Exhibit 10.1
MASTER PROGRAMMING SERVICES AGREEMENT
This Master Programming Services Agreement ("MPSA") is entered into as of
the Effective Date set forth below by and between EchoStar Satellite Corporation
("ESC") and the Operator identified below. The terms and conditions of this MPSA
shall apply to any Addendum or amendment entered into between ESC and Operator
for programming services, including, but not limited to the following:
Addendum A Analog Programming Services Agreement
Addendum B Digital Programming Services Agreement
Addendum C Reserved
Addendum D Ancillary Services Agreement
"Effective Date:" ______________ _________, __________ (To be completed upon
execution)
(Month) (Day) (Year)
"ESC:" EchoStar Satellite Corporation, a Colorado corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sales: (▇▇▇) ▇▇▇-▇▇▇▇
Customer Service: (▇▇▇) ▇▇▇-▇▇▇▇
Send notices to attention of Vice President, Commercial Sales.
"Operator:" ________________________________________________________ [legal name
of entity],
a _________________________________________________________
[state of formation & type of entity]
[such as "California corporation," "Arizona limited partnership,"
"Texas partnership," or "sole proprietorship"]
d/b/a ___________________________________________________ [name
under which business is operated]
Mailing address for invoices & notices:
________________________________________________
________________________________________________________________________________
Address for courier delivery: [ ]same [ ]
other:________________________________________
________________________________________________________________________________
Fax: (__________)______________________ Telephone:
(___________)___________________
Send notices to attention of
__________________________________________________________
"Deposit:" _______________________________
In witness whereof, the Parties have caused this MPSA to be executed
as of the Effective Date.
ECHOSTAR SATELLITE CORPORATION
OPERATOR
By:___________________________________________
By:____________________________________________
(authorized signature)
(authorized signature)
Printed Name:__________________________________
Printed Name:___________________________________
Title:_________________________________________
Title:___________________________________________
Master Programming
Services Agreement
EchoStar Proprietary and
Confidential
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Initial: ESC______ Operator______
TERMS AND CONDITIONS
1. DEFINITIONS. In addition to the definitions set forth in an applicable
Addendum, the
following terms are defined as set forth below:
"Addendum" means an Addendum entered into by and between ESC and Operator
and incorporated herein by reference such as an Addendum to purchase analog
(Addendum 1) or Digital (Addendum 2) services.
"Affiliate" means a company or entity controlling, controlled by,
or under common control with another company or entity.
"Commercial Establishment" means a commercial facility that is not an "MDU"
(defined below), including, but not limited to: (i) public viewing areas of
hospitality facilities (such as bars, restaurants, clubs, casinos, and lounges)
and business units (such as health clubs, shopping malls, showrooms, retail
stores, museums, libraries, ▇▇▇▇▇▇ shops, salons, and arcades); and (ii) private
offices and buildings of attorneys, doctors, dentists and other businesses.
"Commercial System" means a SMATV, MMDS or 18 GHz multi-channel
audio/video/interactive services distribution system owned or managed by
Operator serving a Commercial Establishment.
"ESC Programming" means any video, audio or interactive programming
services delivered to Operator pursuant to this MPSA.
"Force Majeure" means any labor dispute, fire, flood, earthquake, riot,
legal enactment, governmental regulation, Act of God, equipment failure, cable
cut, any problem associated with the construction, use or operation of
satellite(s), transponder(s) or related systems such as uplink facilities or
equipment, interference from other communications systems, degradation or
interruption of protection systems, the failure of a Programmer to make its
programming available, any problem associated with any scrambling/descrambling
equipment or any other equipment owned or maintained by ESC or others, action or
order of any judicial, legislative, governmental or quasi-governmental
authority, or any cause beyond a Party's reasonable control.
"MDU" means a multi-unit residential community or other place of
accommodation, including but not limited to planned unit developments,
condominium and apartment buildings or complexes, duplexes, fourplexes, hotels,
motels, inns, dormitories, hospitals, nursing homes, prisons, truckstops,
marinas, RV parks and ships in U.S. waters.
"MDU System" means a SMATV, MMDS or 18 GHz multi-channel
audio/video/interactive services distribution system owned or managed by
Operator, which serves an MDU.
"MMDS" means multi channel multi point distribution systems.
"MPSA" means this Master Programming Services Agreement and any Addendum(a)
and the Schedules thereto, or amendment entered into by ESC and Operator.
