definition, “control” means direct or indirect beneficial ownership of more than 50% of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that entity or person, as the case may be.

“API” means such application program interface as Viasat may make available to Customer under this Agreement.

“Customer” is, as defined in the first page of this Agreement, the entity represented by the person electronically or otherwise agreeing to and accepting this Agreement and which therefore becomes a Party to this Agreement with Viasat. A Customer is either a MSS Partner or a Service Partner, as the case may be.

“Deactivate” and “Deactivated” means the disabling of one or more Terminals, such that the Terminal is unable to connect to or access the network to receive the Services. Subscriptions remain active, and Fees in relation thereto continue to accrue and be payable by Customer, notwithstanding any Deactivations.

“Downgrade” or “Downgraded” means the change of a Subscription from a higher-hierarchy Service Plan to a lower-hierarchy Service Plan.

“Effective Date” means the date upon which Customer accepts this Agreement, which acceptance shall be through any of (a) clicking that it accepts this Agreement, (b) using the S&P Portal, (c) activating a Subscription, or (d) using an electronic or physical signature in respect of this Agreement. If any of (a) to (d) occur on different dates, the earliest such date shall be deemed the Effective Date.

“Equipment” means the Terminals, devices, device software, and device accessories activated to receive the Services.

“Force Majeure” means a condition whereby a Party is unable to perform or is hindered in its performance of any of its obligations under this Agreement (excluding always Customer’s obligation to pay Fees) due to a cause beyond its reasonable control, including, but not limited to, external transmission interference or satellite failure or malfunction, launch failure or delay of satellite or internet backbone or terrestrial fiber failure or outage, atmospheric, space or near space adverse conditions (including without limitation severe weather or meteorological disturbance, receiving earth station sun outage, sun spots, space collisions, space debris, solar flares, meteors, comets, radiation bursts, radiation interference, meteor space objects, or other physical interference and similar events), natural disasters, lightning, explosions, Acts of God, terrorism, cyberattacks, riots, civil unrest, wars or military operations, governmental action, national or local emergency, pandemic or epidemic events, natural or man-made structures or obstacles that totally or partially obscure transmitting or receiving antennas, or any other event beyond a Party’s reasonable control.

“Governmental Authorities” means all international, foreign, United States, state and local governmental authorities, regulatory bodies and courts having jurisdiction over either of the Parties and/or the Agreement.

“Intellectual Property Rights” means any: (a) inventions, copyrights, patents, database rights and rights in trademarks, designs, know-how and Confidential Information (whether registered or unregistered); (b) applications for registration, and rights to apply for registration, of any of the foregoing rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.

“Laws” means all applicable foreign, federal, state, and local laws, statutes, judgments, writs, Regulations, directives or agreements of any Governmental Authority having or exercising jurisdiction over the Parties, the Equipment or the Services, as the same may be amended, modified, enacted or revoked from time to time, including but not limited to those regarding Tax, data protection, export, consumer protection, and anti-corruption.

“Losses” means any and all losses, costs, expenses, liabilities, and damages reasonably incurred resulting from, or relating to, any claim, demand, settlement, arbitration, litigation or final judgment, and all related reasonable and documented costs and expenses, including without limitation, reasonable and documented attorneys' fees, fines, interest, and penalties.

“MSS Partners” means third party entities that have been authorized by Viasat or are otherwise contracted through a separate written agreement by and between such third party entity and Viasat to host, provide, facilitate or enable all or part of the Viasat MSS network or service. For avoidance of doubt, Service Partners are not MSS Partners.

“MSS Services” means Viasat’s proprietary Mobile Satellite Services.

“Optional Services” means a service that: (i) is reasonably related to the provisioning of MSS Services, or that utilizes any of the MSS Services, (ii) may be subject to additional fees and charges such as monthly or one-time service fees, or government taxes, fees and surcharges, and (iii) is provided by Viasat, its MSS Partners, or its authorized service providers. Examples of Optional Services include, without limitation, Push-to-Talk services, Differential Global Positioning System services, and/or Location Services, which are available for election in the PTT section of the S&P Portal.

“Party” means each of Viasat and Customer, individually.

“Parties” means, collectively, Viasat and Customer.

