ECHOSTAR SATELLITE OPERATING CORPORATION SATELLITE TRANSPONDER SERVICE AGREEMENT FOR ECHOSTAR XVI
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ECHOSTAR SATELLITE OPERATING CORPORATION
SATELLITE TRANSPONDER SERVICE AGREEMENT FOR ECHOSTAR XVI
THIS SATELLITE TRANSPONDER SERVICE AGREEMENT (the "Agreement") by and between EchoStar Satellite Operating Corporation ("EchoStar"), a Colorado corporation with a place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and DISH Network L.L.C. ("Customer"), a Colorado limited liability company with a place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is made effective as of the 21st day of December, 2009 (the "Effective Date"). Defined terms used in this Agreement shall have the meanings specified below.
ARTICLE I.
Service Provided
1.1. Scope. EchoStar has entered into a contract (the "Construction Contract") with Vendor for the construction of one communications satellite designated as the "EchoStar XVI Satellite", and will enter into a Launch Service Agreement for the launch of the EchoStar XVI Satellite. During the Service Term, EchoStar will provide to Customer *** ("Service"). Service will be provided subject to and in accordance with the terms and conditions set forth in this Agreement, including, but not limited to, Attachment A (Transponder Performance Specifications), Attachment B (EchoStar Satellite Users' Guide) and Attachment C (EchoStar XVI MRC Calculation) which are hereby incorporated by reference in their entirety. The Satellite will be authorized to be and will be located at the 61.5°▇.▇. orbital position. The Satellite may, however, be located at any other orbital position hereafter authorized by the Federal Communications Commission (the "FCC"). Technical performance criteria for the Satellite are described in the Transponder Performance Specifications set forth in Attachment A.
1.2. Term. The term for Service provided under this Agreement (the "Service Term") shall commence on the In-Service Date of the Satellite and, except as otherwise provided herein, shall continue, unless terminated earlier in accordance with the terms and conditions of this Agreement, until the earliest of: (i) the End-of-Life or Replacement Date of the Satellite unless EchoStar elects to provide Service on the Replacement Satellite; (ii) the date the Satellite becomes a Satellite Failure; or (iii) ten (10) years after the In-Service Date of the Satellite (the "Projected Termination Date"). The Service Term on the Satellite (provided that a Satellite Failure has not occurred) may be extended at Customer's sole option for successive one-year periods (or a portion thereof in the case of the final extension) until the Satellite reaches its End-of-Life (each an "Extended Term"), upon written notice to EchoStar provided at least one hundred eighty (180) days prior to the end of the initial Service Term and/or the then current Extended Term, provided that, at the time of each such extension, Customer is in full compliance with all of its obligations under this Agreement.
1.3. Service Priorities. ***
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
1.4. Notices. All notices regarding technical or operational matters requiring immediate attention will be given by telephone to the telephone numbers set forth below and shall be followed by written notification. All other notices or requests that are required or permitted to be given hereunder shall be in writing and shall be sent by facsimile transmission, or by first class certified mail, postage prepaid, or by overnight courier service, charges prepaid, to the party to be notified, addressed to such party at the address set forth below, or sent by facsimile to the fax number set forth below, or such other address(es) or fax number(s) as such party may have substituted by written notice to the other party. The sending of such notice with confirmation of receipt thereof (in the case of facsimile transmission) or receipt of such notice (in the case of delivery by mail or by overnight courier service) shall constitute the giving thereof.
