FORM OF AGREEMENT ECHOSTAR SATELLITE L.L.C. DISTRIBUTOR RETAILER AGREEMENT
FORM
OF
AGREEMENT
ECHOSTAR
SATELLITE L.L.C.
This
Distributor Retailer Agreement (the "Agreement") is made and effective as of
___________ (the “Effective Date”), by and between EchoStar Satellite L.L.C.,
formerly known as EchoStar Satellite Corporation (“EchoStar”), having a place of
business at 0000 X. Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxx 00000, and The Conpany
having a place of business at __________ "Retailer").
INTRODUCTION
A.
EchoStar
is engaged, among other things, in the business of providing digital direct
broadcast satellite (“DBS”) services under the name DISH Network.
B. CVS
Systems, Inc. ("Distributor") is authorized by EchoStar on a non-exclusive
basis, to direct and support certain retailers with respect to the marketing,
promotion and solicitation of orders for Programming (as defined below).
C. Distributor
is authorized by an Affiliate (as defined below) of EchoStar to distribute
DISH
DBS Systems (as defined below) and Promotional Certificates (as defined
below).
D. Retailer
desires to purchase DISH DBS Systems and/or Promotional Certificates from
Distributor.
E. In
order
to enhance the salability of the DISH DBS Systems (if any) and/or Promotional
Certificates (if any) that Retailer purchases from Distributor, Retailer, acting
as an independent contractor, desires to become authorized on a non-exclusive
and non-incentivized basis to market, promote and solicit orders for Programming
(an "Authorized Retailer"), in accordance with and subject to the terms and
conditions of this Agreement.
F. EchoStar
desires to appoint Retailer as an Authorized Retailer in accordance with and
subject to the terms and conditions of this Agreement.
AGREEMENT
1. DEFINITIONS.
In
addition to the terms defined elsewhere in this Agreement, the following
definitions shall apply to this Agreement:
1.1 “Affiliate”
means any person or entity directly or indirectly controlling, controlled by
or
under common control with another person or entity.
1.2 “Bulk
Programming” means the Programming that EchoStar makes generally available for
viewing in Guest Properties and bulk-billed MDU Properties, in each case
assuming 100% penetration, subject to any restrictions (geographic, blackout,
or
otherwise) as EchoStar may impose on some or all of such programming services
at
any time and from time to time in its Sole Discretion. EchoStar reserves the
right to change the Bulk Programming offered and/or any restrictions applicable
to such Bulk Programming at any time and from time to time in its Sole
Discretion.
1.3 “Business
Rule(s)” means any term, requirement, condition, condition precedent, process or
procedure associated with a Promotional Program or otherwise identified as
a
Business Rule by EchoStar which is communicated to Retailer by EchoStar or
an
Affiliate of EchoStar either directly (including without limitation via e-mail)
or through any method of mass communication reasonably directed to EchoStar’s
retailer base, including, without limitation, a “Retailer Chat”, e-mail, facts
blast, or posting on EchoStar’s retailer web site. Retailer agrees that EchoStar
has the right to modify any Business Rule at any time and from time to time
in
its Sole Discretion, upon notice to Retailer.
1.4 “Chargeback”
shall have the meaning set forth in Section 6.4.
1.5 “Commercial
Location” means a Public Commercial Location and/or a Private Commercial
Location, as those terms are defined below in Sections 1.19 and 1.15,
respectively.
1.6 “Commercial
Programming” means the Programming that EchoStar makes generally available for
viewing in Commercial Locations subject to any restrictions (geographic,
blackout, or otherwise) as EchoStar may impose on some or all of such
programming services at any time and from time to time in its Sole Discretion.
EchoStar reserves the right to change the Commercial Programming offered and/or
any restrictions applicable to such Commercial Programming at any time and
from
time to time in its Sole Discretion.
Page
1 of
28
1.7 “DISH
DBS
System” means a satellite receiver, which for purposes of this Agreement shall
mean a single standalone consumer electronics device, and related components
packaged therewith (if any), intended to be utilized solely for the reception
of
Programming delivered by satellite transponders owned, leased and/or otherwise
operated or utilized by EchoStar and/or any of its Affiliates, which is sold
directly to Retailer by Distributor under the “EchoStar” brand name or the brand
name of an EchoStar Affiliate.
1.8 “DISH
Network Subscriber” shall have the meaning set forth in Section
9.5.
1.9 “Guest
Property” means a hotel, motel, hospital, other healthcare facility or any other
similar type of facility located in the Territory that regularly permits
overnight or otherwise short-term stays by individuals. Notwithstanding the
foregoing, EchoStar reserves the right to determine at any time and from time
to
time, in its Sole Discretion, whether a location constitutes a Guest Property
or
is more appropriately considered another type of location.
1.10 “Institutional/Residential
Location” means a property located in the Territory that displays Programming in
a non-public, common viewing area within a property that is owned or operated
by
a government or commercial entity, in which employees are being provided
residential living accommodations to facilitate the requirements of their job
responsibilities. For example (and without limitation of the foregoing),
non-public, common viewing areas within fire stations, oil rigs and coast guard
stations are typically Institutional/Residential Locations. Notwithstanding
the
foregoing, EchoStar reserves the right to determine at any time and from time
to
time, in its Sole Discretion, whether a location constitutes an
Institutional/Residential Location or is more appropriately considered another
type of location.
1.11 “Laws”
shall have the meaning set forth in Section 9.1.
1.12 “MDU
Property” means a dormitory, apartment building, condominium complex, retirement
community or other type of multifamily living establishment located in the
Territory that affords residents living quarters. Notwithstanding the foregoing,
EchoStar reserves the right to determine at any time and from time to time,
in
its Sole Discretion, whether a location constitutes an MDU Property (and, if
so,
what type of MDU Property, e.g., bulk-billed, non-bulk-billed or other) or
is
more appropriately considered another type of location.
1.13 “Other
Agreement(s)” means any agreement(s) between Retailer and/or any of its
Affiliates, on the one hand, and EchoStar and/or any of its Affiliates, on
the
other hand.
1.14 “Permitted
Subcontractors” shall have the meaning set forth in Section 7.1.
1.15 “Private
Commercial Location” means a place of business located in the Territory that may
be accessible to the public, and is not classified within the hospitality
industry. For example (and without limitation of the foregoing), office
reception areas or waiting rooms and the private offices of attorneys,
doctors/dentists, and other business professionals are typically Private
Commercial Locations. Notwithstanding the foregoing, EchoStar reserves the
right
to determine at any time and from time to time, in its Sole Discretion, whether
a location constitutes a Private Commercial Location or is more appropriately
considered another type of location.
1.16 “Programming”
means DISH Network video, audio, data and interactive programming services.
EchoStar reserves the right to change the Programming offered and/or any
restrictions applicable to such Programming at any time and from time to time
in
its Sole Discretion.
1.17 “Promotional
Certificate” means a serialized certificate issued in connection with a
Promotional Program offered by EchoStar which is sold directly to Retailer
by
Distributor for resale by Retailer directly to a consumer which, among other
things, entitles such consumer to a DISH DBS System (or the use of such system,
if the applicable Promotional Program involves leasing equipment to consumers)
and may include installation of such DISH DBS System.
1.18 “Promotional
Program” means: (i) a promotional offer, as determined by EchoStar, which
Retailer may present to consumers in connection with Retailer’s marketing,
promotion and solicitation of orders for Programming and (ii) the Business
Rules, as determined by EchoStar, setting forth the terms and conditions
governing each such promotional offer. EchoStar reserves the right to
discontinue any Promotional Program or change the Business Rules associated
therewith at any time and from time to time in its Sole Discretion, upon notice
to Retailer.
1.19 “Public
Commercial Location” means a place of business located in the Territory that:
(i) is generally accessible to the public, (ii) is typically classified within
the hospitality industry, (iii) typically serves food and/or liquor for
immediate consumption, and (iv) is typically registered with a fire occupancy
certificate. No satellite master antenna television or private cable system
in a
commercial or residential multiple dwelling unit (i.e., hotels, hospitals,
dormitories, etc.) shall be considered a Public Commercial Location; provided,
however, that a place of business located within such multiple dwelling units
that otherwise meets the definition of a Public Commercial Location (e.g.,
a
restaurant within a hotel or hospital) may be considered a Public Commercial
Location. For example (and without limitation of the foregoing), bars,
restaurants, clubs, casinos, lounges, and shopping malls are typically Public
Commercial Locations. Notwithstanding the foregoing, EchoStar reserves the
right
to determine at any time and from time to time, in its Sole Discretion, whether
a location constitutes a Public Commercial Location or is more appropriately
considered another type of location.
Page
2 of
28
1.20 “Residential
Location” means a single family residential dwelling (i.e., single family
houses, apartments, condominiums or other dwellings used primarily for
residential purposes), located in the Territory; provided, however, that in
no
case shall any satellite master antenna television system or private cable
system in a residential multiple dwelling unit or any similar programming
reception system (e.g., dormitories, etc.) be considered a Residential Location.
Notwithstanding the foregoing, EchoStar reserves the right to determine at
any
time and from time to time, in its Sole Discretion, whether a location
constitutes a Residential Location or is more appropriately considered another
type of location.
1.21 “Residential
MDU Programming” means the Programming that EchoStar makes generally available
for viewing in non-bulk-billed MDU Properties subject to any restrictions
(geographic, blackout, or otherwise) as EchoStar may impose on some or all
of
such programming services at any time and from time to time in its Sole
Discretion. EchoStar reserves the right to change the Residential MDU
Programming offered and/or any restrictions applicable to such Residential
MDU
Programming at any time and from time to time in its Sole
Discretion.
1.22 “Residential
Programming” means the Programming that EchoStar makes generally available for
viewing in Residential Locations and Institutional/Residential Locations subject
to any restrictions (geographic, blackout, or otherwise) as EchoStar may impose
on some or all of such programming services at any time and from time to time
in
its Sole Discretion. EchoStar reserves the right to change the Residential
Programming offered and/or any restrictions applicable to such Residential
Programming at any time and from time to time in its Sole
Discretion.
1.23
“Sole
Discretion” means a person’s or entity’s sole and absolute discretion for any
reason or no reason.
1.24 “Term”
shall have the meaning set forth in Section 10.1 below.
1.25 “Territory”
shall have the meaning set forth in Section 2.2 below.
1.26 “Unit”
means: (i) solely in the case of hospitals and other healthcare facilities,
each
television on the premises; (ii) solely in the case of all Guest Properties
other than hospitals and other healthcare facilities, each room in the Guest
Property; and (iii) solely in the case of bulk-billed or non-bulk-billed MDU
Properties, each separate living quarters in the bulk-billed or non-bulk-billed
MDU Property.
2. APPOINTMENT;
TERRITORY.
2.1 Appointment. EchoStar
hereby appoints Retailer as a non-exclusive Authorized Retailer to market,
promote and solicit orders for Programming, subject to all of the terms and
conditions of this Agreement and all Business Rules (which are hereby
incorporated into this Agreement by reference in their entirety). The
appointment set forth herein for the promotion of the DISH Network by Retailer
shall apply to the same DBS service which may be operated by EchoStar and/or
its
Affiliates under a different name in the future. Retailer’s authorization
hereunder is limited to: (i) the solicitation of orders for Residential
Programming from, and the marketing, advertising and promotion of Residential
Programming to, consumers at Residential Locations and Institutional/Residential
Locations; (ii) the solicitation of orders for Residential MDU Programming
from,
and the marketing, advertising and promotion of Residential MDU Programming
to,
consumers at non-bulk-billed MDU Properties; (iii) the solicitation of orders
for Commercial Programming from, and the marketing, advertising and promotion
of
Commercial Programming to, commercial enterprises operating businesses at
Commercial Locations; and (iv) the solicitation of orders for Bulk Programming
from, and the marketing, advertising and promotion of Bulk Programming to,
commercial enterprises providing Bulk Programming on a bulk-basis, assuming
100%
penetration, to Guest Properties and bulk-billed MDU Properties.
2.2 Territory. Retailer’s
authorization hereunder, and any actions it undertakes in connection with,
or in
furtherance of, this Agreement, shall be limited solely to the area within
the
geographic boundaries of the United States and its territories and possessions
(the “Territory”).
2.3. Acceptance. Retailer
hereby accepts its appointment as an Authorized Retailer and agrees to use
its
best efforts to continuously and actively advertise, promote and market
Programming and to solicit orders therefor, subject to and in accordance with
all of the terms and conditions of this Agreement. Retailer understands that
it
may hold itself out to the public as an Authorized Retailer of EchoStar only
after fulfilling, and for so long as it continues to fulfill, all of the duties,
obligations, requirements and other terms and conditions contained in this
Agreement and all Business Rules, and only during the Term of this
Agreement.
Page
3 of
28
2.4 Non-Exclusivity. Retailer
acknowledges that: (i) nothing in this Agreement is intended to confer, nor
shall it be construed as conferring, any exclusive territory or any other
exclusive rights upon Retailer; (ii) EchoStar and its Affiliates make absolutely
no statements, promises, representations, warranties, covenants or guarantees
as
to the amount of business or revenue that Retailer may expect to derive from
participation in this Agreement or any Promotional Program; (iii) Retailer
may
not realize any business, revenue or other economic benefit whatsoever as a
result of its participation in this Agreement or any Promotional Program; (iv)
EchoStar
currently offers, and at any time, and from time to time, in the future may
offer in its Sole Discretion, others the opportunity to act as an Authorized
Retailer or to solicit orders for Programming in the same geographic area in
which Retailer is located and elsewhere; (v) EchoStar and its Affiliates shall
be entitled, among other things, to: (a) market, promote and solicit orders
for
Programming, (b) distribute, sell, lease and otherwise transfer possession
of
DISH DBS Systems, Promotional Certificates, related accessories and other
equipment, and (c) perform installation and maintenance services (directly
and
indirectly through subcontractors) for DISH DBS Systems, related accessories
and
other equipment, in each case throughout the Territory and in direct or indirect
competition with Retailer, without any obligation or liability to Retailer
whatsoever, and without providing Retailer with any notice thereof; and (vi)
EchoStar shall be free to cease or suspend provision of the Programming offered
in whole or in part at any time, and from time to time in its Sole Discretion,
and shall incur no liability to Retailer by virtue of any such cessation or
suspension.
2.5 Purchase
of DISH DBS Systems and Promotional Certificates. Unless
specifically authorized to the contrary in a separate written agreement between
Retailer and EchoStar, Retailer shall purchase and order all DISH DBS Systems
and Promotional Certificates exclusively from Distributor and shall not purchase
or order any DISH DBS Systems or Promotional Certificates from EchoStar, any
Affiliate of EchoStar or any other person or entity. In no event shall EchoStar
or any of its Affiliates be liable for any delay, or failure to fulfill, any
purchase order for DISH DBS Systems, Promotional Certificates, related
accessories or any other equipment submitted by Retailer to Distributor,
regardless of the cause of such delay or failure. Retailer hereby acknowledges
and agrees that EchoStar and its Affiliates have no obligation to re-purchase
DISH DBS Systems, Promotional Certificates, related accessories or any other
equipment sold to Retailer from Distributor at any time or for any
reason.
2.6 Sale
of DISH DBS Systems and Promotional Certificates.
Retailer
agrees that it will not directly or indirectly sell, lease or otherwise transfer
possession of a DISH DBS System or Promotional Certificate to any person or
entity whom Retailer knows or reasonably should know: (i) is not an end-user
and/or intends to resell, lease or otherwise transfer it for use by another
individual or entity; (ii) intends to use it, or to allow others to use it,
to
view Residential Programming at a location other than a Residential Location
or
Institutional/Residential Location; (iii) intends to use it, or to allow others
to use it, to view Residential MDU Programming at a location other than a
non-bulk-billed MDU Property; (iv) intends to use it, or to allow others to
use
it in Canada, Mexico or at any other location outside of the Territory; or
(v)
intends to have, or to allow others to have, Programming authorized for it
under
a single DISH Network account that has or will have Programming authorized
for
multiple satellite receivers that are not all located in the same Residential
Location, Institutional/Residential Location, bulk-billed MDU Property, Unit
of
a non-bulk-billed MDU Property, Guest Property or Commercial Location, as
applicable based upon the type of Programming authorized for the relevant DISH
Network account, and connected to the same land-based phone line (except in
the
case of a bulk-billed MDU Property). It shall be Retailer’s sole and exclusive
responsibility to investigate and determine whether any direct or indirect
sale,
lease or other transfer by Retailer would be in violation of this Section 2.6.