“Plans and Pricing Sheet” means the then-current “Service Plans, Optional Services, and Rates” document published on the S&P Portal at https://my.mss.viasat.com/#!/service-plans and/or otherwise provided in writing by Viasat to Customer. To view the Plans and Pricing Sheet through the S&P Portal, Customer will need to obtain and setup an S&P Portal Account which Customer may request by calling +1-866-862-9624 or +1-760-513-6900 or emailing sales@mss.viasat.com.

“Push-to-Talk Service” means voice coded data and associated IP, TCP and/or UDP headers transmitted over the Service. Push-to-Talk Service does not include any other protocols, services, or applications.

“Rates” means the charges applicable to and related to Service Plans, as set forth in the applicable Plans and Pricing Sheet.

“Regulation” means (a) any applicable rule, regulation, ordinance, ruling, order, award, injunction, recommendation or other official action of any Governmental Authority, and (b) any official change in the interpretation or administration of any of the foregoing;

“Resale Rates” means the applicable subscription service Rates, as determined by Customer to its Subscribers, if applicable.

“Service Level Assurance” means any guarantee or assurance as to availability, speed, security, timeliness, accuracy or reliability.

“Service Level Targets” means the Service Level Targets set forth at Schedule B.

“Service Partner” means a Viasat customer who has purchased  Subscription(s) to Services in furtherance of direct resale to its Subscribers, regardless of whether such other Subscribers are end users or sub-distributors. For avoidance of doubt, a Service Partner is not an MSS Partner.

“Service Plan” means the active plan(s) for Services available to Customer for subscription, including associated duration, usage allowance, and pricing, as set forth on the Plans and Pricing Sheet.

“Services” means the MSS Services and/or the Optional Services, as the case may be.

“Subscriber” means a person who contracts with Customer to receive the Services through one or more of Customer’s Subscriptions, including any end user, agent or sub-distributors of Customer.

“S&P Portal” means Viasat's web-based support portal, or any successor support portal thereto, that Viasat may make available to Customer in Viasat's sole discretion, in which Customer may manage its Services and use of which is governed by the Terms of Use.

“S&P Portal Account” means a single sign-on account used to manage Customer’s Services. Customer may, at its own risk, grant access to this account to its duly authorized personnel to allow purchasing, activation, and modification of Services, viewing of billing information, and viewing of the Viasat MSS status.

“Subscription” means activation of Services by Customer for one or more Terminals with the same Service Plan and any Optional Services additionally assigned to each of those Terminal(s), including associated duration and usage allowance.

“Subscription Services Account(s)” or “Account(s)” means the account(s) established by Customer to manage its Subscriptions. This account is different than Customer’s individual S&P Portal Account.

“Subscription Termination Notice” means a written notice delivered by Customer to Viasat notifying its intent to Terminate a Subscription, subject to the terms of Clauses 3.4 and 3.5.

“Tax” or “Taxation” or “Taxes” means and includes all forms of taxation and statutory and governmental, state, tribal, provincial, local governmental or municipal charges, duties, contributions and levies, withholdings and deductions, or other assessments including without limitation sales, use, value added, transfer, gross receipts, excise, Universal Service Fund assessments or any similar charges, in each case whether of the United States of America or elsewhere and whenever imposed and all related penalties, charges, costs and interest provided, however, that the term Tax or Taxes shall not include any taxes imposed on either Party’s net income.

“Tax Authority” means any Governmental Authority or broadly equivalent authority competent to collect and administer Taxation.

“Terminal” means the Viasat MSS device activated to receive the Services.

“Termination” means termination of any of: a Subscription (with its attached Service Plan(s)), a Subscription Services Account, S&P Portal Account, the Services and/or this Agreement, as the context requires and always subject to the terms and conditions of this Agreement.

“Terms of Use” means the terms of use governing Customer’s access to and use of the S&P Portal to which Customer agreed to be bound prior to accessing the S&P Portal, and a copy of which is available on the S&P Portal.

“Upgrade” or “Upgraded” means the change of a Subscription from a lower-hierarchy Service Plan to a higher-hierarchy Service Plan.

“Viasat” means Viasat, Inc.

SCHEDULE B: SERVICE LEVEL TARGETS

DEFINITIONS

“System" refers to the Viasat MSS communications network, which connects the point at which data enters and exits Viasat's ground facilities to the point at which data enters and exits the Equipment using the Services.