If to be given to Customer: |
If to be given to EchoStar: |
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Attn: Office of the General Counsel |
Attn: *** |
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DISH Network L.L.C. |
EchoStar Satellite Operating Corporation |
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If by U.S. mail: |
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*** |
Fax #: *** |
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cc EchoStar Satellite Operating Corporation |
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Attention: Office of the General Counsel |
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If by overnight courier: |
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If by U.S. mail: |
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*** |
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Fax #: *** |
EchoStar's
24 Hour Emergency Telephone # for Technical/Operational Issues:
Tel #: ***
Customer's 24 Hour Emergency Telephone # for Technical/Operational Issues: to be provided by Customer, as such number may be changed by Customer from time to time upon written notice to EchoStar
1.5. Terms Related to Construction Contract, Launch Service Agreement, and Insurance.
(a) EchoStar and Customer shall collaborate in good faith toward reaching agreements on the requirements for, and toward the successful construction, insurance and launch of, the EchoStar XVI Satellite, ***. In furtherance and without limitation of the foregoing, EchoStar agrees to keep Customer promptly apprised of all material third party discussions and decisions with respect to insurance and to consult with Customer prior to ***
(b) EchoStar agrees to collaborate with and include Customer in all significant decisions related to ***.
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
(c) In the event that Customer requests a modification of the Satellite, then ***.
(d) EchoStar agrees to collaborate with and include Customer ***.
(e) EchoStar's Program Management for the Satellite will apply the same degree of care as is ***.
***
ARTICLE II.
Payment
2.1. Monthly Recurring Service Charge. Commencing on the In-Service Date and for the duration of the Service Term (including any Extended Terms), Customer will pay to EchoStar for the Service a monthly recurring service charge (the "MRC") as set forth in Attachment C.
2.2. Intentionally Omitted.
2.3. Billing and Payment. *** Thereafter, unless mutually agreed upon otherwise, invoices will be issued monthly thirty (30) days in advance of the quarter in which Service is to be provided and are payable on the first day of such quarter by wire transfer as per the remittance instructions on the respective monthly invoice. On payments not received by the due date ("Delinquent Payments"), EchoStar will assess, until such time as payment in full is made, a late payment charge of the lesser of the Delinquent Payment multiplied by: (i) one and one-half percent (1.5%) per month compounded monthly; or (ii) the maximum rate permitted by applicable law. A failure or delay by EchoStar to send an invoice will not relieve Customer either of its obligation to pay for Service on a timely basis or of its obligation to pay late payment charges in the event of late payment. In addition to any other rights EchoStar may have under this Agreement, at law, in equity or otherwise (all of which are hereby expressly reserved), EchoStar may suspend provision of Service on seventy-two (72) hours' notice for Customer's failure to pay any sums due to EchoStar and/or any of its Affiliates.
2.4. Taxes and Other Charges. All charges under this Agreement (including but not limited to the MRC) are exclusive of taxes, duties and other fees or charges levied by governmental authority (including but not limited to Universal Service Fees, if applicable) on the Service or the facilities used to provide the Service. Customer will pay directly or reimburse EchoStar for all such taxes, duties and other fees or charges, including but not limited to Universal Service Fees, if applicable. The provisions of this Article II shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
ARTICLE III.
Service Parameters
3.1. Credits Credits for Interruptions in Service of five (5) minutes or more ("Interruption Credit") shall be granted to Customer as follows:
Interruption Credit = (Number of minutes in Interruption/43,200) multiplied by the MRC
The length of an Interruption will be measured from the time EchoStar is notified by Customer of the Interruption until Service is restored.
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
3.2. Exceptions. Notwithstanding any contrary provision herein, EchoStar shall not be responsible for and shall not be in default or breach of this Agreement as a result of, nor shall it be held liable for any Interruption Credits or other damages, claims, losses, or costs and expenses on account of, any interruption of the Service, if such interruption or failure occurs due to any of the following: (i) de minimus degradation or Interruptions of the Service due to reasonable protection switching in conformance with industry standards; (ii) Interruption or degradation due to atmospheric attenuation of the signal; (iii) any failure on the part of Customer to perform its obligations as required under this Agreement; (iv) the failure of transmission lines, fiber, any Customer provided equipment, connections, or other facilities provided by Customer or any third party, excluding any EchoStar Affiliates; (v) the failure or nonperformance of any earth station not operated by EchoStar; (vi) EchoStar's compliance with an action by any court, agency, legislature or other governmental authority that makes it unlawful for EchoStar to provide the Services or any part thereof in accordance with this Agreement (vii) interference from a third party transmission or usage other than by EchoStar or its Affiliates; (viii) testing of the Service as mutually agreed to in advance; (ix) sun transit outage, rain fade, weather or Force Majeure Events; (x) any act or failure to act by Customer; (xi) any outage caused by any reconfigurations performed or directed by Customer, however unlikely; or (xii) scheduled maintenance. Any Interruption Credit shall be reflected on the first invoice issued by EchoStar following an Interruption. The aforementioned credit will be Customer's sole and exclusive remedy for unavailability of Service and/or failure of Service to meet the Transponder Performance Specifications set forth in Attachment A.
