EXHIBIT 10.2
Clear Channel Satellite Services
Title
Satellite Service Agreement
-----------------------------
Project/Circuit ID Contract
SSA-(1002020-001
1. Overview
This Agreement, made between Clear Channel Satellite Services (referred to
herein as "CCSS"), with its principal office located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇, and the customer, identified hereinafter as
"Client," and is effective on the date of signature below ("Effective Date") by
the Authorized Representatives of both CCSS and the Client. This Agreement may
consist of several counterparts, which taken together shall constitute but one
instrument. This agreement consists of the Satellite Service Agreement and any
other Supplemental Addenda incorporated by reference and made part hereof.
Client Name: SkyFrames, LLC
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
WHEREAS: CCSS and the Client (collectively, the "Parties") have reached
agreement concerning the provision of satellite services, and in consideration
of the mutual covenant herein expressed, the Parties, through their authorized
agents or officers, hereby agree to the Terms and Conditions below.
2. Glossary
Agreement: This Service Agreement and appendices and Attachments specifically
referenced in this Agreement.
CCSS Personnel: Agents, employees or subcontractors engaged by CCSS.
Client Personnel: Agents, employees, contractors or remarketers engaged by
Client.
Commercially Operational: A satellite or a transponder that is capable of
carrying communication traffic.
Contract Date: As to each service or transponder on the Satellite, the first
date on which a binding agreement for the taking of such service or purchase of
such transponder has been executed by both the client and CCSS. Notwithstanding
the foregoing, any service provided to the United State government or any
department or agency thereof, whether through a prime contract or a subcontract
shall be deemed to have a Contract Date prior to the Contract Date of this
Agreement.
Earth Station: The antennas and associated ground facilities equipment used to
transmit communication signals via communications satellite in space.
End-of-Life (EOL): The date on which, in The Satellite Operator's reasonable
judgment, a satellite should be taken out of service because of insufficient
fuel.
Failed Satellite or Satellite Failure: A satellite: (1) on which one or more or
the basic subsystems fail, rendering the use of the satellite for its intended
purposes impractical, as determined by The Satellite Operator in its reasonable
business judgment, or on which more than one-half of the transponders are
transponder failures, and (2) that The Satellite Operator has declared a
failure.
Failed Transponder or Transponder Failure: With respect to any transponder used
to provide service to Client under this Agreement, any of the following events:
1. Such Transponder is subject to a continuous Interruption of more than
one hundred twenty-one (121) hours: (For the purpose of this
definition, measurement of periods of Interruption hereunder shall
commence when Client has notified The Satellite Operator thereof.);
2. Ten (10) or more Outage Units shall occur with respect to such
Transponder within any seven hundred (720) hours.
3. Where it is reasonably and mutually ascertainable by The Satellite
Operator and Client, by the number and nature of the Interruption(s)
that the Transponder has failed or is about to fail.
Fully Protected Service of Fully Protected Transponder: A satellite service or
transponder that, if restoration thereof is needed as a result of a satellite
failure, or as a result of a transponder failure under circumstances in which no
Protection Transponder is available on the satellite on which such satellite
service or transponder is located, is entitled to restoration, subject to
availability of facilities and to the conditions of the applicable contract, on
another satellite.
Interruption: Any period during which a transponder fails to meet the
transponder Performance Specifications and such circumstances preclude the use
of the transponder for its intended purpose. Where the Client utilizes a
portion of or the entire transponder for multiple services, outage credits will
be given to the Client on the basis of the actual number of services that are
rendered unusable or interrupted in relation to the total number of services
provided to that client on the transponder.
Non-Preemptible Service or Non-Preemptible Transponder: A satellite service or
transponder that may not be preempted at any time to restore a Protected Service
or Protected Transponder, but that is not entitled to be restored by preempting
a Preemptible Service or Preemptible Transponder.
Outage Unit: An Interruption of a transponder for a period of fifteen (15)
minutes or more.
Party: One of the signatories to this Agreement.
Person: any individual, corporation, partnership, joint venture, association or
other legal entity.