“Outage” means a total loss of network connectivity and complete Service interruption – affecting both new and existing users – caused exclusively by (a) failure of one or more gateway earth stations or any critical ground-segment component required for user traffic routing (e.g., gateway antennas, baseband equipment, fiber interconnects, authentication/routing servers located at the gateway site), or (b) failure of one or more satellites (on-board transponder, inter-satellite link, propulsion, power, attitude control, or any payload or bus component) that renders the satellite(s) unable to relay user traffic. Unavailability caused by or attributable to any of following are explicitly excluded from this definition of “Outages,” even if they degrade or temporarily disrupt Service: User terminal problems, Subscriber or third-party equipment or applications, local weather/rain fade, congestion or throttling, space weather effects that do not cause permanent satellite failure, software bugs that do not result in total satellite or gateway failure, cyber attacks, planned maintenance, any Force Majeure Event, partial or regional degradations that do not cause 100 % loss of connectivity for affected users, and any lack of availability or outage outside the System.

“Relevant Month” means any given month during the Term.

“System Availability” means the availability of the MSS Services, as calculated on a carrier-hour basis. The MSS Services are considered unavailable in the case of an Outage only.

“System Availability Target” means minimum System Availability of 99.5% calculated over each calendar year.

MAINTENANCE

Viasat and its MSS Partners will endeavor to plan and perform maintenance on the System in a manner that reasonably minimizes any Outage. System unavailability due to planned maintenance will be primarily scheduled between midnight and 5:00 AM Universal Coordinated Time (UTC) and at such other times as may be necessary from time to time in Viasat’s discretion. As a goal but not a requirement, Viasat and its MSS Partners will (a) take into account the time zones in which affected beams are located and attempt to limit the unavailability time to within the time period midnight to 5:00 AM local time; (b) use the first hour of the maintenance periods to prepare for any Service down-time; and (c) avoid taking the MSS Service down in any beams in the UTC zone before midnight UTC.

Viasat and its MSS Partners will attempt to reasonably limit maintenance periods; however, if emergency maintenance is required to restore outages, prevent an impending outage or seriously degraded performance, or otherwise prevent, reduce or mitigate harm to the MSS Services, network or operations, as determined in Viasat’s and its MSS Partners’ sole discretion, Viasat may perform emergency procedures as needed to restore the MSS Services.

OUTAGE CREDIT

If in a Relevant Month an Outage occurs when the System has failed to meet the System Availability for the then-current calendar year of the Relevant Month, and such Outage is solely and directly attributable to Viasat or its MSS Partners, Customer shall be entitled to a credit (“Outage Credit”). Such Outage Credit shall equal the pro-rata Fees due for the period of time during which an Outage of the System has occurred (per the paragraph below), as calculated under the System Availability. In no case shall the total Outage Credits payable for all Outages that occur in a Relevant Month exceed the Fees paid by Customer for the affected MSS Services during that Relevant Month.

Outages shall be measured as commencing from the moment it occurs, provided that Viasat has received notice from the Customer, regarding such Outage. Any such Outage shall be deemed to have ended upon the earlier to occur of (x) the Customer’s resumption of use of the System, or (y) notice from Viasat or its MSS Partners to the Customer, as applicable, that the System meeting the applicable performance specifications is available.

Each Outage Credit shall be applied as a credit on the invoice to the Customer for the next month following the determination of that Outage Credit; provided that if there is not another invoice, then such credit will be refunded within a reasonable period of time from settlement of the respective account.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUTAGE CREDITS SHALL BE CUSTOMER’S SOLE REMEDY FOR ANY OUTAGE, DISRUPTION OR DEGRADATION IN THE SYSTEM. IN NO CIRCUMSTANCES IS ANY MONETARY COMPENSATION OR DAMAGES AVAILABLE TO CUSTOMER WITH RESPECT TO ANY LACK OF SYSTEM AVAILABILITY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS.

SCHEDULE C - DATA PROCESSING

This Schedule C applies to the Processing of Personal Data by Viasat in connection with the Services and establishes baseline commitments regarding data privacy and security to comply with Data Protection Laws.  This includes, without limitation, Personal Data accessed by or provided to Viasat or its subprocessors by or at the direction of Customer, generated through the Services, or otherwise processed by Viasat or its subprocessors on behalf of Customer.