3.3. Transponder Assignment/Reassignment. Customer agrees that the Services will be used solely for the transmission of digital signals. The Transponder assignments may be changed from time to time in the manner customarily used by the parties to change Transponder assignments in the past.
ARTICLE IV.
Service Responsibilities
4.1. Laws and Regulations Governing Service. Location and operation of the Satellite, EchoStar's satellite system and EchoStar's ability to perform 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.
4.2. Use Conditions. Customer's use of the Service and use of the Service by any other person or entity ("Customer's Designees") shall be: (i) in compliance with all applicable laws and the Transponder Authority; and (ii) only within the United States of America or such other jurisdiction(s) as permitted by applicable law. Customer will not use, and will cause Customer's Designees not to use the Service: (a) for any unlawful purpose, including violation of laws governing the content of material transmitted using the Service; and/or (b) without first obtaining any and all necessary Transponder Authority. Customer is permitted to allow Customer's Designees to access use of the Service for the purpose of transmitting digital signals to the extent that such use is not prohibited by rule, regulation or law and subject to the terms and conditions of this Agreement. Customer shall provide EchoStar with at least five (5) business days' prior written notice of any use of Service by Customer's Designees and of the identity of any such Customer's Designee. Should Customer permit use of such Service by any Customer's Designee, Customer shall be a guarantor of compliance by each such Customer's Designee with all of the terms, conditions, representations and warranties of this Agreement and any breach or default of any of the terms, conditions, representations and/or warranties of this Agreement by any such Customer's Designee shall be deemed to be a breach or default of this Agreement by Customer and any acts or omissions of Customer's Designees related to the use of the Service shall be deemed to be acts or omissions of Customer for purposes of this Agreement. If Customer's or Customer's Designees' use of Service or non-compliance with the terms and conditions of this Agreement (including but not limited to this Section 4.2.): (i) causes, or would reasonably be expected to cause, interference to or threatens the availability or operation of any services or facilities provided by EchoStar; or (ii) would reasonably be expected to result in: (a) a breach or violation of any other agreement between Customer or any of its Affiliates one the one hand and any member of the EchoStar Group on the other hand; (b) a claim against the EchoStar Group; or (c) the institution of criminal proceedings or administrative proceedings that would reasonably be expected to result in sanctions or other non-monetary remedies against EchoStar and/or any of its Affiliates, then, in addition to any other remedies that may be available to EchoStar hereunder, EchoStar shall be entitled to suspend and/or restrict such non-compliant use of the Service.
ARTICLE V.
Operational Matters
5.1. Service Access. Customer is responsible for providing, operating and maintaining the equipment necessary to access the Satellite and Service. Customer at its expense shall provide EchoStar with any descrambling or decoding devices that may be required for signal monitoring. At a mutually agreed time, and prior to Customer transmitting from its earth station(s), Customer will demonstrate to EchoStar's designated Technical Operations Center that its earth station(s) comply with the satellite access specifications contained in the EchoStar Satellite Users' Guide.
5.2. Action to Protect Satellite. EchoStar shall have sole and exclusive control of operation of the Satellite. If circumstances occur which in EchoStar's reasonable judgment pose a threat to the stable operation of the Satellite, EchoStar shall have the right to take any and all actions it reasonably believes are or may be necessary or advisable to protect the Satellite, including discontinuance or suspension of operation of the Satellite, the Transponder(s) or any other transponder, without any liability to Customer, except that Customer may receive an Interruption Credit computed as provided in Article III of this Agreement. EchoStar shall give Customer 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 EchoStar to select the transponder or transponders to be discontinued or suspended, EchoStar will make such selection in Reverse Contract Order.