In the event that Retailer directly or indirectly sells, leases or otherwise
transfers possession of a DISH DBS System or Promotional Certificate to a person
or entity who uses it or allows others to use it to: (a) view Residential
Programming at a location other than a Residential Location or
Institutional/Residential Location, or (b) view Residential MDU Programming
at a
location other than a non-bulk-billed MDU Property, then Retailer agrees to
pay
to EchoStar upon demand: (1) the difference between the amount actually received
by EchoStar for the Programming authorized for the corresponding DISH DBS System
and the full commercial rate for such Programming (regardless of whether
EchoStar has or had commercial distribution rights for such Programming); and
(2) the total amount of any admission charges or similar fees imposed and/or
collected for listening to or viewing such Programming (regardless of whether
such charges and/or fees were imposed or collected by Retailer). In the event
that Retailer directly or indirectly sells, leases or otherwise transfers
possession of a DISH DBS System or Promotional Certificate to a person or entity
who has, or allows others to have, Programming authorized for it under a single
DISH Network account that at any time has Programming activated for multiple
DISH DBS Systems that are not all located in the same Residential Location,
Institutional/Residential Location, bulk-billed MDU Property, Unit of a
non-bulk-billed MDU Property, Guest Property or Commercial Location, as
applicable based upon the type of Programming authorized for the relevant DISH
Network account, and connected to the same land-based phone line (except in
the
case of bulk-billed MDU Properties), and Retailer knew or reasonably should
have
known that the person or entity intended to have, or allow others to have,
Programming authorized for the DISH DBS System under such an account, then
Retailer agrees to pay to EchoStar upon demand, the difference between the
amount actually received by EchoStar for the Programming authorized under the
single account and the full retail price for such Programming had each DISH
DBS
System authorized under the single account been authorized under a separate
account. The foregoing provisions of this Section 2.6 are without prejudice
to
any other rights and remedies that EchoStar and/or any of its Affiliates may
have under contract (including without limitation this Agreement), at law,
in
equity or otherwise (all of which are hereby expressly reserved), and shall
survive expiration or termination of this Agreement (for any reason or no reason
whatsoever) indefinitely.
2.7 Pre-Activations. Retailer
shall not, prior to installation, directly or indirectly activate
(“Pre-Activate”) any DISH DBS System, nor shall Retailer directly or indirectly
sell, lease or otherwise transfer possession of a DISH DBS System or Promotional
Certificate to any person or entity who Retailer knows or reasonably should
have
known intends to Pre-Activate a DISH DBS System.
Page
4 of
28
2.8 Financing; Making
Payments on Behalf of End-Users. Retailer
shall not directly or indirectly provide financing for the purchase of any
Programming or make any payment to EchoStar for Programming or otherwise on
behalf of any end-user of a DISH DBS System, nor shall Retailer directly or
indirectly sell, lease or otherwise transfer possession of a DISH DBS System
or
Promotional Certificate to any person or entity who Retailer knows or reasonably
should have known intends to provide financing for the purchase of any
Programming or make any payment to EchoStar for Programming or otherwise on
behalf of any end-user of a DISH DBS System.
2.9 Installation
Services. Retailer
represents, warrants, covenants and agrees that all installation and after-sales
services performed by Retailer and its employees and Permitted Subcontractors
in
connection with the sale, lease or other transfer of DISH DBS Systems will
be
performed by Retailer and its employees and Permitted Subcontractors, in full
compliance with all applicable Laws, and subject to all of the terms,
conditions, standards and guidelines set forth in the DISH Network Installation
Manual (located on the retailer web site), as such terms, conditions, standards
and guidelines may be changed at any time and from time to time by EchoStar
and/or any of its Affiliates (including, without limitation, Dish Network
Service L.L.C. and Dish Network California Service Corporation (collectively,
“DNSLLC”)) in their Sole Discretion, upon notice to Retailer. In addition to
(and without limitation of) the foregoing, Retailer represents, warrants,
covenants and agrees that any and all related accessories and/or other equipment
installed for, or otherwise provided to, a consumer in fulfillment of, or
otherwise in connection with, such installation and after-sales services shall
strictly comply with any and all specifications and other terms and conditions,
including without limitation any approved part number and/or vendor lists,
as
set forth by EchoStar and/or any of its Affiliates (including without limitation
DNSLLC) in applicable Business Rules at any time and from time to time in their
Sole Discretion.
2.10 Prior
Retailer Agreements.
2.10.1 IN
THE
EVENT THAT RETAILER PREVIOUSLY ENTERED INTO ANY NON-INCENTIVIZED RETAILER
AGREEMENT, NON-COMMISSIONED RETAILER AGREEMENT, AND/OR NON-COMMISSIONED DEALER
AGREEMENT WITH ECHOSTAR RELATING TO THE MARKETING, PROMOTION, ADVERTISING AND/OR
SOLICITATION OF ORDERS FOR PROGRAMMING BY RETAILER (EACH A “PRIOR RETAILER
AGREEMENT”), WHICH IS IN EFFECT (IN WHOLE OR IN PART) AS OF THE EFFECTIVE DATE,
THEN UPON EXECUTION OF THIS AGREEMENT BY RETAILER (WHETHER VIA SIGNATURE OR
ELECTRONIC ACCEPTANCE): (I) ALL PRIOR RETAILER AGREEMENTS SHALL BE AUTOMATICALLY
TERMINATED, EXCEPT THAT THE PROVISIONS IN SUCH PRIOR RETAILER AGREEMENTS THAT
EXPRESSLY SURVIVE AND SUCH OTHER RIGHTS AND OBLIGATIONS THEREUNDER AS WOULD
LOGICALLY BE EXPECTED TO SURVIVE TERMINATION OR EXPIRATION SHALL CONTINUE IN
FULL FORCE AND EFFECT FOR THE PERIOD SPECIFIED OR FOR A REASONABLE PERIOD OF
TIME UNDER THE CIRCUMSTANCES IF NO PERIOD IS SPECIFIED; AND (II) EXCEPT AS
SET
FORTH IN SECTION 2.10.1(I), ALL RIGHTS AND OBLIGATIONS BETWEEN THE PARTIES
SHALL
BE GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL PRIOR
RETAILER AGREEMENTS SHALL BE OF NO FURTHER FORCE OR EFFECT.
2.10.2 RETAILER
AND ITS AFFILIATES HEREBY ACKNOWLEDGE AND AGREE THAT THEY DO NOT, AS OF THE
EFFECTIVE DATE, HAVE ANY CLAIMS OR CAUSES OF ACTION AGAINST ECHOSTAR OR ANY
OF
ITS AFFILIATES FOR ANY ACTS OR OMISSIONS THAT MAY HAVE OCCURRED PRIOR TO THE
EFFECTIVE DATE AND, IN CONSIDERATION OF RETAILER BEING APPOINTED AS AN
AUTHORIZED RETAILER HEREUNDER BY ECHOSTAR, RETAILER AND ITS AFFILIATES HEREBY
AGREE TO WAIVE ANY AND ALL SUCH CLAIMS AND CAUSES OF ACTION, WITH THE SOLE
EXCEPTION OF ANY CLAIMS OR CAUSES OF ACTION FOR WHICH RETAILER PROVIDES WRITTEN
NOTICE TO ECHOSTAR IN THE SAME FORM REQUIRED FOR A NOTICE OF CLAIM UNDER SECTION
15 BELOW WITHIN NINETY (90) DAYS (OR THE SHORTEST PERIOD OF TIME ALLOWED BY
APPLICABLE LAW IF SUCH PERIOD IS MORE THAN 90 DAYS) AFTER RETAILER EXECUTES
THIS
AGREEMENT (WHETHER VIA SIGNATURE OR ELECTRONIC ACCEPTANCE). ECHOSTAR SHALL
HAVE
THE SAME RIGHTS WITH RESPECT TO REQUESTS FOR ADDITIONAL INFORMATION AND ACCESS
TO RETAILER'S BOOKS AND RECORDS IN CONNECTION WITH ANY SUCH CLAIMS AND CAUSES
OF
ACTION AS ECHOSTAR HAS UNDER SECTION 17.9 BELOW. FAILURE TO STRICTLY COMPLY
WITH
THE PROVISIONS OF THIS SECTION 2.10.2 WITH RESPECT TO A PARTICULAR CLAIM AND/OR
CAUSE OF ACTION SHALL CONSTITUTE A WAIVER BY RETAILER AND ITS AFFILIATES WITH
RESPECT TO THE RELEVANT CLAIM AND/OR CAUSE OF ACTION. HOWEVER, NOTWITHSTANDING
ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NOTHING CONTAINED IN THIS
AGREEMENT WILL WAIVE ANY RIGHT RETAILER MAY HAVE IN THE CLAIMS BROUGHT IN THE
FOLLOWING CLASS ACTION LAWSUITS IN THE EVENT THE FOLLOWING LAWSUITS ARE
CERTIFIED: CASE NO. 00-CV-1989, STYLED XXXX
XXXXXX, D/B/A ANEXWAVE,@
AND
XXX XXXXX, D/B/A XXXX-TRONICS,@
AND
JAGUAR TECHNOLOGIES, INC. V. ECHOSTAR SATELLITE CORPORATION,
UNITED
STATES DISTRICT COURT, DISTRICT OF COLORADO; CASE NO. 00-CV-3130, STYLED
AIR
COMMUNICATION & SATELLITE, INC. ET AL. V. ECHOSTAR SATELLITE
CORPORATION,
DISTRICT COURT, ARAPAHOE COUNTY, COLORADO; CASE NO. 500-CV-268, STYLED
SATELLITE
DEALERS SUPPLY, INC. V. ECHOSTAR COMMUNICATIONS CORP.,
UNITED
STATES DISTRICT COURT, EASTERN DISTRICT OF TEXAS.
2.11 Conflict
with Agreements Between Retailer and Distributor.
In
the
event of any conflict or inconsistency between the terms and conditions of
this
Agreement and the terms and conditions of any agreement (whether written or
oral) between Retailer and Distributor, the terms and conditions of this
Agreement shall control, and any such conflicting or inconsistent term or
condition in such agreement between Retailer and Distributor shall be of no
force or effect whatsoever.
Page
5 of
28
2.12 Promotional
Programs. Retailer
shall
be
eligible to participate in such Promotional Programs as EchoStar and/or any
of
its Affiliates may make available to Retailer from time to time in their Sole
Discretion. Retailer agrees to be bound by, and to use its best efforts to
support, all of the terms and conditions of (and all of such terms and
conditions are hereby incorporated into this Agreement by reference in their
entirety) the Promotional Programs in which Retailer elects to participate.
Retailer acknowledges and agrees that: (i) under no circumstances shall EchoStar
or any of its Affiliates have at any time any obligation to offer any
Promotional Programs to Retailer, or if Promotional Programs are offered to
others, to permit Retailer to be eligible to participate in them; (ii) EchoStar
and its Affiliates may, at any time and from time to time in their Sole
Discretion, add, discontinue, substitute, modify, amend or otherwise alter
any
or all of the terms and conditions of any Promotional Programs; and (iii) if
EchoStar and/or any of its Affiliates offer any Promotional Programs to
Retailer, then Retailer shall only be eligible to participate in each such
Promotional Program if and to the extent that it meets all of the qualification
criteria and other terms and conditions as EchoStar and/or its Affiliates may
establish from time to time in their Sole Discretion.
In the
event of any conflict or inconsistency between the terms and conditions of
a
Promotional Program and/or applicable Business Rules and the terms or conditions
of this Agreement, the terms and conditions of this Agreement shall control.
In
the event of any ambiguity between or among the terms and conditions of a
Promotional Program, Business Rule and/or this Agreement, EchoStar shall have
the sole and exclusive authority to interpret and/or make a final determination
in its Sole Discretion concerning any issue arising from such
ambiguity.
2.13 MDU
Property / Guest Properties. Retailer
shall ensure that no Guest Property or bulk-billed MDU Property engages directly
or indirectly in: (i) the reselling of Bulk Programming (i.e., the property
cannot charge more for Bulk Programming than they pay to EchoStar for such
Bulk
Programming); (ii) the retransmission or rebroadcast of any Programming, except
with the express written consent of EchoStar which consent EchoStar may withhold
in its Sole Discretion; or (iii) modifying, adding to, or deleting any of the
Bulk Programming offered. Retailer shall promptly notify EchoStar if it is
aware
of or suspects a change in the number of Units at any Guest Property or
bulk-billed MDU Property subscribing to Bulk Programming. Retailer understands
and agrees that bulk-billed MDU Properties, non-bulk-billed MDU Properties
and
Guest Properties may require the purchase of commercially-invoiced DISH DBS
Systems, if required and in such case, as further described in applicable
Business Rules and adjustable at any time and from time to time in EchoStar’s
Sole Discretion.
3. REPRESENTATIONS
AND WARRANTIES. The
parties hereto make the following representations and warranties with the
specific intent to induce the other party into entering into this Agreement
and
recognize that the other party would not enter into this Agreement but for
the
following representations and warranties:
3.1 Each
party hereto represents and warrants that the execution (whether via signature
or electronic acceptance), delivery and performance of this Agreement have
been
duly authorized and that it has the full right, power and authority to execute,
deliver and perform this Agreement.
3.2 Each
party hereto represents and warrants that the signature of its duly authorized
representative below or its electronic acceptance of this Agreement, as
applicable, is genuine and that the person signing or electronically accepting
this Agreement on behalf of such party is authorized by such party to sign
and/or electronically accept this Agreement on its behalf.
3.3 Retailer
represents and warrants that: (i) it is a valid and existing entity in
compliance with all Laws related to the maintenance of its corporate or other
business status; (ii) it is not currently insolvent; (iii) it is not currently
violating and has never violated any Laws; (iv) neither it nor any of its
Affiliates has ever engaged in any of the acts prohibited under Section 2.6,
2.7, 2.8, 2.9, 6.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.8 or 14 below; (v) neither it
nor
any of its Affiliates has ever engaged in any acts that would have resulted
in
automatic termination or be considered a default or breach under any current
or
former EchoStar Retailer Agreement, Incentivized Retailer Agreement,
Commissioned Retailer Agreement, Commissioned Dealer Agreement, Non-Incentivized
Retailer Agreement, Non-Commissioned Retailer Agreement, or Non-Commissioned
Dealer Agreement with EchoStar and/or any of its Affiliates or under any other
current or former Other Agreement; (vi) it is not dependent upon EchoStar and/or
any Affiliates of EchoStar for a major part of Retailer’s business; and (vii) it
either sells or could sell other products or services in addition to EchoStar
products or services that compete with EchoStar products or services.
3.4 EACH
PARTY HERETO REPRESENTS AND WARRANTS THAT IT HAS READ THIS AGREEMENT IN ITS
ENTIRETY AND THAT IT UNDERSTANDS FULLY EACH AND EVERY ONE OF THE TERMS AND
CONDITIONS SET FORTH HEREIN.
3.5 EACH
PARTY HERETO REPRESENTS AND WARRANTS THAT IT HAS BEEN GIVEN THE OPPORTUNITY
TO
HAVE ITS INDEPENDENT COUNSEL REVIEW THIS AGREEMENT PRIOR TO EXECUTION (WHETHER
VIA SIGNATURE OR ELECTRONIC ACCEPTANCE). EACH PARTY HERETO FURTHER REPRESENTS
AND WARRANTS THAT EITHER THIS AGREEMENT HAS BEEN ACTUALLY REVIEWED BY ITS
INDEPENDENT COUNSEL OR THAT SUCH PARTY HAS DECLINED TO HAVE ITS INDEPENDENT
COUNSEL DO SO.
Page
6 of
28
3.6 EACH
PARTY HERETO REPRESENTS AND WARRANTS THAT IT IS NOT RELYING UPON, AND IT HAS
NOT
BEEN INDUCED INTO ENTERING INTO THIS AGREEMENT BY, ANY STATEMENTS, PROMISES,
REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS, GUARANTEES, ACTS OR
OMISSIONS NOT EXPRESSLY SET FORTH HEREIN.
3.7 EACH
PARTY HERETO REPRESENTS AND WARRANTS THAT IT HAS NOT BEEN COERCED INTO ENTERING
INTO THIS AGREEMENT AND THAT IT HAS ENTERED INTO THIS AGREEMENT OF ITS OWN
FREE
WILL AND FREE OF INFLUENCE OR DURESS.
3.8 RETAILER
REPRESENTS AND WARRANTS THAT BEFORE IT PARTICIPATES IN ANY PROMOTIONAL PROGRAM
IT WILL CAREFULLY REVIEW THE TERMS AND CONDITIONS OF SUCH PROMOTIONAL PROGRAM
AND ASSOCIATED BUSINESS RULES OR HAVE THEM REVIEWED BY ITS INDEPENDENT COUNSEL.
3.9 EACH
PARTY HERETO REPRESENTS, WARRANTS, ACKNOWLEDGES AND AGREES THAT: (I) THE TERMS
AND CONDITIONS OF THIS AGREEMENT, AND EACH AND EVERY PARAGRAPH AND EVERY PART
HEREOF, HAVE BEEN COMPLETELY AND CAREFULLY READ BY, AND EXPLAINED TO, SUCH
PARTY; AND (II) THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE FULLY AND
COMPLETELY UNDERSTOOD BY SUCH PARTY AND SUCH PARTY IS COGNIZANT OF ALL OF SUCH
TERMS AND CONDITIONS AND THE EFFECT OF EACH AND ALL OF SUCH TERMS AND
CONDITIONS.
4. PROGRAMMING.
4.1 Programming. EchoStar
shall determine from time to time, in its Sole Discretion, the Programming
for
which Retailer may solicit orders. EchoStar may expand, reduce or otherwise
modify the content of any Programming packages or add or delete any Programming
(either in a package or a-xx-xxxxx) at any time and from time to time in its
Sole Discretion. All such changes shall be effective immediately upon
notification by EchoStar, unless EchoStar notifies Retailer of a different
effective date.
4.2 Changes. If
at any
time or for any reason or no reason EchoStar changes the content of any
Programming package, Retailer's authority to solicit orders for the prior
Programming package shall immediately cease.
5. PRICES.
EchoStar
shall determine the retail prices for Programming from time to time in its
Sole
Discretion. Retailer will only solicit orders for Programming at the retail
prices set by EchoStar from time to time. EchoStar may increase, decrease or
otherwise modify those prices at any time and from time to time in its Sole
Discretion. Any price changes shall be effective immediately upon notification
by EchoStar, unless EchoStar notifies Retailer of a different effective date.
Retailer shall not represent that Programming may be purchased or otherwise
obtained on any other terms and conditions except as authorized in writing
by
EchoStar.
6. INCENTIVES.
6.1 AS
BETWEEN RETAILER AND ECHOSTAR, RETAILER IS ENTERING INTO THIS AGREEMENT SOLELY
IN ORDER TO ENHANCE THE SALABILITY OF THE DISH DBS SYSTEMS (IF ANY) AND/OR
PROMOTIONAL CERTIFICATES (IF ANY) THAT RETAILER PURCHASES FROM DISTRIBUTOR.
WHILE ECHOSTAR PRESENTLY INTENDS TO PAY INCENTIVES TO DISTRIBUTOR IN CONNECTION
WITH CERTAIN ORDERS FOR PROGRAMMING SOLICITED BY RETAILER PURSUANT TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT, RETAILER UNDERSTANDS AND AGREES THAT NO
INCENTIVE OR OTHER PAYMENT OF ANY TYPE (COLLECTIVELY, "INCENTIVES") SHALL EVER
BE DUE OR OWING FROM ECHOSTAR OR ANY OF ITS AFFILIATES TO RETAILER AND/OR ANY
OF
ITS AFFILIATES IN CONNECTION WITH THE SOLICITATION OF ORDERS FOR PROGRAMMING
PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION IN THE EVENT THAT ECHOSTAR FAILS OR REFUSES TO PAY OR OTHERWISE
DISCONTINUES ANY INCENTIVES TO DISTRIBUTOR IN CONNECTION WITH ANY ORDERS FOR
PROGRAMMING SOLICITED BY RETAILER PURSUANT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT OR OTHERWISE. RETAILER ACKNOWLEDGES AND AGREES THAT, ALTHOUGH THE
TERMS AND CONDITIONS OF THE AGREEMENT(S) (WHETHER WRITTEN OR ORAL) (IF ANY)
BETWEEN RETAILER AND DISTRIBUTOR MAY REQUIRE DISTRIBUTOR TO PAY INCENTIVES
TO
RETAILER IN CONNECTION WITH ORDERS FOR PROGRAMMING SOLICITED BY RETAILER
PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT: (I) ECHOSTAR MAKES
NO
REPRESENTATION, WARRANTY, COVENANT, PROMISE OR GUARANTEE THAT DISTRIBUTOR WILL
ACTUALLY PAY ANY INCENTIVES TO RETAILER; (II) ANY INCENTIVES TO RETAILER IN
CONNECTION WITH THIS AGREEMENT SHALL BE PAID TO RETAILER SOLELY AND EXCLUSIVELY
BY DISTRIBUTOR, PURSUANT TO THE TERMS AND CONDITIONS OF THE AGREEMENT(S)
(WHETHER WRITTEN OR ORAL) (IF ANY) BETWEEN RETAILER AND DISTRIBUTOR, AND
RETAILER SHALL LOOK SOLELY AND EXCLUSIVELY TO DISTRIBUTOR FOR THE PAYMENT OF
ALL
SUCH INCENTIVES; (III) ECHOSTAR SHALL HAVE NO OBLIGATION WHATSOEVER TO PAY
ANY
SUCH INCENTIVES TO RETAILER IN THE EVENT THAT DISTRIBUTOR FAILS TO PAY ANY
SUCH
INCENTIVES TO RETAILER; AND (IV) ECHOSTAR SHALL HAVE NO LIABILITY WHATSOEVER
TO
RETAILER IN THE EVENT THAT DISTRIBUTOR FAILS TO PAY ANY SUCH INCENTIVES TO
RETAILER. RETAILER FURTHER UNDERSTANDS THAT THE AGREEMENT PURSUANT TO WHICH
ECHOSTAR PAYS INCENTIVES TO DISTRIBUTOR ON PROGRAMMING ORDERS SOLICITED BY
RETAILER (THE “ECHOSTAR-DISTRIBUTOR AGREEMENT”), CONTAINS NUMEROUS PROVISIONS
WHICH COULD RESULT IN NO INCENTIVES BEING OWED, OR IN DISCONTINUANCE OF THE
PAYMENT OF INCENTIVES, BY ECHOSTAR TO DISTRIBUTOR. FOR EXAMPLE (AND WITHOUT
LIMITATION OF THE FOREGOING), IF THE CORRESPONDING SUBSCRIBER: (A) IS NOT A
QUALIFYING RESIDENTIAL SUBSCRIBER, QUALIFYING RESIDENTIAL MDU SUBSCRIBER,
QUALIFYING COMMERCIAL SUBSCRIBER OR QUALIFYING BULK SUBSCRIBER (IN EACH CASE
AS
DEFINED IN THE ECHOSTAR-DISTRIBUTOR AGREEMENT), (B) HAS PREVIOUSLY RECEIVED
ANY
VIDEO, AUDIO, DATA OR INTERACTIVE PROGRAMMING SERVICES FROM ECHOSTAR OR ANY
OF
ITS AFFILIATES, OR (C) IS NOT LOCATED IN THE DISTRIBUTOR'S TERRITORY, NO
INCENTIVES WILL BE PAID TO DISTRIBUTOR. FURTHER (AND WITHOUT LIMITATION OF
THE
FOREGOING), INCENTIVES FROM ECHOSTAR TO DISTRIBUTOR WILL GENERALLY TERMINATE
IN
THE EVENT THAT THE ECHOSTAR-DISTRIBUTOR AGREEMENT OR ANY OTHER AGREEMENT BETWEEN
ECHOSTAR AND/OR ANY OF ITS AFFILIATES, ON THE ONE HAND, AND DISTRIBUTOR AND/OR
ANY OF ITS AFFILIATES, ON THE OTHER HAND, TERMINATES OR HAS BEEN BREACHED BY
DISTRIBUTOR. RETAILER ACKNOWLEDGES THAT THE ECHOSTAR-DISTRIBUTOR AGREEMENT
ENTITLES ECHOSTAR TO: (1) ACTIVATE PROGRAMMING FOR A SUBSCRIBER AND/OR DISH
DBS
SYSTEM WITHOUT PAYMENT OF ANY INCENTIVES TO DISTRIBUTOR, EVEN IF RETAILER
SOLICITED SUCH SUBSCRIBER TO ORDER PROGRAMMING FROM ECHOSTAR AND (2) CONTINUE
TO
PROVIDE PROGRAMMING TO A SUBSCRIBER EVEN WHEN AN INCENTIVE IS NOT DUE OR OWED
TO
DISTRIBUTOR.
Page
7 of
28
6.2 Non-Incentivized
Activations by EchoStar. In
the
event that Retailer for any reason does not qualify for any incentive or other
compensation from Distributor under any agreement (whether written or oral)
between Retailer and Distributor, or is otherwise not paid any incentive or
other compensation by Distributor, in connection with the activation of a DISH
DBS System(s) and/or Programming for a consumer, EchoStar shall be entitled
to
activate a DISH DBS System(s) and/or Programming for that consumer without
the
payment of any incentive or other compensation to Retailer, even if Retailer
solicited the consumer to order Programming from EchoStar.
6.3 Collection
of Programming and Other Fees.
6.3.1 Retailer
acknowledges and agrees that: (i) with the sole exception of payments for
installation and after-sales services performed by Retailer and as otherwise
expressly permitted by EchoStar in writing, under no circumstances shall
Retailer or any of its Affiliates collect any payment for Programming or any
other payment due or owing to EchoStar and/or any of its Affiliates from any
DISH Network Subscriber or any other person or entity; (ii) all subscription,
demand purchase and other Programming fees shall be billed directly to DISH
Network Subscribers by EchoStar; (iii) in the event that, notwithstanding
Retailer's best efforts to comply with clause (i) above, a DISH Network
Subscriber or other person or entity forwards any such payment to Retailer
or
any of its Affiliates, Retailer shall immediately forward the payment, together
with any applicable sales or similar taxes, to EchoStar without deduction or
offset of any kind, and shall instruct the DISH Network Subscriber or other
person or entity that all future payments must be made to EchoStar directly;
and
(iv) until such time as the payment is delivered to EchoStar, such payment
shall
be deemed to be the sole and exclusive property of EchoStar, and Retailer shall
hold such payment in trust for the benefit of EchoStar.
6.3.2 Retailer
further acknowledges and agrees that: (i) under no circumstance shall Retailer
or any of its Affiliates directly or indirectly collect any payment or derive
any economic benefit in any form from a programming service provider (a
“Programmer”) in connection with and/or arising out of or relating to the
marketing, promotion and/or solicitation of orders for the programming
service(s) of such Programmer by Retailer and/or any of its Affiliates; (ii)
in
the event that, notwithstanding Retailer's best efforts to comply with clause
(i) above, Retailer or any of its Affiliates receives any such payment or
derives any such economic benefit, Retailer shall immediately forward the
payment or deliver the cash value of the economic benefit, as the case may
be,
to EchoStar without deduction or offset of any kind; and (iii) until such time
as the payment or cash value of the economic benefit is delivered to EchoStar,
such payment or economic benefit shall be deemed to be the sole and exclusive
property of EchoStar, and Retailer shall hold such payment or economic benefit
in trust for the benefit of EchoStar.
6.3.3 The
foregoing is agreed to without prejudice to EchoStar exercising any other rights
and remedies it may have at law, in equity, under contract or otherwise (all
of
which are hereby expressly reserved), including without limitation, the right
to
terminate this Agreement and/or seek damages or other legal or equitable relief.
The provisions of this Section 6.3 shall survive expiration or termination
of
this Agreement (for any reason or no reason) indefinitely.
6.4 Chargebacks. Retailer
acknowledges and agrees that, following the expiration or termination of the
EchoStar-Distributor Agreement for any reason or no reason whatsoever, EchoStar
shall be entitled to reclaim any and all incentives previously paid to
Distributor (in connection with any DISH DBS System, Promotional Certificate,
related accessory or other equipment of any kind sold, leased or otherwise
transferred by Retailer) (“Chargeback”) directly from Retailer under the same
terms and conditions pursuant to which EchoStar could have reclaimed such
incentives from Distributor, and Retailer hereby agrees to immediately upon
demand pay to EchoStar all such amounts that EchoStar reclaims directly from
Retailer. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, IN NO
EVENT
SHALL ANY NOTICE OF CLAIM ARISING OUT OF OR RELATING TO ANY ALLEGED FAILURE
TO
PAY ANY AMOUNTS DUE AND OWING FROM ECHOSTAR AND/OR ANY OF ITS AFFILIATES, ON
THE
ONE HAND, TO RETAILER AND/OR ANY OF ITS AFFILIATES, ON THE OTHER HAND, OR
ARISING OUT OF OR RELATING TO ANY CHARGEBACK BE PROVIDED LATER THAN THIRTY
(30)
DAYS AFTER THE DATE THAT THE RELEVANT PAYMENT SHOULD HAVE BEEN MADE OR THE
DATE
THAT THE RELEVANT CHARGEBACK OCCURRED, AS APPLICABLE, OR LATER THAN THIRTY
(30)
DAYS AFTER EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON OR NO
REASON WHATSOEVER, WHICHEVER IS EARLIER, OR THE SHORTEST PERIOD PERMITTED UNDER
APPLICABLE LAW (IN THE EVENT THAT SUCH PERIOD IS IN EXCESS OF THE APPLICABLE
PERIOD SET FORTH ABOVE).
Page
8 of
28
IN
ADDITION TO (AND WITHOUT LIMITATION OF) THE FOREGOING, ECHOSTAR SHALL HAVE
THE
RIGHT TO CHARGE BACK RETAILER DIRECTLY FOR ALL OR ANY PORTION OF THE INCENTIVES
PAID BY ECHOSTAR TO DISTRIBUTOR IN CONNECTION WITH RETAILER FRAUDULENTLY: (A)
MISREPRESENTING ANY INFORMATION CONCERNING A PRIOR OR CURRENT ECHOSTAR
SUBSCRIBER TO MAKE THAT PERSON APPEAR TO BE A NEW ECHOSTAR SUBSCRIBER, OR (B)
CREATING A FICTITIOUS OR FRAUDULENT CUSTOMER ACCOUNT. FOR THE AVOIDANCE OF
DOUBT, IN THE EVENT ECHOSTAR DETERMINES AT ANY TIME IN GOOD FAITH IN ITS SOLE
AND ABSOLUTE DISCRETION FOR ANY REASON OR NO REASON, THAT RETAILER COMMITTED
FRAUD OR OTHER MISCONDUCT, ECHOSTAR SHALL HAVE THE RIGHT TO CHARGE BACK RETAILER
DIRECTLY FOR ALL OR ANY PORTION OF THE INCENTIVES PAID TO DISTRIBUTOR, AND
OUT-OF-POCKET EXPENSES (INCLUDING WITHOUT LIMITATION PROGRAMMING COSTS PAID
AND
ANY EQUIPMENT SUBSIDIES PROVIDED) INCURRED BY ECHOSTAR AND/OR ANY OF ITS
AFFILIATES, IN CONNECTION WITH SUCH FRAUD OR MISCONDUCT. ECHOSTAR’S CALCULATION
AND ASSESSMENT OF ANY CHARGEBACK SHALL BE PRESUMED CONCLUSIVELY AND IRREBUTABLY
CORRECT ABSENT A TIMELY NOTICE OF CLAIM BY RETAILER PURSUANT TO SECTION 15.
ECHOSTAR’S DETERMINATION THAT A CHARGEBACK IS PROPER SHALL BE CONTROLLING ABSENT
FRAUD, MALICE OR WANTON AND WILLFUL MISCONDUCT ON THE PART OF ECHOSTAR. THE
PARTIES ACKNOWLEDGE AND AGREE THAT AT ALL TIMES (INCLUDING WITHOUT LIMITATION
IN
CONNECTION WITH ANY ARBITRATION OR COURT PROCEEDING), IT SHALL REMAIN RETAILER’S
BURDEN TO PROVE THAT ANY CHARGEBACK WAS INCORRECT. THE PROVISIONS OF THIS
SECTION 6.4 SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT (FOR
ANY
REASON OR NO REASON WHATSOEVER) INDEFINITELY.
7. ORDERS.
7.1 Retailer
agrees to use its best efforts to promote and enhance EchoStar's business,
reputation and goodwill. Retailer shall allow only its employees, and shall
not
use any independent contractors, subcontractors, Affiliates, agents, sub-agents
or any other persons not employed by Retailer to fulfill any of its obligations
hereunder without EchoStar's specific prior written consent, which consent
may
be withheld in EchoStar’s Sole Discretion. In the event that EchoStar does grant
consent to Retailer to use persons not employed by Retailer to perform any
activities contemplated hereunder (“Permitted Subcontractors”), Retailer shall
be responsible for the acts and omissions of such Permitted Subcontractors
to
the same extent it is responsible for the acts and omissions of its own
employees.
7.2 Retailer
shall not sell Programming under any circumstances. All sales of Programming
are
transactions solely between EchoStar and DISH Network Subscribers. Retailer
shall promptly forward to EchoStar all orders for Programming in the manner
prescribed by EchoStar from time to time. Retailer understands that EchoStar
shall have the right, in its Sole Discretion, to accept or reject, in whole
or
in part, all orders for Programming. Retailer also agrees that it shall not
condition, tie or otherwise bundle any purchase of Programming with the purchase
of any other services or products other than as specifically consented to in
writing by EchoStar in advance, which consent may be withheld in EchoStar’s Sole
Discretion.
7.3 Retailer
shall comply with all Business Rules, including without limitation all Business
Rules which govern or are otherwise applicable to any Promotional Program in
which Retailer participates. Retailer shall disclose to each prospective DISH
Network Subscriber the relevant terms and conditions of each Promotional Program
in which such prospective DISH Network Subscriber is interested as well as
any
other terms and conditions as set forth in any applicable Business Rules.
Furthermore, Retailer shall take all actions and refrain from taking any action,
as requested by EchoStar in connection with the marketing, advertisement,
promotion and/or solicitation of orders for Programming and/or the sale, lease
or other transfer of DISH DBS Systems and/or Promotional Certificates and
Retailer shall cooperate by supplying EchoStar with any information arising
from
or relating to those actions as EchoStar reasonably requests. The failure of
Retailer to adhere to any Business Rules may result in disciplinary action
by
EchoStar in its Sole Discretion up to and including termination of this
Agreement and/or any Other Agreement, and/or the exercise by EchoStar of any
other right or remedy available to it under contract (including without
limitation this Agreement), at law, in equity or otherwise (all of which are
hereby expressly reserved).
7.4 Retailer
hereby acknowledges and agrees that the relationship, contractual or otherwise,
between EchoStar (and/or any of its Affiliates) and each DISH Network Subscriber
is, as between EchoStar and Retailer, for the sole and exclusive benefit of
EchoStar and that EchoStar may conduct such relationship in any manner that
it
sees fit at any time and from time to time, in its Sole Discretion, without
incurring any liability whatsoever to Retailer and/or any of its Affiliates.
In
furtherance (and without limitation) of the foregoing, Retailer acknowledges
and
agrees that Retailer is not a third-party beneficiary of any agreement that
EchoStar or any of its Affiliates may have with any DISH Network Subscriber,
and
that, under no circumstances, shall Retailer and/or any of its Affiliates have
any claim or cause of action against EchoStar or any Affiliate of EchoStar
for
any action taken (or not taken) by EchoStar and/or any of its Affiliates with
regard to any DISH Network Subscriber. Retailer further acknowledges and agrees
that all records created or maintained by, or on behalf of, EchoStar relating
to
any DISH Network Subscriber are the sole and exclusive property of EchoStar
and
EchoStar shall not have any obligation whatsoever to give or allow Retailer
access to such information, even if authorized or requested by such DISH Network
Subscriber. The provisions of this Section 7.4 shall survive expiration or
termination of this Agreement (for any reason or no reason whatsoever)
indefinitely.
Page
9 of
28
8. TRADEMARK
LICENSE AGREEMENT. Retailer
shall sign the Trademark License Agreement, in the form attached as Exhibit
A
hereto (the “Trademark License Agreement”), which agreement is hereby
incorporated into this Agreement by reference in its entirety.
9. CONDUCT
OF BUSINESS.
9.1 Compliance
with Laws. Retailer
shall not engage in any activity or business transaction which could be
considered unethical, as determined by EchoStar in accordance with prevailing
business standards, or damaging to EchoStar’s and/or any of its Affiliates’
image or goodwill in any way. Retailer shall under no circumstances take any
action which could be considered disparaging to EchoStar and/or any of its
Affiliates. Retailer shall comply with all applicable governmental statutes,
laws, rules, regulations, ordinances, codes, directives, and orders (whether
federal, state, municipal, or otherwise) and all amendments thereto, now enacted
or hereafter promulgated (hereinafter "Laws"), and Retailer is solely
responsible for its compliance with all Laws that apply to its obligations
under
this Agreement.
9.2 Signal
Theft. Retailer
shall not directly or indirectly: (i) engage in any signal theft, piracy or
similar activities; (ii) engage in any unauthorized reception, transmission,
publication, use, display or similar activities with respect to Programming;
(iii) use a single DISH Network account for the purpose of authorizing
Programming for multiple DISH DBS Systems that are not all located in the same
Residential Location, Institutional/Residential Location, bulk-billed MDU
Property, Unit of a non-bulk-billed MDU Property, Guest Property or Commercial
Location, as applicable based upon the type of Programming authorized for the
relevant DISH Network account, and connected to the same land-based phone line
(except in the case of a bulk-billed MDU Property); (iv) alter any DISH DBS
Systems or smart cards or any other equipment compatible with programming
delivered by EchoStar or any of its Affiliates to be capable of signal theft
(or
for any other reason without the express written consent of EchoStar); (v)
manufacture, import, offer to the public, sell, provide or otherwise traffic
in
any technology, product, service or device which is primarily designed or
produced for the purpose of, or is marketed for use in, or has a limited
commercially significant purpose other than, assisting in or facilitating signal
theft or other piracy; or (vi) aid any others in engaging in, or attempting
to
engage in, any of the above described activities. Retailer shall immediately
notify EchoStar if it becomes aware of any such activity by any person or
entity. The provisions of this Section 9.2 shall survive expiration or
termination of this Agreement (for any reason or no reason whatsoever)
indefinitely.
9.3 Hardware
and Programming Export and Sale Restrictions.
9.3.1 In
addition to (and without limitation of) the Territory restrictions contained
in
this Agreement, Retailer hereby acknowledges that the U.S. Department of State
and/or the U.S. Department of Commerce may in the future assert jurisdiction
over DISH DBS Systems, and that DISH DBS Systems, Promotional Certificates
and
Programming may not currently be sold outside of the Territory. Retailer
represents, warrants and agrees that it will not directly or indirectly arrange
for or participate in the export or sale of DISH DBS Systems, Promotional
Certificates or Programming, in whole or in part, outside of the Territory,
and
agrees that it will take all reasonable and adequate steps to prevent the export
or sale of DISH DBS Systems, Promotional Certificates and Programming outside
of
the Territory by others who purchase from Retailer and who might reasonably
be
expected to export or sell them outside of the Territory.
9.3.2 Retailer
acknowledges and understands that U.S. export laws relating to satellite
receivers may change from time to time in the future. Retailer acknowledges
and
agrees that it is Retailer's sole responsibility to be and remain informed
of
all U.S. laws relating to the export of satellite receivers outside of the
U.S.
EchoStar and its Affiliates have absolutely no obligation to update Retailer
regarding the status of U.S. export laws or any other U.S. laws relating to
the
export of satellite receivers or any other products outside of the U.S. Retailer
represents, warrants and agrees that prior to exporting any satellite receivers
outside of the U.S., Retailer will investigate all applicable U.S. laws relating
to the export of satellite receivers outside of the U.S. Retailer is strictly
prohibited from violating any U.S. law relating to the export of satellite
receivers outside of the U.S. Should Retailer export satellite receivers outside
of the U.S. in violation of this Agreement and/or U.S. law, this Agreement
shall
automatically terminate.
9.4 Bounty
Programs. Retailer
acknowledges that it is in the best interest of both EchoStar and Retailer
for
DISH Network Subscribers to be long-term customers of EchoStar and/or its
Affiliates. Retailer acknowledges that churning of DISH Network Subscribers
is
detrimental to EchoStar. Retailer acknowledges that for any Promotional Program
to be viable, DISH Network Subscribers must be long-term subscribers to DISH
Network. Therefore, Retailer agrees that during the Term of this Agreement
and
for a period of five (5) years following the expiration or termination of this
Agreement for any reason or no reason, Retailer and its Affiliates will not
directly or indirectly in any manner whatsoever operate, offer to any other
person or entity, participate in, or assist any other person or entity to
participate in, any promotion or program offered by any person or entity
(including without limitation Retailer and/or any of its Affiliates) other
than
EchoStar or an Affiliate of EchoStar which directly or indirectly provides
for
the delivery of an economic incentive or other benefit to Retailer, DISH Network
Subscribers or any other person or entity in any form directly or indirectly
in
connection with the direct or indirect solicitation of customers of EchoStar
or
any other DBS provider or customers of any DTH satellite programming service
provider, for any purpose whatsoever (including, without limitation, in
connection with such person or entity directly or indirectly assisting in the
process of attempting to cause a customer of EchoStar or any other DBS provider
or a customer of any DTH programming service provider to become a subscriber
to
any other programming service provider). In addition to (and without limitation
of) the foregoing, Retailer agrees that during the Term of this Agreement and
for a period of five (5) years following the expiration or termination of this
Agreement for any reason or no reason, Retailer and its Affiliates will not
directly or indirectly produce, place, display or use any advertising or
marketing material that explicitly references DISH Network, EchoStar, an
Affiliate of EchoStar or DISH Network Subscribers and attempts to persuade
DISH
Network Subscribers to cancel their EchoStar service and/or switch to a service
offered by any other DBS provider, DTH programming service provider or
multi-channel video programming distributor (“MPVD”). Further (and without
limitation of the foregoing), during the Term of this Agreement and for a period
of five (5) years following the expiration or termination of this Agreement
for
any reason or no reason, Retailer shall not convert, or directly or indirectly
assist any other person or entity who Retailer actually knew or reasonably
should have known intended to convert, any DISH Network Subscriber to the
services of any other DBS provider, DTH programming service provider or MVPD.
The provisions of this Section 9.4 shall survive expiration or termination
of
this Agreement (for any reason or no reason whatsoever) for five (5) years.
Page
10 of
28
9.5 Subscriber
Information. All
consumers who directly or indirectly subscribe to, purchase, lease or otherwise
receive and/or acquire: (i) Programming, (ii) any other services provided by
EchoStar or any of its Affiliates, and/or (iii) receive any other services
incidental, connected or related to any of the foregoing services, and/or who
directly or indirectly purchase, lease or otherwise obtain the hardware
necessary to receive any such Programming and/or any such other services (“DISH
Network Subscribers”) shall be deemed customers of EchoStar for all purposes
relating to programming services, including without limitation video, audio,
data and interactive programming services, the other services provided by
EchoStar or any of its Affiliates and any other services incidental, connected
or related to any of the foregoing services (“Services”), and the hardware
necessary to receive any of such services (“Hardware”). Retailer acknowledges
and agrees that the names, addresses and other identifying information of DISH
Network Subscribers (“Subscriber Information”) are, as between Retailer and
EchoStar, with respect to the delivery of Services and the provision of
Hardware, proprietary to EchoStar, and shall be treated with the highest degree
of confidentiality by Retailer. Retailer shall not directly or indirectly:
(a)
make use of any list of past or current DISH Network Subscribers (whether
developed by Retailer or obtained from EchoStar or another source), (b) use
any
Subscriber Information for the direct or indirect benefit of any individual
or
entity other than EchoStar, (c) use any Subscriber Information for the purpose
of soliciting, or permit any others to solicit, any person or entity to
subscribe to any Services offered by any person or entity other than EchoStar
or
an Affiliate of EchoStar, or promote the sale, lease or other acquisition of any
Hardware used in connection with services offered by any person or entity other
than EchoStar and its Affiliates, or (d) reveal any Subscriber Information
to
any third party for any reason without the express prior written consent of
EchoStar, which consent may be withheld by EchoStar in its Sole Discretion;
provided, however, that nothing shall prohibit Retailer from utilizing its
own
customer list (but not a discrete portion thereof identifying any DISH Network
Subscribers) for its general business operations unrelated to the delivery
of
Services or the provision of Hardware. The provisions of this Section 9.5 shall
survive expiration or termination of this Agreement (for any reason or no reason
whatsoever) indefinitely.
9.6 Remedies. Retailer
agrees that any breach of its obligations set forth in this Section 9 will
cause
substantial and irreparable harm and injury to EchoStar for which monetary
damages alone would be an inadequate remedy, and which damages are difficult
to
accurately measure. Accordingly, Retailer agrees that EchoStar shall have the
right, in addition to (and without limitation of) any other rights and remedies
available to EchoStar at law, in equity, under contract or otherwise (all of
which are hereby expressly reserved), to obtain immediate injunctive relief
(without the necessity of posting or filing a bond or other security) to
restrain the threatened or actual violation hereof by Retailer, its Affiliates,
employees, independent contractors, subcontractors, agents or sub-agents, as
well as other equitable relief allowed by the federal and state courts. The
provisions of this Section 9.6 shall survive expiration or termination of this
Agreement (for any reason or no reason whatsoever) indefinitely.
9.7 Economic
Benefits Derived Held in Trust. In
the
event that Retailer derives an economic benefit, in any form, from a violation
of any of its obligations under this Section 9, it is hereby agreed that such
economic benefit is the property of EchoStar and that Retailer shall deliver
the
cash value of the economic benefit to EchoStar immediately upon receipt of
the
economic benefit. It is further agreed that Retailer shall hold such economic
benefit in trust for the benefit of EchoStar until such time as its cash value
is delivered to EchoStar. The foregoing is agreed to without prejudice to
EchoStar to exercise any other rights and remedies it may have at law, in
equity, under contract or otherwise (all of which are hereby expressly
reserved), including without limitation, the right to terminate this Agreement
and seek damages or other legal or equitable relief. The provisions of this
Section 9.7 shall survive expiration or termination of this Agreement (for
any
reason or no reason whatsoever) indefinitely.
9.8
Sales
and Use Tax.
Any
transactions between Retailer and consumers for the purchase of DISH DBS
Systems, Promotional Certificates and/or related equipment are transactions
entered into solely and exclusively between Retailer and the consumer. EchoStar
does not acquire or retain title (except in connection with certain lease-based
Promotional Programs) in such DISH DBS Systems and related equipment. Retailer,
and not EchoStar, is solely responsible for Retailer’s investigation of and
compliance with all Laws concerning sales and use taxes applicable to any
equipment transactions between Retailer and any consumers.
Page
11 of
28
10. TERM
AND TERMINATION.
10.1 Term. This
Agreement shall commence on the Effective Date and shall continue through
December 31, 2007 (the “Term”), unless earlier terminated by either party hereto
in accordance with the terms and conditions of this Agreement. This Agreement
is
not automatically renewable, and neither party hereto shall be under any
obligation whatsoever to offer or to accept an agreement to renew or replace
this Agreement upon its expiration. RETAILER RECOGNIZES THAT THIS AGREEMENT
MAY
BE TERMINATED PRIOR TO THE EXPIRATION OF THE TERM AND THAT NO REPRESENTATIONS,
WARRANTIES, COVENANTS OR GUARANTEES HAVE BEEN MADE TO RETAILER THAT RETAILER
WILL REMAIN AN AUTHORIZED RETAILER DURING THE ENTIRE TERM OR THAT THE AGREEMENT
WILL NOT BE TERMINATED PRIOR TO EXPIRATION OF THE TERM PURSUANT TO SECTION
10.2,
10.3, 10.4 OR 10.5 BELOW.
10.2 Termination
by Either Party for Convenience. Either
party hereto may, in its Sole Discretion, terminate this Agreement for its
convenience (without cause) by giving the other party no less than sixty (60)
days prior written notice.
10.3 Termination
By Either Party Upon Default. This
Agreement may be terminated by a party hereto (the "Affected Party"), if the
other party (the “Other Party”) has failed to cure (if curable) any Default (as
defined below) within twenty (20) days of receipt of a written notice of such
Default from the Affected Party. For the purposes of this Agreement a “Default”
shall occur when: (i) the Other Party fails to pay any amount to the Affected
Party or its Affiliates when due under this Agreement or any Other Agreement;
or
(ii) the Other Party fails to perform any obligation or breaches any
representation, warranty or covenant in this Agreement, any Other Agreement,
or
the Trademark License Agreement (regardless of whether breach or default of
such
obligation, representation, warranty or covenant is designated as giving rise
to
a termination right).
10.4 Automatic Termination. This
Agreement shall terminate automatically should any of the following occur,
unless EchoStar notifies Retailer to the contrary in writing at any time
thereafter: (i) Retailer becomes insolvent, or voluntary or involuntary
bankruptcy, insolvency or similar proceedings are instituted against Retailer;
(ii) Retailer, for more than twenty (20) consecutive days, fails to maintain
operations as a going business; (iii) Retailer, for more than twenty (20)
consecutive days, ceases to continuously and actively market and promote DISH
DBS Systems and/or Programming; (iv) Retailer, or any officer, director,
substantial shareholder or principal of the Retailer is convicted in a court
of
competent jurisdiction of any criminal offenses greater than a Class C (or
comparable) Misdemeanor; (v) Retailer fails to comply with any applicable Laws,
or engages in any practice, substantially related to the business conducted
by
Retailer in connection with this Agreement, which is determined to be an unfair
trade practice or other violation of any applicable Laws, including without
limitation any telemarketing/do-not-call laws, spam laws, privacy laws, fair
credit reporting laws or warranty laws; (vi) Retailer falsifies any records
or
reports required hereunder or under any Business Rule; (vii) Retailer fails
to
renew, or loses, due to suspension, cancellation or revocation, for a period
of
fifteen (15) days or more, any license, permit or similar document or authority
required by any Laws or by any governmental authority having jurisdiction,
that
is necessary in carrying out the provisions of this Agreement or to maintain
its
corporate or other business status in effect as of the Effective Date; (viii)
Retailer directly or indirectly sells, leases or otherwise transfers possession
of a DISH DBS System or Promotional Certificate to a person or entity whom
Retailer knew or reasonably should have known: (a) was not an end-user and/or
intended to resell it, lease it or otherwise transfer possession of it for
use
by another individual or entity, (b) intended to use it, or to allow others
to
use it, to view Residential Programming at a location other than a Residential
Location or Institutional/Residential Location, (c) intended to use it, or
to
allow others to use it, to view Residential MDU Programming at a location other
than a non-bulk-billed MDU Property, (d) intended to use it, or to allow others
to use it, in Canada, Mexico or at any other location outside of the Territory,
or (e) intended to authorize, or to allow others to authorize, Programming
for
it using a single DISH Network account that had or would have Programming
authorized for multiple satellite receivers that are not all located in the
same
Residential Location, Institutional/Residential Location, bulk-billed MDU
Property, Unit of a non-bulk-billed MDU Property, Guest Property or Commercial
Location, as applicable based upon the type of Programming authorized for the
relevant DISH Network account, and connected to the same land-based phone line
(except in the case of a bulk-billed MDU Property); (ix) Retailer makes, or
attempts to make, any representation, promise or agreement for or on behalf
of
EchoStar; (x) the Trademark License Agreement or any Other Agreement expires
or
terminates for any reason; (xi) Retailer’s right to purchase DISH DBS Systems
and/or Promotional Certificates from Distributor terminates for any reason;
(xii) any right of Retailer (if any) to receive incentives or other compensation
from Distributor terminates for any reason; (xiii) the EchoStar-Distributor
Agreement or any other agreement between EchoStar and/or any of its Affiliates
on the one hand, and Distributor and/or any of its Affiliates on the other
hand,
expires or terminates for any reason; (xiv) Retailer fraudulently receives,
or
attempts to receive, an incentive or other compensation under any Other
Agreement; (xv) Retailer directly or indirectly uses a single DISH Network
account for the purpose of authorizing Programming for multiple DISH DBS Systems
that are not all located in the same Residential Location,
Institutional/Residential Location, bulk-billed MDU Property, Unit of a
non-bulk-billed MDU Property, Guest Property or Commercial Location, as
applicable based upon the type of Programming authorized for the relevant DISH
Network account, and connected to the same land-based phone line (except in
the
case of a bulk-billed MDU Property); (xvi) any actual or alleged fraud,
misrepresentation, or illegal action of any sort by Retailer in connection
with
this Agreement, the Trademark License Agreement, and/or any Other Agreement;
(xvii) Retailer Pre-Activates any DISH DBS System or directly or indirectly
sells, leases or otherwise transfers possession of a DISH DBS System or
Promotional Certificate to a person or entity who Retailer knew or reasonably
should have known intended to Pre-Activate a DISH DBS System; (xviii) Retailer
directly or indirectly makes any payment to EchoStar for Programming services
or
otherwise on behalf of any retail end-user of any DISH DBS System; (xix) the
churn rate experienced by EchoStar for DISH Network Subscribers activated
through Retailer is equal to or greater than 125% of the churn rate experienced
by EchoStar with respect to DISH Network subscribers generally during any
consecutive three-month period; (xx) Retailer is in breach or default of any
of
its obligations under Section 2.6, 2.7, 2.8, 2.9, 6.3, 9.1, 9.2, 9.3, 9.4,
9.5,
9.8 or 14; (xxi) Retailer indefinitely ceases to actively market and promote
DISH DBS Systems, Promotional Certificates and/or Programming, as determined
by
EchoStar in its Sole Discretion; (xxii) Retailer fraudulently receives, or
attempts to receive, an incentive or other payment to which it is not entitled
under this Agreement, any Other Agreement or any agreement (whether written
or
oral) between Retailer and Distributor, including without limitation by
misrepresenting any information concerning a prior DISH Network Subscriber
to
make that person or entity appear to be a new DISH Network Subscriber or
creating a fictitious or fraudulent customer account; or (xxiii) Retailer fails
to activate the applicable minimum number of new subscribers set forth in any
applicable Business Rules.
Page
12 of
28
10.5 Expiration
or Termination of Agreement.
The
parties hereto agree that if this Agreement expires or terminates for any reason
or no reason: (i) Retailer shall immediately discontinue the marketing,
promotion and solicitation of orders for Programming, and immediately cease
to
represent and/or imply to any person or entity that Retailer is an Authorized
Retailer of EchoStar; (ii) Retailer shall immediately discontinue all use of
the
trademarks associated or included in any way whatsoever with Programming,
including, without limitation, DISH; (iii) Retailer shall deliver to EchoStar,
or destroy, at EchoStar's option, all tangible things of every kind (excluding
DISH DBS Systems) in Retailer’s possession or control that bear any of the
trademarks; (iv) Retailer shall upon request by EchoStar, certify in writing
to
EchoStar that such delivery or destruction has taken place; and (v) Retailer
shall pay all sums due EchoStar under this Agreement and any Other Agreement
within thirty (30) days of the date of such expiration or termination.
EchoStar
acknowledges and agrees that, following the expiration or termination of this
Agreement for any reason or no reason, Retailer may choose to sell products,
programming and other services that compete with EchoStar products, programming
and other services and that EchoStar cannot require Retailer to continue as
an
Authorized Retailer. Retailer acknowledges and agrees that it cannot require
EchoStar to allow Retailer to remain an Authorized Retailer regardless of
whether or not any other retailer is allowed to remain an Authorized
Retailer
11. INDEPENDENT
CONTRACTOR. The
relationship of the parties hereto is that of independent contractors. Retailer
shall conduct its business as an independent contractor, and all persons
employed in the conduct of such business shall be Retailer's employees only,
and
not employees or agents of EchoStar or any of its Affiliates. Retailer shall
prominently state its business name, address and phone number in all
communications with the public, including, without limitation, marketing
materials, flyers, print ads, television or radio spots, web sites, e-mails,
invoices, sales slips, and the like. Notwithstanding anything set forth in
this
Agreement to the contrary, Retailer (including without limitation its officers,
directors, employees and Permitted Subcontractors) shall not, under any
circumstances, hold itself out to the public or represent that it is an
employee, independent contractor, subcontractor, Affiliate, agent, or sub-agent
of EchoStar or any EchoStar Affiliate. In furtherance (and without limitation)
of the foregoing, in no event shall Retailer use EchoStar’s name or the name of
any EchoStar Affiliate in any manner which would tend to imply that Retailer
is
an Affiliate of EchoStar or that Retailer is an employee, independent
contractor, subcontractor, Affiliate, agent, or sub-agent of EchoStar or any
of
its Affiliates or that Retailer is acting or is authorized to act on behalf
of
EchoStar or any of its Affiliates. This Agreement does not constitute any joint
venture or partnership. It is further understood and agreed that Retailer has
no
right or authority to make any representation, warranty, promise or agreement
or
take any action for or on behalf of EchoStar or any Affiliate of EchoStar.
12. LIMITATION
OF LIABILITY. The
provisions of this Section 12 shall survive expiration or termination of this
Agreement (for any reason or no reason whatsoever) indefinitely.
12.1 UPON
THE
EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON OR NO REASON
WHATSOEVER, ECHOSTAR AND ITS AFFILIATES SHALL HAVE NO LIABILITY OR OBLIGATION
TO
RETAILER WHATSOEVER AND RETAILER SHALL HAVE NO RIGHT TO REQUIRE ECHOSTAR TO
CONTINUE TO ALLOW RETAILER TO ACT AS AN AUTHORIZED RETAILER TO SOLICIT ORDERS
FOR PROGRAMMING ON BEHALF OF ECHOSTAR. RETAILER AGREES THAT IN THE EVENT OF
EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON OR NO REASON, NO
AMOUNTS SPENT IN FULFILLMENT OF THIS AGREEMENT WILL BE RECOVERABLE BY RETAILER
FROM ECHOSTAR OR ANY OF ITS AFFILIATES.
12.2 IN
NO
EVENT SHALL ANY PROJECTIONS OR FORECASTS MADE BY OR ON BEHALF OF ECHOSTAR OR
ANY
OF ITS AFFILIATES BE BINDING AS COMMITMENTS OR PROMISES. IN NO EVENT SHALL
ECHOSTAR OR ANY AFFILIATE OF ECHOSTAR BE LIABLE FOR ANY EXEMPLARY, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES TO RETAILER (WHETHER FORESEEABLE OR NOT),
INCLUDING WITHOUT LIMITATION ANY PAYMENT FOR LOST BUSINESS, FUTURE PROFITS,
LOSS
OF GOODWILL, REIMBURSEMENT FOR EXPENDITURES OR INVESTMENTS MADE OR COMMITMENTS
ENTERED INTO, CREATION OF CLIENTELE, ADVERTISING COSTS, TERMINATION OF EMPLOYEES
OR EMPLOYEES’ SALARIES, OVERHEAD OR FACILITIES INCURRED OR ACQUIRED BASED UPON
THE BUSINESS DERIVED OR ANTICIPATED UNDER THIS AGREEMENT, OR CLAIMS UNDER DEALER
TERMINATION, PROTECTION, NON-RENEWAL OR SIMILAR LAWS, FOR ANY CAUSE WHATSOEVER
WHETHER OR NOT CAUSED BY NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
13. INDEMNIFICATION.
Retailer
shall indemnify, defend and hold EchoStar and its Affiliates, and its and their
respective officers, directors, employees, agents and shareholders, and its
and
their respective assigns, heirs, successors and legal representatives
(collectively the “EchoStar Group”) harmless from and against, any and all
costs, losses, liabilities, damages, lawsuits, judgments, claims, actions,
penalties, fines and expenses (including, without limitation, interest,
penalties, reasonable attorney fees and all monies paid in the investigation,
defense or settlement of any or all of the foregoing) ("Claims"), that arise
out
of, or are incurred in connection with: (i) Retailer's performance or failure
of
performance under this Agreement, the Trademark License Agreement and/or any
Other Agreement, and any direct or indirect results thereof, including but
not
limited to Retailer’s sale and/or installation of DISH DBS Systems or
Promotional Certificates; (ii) Retailer's lawful or unlawful acts or omissions
(or those of any of Retailer's employees whether or not such acts are within
the
scope of employment or authority of such employees) relating to the sale,
leasing, transfer of possession, marketing, advertisement, promotion and/or
solicitation of orders for Programming, Promotional Certificates and/or DISH
DBS
Systems and/or any other products or services of EchoStar or any of its
Affiliates; (iii) the failure of Retailer to comply with any provision of this
Agreement or any Business Rule; (iv) the breach of any of Retailer's
representations or warranties contained herein; (v) all purchases, contracts,
debts and/or obligations made by Retailer; (vi) the failure of Retailer to
comply with, or any actual or alleged violation of, any applicable Laws; (vii)
any claim brought by Retailer's employees, independent contractors,
subcontractors, Affiliates, agents, sub-agents and/or any other person or entity
for compensation and/or damages arising out of or relating to the expiration
or
termination of this Agreement; (viii) any claim of pirating, infringement or
imitation of the logos, trademarks or service marks of programming providers
or
any other person or entity (except with respect to any marketing materials
supplied to Retailer by EchoStar); (ix) any installation and/or after-sale
services performed by Retailer, or any of its employees, independent
contractors, subcontractors, Affiliates, agents or sub-agents; (x) Retailer’s,
or any of its employees’, independent contractors’, subcontractors’,
Affiliates’, agents’ or sub-agents’ failure to comply with any performance
standard; (xi) a DISH Network Subscriber’s dissatisfaction with any aspect of
the installation and/or after-sale services performed by Retailer, or any of
its
employees, independent contractors, subcontractors, Affiliates, agents or
sub-agents; (xii) the termination, disturbance, interruption or other
interference with the service provided by any public utility or damage to the
equipment of any public utility caused directly or indirectly by Retailer,
or
any of its employees, independent contractors, subcontractors, Affiliates,
agents or sub-agents; (xiii) Retailer directly or indirectly selling, leasing
or
otherwise transferring possession of a DISH DBS System or Promotional
Certificate to any person or entity whom Retailer knew or reasonably should
have
known: (a) was not an end-user and/or intended to resell it, lease it or
otherwise transfer possession of it for use by another individual or entity;
(b)
intended to use it, or to allow others to use it, to (1) view Residential
Programming at a location other than a Residential Location or
Institutional/Residential Location, or (2) view Residential MDU Programming
at a
location other than a non-bulk-billed MDU Property; (c) intended to use it,
or
to allow others to use it, in Canada, Mexico or at any other location outside
of
the Territory; or (d) intended to authorize, or to allow others to authorize,
Programming for it using a single DISH Network account that has or would have
Programming authorized for multiple satellite receivers that are not all located
in the same Residential Location, Institutional/Residential Location,
bulk-billed MDU Property, Unit of a non-bulk-billed MDU Property, Guest Property
or Commercial Location, as applicable based upon the type of Programming
authorized for the relevant DISH Network account, and connected to the same
land-based phone line (except in the case of a bulk-billed MDU Property); and/or
(xiv) Retailer directly or indirectly using a single DISH Network account for
the purpose of authorizing Programming for multiple DISH DBS Systems that are
not all located in the same Residential Location, Institutional/Residential
Location, bulk-billed MDU Property, Unit of a non-bulk-billed MDU Property,
Guest Property or Commercial Location, as applicable based upon the type of
Programming authorized for the relevant DISH Network account, and connected
to
the same land-based phone line (except in the case of a bulk-billed MDU
Property). In the event of any claim for indemnification by the EchoStar Group
under this Section 13, the EchoStar Group shall be entitled to representation
by
counsel of its own choosing, at Retailer's sole cost and expense. The EchoStar
Group shall have the right to the exclusive conduct of all negotiations,
litigation, settlements and other proceedings arising from any such Claims
and
Retailer shall, at its own cost and expense, render all assistance requested
by
EchoStar in connection with any such negotiation, litigation, settlement or
other proceeding. Each
indemnity
obligation set forth in this Section 13 shall be in addition to (and without
limitation of) any other indemnity obligations set forth in this Agreement.
The
provisions of this Section 13 shall survive expiration or termination of this
Agreement (for any reason or no reason whatsoever) indefinitely.
Page
13 of
28
14. CONFIDENTIALITY. Retailer
and its employees will maintain, in confidence, the terms, conditions and
provisions of this Agreement, the terms, conditions and provisions of any and
all Business Rules and Promotional Programs, as well as all data, summaries,
reports, communications or information of all kinds, whether oral or written,
acquired, devised or developed in any manner from EchoStar’s personnel or files,
or as a direct or indirect result of Retailer’s actions or performance under
this Agreement, including without limitation nonpublic personal information
of
DISH Network Subscribers (“Confidential Information”) and Retailer represents,
warrants and covenants to EchoStar and its Affiliates that it has not and will
not reveal the same to any persons not employed by Retailer, except: (i) at
the
written direction of EchoStar; (ii) to the extent necessary to comply with
any
applicable Laws, the valid order of a court of competent jurisdiction or the
valid order or requirement of a governmental agency or any successor agency
thereto, in which event Retailer shall notify EchoStar in writing of the
information prior to making any disclosure, and shall seek confidential
treatment of such information; (iii) as part of its normal reporting or review
procedure to its parent company, its auditors and its attorneys, provided such
parent company, auditors and attorneys agree to be bound by the provisions
of
this paragraph; or (iv) to the extent necessary to permit the performance of
any
obligations under this Agreement. Retailer shall not issue an independent press
release with respect to this Agreement or the transactions contemplated hereby
without the prior written consent of EchoStar, which consent may be withheld
in
EchoStar’s Sole Discretion. Upon expiration or termination of this Agreement for
any reason or no reason whatsoever, Retailer shall return all copies of all
Confidential Information or at EchoStar's request in EchoStar’s Sole Discretion
destroy all such Confidential Information, and immediately certify in writing
to
EchoStar that such delivery or destruction has taken place. Retailer agrees
that
any breach or default of any of its obligations set forth in this Section 14
will cause substantial and irreparable harm and injury to EchoStar for which
monetary damages alone would be an inadequate remedy, and which damages are
difficult to accurately measure. Accordingly, Retailer agrees that EchoStar
shall have the right, in addition to (and without limitation of) any other
rights and remedies available to EchoStar at law, in equity, under contract
or
otherwise (all of which are hereby expressly reserved), to obtain immediate
injunctive relief (without the necessity of posting or filing a bond or other
security) to restrain the threatened or actual violation hereof by Retailer,
its
employees, independent contractors, subcontractors, Affiliates, agents or
sub-agents, as well as any other equitable relief allowed by the federal or
state courts. The provisions of this Section 14 shall survive expiration or
termination of this Agreement (for any reason or no reason whatsoever)
indefinitely.
Page
14 of
28
15. DISPUTE
RESOLUTION. Retailer
acknowledges that EchoStar deals with thousands of retailers annually. Retailer
acknowledges that any delay in notifying EchoStar of any alleged claim that
may
result in EchoStar’s liability to Retailer for damages or injunctive relief may
impede EchoStar’s ability to fully and timely investigate any such claim by
Retailer. Retailer agrees that it is in each party’s best interest to give
EchoStar control over claims that have to be investigated and to allow EchoStar
to investigate any such claim at the earliest possible moment as well as
maintain an orderly method for handling retailer claims. Accordingly, Retailer
agrees to follow the below claims procedures for all claims that may result
in
EchoStar’s liability to Retailer for damages or injunctive relief.
15.1 Claims
for Breach or Default. IN
THE
EVENT OF AN OCCURRENCE THAT RENDERS, OR MIGHT RENDER, ECHOSTAR LIABLE
TO
RETAILER FOR ANY DAMAGES OR INJUNCTIVE RELIEF AS A RESULT OF ANY ALLEGED
BREACH
OR
DEFAULT OF THIS AGREEMENT OR ANY OTHER AGREEMENT, RETAILER SHALL GIVE WRITTEN
NOTICE OF SUCH OCCURRENCE AS SOON AS PRACTICABLE TO ECHOSTAR (A "NOTICE OF
CLAIM"). IN NO EVENT SHALL ANY NOTICE OF CLAIM BE PROVIDED LATER THAN NINETY
(90) DAYS AFTER THE DATE OF THE RELEVANT OCCURRENCE, OR THE SHORTEST PERIOD
PERMITTED UNDER APPLICABLE LAW (IN THE EVENT THAT SUCH PERIOD IS IN EXCESS
OF
THE APPLICABLE PERIOD SET FORTH ABOVE). EACH NOTICE OF CLAIM SHALL STATE: (I)
THE DATE, TIME AND NATURE OF THE OCCURRENCE; (II) THE TOTAL AMOUNT CLAIMED
BY
RETAILER, IF ANY, IN CONNECTION WITH SUCH OCCURRENCE AND THE BASIS FOR ANY
AMOUNT CLAIMED, AND (III) IDENTIFICATION OF ALL DOCUMENTS AND OTHER INFORMATION
IN RETAILER'S CONTROL OR POSSESSION ARISING FROM OR RELATING TO SUCH OCCURRENCE.
RETAILER MAY SUBMIT A NOTICE OF CLAIM CONCERNING A CLAIM VIA
ELECTRONIC MAIL TO xxxxxxxxxxxxxxxxxxx@xxxxxxxx.xxx WITH THE SUBJECT LINE
“NOTICE OF CLAIM.” AFTER SUBMITTING A NOTICE OF CLAIM, RETAILER
SHALL PROVIDE ECHOSTAR WITH ANY AND ALL ADDITIONAL INFORMATION REQUESTED BY
ECHOSTAR WITHIN THIRTY (30) DAYS AFTER RECEIPT OF ECHOSTAR'S REQUEST. ECHOSTAR
SHALL BE ENTITLED TO HAVE ACCESS TO RETAILER'S BOOKS AND RECORDS DURING ITS
INVESTIGATION OF RETAILER'S CLAIM. FAILURE TO STRICTLY COMPLY WITH THE
PROVISIONS OF THIS SECTION 15.1 WITH RESPECT TO A PARTICULAR OCCURRENCE THAT
RENDERS, OR MIGHT RENDER, ECHOSTAR IN BREACH OR DEFAULT OF THIS AGREEMENT
AND
LIABLE TO RETAILER FOR DAMAGES OR INJUNCTIVE RELIEF,
SHALL
CONSTITUTE A WAIVER BY RETAILER WITH RESPECT TO THE RELEVANT
OCCURRENCE,
INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATED THERETO.
15.2 Mediation. The
parties agree to submit any and all disputes, controversies or claims not
otherwise barred or resolved under Section 15.1 or exempted under Section 15.4,
which may arise between Retailer and/or any of its Affiliates, on the one hand,
and EchoStar and/or any of its Affiliates, on the other hand, including but
not
limited to any and all disputes, controversies, and claims arising out of or
relating to this Agreement including, without limitation, any and all disputes,
controversies or claims related to: (i) the execution and delivery of this
Agreement (whether via signature or electronic acceptance); (ii) the
interpretation of this Agreement; (iii) a party’s performance or failure to
perform hereunder; (iv) the termination of this Agreement; and (v) any rights
Retailer may have under dealer termination or non-renewal laws (collectively
“Disputes”), to mandatory non-binding mediation (a “Mediation”) in front of a
single mediator. Either party may initiate a Mediation by giving written notice
to the other party pursuant to Section 17.10 describing the Dispute (a “Notice
of Mediation”). The Notice of Mediation shall include: (a) a statement of the
initiating party’s position and a summary of arguments supporting that position
and (b) the name and title of the executive who will represent that party and
of
any other persons who will accompany the executive. The Mediation shall take
place in the City and County of Denver, Colorado at a mutually agreeable time
and location before a mediator chosen by mutual agreement of the parties. In
the
event that either party fails to negotiate the selection of a mediator in good
faith or unreasonably withholds its approval of a mediator, such party shall
be
deemed to have waived its right to select the mediator by mutual agreement
of
the parties and shall be required to participate in the Mediation with the
mediator chosen by the other party. Each party shall participate through a
representative with full settlement authority and shall bear its own costs
and
expenses and one-half of the costs and expenses of the mediator. Any such
Mediation must be concluded within sixty (60) days of the Notice of Mediation.
Nothing contained herein (excluding the provisions of Section 2.10, which shall
apply in full force and effect) shall limit or restrict the rights of either
party and/or any of its Affiliates to file a Notice of Arbitration (as defined
below) and/or bring a request for injunctive relief against the other party
and/or any of its Affiliates for any violations of Section 2.2, 2.6, 2.7, 2.8,
5, 6.3, 7.2, 7.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.8, 11 or 14 or any provision of
any
Other Agreement. In the event that a party (the “Non-Mediating Party”) fails to:
(1) pay one-half of the costs and expenses of the mediator to the mediator
when
due; or (2) otherwise refuses or fails to participate in or attend a Mediation
that has been properly initiated pursuant to this Section 15, then the
Non-Mediating Party agrees that: (A) the Non-Mediating Party shall be deemed
to
have waived its right to initiate an Arbitration (as defined below) pursuant
to
Section 15.3, as fully participating in a Mediation pursuant to this Section
15.2 is a condition precedent to a party’s right to initiate an Arbitration; (B)
the other party (the “Mediating Party”) shall have the right (but not the
obligation) to initiate an Arbitration pursuant to Section 15.3 without any
further obligation under this Section 15.2; and (C) the Mediating Party shall
have the option, exercisable upon written notice to the Non-Mediating Party,
to
have the underlying dispute, controversy or claim resolved solely and
exclusively before a court of competent jurisdiction located in the State of
Colorado, as delineated in Section 15.5 below. In the event that the Mediating
Party elects to initiate an Arbitration pursuant to clause (B) above or to
resolve the underlying dispute, controversy or claim in court pursuant to clause
(C) above, the parties agree that the Non-Mediating Party shall be deemed to
have waived its right to pursue any affirmative claims or counterclaims in
such
Arbitration or court proceeding as fully participating in a Mediation pursuant
to this Section 15.2 is a condition precedent to recovery.
Page
15 of
28
15.3 Arbitration. Except
as
set forth to the contrary in this Section 15.3 or Section 15.4 below, any and
all disputes, controversies or claims between Retailer and/or any of its
Affiliates, on the one hand, and EchoStar and/or any of its Affiliates, on
the
other hand, including without limitation any and all disputes, controversies
or
claims arising out of or in connection with this Agreement, including but not
limited to the validity of this Section 15, the circumstances concerning the
execution and delivery of this Agreement (whether via signature or electronic
acceptance), and any allegations of fraud in the inducement, or which relate
to
the parties’ relationship with each other or either party’s compliance with any
Laws, which are not settled through negotiation, the claim process set forth
above in Section 15.1, or the mediation process set forth above in Section
15.2,
shall be resolved solely and exclusively by binding arbitration (an
“Arbitration”) in accordance with both the substantive and procedural laws of
Title 9 of the U.S. Code (“Federal Arbitration Act”) and the Commercial
Arbitration Rules of the American Arbitration Association (the “Commercial
Arbitration Rules”). In the event of any conflict or inconsistency between or
among the Federal Arbitration Act, the Commercial Arbitration Rules, and/or
the
terms and conditions of this Agreement, such conflict or inconsistency shall
be
resolved by giving precedence in the following order: (i) this Agreement; (ii)
the Federal Arbitration Act; and (iii) the Commercial Arbitration Rules. In
consideration of EchoStar entering into this Agreement with Retailer, Retailer
agrees that it will not serve as a class representative in any class action
lawsuit brought by any person or legal entity concerning this Agreement in
any
respect. NEITHER PARTY NOR ANY OF ITS AFFILIATES MAY BRING ANY DEMAND FOR
ARBITRATION AGAINST THE OTHER PARTY AND/OR ANY OF ITS AFFILIATES IF IT AND/OR
ANY OF ITS AFFILIATES HAS FAILED TO FULLY COMPLY WITH THE PROCEDURES SET FORTH
IN SECTIONS 15.1 AND 15.2; provided, however, that nothing contained herein
(excluding the provisions of Section 2.10, which shall apply in full force
and
effect) shall limit or restrict the rights of either party and/or any of its
Affiliates to file a Notice of Arbitration and/or bring a request for injunctive
relief against the other party and/or any of its Affiliates for any violations
of Section 2.2, 2.6, 2.7, 2.8, 5, 6.3, 7.2, 7.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.8,
11 or 14 or any provision of any Other Agreement.
15.3.1 Initiation
of Arbitration; Selection of Arbitrators.
The
Arbitration must be initiated within ninety (90) days from the final day of
the
Mediation, or one hundred fifty (150) days from the Notice of Mediation in
the
event that the Mediation is not concluded within sixty (60) days of the Notice
of Mediation, and shall be initiated by written notice from the initiating
party
to the other party pursuant to Section 17.10 stating the initiating party’s
intent to initiate arbitration (“Notice of Arbitration”). The Arbitration shall
be conducted in the City and County of Denver, Colorado by a panel of three
arbitrators who shall be selected as follows: (i) one arbitrator shall be
selected by the claimant(s) within thirty (30) days of sending the Notice of
Arbitration; (ii) one arbitrator shall be selected by the respondent(s) within
thirty (30) days of the claimant(s) notifying respondent of the identity of
claimant’s arbitrator; and (iii) the third arbitrator shall be selected by the
arbitrators chosen by the claimant(s) and the respondent(s) within thirty (30)
days of the appointment of the respondent(s)’ arbitrator. The parties
acknowledge and agree that each party shall have the option, exercisable upon
written notice to the other party, to designate the arbitrator selected by
such
party as a non-neutral arbitrator in which event such arbitrator shall not
be
impartial or independent and shall not be subject to disqualification for
partiality or lack of independence. Notwithstanding the foregoing, in the event
that either party fails to timely select an arbitrator pursuant to this Section
15.3: (a) such party shall be deemed to have waived its right to a three-member
arbitration panel and shall be required to participate in the arbitral
proceedings with the one arbitrator selected by the other party without any
objection and (b) the one arbitrator selected by the other party shall
thereafter be deemed a neutral arbitrator with whom neither party shall
communicate ex
parte
concerning the Arbitration.
15.3.2 Authority
of the Arbitrator(s); Awards. The
parties hereby agree that the arbitrator(s) selected pursuant to Section 15.3.1
(the “Arbitrator(s)”) are not authorized to: (i) conduct “class arbitration” in
any form; and/or (ii) arbitrate any dispute on a representative basis in any
form. The parties hereby agree that the Arbitrator(s) have the authority to
entertain and rule upon dispositive motions, including but not limited to,
default judgments as governed by Rule 55 of the Federal Rules of Civil
Procedure, motions for summary judgment as governed by Rule 56 of the Federal
Rules of Civil Procedure and motions to dismiss as governed by Rule 12 of the
Federal Rules of Civil Procedure. The decision of the Arbitrator(s) shall be
final and binding on the parties and any award of the Arbitrator(s) may be
entered and enforced as a final judgment in any state or federal court of
competent jurisdiction in the United States. The parties agree that, in no
event, shall the Arbitrator(s)’ decision include a recovery under any theory of
liability, or award in any amount, not expressly allowed under this Agreement,
any Promotional Program or applicable Business Rules. In furtherance (and
without limitation) of the foregoing, any award made by the Arbitrator(s) shall
be within the limitations set forth in Section 12. The parties further agree
that the Arbitrator(s) may not award damages, injunctive relief or any other
remedy to any person or legal entity who is not present at the Arbitration
or
who does not submit proof of any alleged damages at the Arbitration.
15.3.3 Arbitration
Costs. The
party(ies) determined by the Arbitrator(s) to be the prevailing party(ies)
shall
be entitled to recover from the non-prevailing party(ies) any and all costs
and
expenses arising from any Arbitration hereunder, including without limitation
all costs of the record or transcripts thereof, if any, administrative fees,
and
all other fees involved (including but not limited to reasonable attorney fees
of the prevailing party(ies)); provided, however, that such costs and expenses
may otherwise be allocated in an equitable manner as determined by the
Arbitrator(s).
Page
16 of
28
15.3.4 Remedies
for Non-Participation. The
parties acknowledge and agree that: (i) in addition to (and without limitation
of) the other provisions of this Section 15, each party is relying upon the
provisions of this Section 15.3 to efficiently address and resolve any and
all
disputes, controversies and claims arising out of or relating to this Agreement
and (ii) any failure or refusal by a party (the “Non-Participating Party”) to:
(a) pay any amount to the American Arbitration Association (“AAA”) when due
(“Arbitration Payment Default”) or (b) otherwise participate in or attend an
Arbitration that has been properly initiated pursuant to this Section 15 (“Other
Arbitration Default”) will cause substantial and irreparable harm and injury to
the other party (the “Participating Party”), for which monetary damages alone
would be an inadequate remedy, including without limitation the termination
of
arbitral proceedings by the AAA. Accordingly, each party agrees that, in the
event of an Arbitration Payment Default or Other Arbitration Default (each
a
“Non-Participation Event”), the Participating Party shall have the right (but
not the obligation), in addition to (and without limitation of) any other rights
and remedies available to such party at law, in equity, under contract
(including without limitation this Agreement) or otherwise (all of which are
hereby expressly reserved), to obtain immediate relief from the Arbitrator(s)
or
a court of competent jurisdiction located in the State of Colorado, as
delineated in Section 15.5 below, in each case in the form of specific
performance and/or a preliminary or permanent injunction, whether prohibitive
or
mandatory, against any violation or threatened violation of this Section 15.3,
and without the necessity of posting or filing a bond or other security to
restrain the threatened or actual violation of this Section 15.3 by the
Non-Participating Party. In addition to (and without limitation of) the
foregoing, in the event of a Non-Participation Event, the Participating Party
shall have the option, exercisable upon written notice to the Non-Participating
Party, to have the underlying dispute, controversy or claim resolved solely
and
exclusively before a court of competent jurisdiction located in the State of
Colorado, as delineated in Section 15.5 below. In the event that the
Participating Party elects to resolve the underlying dispute, controversy or
claim in court pursuant to this Section 15.3.4, the parties agree that the
Non-Participating Party shall be deemed to have waived its right to pursue
any
affirmative claims or counterclaims in such court proceeding as fully
participating in an Arbitration pursuant to this Section 15.3 is a condition
precedent to recovery.
15.4 Exceptions.
Notwithstanding
the foregoing, any request by either party for preliminary or permanent
injunctive relief, whether prohibitive or mandatory, shall not be subject to
mediation or arbitration and may be adjudicated solely and exclusively in the
United States District Court for the District of Colorado or in the appropriate
state court of competent jurisdiction located in Arapahoe County, Colorado
pursuant to Section 15.5 below; provided, however, that nothing contained herein
(excluding the provisions of Section 2.10, which shall apply in full force
and
effect) shall limit or restrict the rights of either party and/or any of its
Affiliates to file a Notice of Arbitration and/or bring a request for injunctive
relief against the other party and/or any of its Affiliates for any violations
of Section 2.2, 2.6, 2.7, 2.8, 5, 6.3, 7.2, 7.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.8,
11 or 14 or any provision of any Other Agreement.
15.5 Choice
of Law; Exclusive Jurisdiction.
The
relationship between the parties and their present and future Affiliates,
including without limitation all disputes, controversies or claims, whether
arising in contract, tort, under statute or otherwise, shall be governed by
and
construed in accordance with the laws of the State of Colorado, applicable
to
contracts to be made and performed entirely within the State of Colorado by
residents of the State of Colorado, without giving any effect to its conflict
of
law provisions. In the event that a lawsuit is brought for injunctive relief
pursuant to Section 15.2, 15.3, or 15.4 above or as otherwise permitted in
clause (C) of Section 15.2 or the penultimate sentence of Section 15.3.4, such
lawsuit shall be litigated solely and exclusively before the United States
District Court for the District of Colorado. The parties and their present
and
future Affiliates consent to the in
personam
jurisdiction of the United States District Court for the District of Colorado
and the appropriate State Court located in Arapahoe County, State of Colorado
for the purposes set forth in this Section 15 and waive, fully and completely,
any right to dismiss and/or transfer any action pursuant to Title 28 U.S.C.
Section 1404 or 1406 (or any successor statute). In the event that the United
States District Court for the District of Colorado does not have subject matter
jurisdiction over any such matter, then such matter shall be litigated solely
and exclusively before the appropriate state court of competent jurisdiction
located in Arapahoe County, State of Colorado.
15.6 Survival.
The
provisions of this Section 15 shall survive expiration or termination of this
Agreement (for any reason or no reason whatsoever) indefinitely.
16. INSURANCE.
16.1
Retailer shall, at its sole cost and expense, procure and maintain throughout
the Term of this Agreement the following insurance coverages:
16.1.1 Workers’
Compensation or similar employee benefit act coverage with statutory limits
as
prescribed by the laws of all states in which Retailer conducts
business operations in connection with this Agreement and
Employers’ Liability coverage with limits and a deductible that are reasonable
and adequate for businesses involved in the sale, installation, service and
repair of consumer electronics.
16.1.2 Commercial
General Liability coverage including, without limitation, coverage for
Premises/Operations, Product/Completed Operations, Blanket Contractual
Liability, Independent Contractors, Broad Form Property Damage, and
Personal/Advertising Injury with limits and a deductible that are reasonable
and
adequate for businesses involved in the sale, installation, service and repair
of consumer electronics.
16.1.3 Commercial
Automobile Liability coverage which includes coverage for all owned, hired,
and
non-owned vehicles with limits and a deductible that are reasonable and adequate
for businesses involved in the sale, installation, service and repair of
consumer electronics.
Page
17 of
28
16.2 All
such
policies and coverages shall: (i) be primary and non-contributory, and issued
by
insurers licensed to do business in all states in which Retailer conducts
business operations in connection with this Agreement; (ii) be endorsed to
provide EchoStar at least thirty (30) days prior notification of cancellation
or
material change in coverage; (iii) name EchoStar as an additional insured;
and
(iv) be endorsed to provide EchoStar with written notice of Retailer’s failure
to renew any coverage not later than the anniversary date for each coverage.
All
such insurance shall be evidenced by a certificate of insurance acceptable
to
EchoStar, which shall be provided to EchoStar upon request.
16.3 All
insurance policies required by this Section 16 (except Workers’ Compensation)
shall designate EchoStar, DNSLLC, their Affiliates, and their respective
directors, officers, and employees (all hereinafter referred to in this clause
as “Company”) as additional insureds. All such insurance policies shall be
required to respond to any claim and pay any such claim prior to any other
insurance or self-insurance which may be available. Any other coverage available
to Company shall apply on an excess basis. Retailer understands and agrees
that
EchoStar, DNSLLC and their Affiliates and their respective directors, officers
and employees are third party beneficiaries of Retailer’s obligations under this
Section 16. No deductible amount on any insurance policy required by this
Section 16 shall exceed ten percent (10%) of the coverage amount of the
policy.
17. MISCELLANEOUS.
17.1 Waiver.
Except
as otherwise expressly set forth to the contrary herein, the failure of any
party to insist upon strict performance of any provision of this Agreement
shall
not be construed as a waiver of any subsequent breach of the same or similar
nature. In addition to (and without limitation of) the foregoing, the failure
of
EchoStar or any of its Affiliates to insist upon strict performance of any
provision of any agreement between EchoStar and/or any of its Affiliates on
the
one hand and another retailer on the other hand, shall not be construed as
a
waiver of EchoStar's right to insist upon strict performance of each and every
representation, warranty, covenant, duty and obligation of Retailer hereunder.
In addition to (and without limitation of) the foregoing, the election of
certain remedies by EchoStar or any of its Affiliates with respect to the breach
or default by another retailer of any agreement between EchoStar and/or any
of
its Affiliates on the one hand and such other retailer on the other hand shall
not be deemed to prejudice any rights or remedies that EchoStar may have at
law,
in equity, under contract (including without limitation this Agreement) or
otherwise with respect to a similar or different breach or default hereunder
by
Retailer (all of which are hereby expressly reserved).
17.2 Successor
Interests; No Assignment by Retailer; Third-Party
Beneficiaries. This
Agreement is binding upon the heirs, legal representatives, successors and
permitted assigns of EchoStar and Retailer. Neither party shall assign this
Agreement without the prior written consent of the other party, except that
EchoStar may assign this Agreement to any of its Affiliates in whole or in
part
and at any time and from time to time in EchoStar’s Sole Discretion without the
consent of Retailer. Because this Agreement is made and entered into by EchoStar
in reliance on the financial, business and personal reputation of Retailer
and
its ownership and management, any merger, reorganization (including without
limitation any change of form of entity, for example changing from a corporation
to an LLC) or consolidation of Retailer shall be deemed an assignment requiring
EchoStar’s consent hereunder and if any person not a substantial stockholder of
Retailer (someone with less than a 25% interest) as of the Effective Date
subsequently becomes a substantial stockholder of Retailer (equal to, or greater
than a 25% interest), that shall be considered an assignment requiring
EchoStar’s consent hereunder. The provisions of this Agreement are for the
exclusive benefit of the parties hereto, EchoStar’s Affiliates and their heirs,
legal representatives, successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended, or shall be deemed or construed,
to
confer upon any third party (other than as expressly set forth for Affiliates
of
EchoStar) any rights, benefits, duties, obligations, remedies or interests
of
any nature or kind whatsoever under or by reason of this Agreement.
17.3 Construction
and Interpretation. Retailer
and EchoStar hereby represent, warrant, acknowledge and agree that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or the Business Rules, including without limitation any amendments
hereto or thereto. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
17.4 Severability.
The
parties agree that each provision of this Agreement shall be construed as
separable and divisible from every other provision and that the enforceability
of any one provision shall not limit the enforceability, in whole or in part,
of
any other provision hereof. If any one or more of the provisions contained
herein, or the application thereof to any person, entity, or circumstance,
for
any reason are held to be invalid, illegal, or unenforceable in any respect,
then such provision(s) shall be enforced to the maximum extent permissible,
and
the remaining provisions of this Agreement shall be unaffected thereby and
will
remain in full force and effect.
17.5 Entire
Agreement. This
Agreement and the Business Rules constitute the entire agreement between the
parties with respect to the subject matter of this Agreement. Except
as
otherwise expressly provided herein,
no party
shall be bound by any communications between them on the subject matter of
this
Agreement, unless such communication is: (i) in writing; (ii) bears a date
contemporaneous with or subsequent to the Effective Date; and (iii) is signed
by
both parties to this Agreement. On the Effective Date, all prior agreements
(except as set forth to the contrary in Section 2.10 and with further exception
of the Business Rules and Other Agreements (including without limitation any
previous “Exclusive Bounty Hunter Agreements”)) or understandings between the
parties shall be null and void.
The
parties specifically acknowledge there are no unwritten side agreements or
oral
agreements between the parties which alter, amend, modify or supplement this
Agreement. In addition to (and without limitation of) any provisions of this
Agreement that expressly survive termination or expiration, any provision of
this Agreement that logically would be expected to survive termination or
expiration, shall survive for a reasonable time period under the
circumstances.
Page
18 of
28
17.6 Compliance
with Laws. Retailer
hereby agrees to comply with, and hereby agrees that this Agreement is subject
to, all applicable Laws in force or effect at any time during the Term of this
Agreement.
17.7 Force
Majeure. Notwithstanding
anything set forth to the contrary in this Agreement, neither party shall be
liable to the other party for its failure to fulfill any of its obligations
hereunder if such failure is caused by or arises out of an act of force majeure
including without limitation acts of God, war, riot, natural disaster, technical
failure (including without limitation the failure of all or part of any
communications satellite or transponders on which the Programming is delivered
to DISH Network Subscribers, or of related uplinking or other equipment) or
any
other reason beyond the reasonable control of the party whose performance is
prevented during the period of such occurrence.
17.8 Remedies
Cumulative. It
is
agreed that the rights and remedies herein provided to EchoStar in case of
default or breach by Retailer of this Agreement are cumulative and without
prejudice to any other rights and remedies that EchoStar may have by reason
of
such default or breach by Retailer at law, in equity, under contract or
otherwise (all of which are hereby expressly reserved).
17.9 Records
and Audit Rights. During
the Term of this Agreement and for a period of three (3) years thereafter,
Retailer shall keep and maintain at its principal place of business complete
and
accurate records and books of account, as well as all documentation of all
material processes and procedures, in
connection with its performance under this Agreement, the Trademark License
Agreement and any Other Agreement. Such books, records and documentation shall
be in sufficient detail to show all information necessary to support any
Retailer claim, request or entitlement of any nature from EchoStar or any of
its
Affiliates. EchoStar shall have the right, upon two (2) days prior written
notice, to review, audit and make copies of Retailer's books, records and
documentation for the purposes of: (i) determining Retailer's compliance with
its duties and obligations under this Agreement, the Trademark License Agreement
or any Other Agreement; (ii) investigating any claims against EchoStar and/or
any of its Affiliates made by Retailer and/or any of its Affiliates; and/or
(iii) investigating any Claims for which Retailer is obligated to indemnify
the
EchoStar Group pursuant to Section 13 (an "Audit"). EchoStar shall be entitled
to conduct an Audit regardless of the existence of any claim, dispute,
controversy, mediation, arbitration or litigation between the parties. In the
event that Retailer refuses to allow EchoStar to conduct an Audit, Retailer
acknowledges that EchoStar shall be entitled to obtain immediate relief in
the
form of specific performance from either the panel of arbitrators (if
arbitration has been commenced pursuant to Section 15 above) or a court located
within the State of Colorado, as delineated in Section 15.5 of this Agreement.
Any audit conducted by EchoStar shall be conducted by EchoStar or its
representative(s) at Retailer's offices during normal business hours. If, during
the course of an Audit, EchoStar uncovers that: (a) Retailer has failed to
comply with any of its obligations under this Agreement, and/or (b) Retailer
and/or any of its Affiliates has made a frivolous claim against EchoStar and/or
any of its Affiliates, Retailer shall pay to EchoStar the costs and expenses
incurred by EchoStar in connection with such Audit. If an Audit reveals that
Retailer and/or any of its Affiliates have underpaid EchoStar and/or any of
its
Affiliates, Retailer agrees to repay to EchoStar the amount of any such
underpayment together with interest thereon at the highest rate allowed by
law,
computed from the date of underpayment; and pay all reasonable costs and
expenses, including without limitation reasonable attorney fees and accountant
fees incurred by EchoStar and/or any of its Affiliates in connection with an
Audit and with enforcing the collection of such amounts. The provisions of
this
Section 17.9 are without prejudice to any other rights and remedies that
EchoStar and/or any of its Affiliates may have under contract (including without
limitation this Agreement), at law, in equity or otherwise (all of which are
hereby expressly reserved), and shall survive expiration or termination of
this
Agreement (for any reason or no reason whatsoever) indefinitely.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Page
19 of
28
17.10 Notices.
17.10.1 Notice
to EchoStar.
Except
as otherwise provided in Sections 15 and 17.20, all notices to be given to
EchoStar pursuant to this Agreement shall be in writing, signed by Retailer,
and
sent by: (i) first class certified mail, postage prepaid; or (ii) overnight
courier service, charges prepaid, to the following address(es) or such other
address(es) as EchoStar may designate to Retailer at any time and from time
to
time in accordance with Section 17.10.2:
If
by
first class certified mail:
To
EchoStar:
EchoStar
Satellite L.L.C.
Attn:
Director of Retail Services
X.X.
Xxx
0000
Xxxxxxxxx,
XX 00000
With
a
copy to: Xxxxx
X.
Xxxxxxxxx
Executive
Vice President, General Counsel and Secretary
EchoStar
Satellite L.L.C.
X.X.
Xxx
0000
Xxxxxxxxx,
XX 00000
If
by
overnight courier service:
To
EchoStar: EchoStar
Satellite L.L.C.
Attn:
Director of Retail Services
0000
Xxxxx Xxxxxxxx Xxxx.
Xxxxxxxxx,
XX 00000
With
a
copy
to:
Xxxxx
X.
Xxxxxxxxx
Executive
Vice President, General Counsel and Secretary
EchoStar
Satellite L.L.C.
(same
address)
The
receipt of such notice shall constitute the giving thereof.
17.10.2 Notice
to Retailer.
All
notices to be given to Retailer pursuant to this Agreement shall be in writing
and sent by: (i) first class certified mail, postage prepaid; (ii) overnight
courier service, charges prepaid; (iii) facsimile transmission, to Retailer
at
the address listed on the first page of this Agreement or the fax number listed
on the signature page of this Agreement, or such other address or other fax
number as Retailer may designate in writing delivered to EchoStar in accordance
with Section 17.10.1; or (iv) with the exception of notices given pursuant
to
Sections 10, 13 or 15, any method of mass communication reasonably directed
to
EchoStar’s retailer base, including, without limitation, facts blast, e-mail
posting on EchoStar’s retailer web site or broadcast on a “Retailer Chat”. The
sending of such notice with confirmation of successful receipt of the entire
transmission (in the case of facsimile transmission), receipt of such notice
(in
the case of first class certified mail or overnight courier service), sending
of
such notice (in the case of e-mail), posting (in the case of EchoStar’s retailer
web site) or broadcast (in the case of Retailer Chats) shall constitute the
giving thereof. It shall be Retailer’s sole responsibility to keep itself
informed of all notices, changes and other information set forth in any facts
blast, e-mail, “Retailer Chat” or posting on EchoStar’s retailer web
site.
17.10.3 The
provisions of this Section 17.10 shall survive expiration or termination of
this
Agreement (for any reason or no reason) indefinitely.
17.11 Attorney
Fees. In
the
event of any suit, action or arbitration between Retailer and/or any of its
Affiliates, on the one hand, and EchoStar and/or any of its Affiliates, on
the
other hand, including but not limited to any and all suits, actions or
arbitrations to enforce this Agreement, any Business Rules, any Promotional
Program or any provisions hereof or thereof, the prevailing party shall be
entitled to recover its costs, expenses and reasonable attorney fees, at
arbitration, at trial and on appeal, in addition to (and without limitation
of)
all other sums allowed by law. The provisions of this Section 17.11 shall
survive expiration or termination of this Agreement (for any reason or no
reason) indefinitely.
17.12 Offsets. In
no
event shall Retailer or any of its Affiliates offset any amounts due to EchoStar
or any of its Affiliates from Retailer or any of its Affiliates against any
amounts due to Retailer or any of its Affiliates from EchoStar or any of its
Affiliates. In the event that Retailer and/or any of its Affiliates are indebted
to EchoStar and/or any of its affiliates under Section 13 below or for any
other
reason (including without limitation for any Chargebacks permitted hereunder),
Retailer and its Affiliates hereby acknowledge and agree that EchoStar and
its
Affiliates shall have the right, but not the obligation, to offset any such
amounts against any amounts due to Retailer or any of its Affiliates from
EchoStar or any of its Affiliates, as well as any and all amounts for which
EchoStar and/or any of its Affiliates may become liable to third parties by
reason of Retailer's and/or any of its Affiliate’s acts in performing, or
failing to perform, Retailer's and/or any of its Affiliate’s obligations under
this Agreement or any Other Agreements. Further, EchoStar may, but shall have
no
obligation to, withhold such sums from any monies due or to become due to
Retailer hereunder as EchoStar, at any time and from time to time in its Sole
Discretion, deems necessary to protect EchoStar and/or any of its Affiliates
from any loss, damage, or expense arising out of or relating to Retailer's
actions, inaction or performance hereunder, or in response to any claim or
threatened claim of which EchoStar becomes aware concerning Retailer or the
performance of any of Retailer's duties hereunder. EchoStar's right to money
due
and to become due hereunder shall not be subject to any defense (except
payment), offset, counterclaim or recoupment of Retailer whatsoever, including,
but not limited to, any which might arise from a breach of this Agreement by
EchoStar or any of its Affiliates. ECHOSTAR'S CALCULATION OF OFFSET AMOUNTS
SHALL BE PRESUMED CONCLUSIVELY AND IRREBUTABLY CORRECT ABSENT A
TIMELY
NOTICE OF CLAIM BY RETAILER PURSUANT TO SECTION 15.
Within
thirty (30) days after expiration or termination of this Agreement for any
reason or no reason whatsoever, Retailer shall pay to EchoStar all amounts
owing
from Retailer and its Affiliates to EchoStar and its Affiliates. The provisions
of this Section 17.12 shall survive expiration or termination of this Agreement
(for any reason or no reason whatsoever) indefinitely.
Page
20 of
28
17.13 Modifications. Retailer
acknowledges that EchoStar competes in the multi-channel video distribution
market, which is highly competitive, fluid and volatile and that EchoStar must
make changes to its marketing, promotion and sales of products and services
from
time to time to stay competitive. Therefore, Retailer agrees that EchoStar
may,
at any time and from time to time in its Sole Discretion, change or modify
Promotional Programs and/or Business Rules, upon notice to Retailer, without
the
need for any further consent, written or otherwise, from Retailer. IF ANY SUCH
MODIFICATION OR CHANGE IS MATERIAL AND UNACCEPTABLE TO RETAILER, RETAILER’S ONLY
RECOURSE IS TO TERMINATE THIS AGREEMENT. RETAILER’S CONTINUED PERFORMANCE UNDER
THIS AGREEMENT FOLLOWING RECEIPT OF NOTICE OF A CHANGE OR MODIFICATION WILL
CONSTITUTE RETAILER’S BINDING ACCEPTANCE OF THE CHANGE OR MODIFICATION.
17.14 Interstate
Commerce.
The
parties acknowledge that the transactions contemplated by this Agreement involve
interstate commerce.
17.15 General
Provisions.
The
exhibit(s) hereto are hereby incorporated into this Agreement by reference
in
their entirety.
17.16 Power
and Authority.
Retailer
represents and warrants to EchoStar that it has full power and authority to
enter into this Agreement and perform its obligations hereunder and that its
execution and delivery of this Agreement (whether via signature or electronic
acceptance) and performance of its obligations hereunder does not and will
not
violate any Laws or result in a breach of, or default under, the terms and
conditions of any contract or agreement by which it is bound.
17.17 Consent
to Receive Faxes. Retailer
hereby acknowledges that this Agreement serves as Retailer’s express written
consent to receive facsimile transmittals from EchoStar and its Affiliates,
including without limitation facsimile transmittals which contain unsolicited
advertisements. For the avoidance of doubt, such permitted facsimile
transmittals from EchoStar or any of its Affiliates shall include, but not
be
limited to, information about the commercial availability or quality of
products, goods or services; notices of conferences and seminars; and new
product, programming or promotion announcements. This written consent shall
include (without limitation) all facsimile transmittals regulated by future
Federal Communications Commission action.
17.18 Waiver
of Evidence.
No
course
of dealing, course of performance, or usage of trade shall be considered in
the
interpretation or enforcement of this Agreement. Both parties waive any right
they may have to introduce evidence of any such course of dealing, course of
performance, or usage of trade.
17.19 Correction
of Spelling, Typographical or Clerical Errors.
Retailer
hereby grants to
EchoStar
a
limited
power of attorney to correct and/or execute or initial all spelling,
typographical and
clerical
errors discovered in this Agreement, the Trademark License Agreement,
any
Other
Agreement, and
any
amendments to any of the foregoing, including
without limitation, errors or inconsistencies in the spelling of Retailer’s
name, address, phone
number
or
fax
number
or the spelling of the name or title of the duly authorized representative
signing or electronically accepting each
such
agreement on Retailer’s behalf.
Page
21 of
28
17.20 Alteration
of Terms and Conditions.
Retailer
acknowledges and agrees that, because among other things EchoStar has thousands
of authorized retailers, it is in each party’s best interest to establish an
orderly process for Retailer to propose additions, deletions and/or
modifications to the terms and conditions set forth in this Agreement and for
EchoStar to receive such proposals prior to the parties entering into an
agreement. Therefore, Retailer further acknowledges and agrees that any
additions, deletions or modifications to the terms and conditions of this
Agreement proposed by Retailer must be sent to EchoStar solely and exclusively
via an e-mail message addressed to xxxxxxxxxxxxxxx@xxxxxxxx.xxx with the subject
line “Proposed Changes to EchoStar Retailer Agreement” (a “Proposal”) and that
such Proposals must be received by EchoStar prior to Retailer executing this
Agreement (whether via signature or electronic acceptance). RETAILER
ACKNOWLEDGES AND AGREES THAT: (I) ANY AND ALL PROPOSALS RECEIVED BY ECHOSTAR
AFTER RETAILER HAS EXECUTED THIS AGREEMENT SHALL BE OF NO FORCE OR EFFECT;
AND
(II) IN THE EVENT THAT RETAILER EXECUTES THIS AGREEMENT AFTER ECHOSTAR HAS
RECEIVED ONE OR MORE PROPOSALS, ALL SUCH PROPOSALS SHALL BE DEEMED TO HAVE
BEEN
WITHDRAWN BY SUCH EXECUTION AND SHALL BE OF NO FURTHER FORCE OR EFFECT.
Consequently, in the event that the following events occur in the following
order: (a) EchoStar receives a Proposal from Retailer; (b) Retailer executes
this Agreement; and (c) EchoStar executes this Agreement, then Retailer
acknowledges and agrees that the execution of this Agreement by Retailer
withdrew the Proposal and Retailer and EchoStar will therefore have a binding
agreement on the terms and conditions set forth herein, without any additions,
deletions or modifications thereto. Further, in the event that the following
events occur in the following order: (1) Retailer executes this Agreement;
(2)
EchoStar receives a Proposal from Retailer; and (3) EchoStar executes this
Agreement, then Retailer acknowledges and agrees that the Proposal shall be
of
no force or effect because it was submitted after Retailer executed this
Agreement and Retailer and EchoStar will therefore have a binding agreement
on
the terms and conditions set forth herein, without any additions, deletions
or
modifications thereto. Further, in the event that the following events occur
in
the following order: (A) EchoStar receives a Proposal from Retailer; (B)
Retailer executes this Agreement; (C) EchoStar receives a second Proposal from
Retailer; and (D) EchoStar executes this Agreement, then Retailer acknowledges
and agrees that the execution of this Agreement by Retailer withdrew the first
Proposal and the second Proposal shall be of no force or effect because it
was
submitted after Retailer executed this Agreement, and Retailer and EchoStar
will
therefore have a binding agreement on the terms and conditions set forth herein,
without any additions, deletions or modifications thereto. Retailer further
acknowledges and agrees that a Proposal may only be accepted by EchoStar in
a
writing signed by an Executive Vice President of EchoStar (or his or her
designee), which specifically acknowledges receipt of the applicable Proposal,
includes the portion(s) of the Proposal that EchoStar is willing to accept,
and
expressly states that EchoStar has agreed to accept such portion(s) of the
Proposal. Notwithstanding anything to the contrary set forth herein, EchoStar
is
under no obligation to receive, consider or accept any Proposals, and in the
event that a Proposal received by EchoStar is not accepted in the manner
provided in the immediately preceding sentence, then such Proposal shall
automatically be deemed to have been rejected by EchoStar. For the avoidance
of
doubt, EchoStar has the right to not receive, consider or accept any Proposal
and to reject any Proposal in its Sole Discretion.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Page
22 of
28
IN
WITNESS WHEREOF, the parties have caused this Agreement to be signed and/or
accepted electronically by their duly authorized representatives as of the
date
first written above.
| ECHOSTAR SATELLITE L.L.C. | |||
| By: | |||
|
Name:
Title:
|
|||
RETAILER
Retailer
Company Name:
Fax
Number:
(for
notice to Retailer pursuant to Section 17.10.2)
| By: | |||
|
(signature)
|
|||
|
Name
(please
print):
|
|||
|
Title
(please print):
|
[SIGNATURE
PAGE OF DISTRIBUTOR RETAILER AGREEMENT]
Page
23 of
28
EXHIBIT
A
TRADEMARK
LICENSE AGREEMENT
THIS
TRADEMARK LICENSE AGREEMENT (the "Agreement") is made and effective as of the
___________________, by and between EchoStar Satellite L.L.C., formerly known
as
EchoStar Satellite Corporation (“ESLLC”), having a place of business at 0000 X.
Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxx 00000, and _________ having a place of
business at ____________________________
("Licensee").
A. ESLLC
conducts business in worldwide locations as, among other things, a provider
of
direct broadcast satellite-delivered, multi-channel, digital video, audio,
data,
interactive and other programming services ("Programming"); and
B. Licensee
conducts business as, among other things, a retailer of satellite television
products and services; and
C. Licensee
desires to be permitted to use such EchoStar trademarks, service marks and
trade
names set forth in Exhibit 1 hereto, which may be amended at any time and from
time to time in ESLLC’s sole and absolute discretion for any reason or no reason
(the "Trademarks"), as ESLLC, in its sole and absolute discretion for any reason
or no reason, may authorize, from time to time, under a non-exclusive license,
to promote and solicit orders for DISH Network Programming.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. ESLLC
hereby grants to Licensee a non-exclusive, non-transferable, revocable license
(the "License") to use the Trademarks and such other trademarks as ESLLC may
from time to time expressly in writing permit Licensee to use during the term
of
this Agreement, and no other term or license whatsoever, solely to promote
the
retail sale of ESLLC satellite television programming and the hardware necessary
to receive such programming in its local advertising and promotional materials
and at its business locations. Licensee expressly recognizes and agrees that
Licensee shall not, in whole or in part, modify, alter, supplement, delete
or
otherwise change the Trademarks (whether in typewritten, stylized or any other
form) as provided to Licensee by ESLLC. Licensee shall have no right to use
the
logos, service marks or trademarks (whether in typewritten, stylized or any
other form) of any programming providers, other than the logos, service marks
and trademarks of programming providers that are contained in the advertising
and promotional material provided to Licensee by ESLLC. No such materials shall
indicate that any agreement of agency, partnership, joint venture, franchise
or
exclusive or non-exclusive distributorship exists between Licensee and ESLLC,
unless ESLLC and Licensee enter into a separate written agreement permitting
Licensee to do so. Notwithstanding the above, Licensee shall provide to ESLLC,
at least thirty (30) days prior to first use, an example of any advertising
or
promotional materials in which Licensee intends to use any Trademarks or any
such other trademarks (whether in typewritten, stylized or any other form),
which use has not, within the past twelve months, been approved by ESLLC in
exactly the manner intended for use. ESLLC may reject and prohibit Licensee
from
using such materials, in its sole and absolute discretion for any reason or
no
reason. If Licensee is required to, but fails to provide ESLLC with proposed
advertising or promotional materials at least thirty (30) days prior to first
use, ESLLC shall have just cause to immediately terminate this Agreement by
providing written notice to Licensee to that effect. This Agreement is not
intended, nor shall it be construed, as creating any agreement of agency,
partnership, joint venture, franchise or of exclusive or non-exclusive
distributor, or as creating any obligation on the part of ESLLC to enter into
any such agreement with Licensee. Further, this Agreement is not intended,
nor
shall it be construed, as providing any rights to Licensee to purchase or sell
products or programming manufactured and/or distributed by ESLLC. Licensee
expressly recognizes and agrees that any goodwill now existing or hereafter
created through any sales by Licensee of products or programming manufactured
and/or distributed by ESLLC, shall inure to ESLLC's sole benefit. This License
shall be effective until terminated by either party in accordance with the
terms
and conditions of this Agreement, or until expiration or termination of the
Distributor Retailer Agreement to which this Agreement is attached for any
reason or no reason whatsoever.
2. The
License granted by ESLLC is granted to Licensee only. Licensee has no authority
to transfer or grant any sublicense to any other entity or individual for any
reason, and if Licensee does so, such action shall terminate this Agreement,
at
ESLLC's option, at any time thereafter. Licensee shall immediately cease using
Trademarks in typewritten, stylized or any other form upon expiration or
termination of this Agreement for any reason or no reason whatsoever. Upon
expiration or termination of this Agreement for any reason or no reason
whatsoever, at ESLLC's option Licensee shall immediately destroy or deliver
to
ESLLC any and all advertising and promotional materials in Licensee's possession
with Trademarks (whether in typewritten, stylized or any other form) on them.
If
ESLLC requests destruction of advertising and promotional materials, Licensee
shall promptly execute an affidavit representing at a minimum that such
materials were destroyed, and the date and means of destruction.
3. Licensee
expressly recognizes and acknowledges that this License, as well as any past
use
of the Trademarks in any manner whatsoever by Licensee (including but not
limited to use on signs, on business cards, or in advertisements) or in any
form
whatsoever by Licensee (including but not limited to typewritten or stylized
form), shall not confer upon Licensee any proprietary rights or interest in
or
to any Trademarks including, but not limited to any existing or future goodwill
in the Trademarks. All goodwill in the Trademarks shall inure to ESLLC's sole
benefit. Further, Licensee waives any and all past, present, or future claims
it
has or might have in or to the Trademarks (whether in typewritten, stylized
or
any other form) and acknowledges that as between ESLLC and Licensee, ESLLC
has
the exclusive rights to own and use the Trademarks (whether in typewritten,
stylized or any other form), and that ESLLC retains full ownership of the
Trademarks (whether in typewritten, stylized or any other form) notwithstanding
the License granted herein. While Licensee has no right or authority to do
so,
in the event that Licensee has previously, or in the future reserves, files,
or
registers any of the Trademarks of ESLLC (whether in typewritten, stylized
or
any other form) or registers any domain name which includes all or any portion
of the Trademarks of ESLLC, Licensee agrees to notify ESLLC immediately, and
immediately upon request of ESLLC, to assign any and all interest to ESLLC
that
is obtained through the reservation, filing, or registration of the Trademarks
in the U.S. or any foreign jurisdiction or through the registration of any
domain name, and hereby acknowledges and agrees that any such reservation,
filing, or registration of the Trademarks or domain name which includes all
or
any portion of the Trademarks, whenever occurring, shall be on behalf of and
for
the sole benefit of ESLLC, and Licensee waives all claims or rights to any
compensation whatsoever therefor. Licensee's obligations in this paragraph
shall
survive the expiration or termination (for any reason or no reason whatsoever)
of this Agreement indefinitely.
Page
24 of
28
4. Furthermore,
Licensee agrees not to hold itself out as DISH Network, ESLLC or any related
or
affiliated entity. To avoid any confusion in this respect, Licensee agrees
not
to use either: (i) the formative “DISH” in combination with the formative “NET”,
or (ii) the formative “ECHO”, as part of its business name. Furthermore,
Licensee agrees not to register any domain name which contains either (a) the
formative “DISH”, in combination with the formative “NET”, (b) the formative
“ECHO”, or (c) a misspelling of DISH Network (e.g., xxx.xxxxxxxxxxx.xxx) or any
other ESLLC xxxx, and Licensee further agrees to immediately transfer to ESLLC,
upon ESLLC’s request, any such domain names which it has registered. Licensee’s
failure to comply with the provisions of this Section 4 shall constitute a
material breach of this Agreement. Upon request, Licensee shall provide ESLLC
with a list of all domain names License uses to market, promote or solicit
orders for DISH Network Programming.
5. Nothing
in this Agreement shall be construed to bar ESLLC from protecting its right
to
the exclusive use of the Trademarks (whether in typewritten, stylized or any
other form) against infringement thereof by any party or parties, including
without limitation Licensee, either during the term of this Agreement or
following any expiration or termination of Licensee's right to use the
Trademarks pursuant to this Agreement for any reason or no reason whatsoever.
Licensee will promptly and fully advise ESLLC of any use of any xxxx that may
appear to infringe the Trademarks (whether in typewritten, stylized or any
other
form). Licensee will also fully cooperate with ESLLC in the defense and
protection of the Trademarks (whether in typewritten, stylized or any other
form), at ESLLC's expense. Similarly, nothing in this Agreement shall be
construed to require that ESLLC take any action to protect the Trademarks in
any
instance, and ESLLC shall not be liable to Licensee in any manner whatsoever
for
failure to take any such action.
6.
(a) This
Agreement shall continue for a period of time equal to the term of the
Distributor Retailer Agreement to which this Agreement is attached, unless
terminated earlier for a reason provided herein. In addition to (and without
limitation of) any provisions of this Agreement that expressly survive
termination or expiration of this Agreement, any provision of this Agreement
which logically would be expected to survive termination for any reason or
no
reason whatsoever or expiration, shall survive for a reasonable time period
under the circumstances, whether or not specifically provided in this
Agreement.
(b) This
Agreement may be terminated by a party (the "Affected Party") in the event
that
the other party (the "Other Party") defaults on any obligation or breaches
any
representation, warranty or covenant in this Agreement (regardless of whether
breach or default of such obligation, representation, warranty or covenant
is
designated as giving rise to a termination right), and such default or breach,
if curable, is not cured within twenty (20) days of receipt of written notice
from the Affected Party. The parties agree that all obligations,
representations, warranties and covenants contained in this Agreement, whether
or not specifically designated as such, are material to the agreement of the
parties to enter into and continue this Agreement.
(c) This
Agreement shall terminate automatically upon the expiration or termination
of
the Distributor Retailer Agreement to which this Agreement is attached for
any
reason or no reason whatsoever and upon termination of any Other Agreement
(as
defined in Section 1.13 of the Distributor Retailer Agreement to which this
Agreement is attached) for any reason or no reason whatsoever, unless ESLLC
notifies Licensee to the contrary in writing.
7. The
relationship between the parties including without limitation all disputes,
controversies and claims, whether arising under contract, in tort, under statute
or otherwise, shall be governed by and construed in accordance with the laws
of
the State of Colorado without giving any effect to its conflict of law
provisions. Licensee and ESLLC acknowledge and agree that they and their counsel
have reviewed, or have been given a reasonable opportunity to review, this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments of Exhibits
hereto.
8. Any
and
all disputes, controversies or claims arising out of, or in connection with,
the
interpretation, performance or nonperformance of this Agreement and any and
all
disputes, controversies or claims arising out of, or in connection with,
transactions in any way related to this Agreement and/or the relationship for
any reason whatsoever between the parties (including but not limited to the
termination of this Agreement or the relationship and Licensee's rights
thereunder or disputes under rights granted pursuant to statutes or common
law,
including without limitation those in the state in which Licensee is located)
shall be litigated solely and exclusively before the United States District
Court for the District of Colorado. The parties consent to the in
personam
jurisdiction of said court for the purposes of any such litigation, and waive,
fully and completely, any right to dismiss and/or transfer any action pursuant
to 28 U.S.C.S. 1404 or 1406 (or any successor statute). In the event the United
States District Court for the District of Colorado does not have subject matter
jurisdiction of said matter, then such matter shall be litigated solely and
exclusively before the appropriate state court of competent jurisdiction located
in Arapahoe County, State of Colorado.
Page
25 of
28
9. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
IN
WITNESS WHEREOF, the parties hereto have signed and/or electronically accepted,
this Agreement by their duly authorized representatives as of the date first
written above.
ECHOSTAR
SATELLITE L.L.C.
| By: | ||
|
Name:
Title:
|
|
|
LICENSEE
Retailer
Company Name:
(please
print)
Street
Address:
(please
print)
City,
State, Zip Code:
(please
print)
| By: | ||
|
Name
(please print):
Title
(please print):
|
||
[SIGNATURE
PAGE OF TRADEMARK LICENSE AGREEMENT]
Page
26 of
28
EXHIBIT
1 TO TRADEMARK LICENSE AGREEMENT
®
®Page
27 of
28
TMPage
28 of
28