1.      Definitions. 

1.1.     The following terms shall have the meanings ascribed to them below. Capitalized terms used in this Schedule that are not defined herein shall have the same meaning as set forth in the Agreement.

“Credential Data” means credentials used to access the S&P Portal (including, but not limited to, usernames, email addresses, and passwords).

“Data Protection Laws” means, as and to the extent they apply to a Party, any applicable laws, rules, or regulations that relate to the privacy or Processing of Personal Data of Data Subjects, including without limitation: (a) EEA/UK Data Protection Law, (b) United States federal and state laws, and (c) any other similar applicable laws or regulations that are in effect or come into effect during the Term.

“Data Protection Laws” means, as and to the extent they apply to a Party, any applicable laws, rules, or regulations that relate to the privacy or Processing of Personal Data of Data Subjects, including without limitation: (a) EEA/UK Data Protection Law, (b) United States federal and state laws, and (c) any other similar applicable laws or regulations that are in effect or come into effect during the Term.

“Common Broadcast Incidents” means, without limitation, pings and other broadcast attacks on a Party’s firewall or any Viasat-shared infrastructure, port scans and unsuccessful log-on attempts so long as such incidents are: (i) routine occurrences, (ii) not objectively determined to be specifically targeted at the Systems or the Services to Customer, and (iii) no such incident results in unauthorized access, use, disclosure, modification or destruction of Customer Personal Data or intentional interference with system operations in an information system that contains Customer Personal Data.

“Controller” means the Party that alone or jointly with others determines the purpose and means of the Processing of Personal Data.

“Data Breach” means the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data caused by Viasat.

“Data Subject” means an identified or identifiable natural person,

“EEA” means the European Economic Area.

“EEA/UK Data Protection Law” means: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the “EU GDPR”); (ii) the EU GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom’s European Union (Withdrawal) Act 2018 (the “UK GDPR”); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iv) any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii), (iii) or (iv) the Swiss Federal Act on Data Protection of 2020 and its Ordinance (“Swiss FADP”) in each case, as may be amended or superseded from time to time.

“Personal Data” means any information relating to a Data Subject, or any Subscriber Information that includes information defined as personal data, personally-identifiable information, personal information, or a similar-meaning term under the Data Protection Laws.

“Process” (or “Processing”) means any operation or set of operations that is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, or alteration, retrieval, consultation, use, disclosure by transmission, or otherwise making available, combination, restriction, erasure or destruction.

“Processor” means the party that Processes Personal Data on behalf of the Controller.

“Restricted Transfer” means: (i) where the EU GDPR applies, a transfer of Personal Data from the EEA to a country outside of the EEA which is not subject to an adequacy determination by the European Commission; and (ii) where the UK GDPR applies, a transfer of Personal Data from the United Kingdom to any other country which is not based on adequacy regulations pursuant to Section 17A of the United Kingdom Data Protection Act 2018; and (iii) where Data Protection Laws that affect transfers other than those in (i) and (ii) herein apply, transfers involving jurisdictions as may be described in Exhibit 3 to this Schedule in each case whether such transfers are direct onward transfers.

“Standard Contractual Clauses” or “SCC” means (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“EU SCCs”); (ii) where the UK GDPR applies, the “International Data Transfer Addendum to the EU Commission Standard Contractual Clauses” issued by the Information Commissioner under s.119A(1) of the Data Protection Act 2018 (“UK Addendum”); and (iii) where Data Laws of other jurisdictions apply, the contractual clauses as described in Exhibit 3 to this Schedule.

“Subprocessors” means Viasat’s subcontractors approved by Customer, who Viasat engages in the Processing of Customer Personal Data; as of the Effective Date, such subcontractors are listed in Exhibit 2 to this Schedule.

“Subscriber Information” means all Personal Data of Customer’s Subscribers Processed in the S&P Portal and MSS Services.

“Systems” means the MSS Services and S&P Portal.

1.2.     The terms “transfer”, “supervisory authority”, “data protection impact assessment”, “special categories of Personal Data” and “appropriate technical and organizational measures” shall be interpreted in accordance with the Data Protection Laws. Words and phrases in this Schedule shall, to the greatest extent possible, have the meanings given to them in the Data Protection Laws.

2.      Personal Data Processing.

2.1.     Compliance with Law. Each Party shall comply with Data Protection Laws when Processing Personal Data in connection with this Agreement, and shall not cause the other Party to violate the Data Protection Laws in their respective roles under this Schedule.