5.3. Certain Other Operational Matters. EchoStar and Customer will participate in monthly meetings to discuss the status of and developments in the construction and launch of the Satellite. ***.
ARTICLE VI.
Indemnification
Customer shall indemnify, defend and hold EchoStar and its Affiliates, and its and their respective officers, directors, employees, agents and shareholders, and its and their respective assigns, heirs, successors and legal representatives (collectively the "EchoStar Group") harmless from and against, any and all costs, losses, liabilities, damages, lawsuits, judgments, claims, actions, penalties, fines and expenses (including, without limitation, interest, penalties, reasonable attorney fees and all monies paid in the investigation, defense or settlement of any or all of the foregoing), that arise directly or indirectly out of, or are incurred in connection with: (i) Customer's performance or failure of performance under this Agreement; (ii) the failure of Customer to comply with, or any violation of, any applicable laws; (iii) any claim of pirating, infringement or imitation of the logos, trademarks or service marks of programming providers; (iv) the acts or omissions of Customer or Customer's Designees arising out of, resulting from or in connection with the Service or any use of the Service; and (v) third party claims (including those of Customer's Designees) arising out of, resulting from or in connection with any failure to provide Service or any use of Service provided hereunder. In the event of any claim for indemnification by the EchoStar Group under this Article VI, the EchoStar Group shall be entitled to representation by counsel of its own choosing, at Customer's sole cost and expense. The EchoStar Group shall have the right to the exclusive conduct of all negotiations, litigation, settlements and other proceedings arising from any such claim and Customer shall, at its own cost and expense, render all assistance reasonably requested by EchoStar in connection with any such negotiation, litigation, settlement or other proceeding. The provisions of this Article VI shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
ARTICLE VII.
Warranty Disclaimer; Limitation of Liability
7.1. Warranty Disclaimer. NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLY TO SERVICE PROVIDED HEREUNDER OR THE EQUIPMENT AND FACILITIES USED TO PROVIDE SERVICE. THE CONVEYING BY ECHOSTAR OF PROPRIETARY INFORMATION OR OTHER INFORMATION TO CUSTOMER SHALL IN NO WAY ALTER THIS DISCLAIMER.
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
7.2. Limitation of Liability. As a material condition of entering into this Agreement 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, Customer agrees that EchoStar's and EchoStar's Affiliates' entire liability shall not exceed in the aggregate, the MRC paid by Customer to EchoStar for Service in the month preceding the event that is the cause of liability, plus any credits or refunds that are due with respect to such event pursuant to Article III or Section 9.3, respectively. Customer agrees that in no event shall EchoStar or any of its Affiliates or the manufacturer or launch service provider of the Satellite be liable for (i) any indirect, incidental, consequential, punitive, special or other similar damages (whether in contract, tort (including negligence), strict liability or under any other theory of liability), including but not limited to loss of actual or anticipated revenues or profits, loss of business, customers or goodwill, or damages and expenses arising out of third party claims or (ii) any damages of whatever kind, in the event the Satellite is positioned at an orbital location other than as specified in Section 1.1. The foregoing exclusions shall apply even if such party(s) has been advised of the possibility of such damages. The provisions of this Article VII shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
ARTICLE VIII.
Confidentiality and Nondisclosure
8.1. Certain Information Regarding Service. Customer hereby agrees not to disclose to third parties (without the prior written consent of EchoStar, which consent may be withheld in the sole and absolute discretion of EchoStar for any reason or no reason) the terms and conditions of this Agreement (including but not limited to the prices, payment terms, schedules, protection arrangements, and restoration provisions of this Agreement) and all information provided to Customer related to the design and performance characteristics of the Satellite, and any subsystems or components thereof, including but not limited to the Transponder.
8.2. Proprietary Information. To the extent that either party discloses to the other any other information which it considers proprietary, said party shall identify such information as proprietary when disclosing it to the other party by marking it clearly and conspicuously as proprietary information. Any proprietary disclosure to either party, if made orally, shall be identified as proprietary information at the time of disclosure. Any such information disclosed under this Agreement shall be used by the recipient thereof only in its performance under this Agreement. Neither party shall be liable for the inadvertent or accidental disclosure of such information marked as proprietary, if such disclosure occurs despite the exercising of the same degree of care as the receiving party normally takes to preserve and safeguard its own proprietary information (but not less than reasonable care) or if such information: (i) is or becomes lawfully available to the public from a source other than the receiving party before or during the period of this Agreement; (ii) is released in writing by the disclosing party without restrictions; (iii) is lawfully obtained by the receiving party from a third party or parties without obligation of confidentiality; (iv) is lawfully known by the receiving party prior to such disclosure; or (v) is at any time lawfully developed by the receiving party completely independently of any such disclosure or disclosures from the disclosing party. In addition, neither party shall be liable for the disclosure of any proprietary information which it receives under this Agreement pursuant to judicial action or decree, or pursuant to any requirement of any government or any agency or department thereof, having jurisdiction over such party, provided that in the reasonable opinion of counsel for such party such disclosure is required, and provided further that such party to the extent reasonably practical shall have given the other party notice prior to such disclosure. The provisions of this Article shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
ARTICLE IX.
Termination
9.1. Intentionally Omitted.
9.2. Termination for Cause. In addition to any rights of termination provided in other Articles of this Agreement, either party may terminate this Agreement by giving the other party written notice thereof in the event: (i) the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof (except that if Customer fails to pay amounts due hereunder, such cure period shall be reduced to five (5) business days), provided, however, except for failure of Customer to pay amounts due under this Agreement and except for breaches by Customer that could be expected to result in harm to the Satellite and/or the Transponder, that if the event for which the notice is given is of a nature that may not reasonably be cured within said thirty (30) day period, the non-breaching party shall not have the right to terminate this Agreement under this Article for so long as the other party commences good faith efforts to cure such breach within said thirty (30) day period and diligently pursues such efforts to conclusion; or (ii) the other party is unable to perform its obligations as a result of its 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 now or hereafter enacted, and such proceeding is not dismissed within sixty (60) days after filing; or (iii) Interruption(s) with respect to more than fifty percent (50%) of the transponders leased hereunder continue for thirty (30) consecutive days and the sole cause of the Interruption is a Force Majeure Event.
9.3. Refunds. In the event of the expiration of this Agreement pursuant to Section 1.2 EchoStar shall be entitled to retain all amounts paid by Customer to EchoStar under this Agreement, except that EchoStar shall refund any portion of amounts paid by Customer to EchoStar which relate to Service not provided by EchoStar plus any credits that may be due to Customer pursuant to Article III.
9.4. Termination Liability. In the event of termination for ***
9.5. Inability to Regain Transponder. If upon expiration or termination of this Agreement for any reason or no reason by either party, EchoStar is unable to regain the use of all, or any part of, the Transponder(s) free and clear of any claims (including, but not limited to, claims of a debtor in bankruptcy) or liens arising as a result of the use of the Transponder(s) by Customer or Customer's Designees, then in addition to all other remedies available to EchoStar pursuant to this Agreement, at law, in equity, or otherwise (all of which are hereby expressly reserved), Customer shall be obligated, without regard to any such termination or expiration, to continue to pay EchoStar the payments provided for in Article II.
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
ARTICLE X.
General Provisions
10.1. Force Majeure. Neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of acts of God or of the public enemy, acts of the other party, acts of any local, county, state, federal or other government in its sovereign or contractual capacity, fires, floods, adverse weather conditions (including but not limited to solar flares or sun outages with respect to satellite transmission interference), epidemics, quarantines, restrictions, sabotage, acts of terrorism, acts of third parties, strikes or other labor disturbances, freight embargoes, whole or partial satellite malfunctions, uplink failure, or any other event which is beyond the reasonable control of that party (each, a "Force Majeure Event"). In no event shall Customer's failure to make payment when due be excused by a Force Majeure Event.
10.2. No Implied License. The provision of services or the conveying of any information under this Agreement shall not convey any license by implication, estoppel or otherwise, under any patents or other intellectual property rights of Customer or EchoStar, and/or their Affiliates, contractors and/or vendors.
10.3. No Third Party Rights; No Fiduciary Relationship. 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.
10.4. No Waiver; Remedies Cumulative. No waiver, alteration, or modification of any of the terms of this Agreement will be binding unless in writing and signed by both parties. All remedies and rights hereunder and those available under contract, in law, in equity and otherwise 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, in equity, under contract or otherwise (all of which are hereby expressly reserved). The failure of any party to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or similar nature.
10.5. Costs and Attorneys' Fees. In addition to all other amounts payable under this Agreement, EchoStar shall be entitled to recover from Customer: (i) costs of collection of any amounts, including reasonable attorneys' fees and disbursements; and (ii) costs, including reasonable attorneys' fees and disbursements, incurred in seeking to prevent use of Service contrary to the terms of this Agreement. The provisions of this Article shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
10.6. Governing Law and Jurisdiction. Except as otherwise agreed to by the parties, the relationship between the parties and their present and future Affiliates, including without limitation all disputes, controversies or claims, whether arising in contract, tort, under statute or otherwise, shall be governed by and construed in accordance with the laws of the State of Colorado, applicable to contracts to be made and performed entirely within the State of Colorado by residents of the State of Colorado, without giving any effect to its conflict of law provisions. The parties and their present and future Affiliates consent to and submit to the in personam jurisdiction of the United States District Court for the District of Colorado and the appropriate State Court located in the City and County of Denver, State of Colorado for the purposes set forth in this Article and waive, fully and completely, any objection to venue and right to dismiss and/or transfer any action pursuant to Title 28 U.S.C. Section 1404 or 1406 (or any successor statute). In the event that the United States District Court for the District of Colorado does not have subject matter jurisdiction over any such matter, then such matter shall be litigated solely and exclusively before the appropriate state court of competent jurisdiction located in the City and County of Denver, State of Colorado. The provisions of this Article shall survive expiration or termination of this Agreement (for any reason or no reason whatsoever) indefinitely.
10.7. Headings; Severability; Customer Purchase Orders. All titles and headings in this Agreement are for reference purposes only and will not affect the meaning or construction of the terms of this Agreement. The parties agree that each provision of this Agreement shall be construed as separable and divisible from every other provision and that the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision hereof. If any one or more of the provisions contained herein, or the application thereof to any person, entity, or circumstance, for any reason are held to be invalid, illegal, or unenforceable in any respect, then such provision(s) shall be enforced to the maximum extent permissible, and the remaining provisions of this Agreement shall be unaffected thereby and will remain in full force and effect. Customer agrees that any purchase order or other similar document that Customer may issue in connection with this Agreement will be for Customer's internal purposes only and, therefore, even if acknowledged by EchoStar, will not in any way add to, subtract from, or in any way modify the terms and conditions of this Agreement.
10.8. Assignment. Neither party may assign or otherwise transfer this Agreement or any or all of its rights and/or obligations under this Agreement to any third party without the other party's prior written consent to such assignment or transfer, which consent may be withheld in the sole and absolute discretion of the other party for any reason or no reason. ***
10.9. Construction. Customer and EchoStar hereby represent, warrant, acknowledge and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement, including without limitation any amendments hereto.
10.10. Facsimile Signatures; Counterparts. This Agreement may be executed by facsimile and/or in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10.11. Trademarks. Nothing in this Agreement will be construed to give Customer any rights to use any EchoStar trademarks, service marks, or logos without the express prior written consent of EchoStar, which consent may be withheld for any reason or no reason in the sole and absolute discretion of EchoStar.
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
10.12. Entire Agreement/Amendments. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. Except as otherwise expressly provided herein, no party shall be bound by any communications between them on the subject matter of this Agreement, unless the communication is: (i) in writing; (ii) bears a date contemporaneous with or subsequent to the date of this Agreement; and (iii) is signed by all parties to this Agreement. The parties specifically acknowledge there are no unwritten side agreements or oral agreements between the parties regarding the subject matter of this Agreement which alter, amend, modify or supplement this Agreement. In the event of any conflict or inconsistency between the terms and conditions set forth in the body of this Agreement and the terms and conditions set forth in any Attachment hereto, the terms and conditions set forth in the body of this Agreement shall control. In addition to any provisions of this Agreement that expressly survive termination or expiration, any provision of this Agreement that logically would be expected to survive termination or expiration, shall survive for a reasonable time period under the circumstances.
10.13. No Offsets. Unless otherwise agreed upon *** The provisions of this Article shall survive expiration or termination of this Agreement for any reason or no reason indefinitely.
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
ARTICLE XI.
Definitions
The following definitions shall apply to all capitalized terms, whether used in the singular or plural form, which are not otherwise defined in this Agreement:
"Affiliate" means any person or entity directly or indirectly controlling, controlled by or under common control with another person or entity.
"Business Preemptible Service" or "Business Preemptible Transponder" means a satellite service or transponder that is not entitled to restoration in the event it becomes a Transponder Failure and may be preempted at any time to restore: (i) a satellite failure; (ii) a Protected Service or Protected Transponder that becomes a transponder failure; (iii) any other service or transponder (including a Preemptible Service or Preemptible Transponder) experiencing technical difficulties or interference; or (iv) other service offerings of EchoStar or any of its Affiliates, including but not limited to mass move protection, construction and launch delay protection and launch failure protection. In addition, such Business Preemptible Service or Business Preemptible Transponder may be preempted for any other reason (including but not limited to, EchoStar's desire to provide service on such Transponder to another customer).
"End-of-Life" means the date on which, in EchoStar's reasonable judgment, a satellite should be taken out of service because of insufficient fuel.
"Fully Protected Service" means a satellite service that may not be preempted to restore another service, and 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 is located, is entitled to restoration, subject to availability of facilities and to the conditions of the applicable contract, on another satellite.
"Interruption" means any period during which a Transponder fails to meet the Transponder Performance Specifications set forth in Attachment A (or, following a reassignment or relocation pursuant to Section 3.3, the substantial equivalent thereof) and such circumstances preclude the use of the Transponder for its intended purpose.
"Non-Preemptible Service" means a satellite service on which such service is provided that may not be preempted to restore another service and that is not itself entitled to be restored by preempting any other service.
"Preemptible Service" or "Preemptible Transponder" means a satellite service or transponder that is not entitled to restoration in the event it becomes a Transponder Failure and may be preempted at any time to restore: (i) a satellite failure, (ii) a Protected Service or Protected Transponder that becomes a transponder failure, or (iii) other service offerings of EchoStar or any of its Affiliates, including but not limited to mass move protection, construction and launch delay protection and launch failure protection.
"Protected Service" or "Protected Transponder" means a service or transponder that is entitled to preempt a Preemptible Service or Preemptible Transponder.
"Protection Transponder" means a Replacement Transponder or Preemptible Transponder used to restore a Protected Service.
"Replacement Date" means the date on which a Replacement Satellite is made capable of carrying communications traffic at the orbital location to which the Satellite is assigned and, following EchoStar testing and verification, EchoStar determines that such satellite is ready for commercial operation.
"Replacement Satellite" means any replacement or successor to the then-current Satellite or to the Ku-band payload of the Satellite which is capable of carrying communications traffic at the orbital location to which the Satellite is assigned and providing performance substantially equivalent to the Transponder Performance Specifications set forth in Attachment A.