"Operating Area" of a System means that geographic area within the Territory
where Operator is authorized by governmental authority to appropriate operate an
audio/video/interactive services system and is, in fact, distribution operating
an audio/video/interactive services distribution system (or, if a government
franchise or license is not required for the distribution of television services
in a particular geographic area in the Territory, then the Operating Area of a
System means that geographic area where the System is legally operating
regardless of the presence or absence of a franchise or license).
"Parties" shall mean EchoStar Satellite Corporation and Operator.
"Programming Service Rates" means those rates charged to Operator for
ESC
Programming.
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"Public Viewing Areas" means the public viewing areas of the
hospitality facilities and
business units described in the definition of Commercial Establishment, the
lobbies, reception
areas and waiting areas of private professional offices and buildings, and the
community viewing
areas of MDUs.
"SFH System" means a SMATV, MMDS or 18 GHz multi-channel
audio/video/interactive services distribution system owned or managed by
Operator, which serves
single family residential homes ("SFHs").
"SMATV" means satellite master antenna systems.
"Subscriber" means, for purposes of this MPSA only, each of the
following: (i) for an SFH System, each residential household that receives
any video programming service from Operator, (ii) for an MDU System, each
individual dwelling unit that receives any video programming service from
Operator, (iii) for a Commercial System, each television and other viewing unit
in each Commercial Establishment, and (iv) for a Public Viewing Area that
receives ESC Programming and is located within an MDU System or Commercial
System, the maximum number of occupants as defined by the fire marshal's, or
other regulatory authority's, occupancy limits. In addition, each of the
following will be deemed to be a Subscriber: (a) each guest room, as well as
each television and other viewing unit located outside a guest room, in a hotel,
motel, inn, ship in U.S. waters or similar place of accommodation serviced by an
MDU System, (b) each patient/resident room, as well as each additional
television and other viewing unit, in a hospital or nursing home serviced by an
MDU System, and (c) each television and other viewing unit in a prison or
truckstop serviced by an MDU System. In any event, the term Subscriber will not
include any connection not authorized pursuant to this MPSA.
"System" means a Commercial System, an MDU System or an SFH System
(i) that is located in the Territory, (ii) which receives and distributes
ESC Programming to its Subscribers via a set of closed transmission paths, and
(iii) for which Operator has fully completed, executed and submitted to ESC, and
ESC has approved in its sole discretion, the appropriate property profile
("Profile"). "Term" means the duration of any Addendum(a) or any other agreement
subject to this MPSA, unless separately defined in such Addendum or other
agreement. "Territory" means the United States, its commonwealths, territories
and possessions.
2. ESC SERVICES. ESC agrees to offer those services, equipment and ESC
Programming as set forth in an applicable Addendum, all of which shall be
subject to the terms and conditions of this MPSA, and such Addendum(a) are
incorporated by reference as if fully set forth herein. ESC may also offer
certain additional services including equipment, support in marketing and
distributing ESC Programming, or billing, financial, subscriber, technical and
related services, all as determined by ESC and as agreed upon pursuant to a
separate agreement ("Ancillary Services"). Operator will cooperate in ESC's
performance of requested Ancillary Services, including providing ESC with timely
access to Operator's facilities, data, information and personnel. Operator will
be responsible for payment to ESC for such Ancillary Services and for the
performance of its employees and agents and for the accuracy and completeness of
all data and information provided to ESC. All Ancillary Services are subject to
this MPSA.
3. COMPLIANCE WITH LEGAL REQUIREMENTS. Operator covenants and agrees that
throughout the Term and at its expense: (a) it will comply with any and all
local, state or federal laws, rules, regulations, licensing requirements,
franchises or valid orders of an administrative agency or court of competent
jurisdiction ("Legal Requirements") applicable to Operator, its business and its
employees and agents in connection with the performance of its obligations under
this MPSA; and (b) it will obtain and maintain all permits, licenses,
permissions, rights (including rights of entry with the property owner to
install and maintain Systems) which may be required under any applicable Legal
Requirements or otherwise for the performance of its obligations pursuant to
this MPSA; (c) Operator will file and pay all required
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federal, state or local sales, use, excise, property or other taxes as specified
in an applicable Addendum(a) or otherwise required; (d) Operator will comply at
all times with the terms and conditions of this MPSA and any Addendum including
without limitation the Business Rules attached thereto. Failure to adhere to any
Business Rules may result in disciplinary action up to and including termination
and any other remedy provided in this MPSA.
