AGREEMENT NO.____________
XXXXXXXX
VYVX SERVICES
TELEPORT SERVICES AGREEMENT
This is an agreement dated as the 1 day of April, 1999 between Xxxxxxxx Vyvx
Services, a business unit of XXXXXXXX COMMUNICATIONS, INC., ("Xxxxxxxx") and
Colorado Satellite Broadcasting, a division of New Frontier Media, Inc.
("Customer"), in connection with teleport services to be provided by Xxxxxxxx to
Customer (the "Agreement"). The terms of this Agreement are as follows:
1. GENERAL DESCRIPTION OF SERVICES
Xxxxxxxx will provide the following services (the "Services") pursuant
to the terms and conditions of this Agreement:
A. A 45 Mb microwave link to provide Customer with redundancy to
Customer's DS-3 circuit from Customer's premises in Boulder, Colorado
("Customer's Premises") to Vyvx Teleport Denver (the "Teleport")
(hereinafter referred to as the "Microwave Link").
B. An MPEG-2 compression system for transmission of Customer's
Programming over the Customer's DS-3 circuit and over the Microwave
Link from Customer's Premises to the Teleport.
C. One full-time MPEG-2 Digicipher II uplink at the Teleport to the
Telstar 4 Satellite, Transponder 19 (the "TEN Programming")
D. One full-time analog uplink at the Teleport in the clear
(unscrambled) to the Telstar 4 Satellite, Transponder 19 (the "Xxxxxx
Channel").
2. RESPONSIBILITIES OF CUSTOMER
2.1 Environment for and Access to Xxxxxxxx' Equipment. Xxxxxxxx will
install the following equipment at Customer's Premises in connection
with provision of the Services (hereinafter referred to as the
"Xxxxxxxx Equipment"):
2 Tektronix Codec Chassis (Model M2T300)
4 Tektronix 4:2:2 Encoders (Model M2T300 EC)
2 Tektronix ATM MMode (Model M2T300 N1)
1 Tektronix M2 DS-3 CNVRTR (Model M2ADS3)
Teleport Services Agreement Page 2 of 11
1 DMC 00 XXx XX-0 Microwave Radio Antenna with pole mount and Indoor
Unit
1 FORE Systems DS-3 Switch
Customer shall provide suitable space and environment for Xxxxxxxx' Equipment,
as well as uninterruptible power supply (UPS). Additionally, Customer shall
allow Xxxxxxxx reasonable access to Xxxxxxxx Equipment for routine maintenance
and immediate access in event of technical need.
2.2 Signal Delivery. Customer shall be solely responsible for delivery
of its signal(s) to the Demarcation Point at Customer's Premises. The
Demarcation Point shall be defined as the output from Customer's routing system
to the Xxxxxxxx' equipment at Customer's premise. Customer shall be required to
manually switch the Customer Programming feeds into the patch bay in the event
of a channel failure requiring use of the redundant channel or in the event that
Customer desires to use the redundant channel for occasional transmission
purposes as set forth in more detail herein.
2.3 Customer's DS-3 Circuit. The parties intend that the primary path
for Customer's signals shall be via a DS-3 circuit (the "DS-3 Circuit") between
Customer's Premises and the Teleport that Customer is obtaining from another
vendor. Customer shall be solely responsible for the DS-3 Circuit, including
payment to and all interaction with Customer's vendor.
2.4 Compliance with Technical Specifications. Customer's video and
audio signals delivered to the Demarcation Point and via Customer's Circuit to
the Teleport shall comply with RS 170A Standards as defined by FCC.
2.5 Transponder. Customer shall be solely responsible for obtaining
Transponder 19 on the Telstar 4 Satellite (the "Transponder") at Customer's sole
expense. Customer shall provide Xxxxxxxx with sufficient information regarding
the Transponder to be able to provide the Services.
2.6 Downlink Equipment. Customer shall be solely responsible for
receiving the satellite signals from the Transponder, including all downlink
equipment necessary for reception of the satellite signals.