Preemptible Service or Preemptible Transponder: A satellite service or
transponder that may be preempted at any time to restore (1) a Satellite
failure, (2) a Protected Service or Protected Transponder that becomes a
transponder failure, or (3) other service offerings of The Satellite Operator,
including but not limited to, construction and launch delay protection and
launch failure protection.
Protected Service or Protected Transponder: a Replacement Transponder,
Preemptible Transponder or unassigned transponder used to restore a Protected
Service.
Protected Transponder: A Replacement transponder, Preemptible Transponder or
unassigned transponder used to restore a Protected Service.
Replacement Transponder: A Spare Transponder Amplifier and its associated
components, which is accessible for purposes of restore and which is capable of
carrying communications traffic within the parameters as described in the
Transponder performance Specifications for the transponder to be restored.
Satellite Operator: The company which provisions and maintains space-time on
communications satellites.
SCPC: Single channel per carrier.
Termination Value: the net present value as of the date of termination of this
Agreement of the remaining unpaid service charges payable hereunder, computed as
if this Agreement remained in effect until the Projected Termination Date,
utilizing a discount rate equal to five percent (5%) per annum, plus late
charges on such amount from the date of termination until payment is made in
full.
Transponder: A C-band radio frequency transmission channel on the satellite used
to provide service to Client pursuant to the terms of this Agreement. When used
in the lower case, "transponder" means a C-band or Ku-band radio frequency
transmission channel on a communication satellite.
Transponder performance specifications: The specification for the performance
of the Transponder set forth by the satellite manufacturer and operator.
Transponder-Protected Service or Transponder-Protected Transponder: a satellite
service or transponder that my not be preempted to restore another service or
transponder, that is itself entitled to be restored by Protection Transponders
on the same satellite but that is not entitled to be restored if there is no
such Protection Transponder available.
TT&C: Tracking, telemetry, and control services for the Satellite to be
provided by The Satellite Operator, including periodic station keeping and
attitude control maneuvers, power management and fuel management.
3. Scope
3.1 Client hereby agrees to purchase and CCSS agrees to provide service(s) as
described in Appendix A on the terms and conditions specified below and
subject to the terms and conditions set forth in the appendices and Attachments
hereto, which are incorporated by reference herein and made a part hereof.
3.2 Clear Channel Satellite Services, and its subcontractors will provide client
services(s) as described in Appendix A hereto, on the Satellite Operator
communications satellite designated in Appendix A ("the Satellite"). The
transponder assignment will be changed only if the assigned Transponder becomes
a Transponder Failure or to prevent interference by or to Client's operations.
Client is responsible for providing, operating and maintaining uplink and/or
downlink equipment at its location(s).
4. Terms and Payment
4.1 The term of this Agreement shall commence on or before the dates as set
forth in Appendix a and shall end as set forth in Appendix A. Expiration of the
term shall not terminate or discharge any pre-existing obligation of either
Party to the other Party.
4.2 Client shall pay to CCSS the amounts listed for services described on
appendix A payable monthly in advance in accordance with paragraph 4.3 below.
Deposits are due prior to circuit initiation. Client shall make payment to CCSS
by company check sent by US mail or courier to Clear Channel Satellite Service's
address as listed in this Agreement; by wire transfer to an account designated
by CCSS as CCSS may from time to time specify; or by authorized company credit
card as specified by client and verified by CCSS.
4.3 CCSS will render monthly bills to Client prior to the due date for payment,
which shall be the first (1st) day of each month in which the service is
provided. CCSS will assess a late charge of _____ (___) percent per _____
[Confidential and filed separately with the SEC] on payments not received by the
due. Clear Channel Satellite Services' failure to render bills or its delay in
billing shall not relieve Client of its obligation to pay CCSS, when and as due,
for all services provided hereunder or of its obligation to pay any applicable
late charges, in addition to any other right CCSS may have under this Agreement,
CCSS may suspend Client's service upon five (5) business days' notice for
failure to pay any sums due to CCSS hereunder.