4. REPRESENTATIONS AND WARRANTIES.
(a) Operator represents and warrants that its execution of this MPSA and
the performance of its obligations under this MPSA has been properly authorized
by all necessary corporate, partnership or other action, and does not and will
not violate any Legal Requirements applicable to it or result in a breach of or
default under any other agreement binding upon such Party. Operator represents
and warrants that it is current as of the Effective Date in all payments and
financial or other obligations due and owed to any Programmer whose programming
it will carry under this MPSA.
(b) Operator represents that (i) it is a valid and existing entity in
compliance with all laws and regulations related to maintenance of its corporate
or other business status; (ii) it is not currently insolvent; (iii) it is not
violating any federal, state or local law or regulation; (iv) it has never
engaged in any of the acts prohibited under this MPSA; (v) it is not dependent
upon ESC or its Affiliates for a major part of Operator's business and that
Operator could sell other products or services that compete with Echostar
products or services.
5. NOTICES. All notices and communications given hereunder will be in
writing, will be properly addressed and will be deemed given only as follows or
in such other manner as may be mutually agreed upon by the Parties in writing:
(i) if personally delivered, upon receipt or refusal of delivery, or (ii) if
mailed by certified mail, return receipt requested, or registered mail, upon
receipt or refusal of delivery, or (iii) if sent by facsimile, upon independent
electronic acknowledgement of receipt, or (iv) if sent by reputable overnight
delivery service, on the next business day following delivery to such service.
Until notice to the contrary is given in accordance with this Section, the
Parties' notice information is as listed on the first page of this MPSA.
6. EQUIPMENT PURCHASES.
(a) Purchase Orders. In the event that Operator desires to purchase any
Commercial Systems, MDU Systems or other equipment from ESC, or any Affiliate of
ESC, Operator shall order such products by written Equipment Order Form in the
form attached to the applicable Addendum. An Equipment Order Form shall be a
binding commitment by Operator. Any failure to confirm an Equipment Order Form
shall not be deemed acceptance by ESC. Order Forms of Operator shall state only
the: (i) identity of goods; (ii) quantity of goods; (iii) purchase price of
goods; and (iv) requested ship date of goods. Any additional terms stated in an
Equipment Order Form shall not be binding upon ESC unless expressly agreed to in
writing by ESC. In no event shall ESC be liable for any delay, or failure to
fulfill, any Equipment Order Form (or any portion thereof), regardless of the
cause of such delay or failure. In the event of any conflict between the terms
of an Equipment Order Form and the terms of this Addendum, the terms of this
Addendum shall prevail. Operator agrees that ESC has no obligation to
re-purchase MDU Systems or equipment back from Operator at any time for any
reason.
(b) Use Within Territory. Operator agrees that it shall only use ESC
equipment in the Territory. Operator represents and warrants that it will not
directly or indirectly arrange for or participate in the export or sale of ESC
equipment or MDU Systems, in whole or in part, outside of the Territory, and
agrees to take all reasonable and adequate steps to prevent the export or sale
of such equipment or MDU Systems outside of the Territory.
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7. BREACH; TERMINATION, AND BANKRUPTCY. (a) Either Party may terminate this
MPSA, or an Addendum that is subject to this MPSA: (i) effective upon thirty
(30) days written notice to the other Party following a material non- monetary
breach of such Addendum, by the other Party, if the breach remains uncured at
the end of such thirty (30) days. For a monetary breach, such time period shall
be ten (10) days, provided, however, that if Operator fails to make full and
timely payment in accordance with the terms of any applicable Addendum on 2 or
more occasions in any 12 month period, then Operator will not be entitled to any
prior notice or opportunity to cure in connection with any further payment
failures for 12 consecutive months thereafter and ESC may take any action
permitted under this MPSA with or without further notice to Operator; (ii)
effective immediately upon the filing of a petition in bankruptcy or for
reorganization by or against the other Party for the benefit of its creditors,
or the appointment of a receiver, trustee, liquidator or custodian for all or a
substantial part of the other Party's property, if such order of appointment is
not vacated within 30 days; or (iii) effective immediately upon the assignment
by the other Party of an Addendum subject to this MPSA contrary to its
provisions. Upon termination, the terminating party may suspend performance
under the terminated Addendum. If Operator fails to cure a material breach of
this MPSA or an Addendum within the time periods set forth above, then in
addition to terminating the Addendum that is the subject of the breach, ESC may
terminate any other Addendum(a) between ESC and Operator or ESC may terminate
this MPSA in its sole discretion. Further, ESC shall have the right, in it sole
discretion, to terminate the specific System(s) which is or are the subject of
the breach without terminating the subject Addendum and in such event the
subject Addendum shall remain in full force and effect and ESC may pursue its
legal remedies with regard to the System(s) which is or are the subject of the
breach. Additionally, if Operator ceases to provide ESC Programming to
Subscribers in breach of an applicable Addendum, and fails to cure such breach
within thirty (30) days after receiving written notice from ESC, ESC shall have
the right, but not the obligation, to provide ESC Programming directly to such
Subscribers and Operator agrees to assign all necessary rights and
authorizations to provide such Programming to ESC, to the extent such rights are
assignable by Operator. Termination under the foregoing provisions will not
limit or abridge any other rights or remedies that either Party may have as a
result of the other Party's breach. Termination of this MPSA shall constitute
termination of all Addendum (a) subject to this MPSA.