2.7 Digicipher Authorizations. Customer has chosen to encrypt the Ten
Programming, as defined below, with a GI Digicipher system. Xxxxxxxx has
purchased the GI Digicipher MPEG-2 encoding system with "Conditional Access,"
for use in providing Customer the Services. Customer shall be responsible for
the authorization of commercial decoders in Customer's network, so that the
correct end user receives the correct programming. In this regard, Customer
shall be solely responsible for obtaining and maintaining a dial up telephone
connection to the Conditional Access portion of the Digicipher system for use in
conjunction with authorization of commercial decoders to receive, Customer's
Programming. In the event Customer has technical difficulties with authorization
of Customer's network decoder, Xxxxxxxx will authorize decoders upon Customer's
written request.
2.8 Monitoring of Customer's Programming. Customer shall be solely
responsible for all video and audio monitoring of the satellite returned signal.
Xxxxxxxx will monitor only the satellite RF (radio frequency) representation of
the Service.
Teleport Services Agreement Page 3 of 11
2.9 Service Charge.
2.10 Labor. If Xxxxxxxx performs labor for Customer, at Customer's
request, other than in connection with the Services, then Customer agrees to pay
Xxxxxxxx for that labor at the rate of $150.00 per hour. An example of when a
labor charge would be charged is if Xxxxxxxx agreed to switch out an item of
Customer's equipment with a replacement part provided by Customer.
2.11 Single Source of Contact. Customer shall be the single point of
contact for Customer's customers regarding the Services provided hereunder.
Under no circumstances shall Customer distribute contact information for the
Teleport or Xxxxxxxx Communications, Inc. to Customer's customers.
3. RESPONSIBILITIES OF XXXXXXXX
3.1 Services. Xxxxxxxx shall provide the following Services to Customer:
(a)
The MPEG-2 Compression System. Xxxxxxxx' Equipment at Customer's
Premises is a 1:2 MPEG-2 compression system for transmission of
Customer's signals over Customer's Circuit to the Teleport, as well as
over the Microwave Link to the Teleport. There are two primary channels
of service and one channel for redundancy purposes. The MPEG-2
Compression System will be used to compress Customer's "Xxxxxx" Channel
and Customer's "TEN" program product. These two channels are identified
as "Primary Channels." The third channel of the MPEG-2 Compression
System is used for redundancy. On occasion, this third channel can be
used to deliver an additional "xxxxxx" channel to the Teleport. It is
understood that in the event of a failure of one of the Primary
Channels on the MPEG-2 Compression System, the third channel will be
used for the failed transmission path, even when the third channel is
being used for the additional occasional xxxxxx channel. Customer is
responsible for the switching of the correct program material to the
Xxxxxxxx' patch bay at Customer's Premises.
(b)
Redundant Signal Delivery to Teleport. As stated above, it is the
intent of the parties that Customer's Circuit shall be the primary
transmission path and that the Microwave Link provided by Xxxxxxxx
shall be the redundant transmission path. In this regard, the output of
the MPEG-2 Compression System will be split to be transmitted via
Customer's Circuit and the Microwave Link for the purposes of
Teleport Services Agreement Page 4 of 11
(c)
redundancy. The Microwave Link provided by Xxxxxxxx is "single thread"
and does not have any redundant features. The redundant DS-3 signals
are received at the Teleport and are connected to the decoding MPEG-2
equipment. An automatic sensing system monitors the output of the
decoders, and the best signal is automatically routed to the satellite
transmission system.
Full-Time Uplink for Ten Programming. Xxxxxxxx shall provide one
full-time uplink with MPEG-2 Digicipher II encryption to the
Transponder of Customer's Ten Programming. From the output of the
decoders of the signals delivered from Customer's Premises to the
Teleport, the TEN Programming signals are encrypted by the General
Instrument MPEG-2 Digicipher II video compression system. This system
is configured for 1:1 redundancy. Other specifications and parameters
for this system are found in the attached link budget. The Ten
Programming is then combined with the Xxxxxx Channel and the combined
RF transmission is then transmitted to the Transponder. Those portions
of the Ten Programming Uplink that are redundant are the MPEG-2 encoder
(1 :N), a "cold" DEC Microvax computer, and a I:N RF transmission
system. Customer acknowledges that all other aspects of the uplink are
not redundant.
(d)
Full-Time Uplink for the Xxxxxx Channel. Xxxxxxxx shall provide one
full-time analog uplink to the transponder of Customer's Xxxxxx
Channel. This transmission will meet parameters of the RS250C
specifications as defined by the FCC. From the output of the decoders
of the signals delivered from Customer's Premises to the Teleport, the
Xxxxxx Channel signals are transmission to the analog modulation
system. The Xxxxxx Channel is transmitted to the Transponder with no
encryption or scrambling. Performance characteristics of the Xxxxxx
Channel transmission can be found in the attached link budget. The
Xxxxxx Channel is then combined with the Ten Programming and the
combined RF transmission is then transmitted to the Transponder. Those
portions of the Xxxxxx Channel Uplink that are redundant are the
modulators (1:1) and a I:N RF transmission system. Customer
acknowledges that all other aspects of the uplink are not redundant.
3.2 Equipment. Xxxxxxxx shall provide all necessary equipment for the
Microwave Link and at the Teleport to uplink Customer's signals in
accordance with this. Xxxxxxxx' Equipment and all other equipment
provided by Xxxxxxxx shall remain the property of Xxxxxxxx.
3.3 Monitor. Xxxxxxxx will monitor only the RF representation of the Ten
Programming and the 'Xxxxxx Channel (hereinafter referred to as
"Customer's Programming"). Xxxxxxxx will communicate with Customer as
promptly as possible regarding any technical problems with the
Services.
3.4 Program Origination. At no time shall the Teleport provide programming
origination or tape playback services for Customer.
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Page 5 of 11
3.5 Service Initiation. Xxxxxxxx initiated the Services on April 1,
1999 (the "Service Initiation Date"). Customer acknowledges that the Services
began using the Microwave Link for delivery of Customer's Programming to the
Teleport, because Customer's Circuit was not yet in service. Customer
acknowledged and accepted the risks of operating the Services on the single
thread Microwave Link.
4. OCCASIONAL UPLINK OF "XXXXXX" PROGRAMMING
As described above, Customer may request that the third channel of the
Compression System be used to relay an additional "xxxxxx" channel to the
Teleport for satellite transmission, subject to availability of Xxxxxxxx'
resources to provide this additional service. Customer must request this
occasional uplink a minimum of 48 hours in advance. If request is made ~vith
less than 48 hours notice, Xxxxxxxx will make best effort to provide the
"xxxxxx" channel based on resource availability. Customer is responsible for
securing satellite transponder capacity and ensuring in advance that the
Teleport can provide occasional uplinking to such transponder capacity. If
Customer cancels its request for this occasional uplink more than 24 hours
before the scheduled uplink is to begin, then Xxxxxxxx will not charge Customer.
If Customer cancels its request for this occasional uplink less than 24 hours
before the scheduled uplink is to begin, then Customer will pay 100% of the
charges for the scheduled uplink. Occasional uplinking of a second "xxxxxx"
channel shall be charged to Customer at the rate of $75 per hour, with a one
hour minimum. If Customer purchases pre-emptible satellite transponder capacity,
Customer must provide Xxxxxxxx with a single point of contact who will be
responsible for notifying the Teleport in the event Customer's transponder
capacity is pre-empted.
5. ADDITIONAL SERVICES From time to time changes may be made in the Services
which shall be reflected in amendments to this Agreement and shall be executed
by authorized individuals of both parties.
6. TERM. This Agreement shall be deemed effective as of April 1, 1999 and shall
continue in effect until the termination of the Services on May 31, 2004 (the
"Original Term").
7. AUTOMATIC RENEWAL. After the expiration of the Original Term, this Agreement
shall automatically renew for successive one-year renewal terms (each a "Renewal
Term") unless either party notifies the other party in writing not less than
sixty (60) days prior to the end of the Original Term or any Renewal Term that
it does wish to renew the Agreement.
8. ANNUAL SERVICE CHARGE ADJUSTMENT. On each anniversary of the Service
Initiation Date during the Original Term or any Renewal Term of this Agreement,
the Service Charge shall be increased by an amount equal to the Consumer Price
Index for All Urban Consumers (CPI-U), as originally published by the Bureau of
Labor Statistics, for all items less food and energy, unadjusted for the twelve
month period ending the previous December 31.
9. COMMITMENT. Customer agrees that this is a take-or-pay commitment and that
failure to use the Services throughout the Term does not affect Customer's
obligation to pay the Service Charge throughout the Term. The parties agree that
Customer's minimum commitment pursuant to this Agreement though the Original
Term $2,659,500. The parties agree that this take-or-pay commitment is a potion
of the consideration for this Agreement, and that it is not a penalty.
10. LATE PAYMENT. If the Service Charge is not received on its due date, or if
any other payment is not received by Xxxxxxxx within 30 days after the date of
invoice, then such overdue
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amount shall be subject to late payment charges at the lower of 18% per annum or
the highest legally permissible rate of interest until the date payment is
actually received.
11. SUSPENSION RIGHT. In the event that Customer has failed to pay any amount
when due, Xxxxxxxx shall have the right to suspend any or all of the Services.
Xxxxxxxx shall only exercise this Suspension Right by first providing Customer
with five business days' written notice by facsimile. If Xxxxxxxx receives
payment from Customer of all amounts due within the five-day notice period, then
Customer's Services shall not be suspended. Suspension of Services does not
affect Customer's obligation to pay the Service Charges through the Term of this
Agreement.
12. TERMINATION. Either party may terminate this Agreement due to a material
breach of this Agreement by the other party. The non-breaching party shall
provide written notice to the breaching party of the alleged breach, and the
breaching party shall have sixty (60) days to cure the breach. If the breach has
not been cured within this sixty-day period, then the non-breaching party may
terminate upon thirty (30) days' written notice. Customer shall pay Xxxxxxxx in
accordance with this Agreement for all Services performed up to and including
the effective date of termination.
13. TAXES. Customer acknowledges and understands that all charges are computed
exclusive of any applicable federal, state or local use, excise, franchise,
sales and privilege taxes, duties, fees or similar liabilities (other than
general income or property taxes), including without limitation, any tax or
charge levied to support the Universal Service Fund contemplated by the
Telecommunications Act of 1996, whether charged to or against Xxxxxxxx, its
suppliers or affiliates or Customer for the Service provided to Customer
("Taxes"). Such Taxes shall be paid by Customer in addition to all other charges
provided for herein.
14. OUTAGE ALLOWANCE.
14.1 Calculation of Outage Allowance. If applicable, Xxxxxxxx shall
grant Customer an allowance (an "Outage Allowance") for Services as follows:
(a) For purposes of this Agreement an interruption to Services
("Interruption") will be deemed to have occurred when Services are
either not provided at all or fail to meet the requirements of the
Agreement for a period of five minutes or more. An Interruption
begins the earlier of when Customer notifies Xxxxxxxx of the
Interruption or when Xxxxxxxx is actually aware of the
Interruption. An Interruption will be considered to have ended
when Services in accordance with this Agreement have been
restored.
(b) When an Interruption occurs for a period of thirty (30) seconds
or more, an Outage Allowance will be extended to the customer on
the basis of five (5) minutes for each five (5) minutes, or
fraction thereof, of the Interruption.
(c) Two or more Interruptions occurring during any period of five
(5) consecutive minutes shall be considered as one five-minute
Interruption.
Teleport Services Agreement Page 7 of 11
(d) If an Interruption of Services occurs, then for each
Interruption, Xxxxxxxx shall xxxxx Customer an Outage Allowance
based on the Service Charge and the length of the Interruption
calculated pursuant to the equation below. Any such Outage
Allowance shall be applied to the next succeeding monthly billing
to Customer and shall not for any month exceed the Service Charge.
Outage Allowance = Interruption (in Minutes) x Service Charge
43,200 (deemed number of minutes per month)
14.2 Audio/Video. An Interruption of either the audio or video portion
of the Services shall be considered an Interruption.
14.3 Exceptions to Outage Allowance. In no case shall an Outage
Allowance be made for any Interruption that is a result of, or attributable in
whole or in part to:
(a) Any failure on the part of Customer to perform its material or
operational obligations pursuant to this Agreement;
(b) The failure of Customer's Signal provided by Customer or by
carriers other than Xxxxxxxx;
(c) The failure of transmission lines, equipment, or other facilities
provided by the Customer;
(d) The failure or nonperformance of any earth station not provided by
Xxxxxxxx;
(e) Reasonable periodic maintenance as approved in advance by Customer;
(f) Interference from third party transmission or usage;
(g) Cooperative testing; (which customer shall be notified of in
advance);
(h) Sun transit outage or rain fade; or
(i) Any other act or failure to act by Customer.
14.5 Credit Memoranda. Interruptions and Outage Allowances shall be
acknowledged by Xxxxxxxx through the issuance of credit memoranda. Such
memoranda shall be issued within fifteen (15) days of the close of each calendar
month and shall reflect all Outage Allowances payment the amount specified in
the credit memorandum received in the preceding month.
14.6 Time Limitation. In no event shall Xxxxxxxx be liable for Outage
Allowances for interruption unless the claim for such Outage Allowance is made
in writing to the following address within thirty (30) days after the date of
the interruption:
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Page 8 of 11
Xxxxxxxx Teleport Denver
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Operations Manager
15. XXXXXXXX' RIGHT TO RE-CONFIGURE TELEPORT. Xxxxxxxx shall have the right to
re-configure or relocate the Teleport.
16. RISK OF LOSS. Customer bears all risk of toss or damage to Xxxxxxxx'
Equipment resulting from Customer's negligent acts or omissions. Xxxxxxxx shall
bear risk of loss or damage to Xxxxxxxx' Equipment resulting from any other
cause.
17. CONTRACT NOTICES. Any required notices pursuant to this Agreement shall be
sent by facsimile, with confirmation by overnight courier to the parties at the
following addresses:
Xxxxxxxx Vyvx Services, a business unit
of Xxxxxxxx Communications, Inc.
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
TELEPHONE: 000-000-0000
FAX: (000) 000-0000
Attention: Contract Administration
18. OPERATIONAL NOTICES. If Customer has any technical problems with Customer's
signals or the Services, Customer may call the Teleport at 303-397-4100 on a 24
x 7 basis. Xxxxxxxx will communicate with Customer as promptly as possible
regarding any technical problems with Xxxxxxxx' Equipment, Customer's signals or
the Services. For purposes of these communications from Xxxxxxxx, Customer
agrees that Xxxxxxxx should contact the operational contacts of Customer, in the
following order:
Customer Contact No. 1 Name: Operator on Duty
Title: Operations
Telephone: (000) 000-0000
Mobile:
Pager:
Fax:
Customer shall update its list of Operational Contacts with Xxxxxxxx as needed.
Xxxxxxxx shall not be responsible for any Interruptions or other technical
problems with Xxxxxxxx' Equipment, Customer's signals or the Services in the
event that Xxxxxxxx has diligently attempted to communicate with Customer's
Operational Contacts according to the information provided by Customer to
Xxxxxxxx and Xxxxxxxx is unable to establish communications with them and such
communications are required to enable Xxxxxxxx to eliminate the Interruptions,
or other technical problems.
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19. LIMITATION OF XXXXXXXX' LIABILITY.