2.2.     Credential Data in the Viasat S&P Portal. Viasat shall process Credential Data as a Controller. When Viasat is a Controller:

(a)    Viasat shall have sole responsibility for legal compliance as it relates to the means by which Viasat acquires and Processes Personal Data.

(b)    Both Parties shall apply appropriate physical, technical, and organizational measures that meet or exceed industry standards to safeguard the confidentiality, integrity, and availability of the Personal Data in their respective custody or control.

2.3.     Credential Data in the Viasat S&P Portal. When Customer shall be a Controller of all Subscriber Information stored in the S&P Portal. When Customer is a Controller, Customer shall have sole responsibility for legal compliance as it relates to the means by which Customer acquires and Processes Personal Data.  Customer’s instructions for the Processing of Customer Personal Data by Viasat shall comply with the Data Protection Laws.

2.4.     Viasat as Data Processor. Customer shall be a Controller and Viasat shall be a Processor of Subscriber Information Processed in the S&P Portal and Viasat MSS.

2.5.     Details of the Processing.  When operating as a, Viasat will Process Customer Personal Data based on Customer’s instructions, which shall solely include (i) the Agreement; (ii) this Schedule, including as described in Exhibit 1 to this Schedule; and (iii) any other written instructions provided by Customer to Viasat that are mutually agreed upon by the Parties.  For the avoidance of doubt, Viasat shall not: (i) sell Customer Personal Data; (ii) Process Customer Personal Data for any purpose other than for the purposes specified in the Agreement; (iii) Process the Customer Personal Data outside the direct business relationship with Customer; or (iv) combine Customer Personal Data with data relating to identified or identifiable individuals that Viasat receives from, or on behalf of, another person or persons, or collects from its own interactions with Data Subjects unless such combining of data is expressly permitted by and carried out in accordance with the Data Protection Laws.  If Viasat must process Customer Personal Data as otherwise required by the Data Protection Laws, Viasat shall inform Customer of such legal requirement before Processing the Customer Personal Data, unless that Data Protection Law prohibits such disclosure.  In addition, Viasat will immediately inform Customer if, in its opinion, an instruction from Customer infringes the Data Protection Laws.

2.6.     Security.  Viasat shall apply reasonable and appropriate technical and organizational measures to the Systems to ensure the confidentiality, availability and integrity of Customer Personal Data.

2.7.     Breach Management and Notification.  Viasat shall maintain reasonable and appropriate security incident management policies and procedures for responding to a Data Breach. In the event of a Data Breach, Viasat shall: (a) provide notice to Customer without undue delay after having become aware of a Data Breach; (b) use commercially reasonable efforts and take all necessary actions to contain, remediate the cause of, and mitigate the impact of the Data Breach; (c) collect, preserve, and document all evidence concerning the discovery, cause, vulnerability, remedial actions, and impacts related to such Data Breach and provide this information to Customer upon request; and (d) cooperate with Customer and its designees for purposes of Data Breach response, including any notice by Customer.  Unless Viasat is instructed by a Governmental Authority to notify a third party of a Data Breach, a decision to notify a third party of a Data Breach shall be in Customer’s sole discretion. The provision of Data Breach notifications to any individuals, third parties, or Governmental Authority, including the content, shall be at the reasonable discretion and reasonable direction of Customer. For the sake of clarity, the obligations in this section shall not apply to Common Broadcast Incidents.

2.8.     Requests and Assistance.  Viasat shall, to the extent legally permitted, promptly notify Customer if Viasat receives a request from a Data Subject to exercise her/his rights under Data Protection Laws or receives a request or complaint from a supervisory authority or other third party (“Request”).  Taking into account the nature of the Processing, Viasat shall assist Customer in the fulfilment of Customer’s obligation to respond to the Request, and shall not respond to the Request without written instructions and approval from Customer.  In addition, to the extent Customer, in its use of the Services, does not have the ability to address a Request, Viasat shall upon Customer’s written request use commercially reasonable efforts to assist Customer in responding to such Request, to the extent Viasat is legally permitted to do so.  Upon request by Customer, Viasat shall assist Customer as necessary and required to carry out data protection impact assessments related to Customer’s use of the Services, and in the cooperation or prior consultation with supervisory authorities in the performance of Viasat’s tasks relating to the data protection impact assessments.

