SATELLITE SERVICE AGREEMENT
1. OVERVIEW
This Agreement, made between Clear Channel Satellite Services (referred to
herein as "CCSS"), with its principal office located at 0000 X. Xxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx, XXX, 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: 0000 Xxxx xxx Xxxxxxx Xxxx
Xxxxxxxx 00
Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
WHEREAS: CCSS and the Client (collectively, the "Parties") have reached
agreement concerning the provision of satellite services, and in consideration
of the mutual covenants 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
communications 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
States 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
communications signals via a 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 of 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 or more than one hundred twenty-one
(121) hours; (For purposes 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
twenty (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 or 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 service that is entitled to preempt
a Preemptible Service. A Protected Service may be a
Transponder-Protected Service or a Fully 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 communications satellite. Transponder
Performance Specifications: The specifications 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 may 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 service(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 int
his 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 two (2) percent
per month on payments not received by the due date. Clear Channel
Satellite Service's 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 or user fees.
4.5 The monthly charges shall increase by three percent (3%) over the prior
year'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 different terms.
5.2 Either Party may terminate this Agreement within ninety (90) days afte
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 conditions 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 to insolvency proceedings,
including without limitation,
if the other Party is judicially declared insolven
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 now 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 Channel 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 terminates 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 measures, 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 CCSS's 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 or 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, without 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 One Hundred Dollars ($100.00) for each
minute improper operation continues commencing 15 minutes after 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 any 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 station keeping signals to selected transponders
including Client's 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 or 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) week's notice to Client; (ii) is not 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
required by Client that does not result in discovery of any failure to
meet the Transponder Performance Specifications. The Satellite Operator
reserves the right to periodically transmit station keeping signals to
selected transponders, including without limitation, Client's
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 regulations, including without 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 is 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 Services SkyFrames, LLC
0000 X. Xxxxxx Xxxxxxx, Xxxxx 000 1111 Town and Xxxxxxx Xxxx, Xxxxxxxx 00
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: General Manager Attn: Xxxx Xxxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
With a copy to:
Clear Channel Communications, Inc.
000 Xxxx Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Legal Department
Telephone: 000-000-0000
Facsimile: 000-000-0000
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 Clien
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 15 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
6 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 or 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's 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: (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. ss. 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 literacy,
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 or 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 event 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
time as, in the opinion of the Satellite Operator's counsel, the
communications can 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 provided
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 not 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 or 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 equipment furnished to
Client by, including but not limited to TT&C facilities or
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 any indirect, incidental, consequential,
special, punitive or
other similar damages (whether in contract, tort, strict
liability or under any 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 States Government, or of any other
government, including state and local governments having
jurisdiction over either 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 war; 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 representatives 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 or 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 obtaining
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, where 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 or any other supranational legal
authority, or any other industrial or trade disputes, fires,
explosions, storm, floods, 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: This 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 an appropriate remedy, if required.
Client waives any right it may have to delay any payment obligation.
IN WITNESS WHEREOF, the Parties have executed this Agreement, effective on the
date first below written.
ACCEPTED AND AGREED TO:
Authorized Signature Date Title
Printed Name Organization
ACCEPTED AND AGREED TO:
Authorized Signature Date Title
Printed Name Organization
APPENDIX A
Circuit ID#:
COMPANY: SkyFrames, LLC
Description of Service(s):
(degree) Satellite Bandwidth and power for data transmission purposes.
(degree) SCPC duplex space segment
Specifications:
1 Satellite Name: AMC-4
1.1 Orbital Location: 101 West
1.2 Transponder: 13
1.3 Service: Preemptible (Special Terms)
2 Channel Bandwidth: 0 XXx 0 XXx
2.1 DL EIRP(1): 31 DBW 29 DBW
2.2 Data Rate: 2.5 mbps 32/384 kbps
TDMA
2.3 Coding: 3/4 Rate FEC, Viterbi + RS
2.4 Modulation: QPSK
2.5 Limited by: Bandwidth
2.6 Uplink Frequency: 14.276500 MHz 14.259000 MHz
2.7 Downlink Frequency: 11.976500 MHz 11.958000 MHz
2.8 Uplink Polarization: Horizontal Horizontal
2.9 Downlink Polarizations: Vertical Vertical
3 TX E/S Name: PacAmTel 4.1 M TDMA Network
3.1 Teleport Location: Nuevo, CA North America
3.2 Antenna Size(s): 4.1 Meter 1.8 Meter
4 Term of Contract: Month-to-month (2 month minimum)
4.1 Contract Start Date: October 1, 2002
4.2 Contract End Date: Self-renewing 30 day term based on
1st month billing cycle
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.
Circuit ID: Non-MRC(A) Deposit (1 Month (B) MRC (C)
*Special Terms *Special Terms *Special Terms
(A) Due prior to circuit initialization Technical Contact Name: Xxxxxxx X. Fin
(B) Due prior to circuit initialization Technical Contact 24-hr. Phone No. 0-000-000-0000
(C) Due on or before the 1st of each month Control Modem Number(2) _______________
Duly Authorized Representative Duly Authorized Representative
Clear Channel Satellite Services SkyFrames, Inc.
Name: Xxx Xxxxx Name: Xxxx Xxxxxxx
Title: UPGM Title:
Date: 10/10/02 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
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 accessible at all time at the site. The control modem number will
be supplied to Clear Channel Satellite Services.
*SPECIAL TERMS:
1. CCSS will provide bandwidth on a preemptible basis for use by the
SkyFrames VSAT network as detailed herein. SkyFrames will have first
right on refusal to covert the bandwidth to a non-preemptible status
based on CCSS terms and conditions.
2. SkyFrames will pay a deposit in the amount of $6,000 to CCSS based on
CCSS terms and conditions.
3. CCSS will xxxx monthly in advance for a minimum of $5,820) 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 xxxx all clients directly and all client payments will
be sent 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 75% and SkyFrames will receive 25% of the gross
monthly service revenues that are actually paid by clients and received
by SkyFrames.
7. If either party sells equipment then 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. CCSS will have the exclusive right to acquire SkyFrames for 24 months
after 18 months operations at one time gross annual sales or fair
market value, whichever is greater.
10. Any dispute would be settled 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 reasonably withheld.
12. CCSS recognizes that SkyFrames is a public company and agrees to
jointly release publicly a CCSS approved news release explaining the
new relationship.
Domestic USA Monthly RecurringInternational Monthly Recurring
Data Rates
16 kbps CIR $ 441 $ 586
32 kbps CIR 489 658
64 kbps CIR 585 802
128 kbps CIR 776 1,089
192 kbps CIR 968 1,376
256 kbps CIR 1,160 1,664
384 kbps CIR 1,543 2,239
Domestic USA Install International Install Per Remote $ 1,200 TBD Contingent on
Standard Install and Client provides on site assistant.