(b) ESC may terminate this MPSA or an Addendum upon thirty (30) days
written notice to Operator due to any legislation, regulation or court order
that (i) materially alters the terms and conditions governing Operator's
delivery of Programming to Subscribers; (ii) in ESC's judgment, materially and
adversely affects ESC; or (iii) characterizes and regulates ESC's delivery of
ESC Programming signals as common carriage in a way that supersedes or
materially alters this MPSA.
(c) In the event the Operator files for protection from its creditors
pursuant to Title 11 of the United States Bankruptcy Code (or in the event an
involuntary action is filed against Operator) or any other similar federal or
state law providing for protection from creditors (a "Proceeding"), then the
Operator unconditionally and irrevocably agrees that ESC shall immediately be
entitled to relief from the automatic stay to take such action(s) as may be
appropriate and otherwise exercise its rights and remedies without any delay
whatsoever and further, that the Operator unconditionally waives and releases
any rights or remedies (including any rights under Sections 105 and 362 of the
Bankruptcy Code) to otherwise delay or impede ESC in its efforts to enforce the
terms and provisions of this MPSA; and any bankruptcy or similar Proceeding in
which the Operator rejects or otherwise fails to honor the foregoing MPSA shall
per se be deemed to have been commenced in bad faith so as to frustrate the
exercise of ESC's rights and remedies. Operator agrees and covenants that it
shall file such papers as may be necessary to either assume, assume and assign
or reject this MPSA within thirty (30) business days from the filing date or
initiation of a Proceeding. Notwithstanding the foregoing, in the event a
Proceeding is filed, the
Master Programming Services Agreement
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Operator agrees and covenants that all sums due and owing by the Operator from
the filing date forward shall be paid promptly, that the Operator will use its
best efforts to have ESC paid for all outstanding sums (i.e., critical vendor
motion and similar actions) and the Operator will otherwise comply with all
obligations hereunder. Operator additionally agrees that within thirty (30) days
from the filing date or initiation of a Proceeding, all equipment provided by
ESC to Operator for Operator's use shall be returned to ESC within ten (10) days
of ESC's request. In the event of the filing of a Proceeding, Operator agrees to
provide ESC with a payment of no less than two month's Programming fees as
further security and adequate assurance of its ability to satisfy its future
financial and other obligations under this MPSA.
(d) ESC and Operator agree that if this MPSA or an Addendum terminates for
any reason: (i) Operator shall immediately discontinue the sale, marketing,
promotion, and solicitation of ESC Programming, and immediately cease to
represent and/or imply to any person or entity that Operator is an authorized
provider of ESC Programming; (ii) Operator shall immediately discontinue all use
of the trademarks associated or included in any way whatsoever with the
Programming, including, without limitation, DISH; (iii) Operator shall deliver
to ESC, or destroy, at ESC's option, all tangible things of every kind
(excluding DISH DBS Systems) in Operator's possession or control that bear any
of the trademarks; (iv) Operator shall upon request by ESC, certify in writing
to ESC that such delivery or destruction has taken place; and (v) Operator shall
pay all sums due ESC under this MPSA or an Addendum within thirty (30) days of
the date of termination.