2.9.     Subprocessors. Viasat shall not disclose or otherwise make available Customer Personal Data to any third party (other than the applicable Data Subject) unless Viasat: (i) notifies Customer of the anticipated disclosure at least ten days in advance of such planned disclosure (so as to provide Customer the opportunity to oppose the disclosure based on reasonable grounds relating to data protection and obtain a protective order or seek other relief); and (ii) contractually imposes upon the third party data privacy and security obligations that are materially no less protective than those in the Agreement.  Customer provides specific written authorization for Viasat’s use of the Subprocessors identified in Exhibit 2 to this Schedule C.  Viasat shall be liable for the acts and omissions of its Subprocessors to the same extent it would be liable if performing the services of each Subprocessor directly under the terms of the Agreement.

2.10.   Notice of New Subprocessors. Viasat shall notify Customer of its intent to disclose Customer Personal Data to a new Subprocessor according to the “Subprocessors” section above in compliance with any notice provisions in the Agreement.

3.      Personal Data Transfers.

3.1.     Restricted Transfers. The Parties agree that the transfers permitted under the Agreement are limited to those described in Exhibit 1 to this Schedule C.  Where the transfer of Personal Data from Customer to Viasat is a Restricted Transfer, the Restricted Transfer shall be subject to the appropriate Standard Contractual Clauses or other terms as described in Exhibit 3 to this Schedule C.  If any provision of this Schedule contradicts, directly or indirectly, the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

3.2.     Onward Transfers. Viasat shall not participate in (nor permit any Subprocessor to participate in) any other Restricted Transfers of Personal Data unless the Restricted Transfer is made in full compliance with the Data Protection Laws and pursuant to Standard Contractual Clauses implemented between the relevant exporter and importer of the Personal Data or where the importer has adopted an alternative transfer mechanism that complies with the Data Protection Laws.

3.3.     Audit. Upon request, Viasat shall make available to Customer all information necessary to demonstrate compliance with its obligations under this Schedule. Additionally, Viasat shall permit Customer or its appointed third-party auditors to audit Viasat’s compliance with this Schedule, and shall make available to Customer all information, systems, and staff necessary for Customer or its third-party auditors as reasonably necessary for Customer to conduct such audits. 

3.4.     Jurisdiction Specific Terms. Exhibit 3 to this Schedule C contains terms that, in addition to the terms set forth in the main body of this Schedule, apply to the Processing and transfer of Personal data according to jurisdiction-specific Data Protection Laws. In the event of any conflict between such jurisdiction-specific terms and the main section of this Schedule, the jurisdiction-specific terms shall control.

3.5.     Return and Destruction. Viasat shall return or destroy all Customer Personal Data (such that the Personal Data is rendered unusable and unreadable, or is maintained only in Anonymized form) based on Customer’s preference (as to return or destruction) provided in writing, within 60 days following termination or expiration of the Agreement.  Viasat shall destroy all existing copies unless applicable laws require retention of the Customer Personal Data and, in such case, will limit the retention and Processing of the Customer Personal Data only as necessary to comply with the Applicable Laws or as required for reasonable back-up purposes in accordance with the terms of the Agreement. Upon written request of Customer, Viasat shall provide written certification that all such Customer Personal Data has been returned or deleted.

3.6.     Disclosure. Customer acknowledges that Viasat may disclose this Schedule and any relevant privacy provisions in the Agreement to the US Department of Commerce, the Federal Trade Commission, a UK or European supervisory authority, or any other judicial or regulatory body upon their request.

Exhibit 1 to Schedule C

Description of Customer Personal Data Processing and Transfer

Exhibit 2 to Schedule C

Subprocessors

Customer has approved the use of the following Subprocessors to Process Personal Data as of the effective date of the Agreement:

·        Amazon Web Services (AWS)

o    Processing subject and nature: backoffice, hosting data retention

o    Processing Location: U.S.A.

o    Processing Duration: Term

·        Zendesk

o    Processing subject and nature: ticketing system for troubleshooting

o    Processing Location: U.S.A.

o    Processing Duration: Term

Exhibit  3 to Schedule C

Jurisdiction Specific Terms

The following additional terms apply to the Processing of Customer Personal Data in the listed jurisdictions: