Form of] Broadcast Services Agreement (Uplinking)
Exhibit 10.27
[Form of]
Broadcast Services Agreement (Uplinking)
This Broadcast Services Agreement (“Broadcast Agreement”) and the EHC Service Order
Form attached hereto and incorporated herein (the “Service Order”) is binding and made
effective as of the “Effective Date” (as defined in the Service Order), by and between
EchoStar Holding Corporation, a Nevada Corporation, (“EHC”) and EchoStar Satellite L.L.C.,
a Colorado limited liability company, (“Customer”). Collectively the Broadcast Agreement
and the Service Order shall be referred to as the “Agreement.” EHC and Customer shall each
be referred to herein as a “Party” and collectively as the “Parties.”
(a) Downlinking Customer Channel Content. EHC shall downlink “Customer
Channel(s)” (as defined in the Service Order) from either a Customer-provided or a EHC-provided
satellite space segment (hereinafter referred to as a “Transponder” and the specified
bandwidth thereon allocated to Customer Channel(s), referred to as the “Transponder
Capacity”, both as specified in the Service Order). At an antenna located at the Teleport, EHC
shall receive the Customer Channel(s) downlinked from either a Customer-provided or a EHC-provided
Transponder. Either Customer or EHC may provide the integrated receiver decoders (“IRD’s”)
as specified in the Service Order. Unless expressly set forth in the Agreement to the contrary,
Customer is responsible for providing, operating and maintaining all equipment, at locations other
than the Teleport, necessary for reception of the downlinked Customer Channel(s). If EHC provides
the IRD’s, then upon termination or expiration of the Teleport Services set forth in this
Section 1(a), Customer shall at its cost, return all such IRD’s to the Teleport. Failure
to return such IRD’s to the Teleport within thirty (30) days subsequent to such termination or
expiration shall entitle EHC to, and Customer shall pay EHC, a dollar amount equal to the
replacement cost of such IRD’s.
Customer) shall be supplied by EHC. In the event of utility power failure at the Teleport,
all such critical equipment will have power supplied by an uninterruptible power supply with
sufficient battery capacity to allow time for a EHC-supplied generator to be automatically switched
on-line.
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5. Customer Provided Equipment. Customer shall have the right, but not the obligation to:
(i) provide a portion of, or all of, the equipment necessary for EHC to provision the Services to
Customer; or (ii) have EHC purchase on Customer’s behalf a portion of, or all of, the equipment
necessary for EHC to provision the Services to Customer (clause (i) and (ii) collectively
“Customer Equipment”). In the event that Customer exercises its right to have EHC purchase
Customer Equipment (an “Equipment Purchase”) then: (a) such Equipment Purchase shall be
included within the definition of “Services”; (b) EHC shall use commercially reasonable efforts to
promptly procure the Equipment Purchase; and (c) Customer
shall pay to EHC a cost plus a mutually agreed margin based upon the
fair market value for such Equipment Purchase taking into consideration,
among other things, the performance capabilities and technical
specifications of the Equipment Purchase and the expertise of the services
required to procure the Equipment Purchase (the "Equipment Cost"). In the
event that the Parties are unable to agree on the Equipment Cost,
the dispute resolution
procedures set forth in Article VIII of the Separation Agreement by and between EchoStar
Communications Corporation and EchoStar Holding Corporation dated [ ] (the “Dispute Resolution
Procedures”) will be used to determine the fair market value of
the Equipment Cost and such fair market value as so determined shall
be deemed the Equipment Cost. All Customer Equipment provided by Customer or to be purchased on Customer’s behalf
shall be listed in an Appendix A to the Service Order.
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consents and agrees to such change of ownership. In the event any damage to the Rack Space or
Teleport (reasonable wear and tear excepted) results from any use of the Rack Space and/or removal
of Customer Equipment, Customer shall pay EHC the cost of repairs. Customer accepts all
responsibility for Customer Equipment, including but not limited to risk of loss of its Equipment,
except to the extent caused by EHC’s gross negligence or willful misconduct.
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9. Charges and Payment.
MRC / NRC. Monthly recurring charges (“MRC(s)”) as further
defined in this sentence) and non-recurring charges (“NRC(s)” as further defined in this sentence) shall be provided to Customer
by EHC at a cost plus a mutually agreed margin based upon the fair market value of the Service, taking into consideration, among
other things, the performance capabilities and technical
specifications of the Services. In the event the Parties are unable to agree
upon the MRC or NRC, the dispute resolution procedures set forth in Article VIII of the Separation Agreement by and between EchoStar
Communications Corporation and EchoStar Holding Corporation dated [ ] (the “Dispute Resolution Procedures”) will be used
to determine the fair market value of the applicable Service and such fair market value as so determined shall be deemed to be the MRC or NRC
(as the case may be) for the applicable Service.
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accordance with the terms of the Service Order; or (iii) the secondary anniversary of the
first Service Initiation Date (as defined in Section 8 above) for the first Service
provided to Customer.
(i) Customer acknowledges the possibility of an unscheduled period of time during which a
Customer Channel is not available (“Outage”). An Outage shall be measured on a per
Customer Channel basis and shall begin when EHC receives notice of the Outage from the Customer, or
when EHC discovers the Outage (whichever occurs first) and will be considered to have ended when
the affected Customer Channel has been restored. For an Outage to be counted toward the
accumulated Outage time for which Customer may be entitled to a credit as set forth in Section
11(b) below (“Outage Credit”), Customer shall submit a written Outage notice to EHC
(which identifies the Outage and requests an Outage Credit) within five (5) calendar days of the
Outage. If EHC does not receive Customer’s written Outage notice within such five (5) calendar day
period, the Outage shall not be counted toward the accumulated Outage time. For the avoidance of
doubt, the term “Outage” shall include all Outages specified in Section 11(a)(ii).
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Outage Credit Calculation
Outage duration (in number of minutes), multiplied by the Customer Channel’s
prorated portion of the applicable Teleport Service’s MRC, divided by 43,200
(deemed number of minutes in a month.)
prorated portion of the applicable Teleport Service’s MRC, divided by 43,200
(deemed number of minutes in a month.)
For the avoidance of doubt and solely by way of example, an affected Customer Channel’s prorated
portion of the applicable Teleport Service’s MRC shall be calculated as follows: If the Teleport
Service’s MRC is $100 for all Customer Channels and there are an aggregate of 10 Customer Channels,
one Customer Channel’s prorated portion of the Teleport Service’s MRC would be $10.
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Outages (as set forth in Section 11(a)(ii) above) are Customer’s sole and exclusive
remedy(s) with respect to Outages. For a Service Failure, Service Failure Credits from EHC (as set
forth in Section 11(c) above) are Customer’s sole and exclusive remedy(s) with respect to
Service Failures. In no event shall an Outage or a Service Failure be deemed a breach of this
Agreement and all other remedies or damages at law or in equity Customer may have against EHC in
connection with any Outage or Service Failure are waived.
Type of Coverage: | Limits of Liability: | |
(i) Worker’s Compensation
|
Statutory per State | |
(ii) Employers Liability
|
$1,000,000 per occurrence | |
(iii) Broad Form Property Damage
|
$3,000,000* per occurrence | |
(iv) Third Party Property Damage
|
$3,000,000* per occurrence |
* | The limits of liability required above can be satisfied by a combination of primary and excess liability insurance. |
Customer shall provide to EHC at or prior to the Effective Date, certificates of insurance or proof
of subscription to any state fund evidencing that Customer is maintaining all of the insurance
required hereunder, and stating that EHC shall be provided with a copy of such certificates at the
execution of any amendment thereto and at each policy renewal thereof, which certificates or proofs
shall be in a form acceptable to EHC. All policies shall (a) be endorsed to include EHC, its
stockholders, Affiliates, directors, officers and employees as additional insureds (the
“Additional Insureds”); (b) be primary and non-contributory coverage to any insurance or
self-insurance maintained by the Additional Insureds; (c) contain an endorsement waiving
subrogation rights of insurer against the Additional Insureds, and (d) shall be issued by
insurer(s) and in a form reasonably satisfactory to EHC. All deductibles shall be paid by
Customer, assumed by Customer, for the account of Customer and EHC, and at Customer’s sole risk.
(a) No Obligation on EHC. EHC will not insure nor be responsible for any loss or
damage, regardless of cause, to any Customer Equipment or property of any kind, including loss of
use thereof, owned, leased or borrowed by the Customer, its employees, servants or agents.
(b) Contractors. If Customer utilizes contractor(s) per the Agreement, then Customer
shall require such contractor(s) to comply with these insurance requirements. Customer will supply
subcontractor’s certificates of insurance to EHC before any work commences.
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(a) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER
PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING, BY WAY OF
EXAMPLE AND NOT LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE,
WHETHER SUCH CLAIM IS XXXXXX OR INCHOATE, WHETHER BY STATUTE, IN TORT, OR IN CONTRACT, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT SHALL EHC, 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 (THE “EHC GROUP”) BE LIABLE FOR: (i) CONTENT THAT IS
TRANSMITTED BY CUSTOMER OR THIRD PARTIES VIA THE SERVICE(S); OR (ii) FOR ANY OUTAGE OR SERVICE
FAILURE ATTRIBUTABLE IN WHOLE OR IN PART TO ANY OF THE EXCEPTIONS SET FORTH SECTION 11(d)
OR OTHER CAUSES BEYOND EHC’S CONTROL.
(c) EXCEPT AS SET FORTH IN SECTION 11(b) AND 11(c) OF THIS AGREEMENT, IN NO
EVENT SHALL THE EHC GROUP BE LIABLE FOR ANY OUTAGE, SERVICE FAILURE, DEFECT, ERROR, INTERRUPTION,
DELAY, OR ATTENUATION OF ANY OF THE SERVICES.
(d) AS A MATERIAL CONDITION OF ENTERING INTO THIS AGREEMENT AT THE PRICE SPECIFIED IN THE
SERVICE ORDER, AND IN REGARD
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TO ANY AND ALL CAUSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER AGREES EHC’S
AGGREGATE LIABILITY SHALL BE LIMITED TO THE LESSER OF: (i) THE ACTUAL DIRECT DAMAGES; OR (ii) THE
MRC AND/OR NRC AMOUNTS ACTUALLY PAID (EXCLUDING ANY DEPOSITS) TO EHC BY CUSTOMER IN CONNECTION WITH
THE CONTESTED SERVICE DURING THE PRECEEDING MONTH FROM THE TIME THE EVENT RESULTING IN LIABILITY
OCCURS. IN THE EVENT OF EHC LIABILITY PURSUANT TO THIS AGREEMENT, EHC MAY ELECT, AT ITS DISCRETION
AND SOLE OPTION, TO PAY SUCH REQUIRED AMOUNTS OR PROVIDE A CREDIT AGAINST SERVICES. THE PROVISIONS
OF THIS ARTICLE SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT (FOR ANY REASON OR NO
REASON WHATSOEVER) INDEFINITELY.
(a) Notwithstanding anything to contrary contained herein, Customer shall indemnify, defend
and hold the EHC 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 out of, or are incurred in connection with:
(i) material breach of the Agreement, breach of any warranty, representation or covenant, or fault,
negligence, act or omission, by the Customer or its Affiliates, directors, employees, agents or
contractors; (ii) bodily injury including death, or property damage incurred by Customer or its
Affiliates, directors, employees, agents or contractors as related to any Service, howsoever
caused; (iii) the quality, content, alleged defects in, or failure (however caused) of any Service;
(iv) the failure by Customer, its Affiliates or downstream customers of Customer, or any third
party, to obtain approval, consent, or authorization relating to the content transmitted over any
Service, including without limitation claims relating to any violation of copyright law, export
control laws; (v) Customer’s or its Affiliates alleged breach of any national or international
laws, rules and regulations applicable to it; (vi) alleged infringement of intellectual property
rights including patents arising from Content, Customer Equipment, Customer-provided facilities,
apparatus, or systems, or combining such with any of the Services and/or EHC-provided equipment;
and/or (vii) EHC acting in accordance with the instructions of the Customer.
In the event of any claim for indemnification by the EHC Group under this Section, the EHC
Group shall be entitled to representation by counsel of its own choosing, at Customer’s sole cost
and expense. The EHC 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 EHC in connection with any
such negotiation, litigation, settlement or other proceeding.
The provisions of this Section 16 shall survive expiration or termination of this
Agreement (for any reason or no reason whatsoever) indefinitely.
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(a) EHC may, at its option, terminate or suspend all or any portion of the Agreement (i.e. all
or any Services provided hereunder) without liability by giving Customer written notice as follows:
(i) if Customer fails to make any payment due to EHC within (5) days of Customer’s receipt from
EHC of written notice of such failure; (ii) if Customer breaches any material provision of this
Agreement, and (A) if such breach is capable of remedy, Customer does not cure such breach within
thirty (30) days of Customer’s receipt from EHC of written notice of such breach, or (B) if such
breach is not capable of remedy, or has occurred more than once, immediately upon Customer’s
receipt of written notice from EHC of such breach; or (iii) if Customer files a petition in
bankruptcy or is adjudicated bankrupt or insolvent, or files or has filed against it any petition
or answer seeking any reorganization, composition, liquidation or similar relief for itself under
any applicable statute, law or regulation or makes any general assignment for the benefit of its
creditors, or admits in writing its inability to pay its debts generally as they become due. In no
event shall EHC’s election to suspend the Agreement and/or any Service(s) be construed as a waiver
of EHC’s right to terminate the Agreement and/or any Service(s).
(b) Customer may terminate any Channel Origination Services and/or any Channel Management
Services for any reason or no reason, by giving EHC sixty (60) days written notice without any
Customer Termination Liability as defined in Section 17(d) below. Provided that
the Customer is not in breach of any material provision of this Agreement, Customer may terminate
all or any portion of the Teleport Services, without any Customer Termination Liability, by giving
EHC written notice as follows: (i) if EHC breaches any material provision of this Agreement, and
(A) if such breach is capable of remedy, EHC does not cure such breach within thirty (30) days of
receipt of written notice of such breach, or (B) if such breach is not capable of remedy,
immediately upon receipt of written notice of such breach; or (ii) if EHC files a petition in
bankruptcy or is adjudicated bankrupt or insolvent, or files or has filed against it any petition
or answer seeking any reorganization, composition, liquidation or similar relief for itself under
any applicable statute, law or regulation or makes any general assignment for the benefit of its
creditors, or admits in writing its inability to pay its debts generally as they become due.
(c) Upon termination or expiration of all or any portion of any Services and/or the Agreement
for whatever reason, the Customer shall cease using all the terminated or expired Services.
Notwithstanding anything contained herein to the contrary, in such event all outstanding
indebtedness of the Customer to EHC under this Agreement, adjusted for any applicable Outage
Credits and/or Service Failure Credits, shall become immediately due and payable.
(d) In the event Customer terminates any portion of the Agreement for any reason except for
that as set forth in Section 17(b) above, within thirty (30) days of such termination
Customer shall pay EHC a sum equal to the projected Cost Formula that Customer would have paid EHC
to provide the Teleport Services for the remainder of the Service Term, had such Teleport Services
not been terminated (a “Customer Termination Liability”). The Parties agree this is a
proper assessment of the loss of bargain and damages EHC will incur, and is not a penalty.
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(e) The Customer shall remain liable to pay all charges for any suspended Services during any
period of suspension and, for the avoidance of doubt, any such suspensions shall not be deemed an
Outage or Service Failure and no Outage Credits or Service Failure Credits are payable by EHC to
the Customer for any such period of suspension.
(a) Customer represents, covenants and warrants that: (i) it has and will obtain all
applicable clearances and licenses, consents and approvals necessary to enable it to operate,
receive and use the Services and to perform its other obligations under this Agreement; (ii) it is
in compliance with, and performance of its obligations hereunder will not violate or conflict with,
any applicable law or regulation of any jurisdiction to which it is subject; (iii) it will only use
the Services and/or display or transmit any information or Content in connection with the Services
in compliance at all times with all applicable laws and regulations; (iv) it is and shall be solely
responsible for the acquisition of sufficient rights from, and all payments to, the owners of all
Content it transmits or receives and shall adhere to all applicable Federal Communications
Commission and regulatory guidelines as related to such Content; and (v) no Content provided to EHC
in connection with the Agreement shall contain any material which is patently obscene, libelous, or
that violates or infringes any copyright, right of privacy or literary or dramatic right of any
person or entity; (vi) it will follow established standard industry practices and procedures for
frequency co-ordination and will not request any Service in a manner that could reasonably be
expected to interfere with or cause physical harm to satellites or other services that EHC offers.
(b) EHC covenants that it shall provide the Services lawfully and with reasonable skill and
care to recognized industry standards using appropriately experienced and trained personnel.
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fault or negligence, such as acts of God, acts of civil or military authority, government
regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions,
earthquakes, nuclear accidents, floods, power blackouts, meteorological or astronomical
disturbances, satellite failure, satellite launch failure, Transponder failure and/or unusually
severe weather conditions (each a “Force Majeure Event”). Notwithstanding anything to the
contrary contained herein, if any Force Majeure Event affects EHC’s ability to provide a Service
and continues for: (i) thirty (30) consecutive days or less, then the affected Service shall
remain in effect; and (ii) more than thirty (30) consecutive days, then either Party may cancel the
affected Service with no liability on the part of any Party. Notwithstanding anything contained
herein to the contrary, if after the occurrence of a Force Majeure Event, EHC is able to provide
Services to Customer via a manner outside that which the parties normally provision and accept
Services, Customer hereby agrees to utilize commercially reasonable efforts to accept such
provision of such Services by EHC.
(c) Choice of Law and Jurisdiction. Except as otherwise agreed to by the Parties,
this Agreement and the legal relations between the Parties hereto, including all disputes and
claims, whether arising in contract, tort or under statute, shall be governed by and construed in
accordance with the laws of the State of Colorado, USA, without giving effect to its conflict of
law provisions. Any and all disputes arising out of, or in connection with, the interpretation,
performance or the nonperformance of the Agreement or any and all disputes arising out of, or in
connection with, transactions in any way related to the Agreement and/or the relationship between
the Parties shall be litigated solely and exclusively before the United States District Court for
the District of Colorado. The Parties consent to the in personam jurisdiction of said court for
the purposes of any such litigation, and waive, fully and completely, any right to dismiss and/or
transfer any action pursuant to 28 U.S.C. §1404 or §1406 (or any successor statute). In the event
the United States District Court for the District of Colorado does not have subject matter
jurisdiction of said matter, then such matter shall be litigated solely and exclusively before the
appropriate state court of competent jurisdiction located in Arapahoe County, State of Colorado,
USA.
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to the contrary herein, any notice or other communications required or permitted to be given
hereunder shall be in English, in writing and shall be delivered personally or 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 or fax number
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 personal delivery or delivery by mail or by overnight courier service)
shall constitute the giving thereof:
If to EHC:
EchoStar Holding Corporation
Attn: General Counsel
Address: 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Address: 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000
With Copy To:
EchoStar Holding Corporation
Attn: Vice President of Engineering
Address: 000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
Attn: Vice President of Engineering
Address: 000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
If to the Customer to:
EchoStar Satellite L.L.C.
Attn: General Counsel
Address: 0000 X. Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Address: 0000 X. Xxxxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxx 00000
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[AGREEMENT SIGNATURE PAGE FOLLOWS]
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ECHOSTAR HOLDING CORPORATION |
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By: | ||||
Name: | ||||
Title: | ||||
ECHOSTAR SATELLITE L.L.C. |
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By: | ||||
Name: | ||||
Title: | ||||
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