4.4 Monthly charges are exclusive of taxes, duties and user fees. Client shall
pay directly for all taxes, duties and user fees, including any privilege or
excise taxes based upon gross revenue pertaining to the service used by Client
or to the satellite on which such service is provided and allocable to such
service, or shall reimburse CCSS within ten (10) days of notice by CCSS for same
if CCSS pays such taxes, duties.
4.5 The monthly charges shall increase by ______ percent (____%) [Confidential
and filed separately with the SEC] over the prior ear's monthly charge beginning
on the first anniversary of this Agreement and at the end of each twelve month
period thereafter beginning with the second payment due date and continuing with
each payment thereafter.
5. TERMS AND TERMINATION
5.1 Subject to Paragraphs 5.2 and 5.3 below, the term of this Agreement shall
end on the earliest of: (1) the Projected Termination Date set forth in Appendix
A of this Agreement, (2) the EOL or Replacement Date of the Satellite, or (3)
the date that the Transponder or the Satellite on which Client is taking service
becomes a Transponder Failure or a Satellite Failure, respectively, and Client's
service cannot be restored in accordance with appendix A unless within seven (7)
days after any such event CCSS or the Satellite Operator provides service on
another transponder on the Satellite or on alternate facilities provided, that,
if CCSS or the Satellite Operator offers such alternate facilities on terms
different from those specified herein, Client's use of such alternate facilities
shall be subject to such different terms.
5.2 Either Party may terminate this Agreement within ninety (90) days after it
acquires knowledge of an event listed below and upon ten (10) days prior written
notice of:
5.2.1 The FCC denies, revokes or suspends any authorization, approval,
license or permit required to position or operate the Satellite, or
otherwise to provide service to Client on the terms and condition
contained in this agreement, and the Satellite Operator is unable to
obtain relief from the FCC's action enabling performance of Clear
Channel Satellite Service's obligations hereunder within one hundred
and eighty (180) days of the government or government agency's action
becoming administratively final and not subject to further government
or government agency review.
5.2.2 The Other Party is unable to perform its obligations as a result of
becoming insolvent or the subject of insolvency proceedings, including
without limitation, if the other Party is judicially declared
insolvent or bankrupt, or if any assignment is made of the other
Party's property for the benefit of its creditors or if a receiver,
conservator, trustee in bankruptcy or other similar officer is
appointed by a court of competent jurisdiction to take charge of all
or any substantial part of the other Party's property, or if a
petition is filed by or against the other Party under any provision of
the Bankruptcy Act not or hereafter enacted, and such proceeding is
not dismissed within sixty (60) days after filing.
5.3 In addition, CCSS may terminate this Agreement within ninety (90) days after
it acquires knowledge of an event listed below and upon ten (10) days prior
written notice if:
5.3.1 Client defaults in making any payment due hereunder and does not cure
such default within five (5) business days of the due date for such
payment.
5.3.2 Client's use of the service fails to conform to the operating
procedures and, in Clear Channels satellite Service's reasonable
judgment, such nonconforming use might harm the Satellite or interfere
with the use of the Satellite by others and Client does not,
immediately upon discovery or notification by CCSS or the Satellite
Operator, bring its use into compliance with such operating
procedures.
5.4 In the event Client terminated this Agreement for reasons other than as set
forth in Item 5.3.1 of this Article, Client shall pay the total of the monthly
amounts set forth in Appendix A for the balance of the term.
5.5 Termination of this Agreement shall not relieve either Party from
fulfilling any outstanding financial obligation to the other Party under this
Agreement.
6. OPERATIONAL MATTERS
6.1 Satellite Transponder-Protected Service: If the satellite transponder
utilized for this service fails (Transponder Failure), the satellite Operator
shall immediately initiate all reasonable measure, consistent with protecting
the satellite and all services provided thereon, to restore the Transponder
Failure as quickly as practicable. Restoration shall be effected if technical
and operational circumstances permit, in the following manner and order, on a
first-needed, first-served basis: first, by utilizing similar service on any
available Replacement Transponder of the same Transponder Class on the
provisioned Satellite; and second, if no such Replacement Transponder is
available, by using an unassigned or Preemptible Transponder of the same
Transponder Class on the provisioned Satellite, if available. If no such
Protection Transponder is available on the provisioned Satellite, Client's
service shall not be restored on this satellite. The Transponder-Protected
Transponder on which service is provided to Client may not be preempted by CCSS
or by the Satellite Operator to restore another service or transponder.