19.1 EXCEPTING ONLY LIABILITY FOR XXXXXXXX' RECKLESS OR WILLFUL
MISCONDUCT, XXXXXXXX' LIABILITY ARISING OUT OF ITS PROVISION OF SERVICES
HEREUNDER, INCLUDING BUT NOT LIMITED TO LIABILITIES ARISING OUT OF XXXXXXXX'
NEGLIGENCE, MISTAKES AND OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR OTHER
DEFECTS IN THE SERVICES OR BREACH OF CONTRACT OR ARISING OUT OF THE FAILURE TO
FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE
LIMITED TO THE EXTENSION OF ALLOWANCES FOR INTERRUPTIONS AS SET FORTH IN THIS
AGREEMENT. SUCH ALLOWANCES FOR INTERRUPTION SHALL BE THE SOLE REMEDY OF
CUSTOMER, INCLUDING ANY END USER OF CUSTOMER, AND THE SOLE LIABILITY OF XXXXXXXX
HEREUNDER. XXXXXXXX' LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND ARISING OUT OF
ITS FURNISHING SERVICES SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ITS FIXED
MONTHLY O1~ OTHER CHARGE ALLOCABLE TO THE FAULTY OR DEFECTIVE SERVICE.
19.2 NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING SUBPARAGRAPH,
XXXXXXXX SHALL NOT BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY LOSS OF,
DEFECTS IN OR ANY INABILITY TO FURNISH SERVICE DUE TO ACTS OF GOD, ACTS OF
GOVERNMENT, WARS, RIOTS, STRIKES, FAILURE OF A TRANSPONDER, FAILURE OF Pt
SATELLITE, FAILURE OF ANY OTHER TRANSMISSION EQUIPMENT OR OTHER CAI JSES BEYOND
XXXXXXXX' CONTROL.
19.3 ANY AND ALL EXPRES'S AND IMPLIED WARRANTIES RELATING TO THE
SERVICES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A SPECIFIC PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL
XXXXXXXX BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT
NOT LIMITED TO, LOST PROFITS), REGARDLESS OF THE FORESEEABILITY THEREOF,
OCCASIONED BY THE TERMINATION OF CUSTOMER'S RIGHTS TO USE, OR THE PREEMPTION OF
OR THE FAILURE OF, OR LOSS OF TECHNICAL QUALITY OF, THE SERVICES OR BY ANY DELAY
IN COMMENCEMENT OF THIS AGREEMENT OR BY ANY OTHER CAUSE OR MATTER WHATSOEVER.
CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS XXXXXXXX FROM ANY CLAIMS MADE
UNDER A WARRANTY OR REPRESENTATION MADE BY CUSTOMER TO ANY THIRD PARTY WITH
RESPECT TO THE SERVICES.
20. CUSTOMER'S CONTENT.
20.1 Responsibility for Content. Customer shall be solely responsible
for all content transmitted by Xxxxxxxx as pan of the Services. Further,
Customer shall make all arrangements with other common carriers, stations,
networks, sponsors, music licensing organizations, performers, representatives
or other parties for the authorizations necessary to avail itself of the
Services. Customer shall indemnify, defend, and save harmless Xxxxxxxx from any
liability arising out of failure to make such arrangements.
20.2 Content Indemnity. Customer shall indemnify, defend, and save
harmless Xxxxxxxx from and against all loss, liability, damage and expense,
including reasonable
Teleport Services Agreement
Page l0 of 11
attorneys' fees, due to claims arising out of the content of any programming
transmitted over Xxxxxxxx' facilities pursuant to this Agreement including
without limitation, any claim for libel, slander, or infringement of copyright
and any other claim resulting from any act or omission of Customer arising from
Customer's use of Xxxxxxxx' facilities or the Services.
20.3 No Violation of Law. Customer shall not use the Services for an
unlawful purpose, including (without limitation) any use, which constitutes a
violation of any state or federal obscenity laws. Xxxxxxxx shall have the right
to terminate this Agreement and the Services provided hereunder without
liability to Customer in the event that Xxxxxxxx, its officers, employees or
agents, becomes the subject of any investigation, or is threatened with or made
a party to any administrative proceeding or litigation, related to the alleged
illegal use of the Services by Customer.