"Replacement Transponder" means a spare transponder, which is accessible for purposes of providing restoration and which is capable of carrying communications traffic within the parameters as described in the transponder performance specifications for the transponder to be restored.
"Reverse Contract Order" means, as to each service or transponder on the Satellite, in order from the latest date on which a binding agreement for the taking of such service has been executed by both a customer and EchoStar, to the earliest such date. If Reverse Contract Order is to be determined among more than one class of service, then Reverse Contract Order means first in order from the latest such date to the earliest such date among Business Preemptible Services, second in such order among Preemptible Services, third in such order among Non-Preemptible Services, fourth in such order among Transponder Protected Services and last in such order among Fully Protected Services. Notwithstanding the foregoing, any service being 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 an earlier date of binding agreement than Customer hereunder.
"Satellite" means the communications spacecraft designated EchoStar XVI to be operated by EchoStar or in accordance with Section 1.1, a Replacement Satellite. When used in the lower case, "satellite" means a domestic communications satellite operating in Ku-band.
"Satellite Failure" means 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 EchoStar in its reasonable business judgment, or on which more than one-half of the transponders on the payload are transponder failures; and
2) that EchoStar has declared a failure.
For purposes of this definition, a hybrid satellite with multiple band payloads shall be treated, at EchoStar's option, either (i) as a single satellite or (ii) as though the multiple band payloads were located on separate satellites.
"Transponder" means a Ku-band radio frequency transmission channel on the Satellite, used to provide service to Customer pursuant to the terms of this Agreement. Customer acknowledges and agrees that due to circumstances, including but not limited to the characteristics of Customer's traffic, Customer's ground segment configuration, and the characteristics of traffic on cross polarized transponders on the Satellite and of carriers on satellites in proximity to the Satellite, the entire bandwidth of the Transponder may not be usable by Customer for the operation of all types of carriers. When used in the lower case, "transponder" means a Ku-band radio frequency transmission channel on a communications satellite.
"Transponder Authority" means all retransmission consents and any and all other consents, authorizations and approvals required by law or under contract and/or pursuant to any governmental action (including but not limited to any consent, authorization and/or approval required under the rules and regulations of the Federal Communications Commission) for Customer's use of the Services, Satellite and/or Transponder.
"Transponder Failure" means, with respect to any Transponder used to provide service to Customer under this Agreement, any of the following events:
1) such Transponder fails to meet the Transponder Performance Specifications set forth in Attachment A (or, following a reassignment or relocation pursuant to Section 1.1 or Section 3.3, the substantial equivalent thereof) in any material respect for any period of five (5) consecutive days;
2) twenty (20) or more creditable Interruptions of fifteen (15) minutes or more in duration shall occur within any ninety (90) consecutive days; or
3) such Transponder shall fail to meet the Transponder Performance Specifications set forth in Attachment A (or, following a relocation or reassignment pursuant to Section 1.1 or Section 3.3, the substantial equivalent thereof) in any material respect for any period of time under circumstances that make it clearly ascertainable or predictable, based on satellite industry engineering standards, that a failure set forth in Paragraphs 1) or 2) above will occur.
For the purpose of this definition, measurement of periods of failure hereunder shall commence when Customer has vacated its signal to permit verification of the existence of the failure by EchoStar.
"Transponder Protected Service" means a satellite service that may not be preempted to restore another service, that is itself entitled to be restored by Protection Transponders on the same satellite in the event it becomes a Transponder Failure but that is not entitled to be restored if there is no such Protection Transponder available.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the date and year first above written.
| ECHOSTAR SATELLITE OPERATING CORPORATION |
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Name: Title: |
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DISH NETWORK L.L.C. |
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By: |
Name: Title: |
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Exhibit A
Transponder Performance Specifications
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
Exhibit B
EchoStar Satellite Users' Guide
[Intentionally Omitted]
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
Exhibit C
EchoStar XVI MRC Calculation
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- Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act.
ECHOSTAR SATELLITE OPERATING CORPORATION SATELLITE TRANSPONDER SERVICE AGREEMENT FOR ECHOSTAR XVI