6.2 Earth Station requirements and Satellite Access Specifications: Earth
station requirements, satellite access specifications and operating procedures
will be provided by CCSS prior to circuit initiation. Client agrees to conform
its uplink earth station transmissions to the access specifications and comply
with the operating procedures set forth. If needed, prior to commencing use of
the service provided hereunder, Client, at its expense shall provide CCSS with
any descrambling or decoding devices that may be required for signal monitoring.
Unless final commission of equipment is performed by CCSS, Client must contact
CCSSs' Technical Operations Center and demonstrate the earth station's ability
to perform in accordance with the access specifications prior to transmitting
from a Client-provided earth station.
6.3 Improper Operation: In the event of any failure of Client to comply with the
satellite access specifications or operating parameters stated in Appendix A, or
if operation by Client interferes materially with CCSSs' other satellite
services or with the Satellite Operator's use of other transponders, Client
agrees to correct such improper operation immediately upon discovery of
receiving notice from CCSS of the occurrence of such improper operation. The
client must have available personnel able to respond at the site within 15
minutes of notification. If the client cannot support the response in the
specified time frame, a serial modem is required to be connected to the
transmission equipment and be accessible at all times at the site. The control
modem number will be supplied to CCSS. In the event of Client's failure to
discontinue, CCSS or its subcontractors may take such action as is reasonable
and necessary in the circumstances to eliminate such improper operation,
including suspending Client's use of the service provided hereunder, with out
any liability for loss or damage whatsoever, until such time as Client is able
to operate in a proper manner. Client will pay to CCSS _______ Dollars
($____.00) [Confidential and filed separately with the SEC] for each minute
improper operation continues commencing 15 minutes after the Client has been
notified by CCSS or the Satellite Operator of the improper operation unless
Client discovers the improper operation prior to the time CCSS or Satellite
operator notifies Client, in which case the improper operation shall be measured
from the time of discovery.
6.4 Action to Protect Satellite: the Satellite Operator shall have sole and
exclusive control of operation of the Satellite. If circumstances occur which
in the Satellite Operator's reasonable judgment pose a threat to the stable
operation of the Satellite, CCSS, or the Satellite Operator shall have the right
to take appropriate action to protect the Satellite, including discontinuance or
suspension of operation of the Satellite, the transponder on which Client is
taking service, or any other transponder, without liability to Client, except
that Client shall receive a credit computed as provided in Item 6.8.1 of this
Agreement. CCSS shall give Client as much notice as practical under the
circumstances of any such discontinuance or suspension. If it becomes necessary
to discontinue or suspend service on one or more transponders on the Satellite,
and operational circumstances allow the Satellite Operator to select the
transponder or transponders to be discontinued or suspended, including the
transponder on which Client is taking service, the Satellite Operator will make
such selection as it sees fit without any liability to Client, except that
Client shall receive a credit computed as provided in Item 6.8.1 of this
Agreement. In addition, the Satellite Operator reserves the right to
periodically transmit essential stationkeeping signals to selected transponders
including Clients' Transponders. Such transmissions will not degrade the
performance of such receiving transponder.
6.5 Testing: CCSS or the Satellite Operator may suspend service to Client
hereunder on such notice as is reasonable under the circumstances for purposes
of testing in connection with a failure or suspected failure of a component of
subsystem of the Satellite or any transponder thereon, or in response to an
order of a court or governmental agency, or to determine the cause or source of
any interference. In addition, during the last four months of the Service Term,
the Satellite Operator may suspend service to Client through CCSS for testing of
the Satellite or a successor satellite for any purpose not contemplated by the
preceding sentence, provided that such testing (i) is performed on at least two
(2) weeks' notice to Client; (ii) isn't performed for more than two (2) hours
during any single twenty-four (24) hour continuum; (iii) is performed on days
and at hours selected to minimize inconvenience to Client and Client's
Designees. Client shall be granted a credit computed in accordance with Item
6.8.1 for any suspension of service pursuant to this Paragraph, except in the
case of testing requested by Client that does not result in discovery of ay
failure to meet the Transponder Performance Specification. The Satellite
Operator reserves the right to periodically transmit station keeping signals to
selected transponders, including without limitation, clients' Transponder. Such
transmissions will not degrade the performance of the receiving transponders.
6.6 Applicable law: Construction, launch, location and operation of the
Satellite and the Satellite Operator's satellite system are subject to all
applicable laws and regulation, including with limitation, the Communications
Act of 1934, as amended, and the Rules and Regulations of the FCC. All parties
shall comply with all such applicable laws and regulations.
6.7 Notices: All notices regarding technical or operational matters requiring
immediate attention shall be given by telephone followed by written
confirmation. Each party shall designate a point(s) of contact where the other
Party may call seven (7) days a week, twenty-four (24) hours a day. All other
notices and requests by one Party to the other shall be in writing and deemed to
be duly given on the same business day if sent by fax, telecopy or electronic
mail or hand delivered during the receiving Party's regular business hours, or
on the date of receipt if sent by pre-paid overnight, registered or certified
mail and delivered to the Party's address as listed below or to such other
address as the Party may designate.
CCSS: CLIENT:
Clear Channel Satellite Service SkyFrames, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 1111 Town and ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Manager Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Clear Channel Communications, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6.8 Interruptions
6.8.1 The length of an Interruption shall be measured from the time CCSS
receives notice of same from Client until service is restored. All
interruption reports are subject to confirmation by the Satellite
Operator. Only interruptions of the satellite service are covered;
interruptions due to client's equipment problems are not. Credit for
an Interruption of one day shall be 1/30 of the monthly charge. CCSS
or the Satellite Operator will provide Client with written
confirmation of the date and length of any Interruption. Credit for
Interruptions to and including twenty-four (24) hours will be allowed
as follows:
Length of Interruption Credit
Less than 1 minutes None
15 minutes up to but not including 3 hours 1/10 day
3 hours up to but not including 6 hours 1/5 day
9 hours up to but not including 9 hours 2/5 day
9 hours up to but not including 12 hours 3/5 day
12 hours up to but not including 15 hours 4/5 day
15 hours up to 24 hours inclusive One day
6.8.2 No more than one day's credit will be allowed for any period
aggregating twenty-four (24) hours. Credit will be allowed in
one-fifth (1/5) day multiples for each three (3) hour period of
Interruption or fraction thereof for Interruptions in excess of
twenty-four (24) hours.
6.8.3 No credit shall be payable for Interruptions due to (i) the fault of
Client of any Client third Party, (ii) the failure or unavailability
of Client's services or equipment, or satellites, transponders,
facilities, services or equipment furnished to Client by any other
entity, (iii) sun outage or rain fade, (iv) suspension of service made
in accordance with this agreement, or (v) any cause for which CCSS is
otherwise not responsible.
6.9 Indemnification: During any period Client, Client's successors,
subcontractors or transferees ("Client Designees") access any transponder,
Client shall indemnify and hold CCSS and its affiliates, their respective
officers, directors, employees and agents harmless from and against all loss,
liability, damage, claims and expense, including but not limited to attorneys'
fees and disbursements, arising from or related to L (i) claims for libel,
slander, infringement of copyright or other intellectual property rights arising
from the communications transmitted by Client or Client's Designees; and (ii)
any other claim arising from any use of the service provided to Client or
Client's Designees.
7. CONTENT OF TRANSMISSIONS
7.1 Client will not use the service, and will not authorize or permit Client's
Designees to use the service to transmit unlawful programming of any nature.
Client and Client's Designees will not transmit communications containing
"sexually explicit conduct" as defined in 18 U.S.C. 2256 (2) unless the
depiction or description of such conduct in a communication is integrally
related to and advances the thematic content of the communication and such
content has serious literary, artistic, political or scientific value.
7.2 CCSS or the Satellite Operator may terminate, prevent or restrict any
communications using the service provided hereunder as a means of transmission
if such actions (i) are undertaken at the request of by direction of a
governmental agency (including the FCC), or (ii) are taken subsequent to the
institution against CCSS, the Satellite Operator, Client or Client's Designees,
any legal entity affiliated with any of them or any of the directors, officers,
agents or employees of the Parties, Client's Designees or their affiliates, of
criminal, civil or administrative proceedings or investigations based upon the
content of such communications.
7.3 CCSS or the Satellite Operator may terminate, prevent or restrict any
communications using the service provided hereunder as a means of transmission
if (i) such actions are reasonably appropriate to avoid violation of applicable
law; or (ii) there is a reasonable risk that criminal, civil or administrative
proceedings or investigations based upon the content of such communications will
be instituted against CCSS or the Satellite Operator, any affiliated company, or
any of the directors, officers, agents or employees of CCSS or the Satellite
Operator or their affiliated companies; or (iii) such communications will expose
CCSS or the Satellite Operator to costs, expenses, liability, damages, fines or
other penalties from which CCSS in its sole discretion or the Satellite Operator
is not adequately protected by arrangements for compensation, indemnity and
insurance provided by Client. Under the circumstances set forth in the
preceding sentence, CCSS shall provide two days' advance notice to Client that
it intends to take action to terminate, prevent or restrict such communications,
in which even Client or Customer's Designees, as appropriate, may, during the
period of notice, suspend, and agree to continue to suspend, use of the service
to transmit any communications which is the subject of the notice, and any
communications of a similar nature until such times as, in the opinion of the
Satellite Operator's counsel, the communications ca be resumed without risk, in
which event CCSS will not terminate, prevent or restrict such communications so
long as Client and Client's Designees, as appropriate, remain in compliance with
the terms of said agreement and this Article.
7.4 A decision by CCSS or the Satellite Operator at any time that action to
terminate, prevent or restrict communications is or is not warranted shall not
operate to, or be deemed to, limit or waive CCSS or the Satellite Operator's
right to take or not take action at another time to terminate, prevent or
restrict communications.
7.5 In the event any criminal, civil or administrative proceeding or
investigation or claim of any kind is instituted against CCSS or the Satellite
Operator, any affiliate thereof, or any of the directors, officers, agents or
employees of CCSS or the Satellite Operator or its affiliates (the "Indemnified
Parties"), based upon the content of any communications which is
transmitted using the service provide hereunder, Client shall indemnify and save
harmless the Indemnified Parties from all costs, expenses (including attorney
fees and disbursements and expert witness fees), liabilities and damages of any
nature, including without limitation, to the extent permitted by law, any fines
or other penalties resulting from or arising out of such proceedings or
investigations. CCSS or the Satellite Operator shall have the right, but no the
obligation, to require Client to conduct the defense of CCSS and the Satellite
Operator in any such proceedings or investigations at the expense of Client. If
CCSS or the Satellite Operator elects to conduct its own defense, client shall
nevertheless remain liable for all costs, expenses, liabilities and damages
resulting from or arising out of such proceedings or investigations.
8. LIMITATION OF LIABILITY
Client hereby acknowledges and agrees that CCSSs' entire liability under this
Agreement is limited as set forth below.
8.1 No warranties, expressed, implied, or statutory, including any warranty of
merchantability or fitness for a particular purpose, apply to the service
provided hereunder or the equipment and facilities used to provide such service.
As a material condition of receiving service hereunder at the price specified
herein, and in regard to any and all causes arising out of or relating to this
Agreement, including but not limited to claims of negligence, breach of contract
or warranty, failure of a remedy to accomplish its essential purpose of
otherwise, Client agrees that CCSSs' entire liability for damages or losses
arising out of mistakes, omissions, interruptions, delays, errors or defects of
any kind with respect to its performance of this Agreement, or the use or
operation of the Satellite, the transponder used to provide service to Client
hereunder, or of other satellites, transponders, facilities, services or
anything done in connection therewith, regardless of whether occasioned by CCSS
or The Satellite Operator's negligence, shall be limited to a refund or waiver
of the applicable charges for service.
8.2 CCSS and its suppliers and subcontractors shall not be liable in connection
with this Agreement for an indirect, incidental, consequential, special,
punitive or other similar damages (whether in contract, tort, strict liability
or under an other theory of liability) including but not limited to cost of
substitute services or facilities, loss of actual or anticipated revenues or
profits, loss of business, clients or good will, or damages and expenses arising
out of third Party claims. The foregoing exclusion shall apply even if CCSS has
been advised of the possibility of such damages
8.3 Neither Party shall be liable to the other for any failure of or delay in
performance hereunder due to causes beyond its reasonable control. These causes
include but are not limited to: acts of God; fire, flood or other natural
catastrophes; the need to comply with any law or any rule, order, regulation or
direction of the United State Government, or of any other government, including
state and local governments having jurisdiction over wither Party, or of any
department, agency commission, bureau, court or other instrumentality thereof,
or of any civil or military authority; national emergencies; insurrections;
riots; acts of was, quarantine restrictions; embargoes; or strikes, lockouts,
work stoppages or other labor difficulties.
9. GENERAL PROVISIONS
9.1 Amendments: This Agreement may only be amended in writing with specific
reference to this Agreement which has been signed by authorized representative
of the Parties involved.
9.2 No Third Parties: Nothing contained in this Agreement shall be deemed or
construed by the Parties or by any third party to create any rights, obligations
or interests in third parties; or to create the relationship of principal and
agent, partnership or joint venture or any other fiduciary relationship or
association between the Parties.
9.3 Non-Waiver: No failure on the part of either Party to notify the other
Party of any noncompliance hereunder, and no failure on the part of either Party
to exercise its rights hereunder shall prejudice any remedy for any subsequent
noncompliance, and any waiver by either Party of any breach of noncompliance
with any term or condition of this Agreement shall be limited to the particular
instance and shall not operate or be deemed to waive any future breaches or
noncompliance with any term or condition. All remedies and rights hereunder and
those available in law or in equity shall be cumulative and the exercise by a
Party of any such right or remedy shall not preclude the exercise of any other
right or remedy available under this agreement in law or in equity.
9.4 Headings: All headings in this Agreement are inserted as a matter of
convenience and for reference purposes only, are of no binding effect, and in no
respect define, limit or describe the scope of this Agreement or the intent of
any article, paragraph or subparagraph hereof.
9.5 Counterparts: This Agreement may be signed in any number of counterparts
with the same effect as if the signatures to each were upon the same Agreement.
9.6 Execution and Assignment: Each Party shall bear its respective costs and
expenses in connection with the preparation, execution, delivery and performance
of this Agreement. Client shall not assign or transfer its rights or
obligations under this Agreement without CCSSs' prior written consent. This
Agreement shall inure to the benefit of and shall be binding upon the Parties
and their allowed successors and assignees.
9.7 Choice of Law, Waiver of Jury Trial: This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Texas
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State. The Parties
shall not raise in connection therewith, and hereby waive, any defenses based
upon the venue, inconvenience of forum, the lack of personal jurisdiction, the
sufficiency of service of process (as long as notice of such action or suit is
furnished in accordance with Section 5 of this Agreement) or the like in any
such action or suit. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY SUCH ACTION OR SUIT.
9.8 Licensing: Each Party will be solely responsible for obtain or maintaining
all regulatory licenses, approvals, and permission necessary for the provision
of its services and facilities.
9.9 Force Majeure: Neither Party shall be liable to the other for any loss or
damage resulting from delay or failure to perform its obligations under this
Agreement, or any contract hereunder, either in whole or part, here such delay
or failure shall be due to causes beyond its reasonable control including, but
not limited to war, riots or other acts of civil disobedience, insurrection,
acts of God, restraints imposed by governments of any other supranational legal
authority, or any other industrial or trade disputes, fires, explosions, storm,
flood, lightning, earthquakes, and other natural calamities.
9.10 Non-Disclosure of Terms: The Parties shall hold this Agreement and the
terms hereof in strict confidence and neither Party shall disclose to third
parties the prices, payment terms, schedules, and other terms and conditions of
this Agreement without the written consent of the other Party except as required
by Government review or audit.
9.11 Entire Agreement: The Agreement, including all Appendices and Attachments,
represents the entire understanding and agreement between the Parties with
respect to the subject matter hereof, supersedes all prior negotiations and
agreements between the Parties concerning that subject matter, and can be
amended, supplemented or changed only by an agreement in writing which makes
specific reference to this Agreement and which is signed by both parties.
10 Remedies
The parties agree to negotiate in good faith within two weeks of the
execution of this document in appropriate remedy, if required.
Client waives any right it may have to delay any payment obligations.
IN WITNESS WHEREOF, the Parties have executed this Agreement, effective on the
date first below written.
ACCEPTED AND AGREED TO:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Date: 10-7-2002
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman, SkyFrames, Inc.
ACCEPTED AND AGREED TO:
/s/ ▇▇▇ ▇▇▇▇▇ Date: 10-6-2002
----------------------------------
▇▇▇ ▇▇▇▇▇
Vice-President/General Manager
Clear Channel Satellite Services
Appendix A
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Circuit ID#:
COMPANY: SkyFrames, LLC
Description of Service(s):
Satellite Bandwith and power for data transmission purposes
SCPC duplex space segment
Specifications
[CONFIDENTIAL and filed separately with the Securities and Exchange Commission]
Note: Submission of these execution copies to you does not constitute an offer
by Clear Channel Satellite Services and the capacity referenced therein remains
subject to availability until such time as the Agreement has been fully
executed.
[CONFIDENTIAL and filed separately with the Securities and Exchange Commission]
______________________________ ______________________________
Duly Authorized Representative Duly Authorized Representative
Clear Channel Satellite Services Company: SkyFrames
Name: Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Title:
Date: Date:
________________________
1 As measured at Clear Channel Satellite Service's Network Operations Center in
Denver, Colorado
2 The client must have available personnel able to respond at the site with in
15 minutes of notification. If the client cannot support the response in the
specified time frame, a serial modem is required to be connected to the
transmission equipment and accessible at all times at the site.
SPECIAL TERMS:
1. CCSS will provide bandwidth on a _______ basis for use basis for use by
the SkyFrames VSAT network as detailed herein. SkyFrames will have first right
of refusal to convert the bandwidth to a ____________ status based on CCSS terms
and conditions. [Confidential and filed separately with the SEC]
2. SkyFrames will pay a deposit in the amount of $________ [Confidential and
filed separately with the SEC] to CCSS based on CCSS terms and conditions.
3. CCSS will ▇▇▇▇ monthly in advance for a minimum of ($______)[Confidential
and filed separately with the SEC]or per special terms #5 and #6 which ever is
greater.
4. All clients will execute a separate Service Agreement with SkyFrames.
5. SkyFrames will ▇▇▇▇ all clients directly and all client payments will be
send directly to SkyFrames. SkyFrames will provide a monthly report from the
satellite platform NMS and a summary detailing all network usage, invoicing and
payment activity approved by SkyFrames' CPA for each month of operation.
6. CCSS will receive _____ and SkyFrames will receive ______ of the gross
monthly service revenues that are actually paid by clients and received by
SkyFrames. [Confidential and filed separately with the SEC]
7. If either Party sells equipment thane they will receive the income from
that sale, less a new customer set-up fee, which shall be paid to SkyFrames.
8. Each company is responsible for its own obligations and shall not
obligate the other without explicate written permission.
9. _____________________. [Confidential and filed separately with the SEC]
10. Any dispute would be settle by binding arbitration.
11. The suggested pricing for selling VSAT service is outlined below. If
SkyFrames sells VSAT service below the following price schedule, they will seek
CCSS approval, which will not be unreasonably withheld.
12. CCSS recognized that SkyFrames is a public company and agrees to jointly
release publicly a CCSS approved news release explaining the new relationship.
[Pricing Table - Confidential and filed separately with the SEC]