21. NO THIRD-PARTY BENEFICIARY. The provisions of this Agreement are for the
benefit only of the parties hereto, and no third party may seek to enforce, or
benefit from these provisions.
22. LEGAL EXPENSES. If any proceeding is brought for the enforcement of this
Agreement, or because of an alleged or actual dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs and expenses incurred in such action or proceeding in addition to
any other relief to which such party may be entitled.
23. FORCE MAJEURE. Notwithstanding any other provision of this Agreement,
neither Xxxxxxxx nor Customer shall be held liable for any delay or failure to
perform any part of this Agreement (other than non-payment of amounts due
hereunder) for any cause beyond its control and without its fault or negligence,
including but not limited to acts or omissions of civil or military authorities,
national or local emergencies, government regulations, embargoes, epidemics,
wars, terrorist acts, sabotage, riots, insurrections, fires, lightning, sun,
hail, high winds or other adverse weather conditions, explosions, nuclear
accidents, strikes, extended power blackouts, natural disasters including but
not limited to earthquakes, floods or volcanic action, failure of satellite
transponder or failure of any third party facilities, equipment or services
(outside of the control of Xxxxxxxx and its subcontractors) or any law,
regulation or order of any government agency or court of competent jurisdiction
affecting either of the parties hereto in the performance of their obligations
hereunder.
24. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent
contractors, and none of the provisions of this Agreement shall be interpreted
or deemed to create any relationship between Xxxxxxxx and Customer other than
that of independent contractors. Without limiting the generality of the
foregoing, Xxxxxxxx and Customer shall have sole responsibilities for the
withholding of all federal and state income taxes, unemployment insurance tax,
social security tax and other withholding with respect to payments made by it to
its employees performing services for it under this Agreement. Neither party's
directors, officers, employees, contractors or agents shall be deemed employees
of the other party or shall be entitled to compensation or any employment
benefits of any kind provided by the other party to its employees.
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25. WAIVER. No delay or failure of Xxxxxxxx or Customer to insist on performance
of any of the terms or conditions herein or to exercise any right or privilege,
or either party's waiver of any breach hereunder, shall be construed to be a
waiver thereof or a waiver of any other terms, conditions or privileges, whether
of the same or similar type.
26. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without regard to its choice
of law provisions.
27. SEVERABILITY. If any term or provision of this Agreement shall, to any
extent, be determined to be invalid or unenforceable by a court or body of
competent jurisdiction, then (a) both parties shall be relieved of all
obligations arising under such provision and this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it valid and
enforceable while preserving its intent, and (b) the remainder of this Agreement
shall be valid and enforceable.
28. SURVIVAL OF TERMS AND CONDITIONS. The terms and conditions of this Agreement
which by their nature extend beyond termination of this Agreement shall survive
the expiration or termination of this Agreement to the full extent necessary for
their enforcement and for the protection of the party in whose favor they
operate.
29. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall constitute an original and all of which, when taken together, shall
constitute one agreement.
30. PARTIES BOUND BY AGREEMENT; ASSIGNMENT. This Agreement is binding upon and
shall inure to the benefit of the parties hereto and upon their respective
successors and permitted assigns. Customer may not assign this Agreement without
the prior written consent of Xxxxxxxx, which consent shall not be unreasonably
withheld, delayed or conditioned.
31. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and supersedes any
prior understandings, oral agreements and/or writings, between the parties
regarding the subjects within this Agreement, including, without limitation,
that certain Letter of Intent dated February 16, 1999, by and between Xxxxxxxx
and Customer. This Agreement may only be amended or modified in writing signed
by Customer and Xxxxxxxx.
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IN WITNESS WHEREOF the parties have executed this Agreement by the hand of their
respective duly authorized officers.
Xxxxxxxx Vyvx Services, a business unit Colorado Satellite Broadcasting, a
of Xxxxxxxx Communications, Inc. division of New Frontier Media, Inc.
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxx
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxx
Title: VP Media and Entertainment Title: Chief Technology Officer
Date: January 15, 2000 Date: January 15, 2000