8. INDEMNIFICATION. Operator will indemnify and hold harmless ESC, its
Affiliates, the officers, directors, shareholders, agents and employees of each
of them, and the successors and assigns of all of those, from liability,
damages, costs, claims, demands, actions, suits and losses, including attorneys'
fees, arising directly or indirectly out of: (a) any breach by Operator of this
MPSA or any Addendum, or of any representations, covenants or warranties made in
this MPSA or any Addendum, (b) any claim by a Subscriber, Programmer, property
owner, property manager or other third party in any way related to services
provided by Operator including without limitation claims related to installation
of equipment or cabling, or the quality or selection of Programming, (c) any
act, error or omission of Operator in connection with the provision of ESC
Programming to Subscribers, (d) Operator's failure to comply with Legal
Requirements, or (e) Operator's failure to make all payments or arrangements
related directly or indirectly to the ESC Programming and Operator's use and
delivery of it, including but not limited to matters involving libel, slander,
invasion of privacy or the infringement of marks or common law or statutory
copyright. ESC shall have the right to the exclusive conduct of all
negotiations, litigation, settlements and other proceedings arising from any
such claim and Operator shall, at its own cost and expense, render all
assistance requested by ESC in connection with any such negotiation, litigation,
settlement or other proceeding.
9. CONFIDENTIALITY; PRESS RELEASES. Operator will not disclose (whether
orally or in writing, by press release or otherwise) to any third party any
information with respect to the provisions of this MPSA, any information
contained in any data or report required or delivered hereunder, or any
materials related thereto, except: (a) to its officers, directors, employees,
auditors and attorneys who have a need to know such information (collectively,
"Necessary Personnel"), in their capacity as such, but such Necessary Personnel
must agree to abide by the provisions of this Section and Operator will be
responsible for any breach of the provisions of this Section by such Necessary
Personnel; (b) to the extent necessary to comply with Legal Requirements; (c) to
comply with its obligations under this MPSA (including, without limitation,
those obligations set forth in Section 6(m) above); or (d) as agreed by ESC in
writing. This Section will survive, indefinitely, the expiration, termination or
assignment of this MPSA.
10. RELATIONSHIP OF THE PARTIES. This MPSA is a commercial contract between
Operator and ESC and the relationship of the parties hereto is that of
independent contractor. The
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EchoStar Proprietary and Confidential
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provisions of this Agreement are for the exclusive benefit of the parties
hereto, ESC's Affiliates and their heirs, legal representatives, successors and
permitted assigns, and nothing in this MPSA, 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 ESC) any rights, benefits, duties,
obligations, remedies or interests of any nature or kind whatsoever under or by
reason of this Agreement. Nothing in this MPSA will be deemed to make the
Parties partners or joint venturers or in any way imply any duties by one Party
to the other except as expressly provided in this MPSA and neither Party will by
virtue of anything in this MPSA be liable for the obligations of the other Party
whether hereunder or to any third party. This MPSA binds the Parties and their
permitted successors and assigns. No Subscriber or other person will be entitled
to rely on this MPSA.
11. TRADEMARKS. Operator acknowledges that the names, marks, trademarks and
logos of ESC, the DISH Network, EchoStar Communications Corporation and its
Affiliates, the Programmers, the titles of programs contained in the ESC
Programming, and any variations incorporating them ("Marks"), are the exclusive
property of their respective owners, and Operator has no and will acquire no
proprietary rights to the Marks by reason of this MPSA. Operator has and will
have no rights to use the Marks except at the times and in a manner expressly
communicated to Operator by ESC and the owner of a particular ▇▇▇▇. Operator
will not publish or disseminate any material that violates this paragraph or any
restrictions imposed by ESC, the owner of a particular ▇▇▇▇ or a Programmer.
Operator will keep copies of all original promotional and advertising materials
relating to its marketing and distribution of the ESC Programming for at least 6
months after each piece's first distribution, and will promptly make them
available to ESC upon request.
12. ARBITRATION. (a) Except as set forth in Section 12(b), below, any and
all disputes, controversies or claims between Operator and/or any of its
Affiliates, on the one hand, and ESC and/or any of its Affiliates, on the other
hand, arising out of or in connection with this MPSA, shall be resolved solely
and exclusively by binding 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. In the
event of any conflict between the Federal Arbitration Act and the Commercial
Arbitration Rules of the American Arbitration Association, the Federal
Arbitration Act will control. The Arbitration must be initiated by written
notice from the initiating party to the other party 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 30 days of sending the Notice of
Arbitration; (ii) one arbitrator shall be selected by the respondent(s) within
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 30 days of their
appointment. The decision of the arbitrators shall be final and binding on the
parties and any award of the arbitrators 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 arbitrators' 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. The cost of any arbitration hereunder, including without
limitation the cost of the record or transcripts thereof, if any, administrative
fees, and all other fees involved, shall be paid by the party(ies) determined by
the arbitrators to not be the prevailing party(ies), or otherwise allocated in
an equitable manner as determined by the arbitrators.
(b) Notwithstanding the foregoing, the request by either party for
preliminary or permanent injunctive relief, whether prohibitive or mandatory,
shall not be subject to arbitration and may be adjudicated solely and
exclusively in the United States District Court for the District
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of Colorado or in the appropriate state court of competent jurisdiction located
in Arapahoe County, Colorado.
13. CHOICE OF LAW; CONSENT TO 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, or
under statute, 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 a lawsuit is
brought for injunctive relief pursuant to sections 12(b) above, 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 all Colorado State Courts for the
purposes set forth in this Section 11 and waive, fully and completely, any right
to dismiss and/or transfer any action pursuant to Title 28 U.S.C. Sections 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
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.
14. ENTIRE AGREEMENT; MODIFICATION. This MPSA, together with all Addenda,
exhibits and schedules thereto, constitute the entire agreement between the
Parties, and supersedes all previous understandings, commitments or
representations concerning the subject matter of this MPSA. All such previous
understandings, commitments or representations concerning the subject matter of
this MPSA are set forth herein. Each Party acknowledges that the other has not
made any representations other than those contained in this MPSA. In the event
that this MPSA is inconsistent with an Addendum(a), or other agreement subject
to this MPSA, this MPSA shall control. Except as provided in this MPSA, this
MPSA may not be amended or modified, and none of its provisions may be waived,
except by a writing signed by an authorized officer of the Party against whom
the amendment, modification or waiver is sought to be enforced. If any portion
of this MPSA is held to be unenforceable, then the remainder of the MPSA will
survive and will be construed as well as possible to reflect the intent of the
Parties.
15. FORCE MAJEURE. ESC shall be excused from performance, and shall not
have any liability to Operator or any other person or entity, with respect to
any failure of ESC to perform its obligations under the provisions of this MPSA
if such failure is due to a Force Majeure event.
16. DISCLAIMER OF WARRANTIES. OPERATOR UNDERSTANDS AND AGREES THAT, EXCEPT
AS SPECIFICALLY STATED IN THIS MPSA, ESC WILL HAVE NO RESPONSIBILITY WHATSOEVER
FOR ANY SYSTEM, INCLUDING THE EQUIPMENT COMPONENTS CONTAINED THEREIN OR ANY
EQUIPMENT PROVIDED BY ESC. ESC HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND
IMPLIED, IN CONNECTION WITH ANY SYSTEM, INCLUDING THE EQUIPMENT COMPONENTS
CONTAINED THEREIN AND ANY EQUIPMENT PROVIDED BY ESC, AND THE INSTALLATION AND
FUNCTIONING OF SUCH SYSTEM, INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTIES
UNDER THE UNIFORM COMMERCIAL CODE, (2) ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON- INFRINGEMENT, AND (3)
ANY WARRANTIES OTHERWISE IMPLIED AT LAW OR IN EQUITY.
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17. INSURANCE
Operator shall, at its sole cost and expense, procure and maintain
throughout the Term of this MPSA the following insurance coverages:
(a) Workers' Compensation or similar employee benefit act coverage with
statutory limits as prescribed by the laws of any state in which Operator
conducts business operations in connection with this MPSA 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
..
(b) 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.
(c) 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.
All such policies and coverages shall be primary and non-contributory,
issued by insurers, licensed to do business in any state in which Operator
conducts business operations in connection with this MPSA, and endorsed to
provide EchoStar at least 30-days prior notification of cancellation or material
change in coverage.
18. NON-EXCLUSIVITY. Operator acknowledges that: (i) nothing in this MPSA
is intended to, nor shall it be construed as conferring any exclusive territory
or any other exclusive rights to Operator; (ii) ESc and its Affiliates make
absolutely no promises, representations or warranties as to the amount of
business or revenue that Operator may expect to derive from participation in
this MPSA; (iii) Operator may not realize any business or revenue as result of
its participation in this MPSA; (iv) nothing contained herein shall be construed
as a guarantee of any minimum amount of Payments, income, incentives, revenue or
other economic benefit in any form whatsoever; (v) ESC currently offers, and at
any time in the future may offer in its sole discretion for any reason, others
the opportunity to enter into the same or similar MPSA in the same geographic
area in which Operator is located and elsewhere; (vi) Echosphere Corporation and
all other Affiliates of ESC shall have the right to distribute products and
solicit orders for ESC Programming throughout the Territory, and in competition
with Operator, without any obligation or liability to Operator whatsoever, and
without providing Operator with any notice thereof; (vii) ESC and its Affiliates
shall be entitled, among other things, to: (a) solicit orders for ESC
Programming, (b) sell, lease and otherwise transfer possession of DISH DBS
Systems and Promotional Certificates, and (c) perform installation and
maintenance services (directly and through subcontractors) for DISH DBS Systems
and related accessories, in each case throughout the Territory and in
competition with Operator, without any obligation or liability to Operator
whatsoever, and without providing Operator with any notice thereof; and (viii)
ESC shall be free to cease or suspend provision of the ESC Programming services,
and shall incur no liability to Operator by virtue of any such cessation or
suspension.
19. LIMITATION ON DAMAGES. In no event will ESC be liable to Operator, or
any person claiming through Operator, for any loss of profits, loss of business,
indirect, consequential, punitive, exemplary, special, incidental or other
similar damages, 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, equipment
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EchoStar Proprietary and Confidential
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or facilities incurred or acquired based upon the business derived or
anticipated under this agreement. In addition, ESC shall have no liability to
Operator for any act or omission of any Programmer or third party provider of
services in connection with ESC's delivery of Programming.
20. Modifications. Operator acknowledges that ESC competes in the
multi-channel video distribution market, which is highly competitive, fluid and
volatile and that ESC must make changes to its marketing, promotion and sales of
products from time to time to stay competitive. Therefore, Operator agrees that
ESC may, at any time and for any reason in its sole discretion, change or modify
ESC Programming and Business Rules upon notice to Operator, without the need for
any further consent, written or otherwise, from Operator. Except for such
changes, any modification to this Agreement must be in writing and signed by
both parties.
21. NO IMPLIED WAIVER. Except as expressly provided in this MPSA, no
failure or delay by either Party to exercise any right, power or privilege under
this MPSA will operate as a waiver; nor will any single or partial exercise of
any right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. All rights and remedies
granted in this MPSA will be in addition to other rights and remedies to which
the Parties may be entitled at law or in equity.
22. SUCCESSOR INTERESTS; ASSIGNMENT. This MPSA is binding upon the heirs,
legal representatives, successors and permitted assigns of ESC and Operator.
Operator shall not assign this MPSA without the prior written consent of ESC.
Because this MPSA is made by ESC in reliance on the financial, business and
personal reputation of Operator and its ownership and management, any merger,
reorganization or consolidation of Operator shall be deemed an assignment and if
any person not a substantial stockholder of Operator (someone with less than a
25% interest) as of the Effective Date of this MPSA becomes a substantial
stockholder of Operator (equal to, or greater than a 25% interest), that shall
be considered an assignment requiring ESC's consent hereunder. Any assignment in
contravention of this Section shall be deemed void and be of no effect.
23. SURVIVAL. The following provisions shall expressly survive the
expiration or termination of this agreement: 7, 8, 9, 10, 11, 12, 13, 16, and
19. All other provisions of this MPSA that by their nature contemplate
obligations that would reasonably be expected to continue beyond the end of the
Term to give effect to the intent of the Parties will survive the expiration or
termination of this MPSA.
24. CONSTRUCTION. Each of the Parties acknowledges that this MPSA has been
fully negotiated by the Parties with assistance of counsel and, therefore, no
provision of this MPSA will be construed or interpreted against any Party
because such Party or its legal representatives drafted such provision.
25. HEADINGS. This MPSA's section headings are for convenience only, are
not to be deemed part of its substantive provisions, and are not to be
considered in its construction or interpretation.
26. COUNTERPARTS. This MPSA may be executed in multiple counterparts, each
of which will be deemed an original. All such counterparts together will
constitute one instrument.
27. TERM. This MPSA shall remain in effect for the duration of any
Addendum(a) entered into between ESC and Operator. The term of any Addendum(a)
shall be set forth in such Addendum(a). Until such time as an Addendum is
entered into between ESC and Operator, this MPSA shall have no force or effect.
Master Programming Services Agreement
EchoStar Proprietary and Confidential
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