1
EXHIBIT 10.51
AGREEMENT BETWEEN
B&P THE SPACECONNECTION, INC.
AND
SHOP AT HOME, INC.
CONCERNING AT&T SKYNET(R) TRANSPONDER SERVICE
This Agreement is made this 28th day of June 1995 by and between B&P
The Spaceconnection, Inc., a corporation organized and existing under the laws
of the State of California, and having its primary place of business at 00000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Spaceconnection" which expression shall include its successors and permitted
assigns) and Shop at Home, Inc., a corporation organized and existing under the
laws of the State of Tennessee and having a place of business at 0000 Xxxxxxxx
Xxxx, Xxxxxxxxx, XX 00000 (hereinafter referred to as "Shop at Home" and/or
"User" which expressions shall include its successors and permitted assigns).
WITNESSETH:
WHEREAS, AT&T operates a domestic satellite system and offers services
on such system in accordance with FCC tariffs filed with the Federal
Communications Commission ("FCC") and;
WHEREAS, AT&T anticipates launching another satellite in its system
bearing the designation Telstar 402R (the "Satellite") from AT&T when same
becomes available, a portion of which is offered to Shop at Home.
WHEREAS, Shop at Home and Spaceconnection wish to enter into an
Agreement involving an offering of satellite services on the satellite by
Spaceconnection to Shop at Home under terms and conditions different from those
in existing and proposed AT&T tariffs.
NOW, THEREFORE, Spaceconnection and Shop at Home, in consideration of
the mutual covenants expressed herein, agree as follows:
1 SATELLITE SERVICES
A. Spaceconnection offers, if and when available, and
Shop at Home hereby orders, if and when available,
AT&T Skynet transponder service consisting of service
on one (1) bronze c-band 36 MHz 12 watt transponder
on Telstar 402R (the "Transponder" or "Designated
Transponder") for service beginning on October 1,
1995 or the first day that AT&T places the satellite
in service, whichever occurs later (the "Commencement
Date") and terminating three years from the
Commencement Date (the "Termination Date").
2
B. The services as described in Section 1.1 above shall
hereafter be referred to as the "Service".
C. The Service is furnished to Shop at Home subject to
the terms and conditions set forth herein and the
technical specifications set forth in Exhibit A
("Telstar 4 Performance Parameters"), attached hereto
as Exhibit A and incorporated herein by this
reference.
D. Shop at Home acknowledges that Telstar 402R has not
yet been placed in its assigned orbit and, further,
that there is no guarantee that said satellite will
be placed in orbit. If the satellite is placed in
orbit, it is anticipated the satellite will be placed
in service during the fourth quarter of 1995 and Shop
at Home accepts Service on Telstar 402R on that basis
from the Commencement Date to the Termination Date.
Shop at Home is making its own decisions concerning
the effect the satellite's telemetry will have on its
operations and will be solely responsible for its
decisions in that regard. In addition to the
limitations on liability set forth in Section 8
hereof, Spaceconnection specifically disclaims any
responsibility with respect to the satellite's
telemetry and its impact on Shop at Home's operations
and, further, makes no representations or warranties
in that regard. Shop at Home assumes all risk with
respect to AT&T's transpond- er operations described
herein and may not terminate this lease for signal
degradation or signal transmission difficulties
unless the transponder fails to meet AT&T's then
current performance specifications for that satellite
and until Spaceconnection is released from its
obligations under its --- agreement with AT&T for the
Transponder.
2 TARIFFS
2.1 AT&T has represented to Spaceconnection that it shall
file with the FCC the tariff provisions and revisions
necessary to permit it to offer the service to
Spaceconnection as specified herein (the "Tariff").
Spaceconnection and Shop at Home's obligations under
this Agreement are contingent upon the FCC allowing
such revisions to go into and continue in effect and
AT&T's continuing ability to provide such service to
Spaceconnection.
2.2 If the FCC, or any other governmental body,
conditions AT&T's or Spaceconnection's provision of
the Service upon conditions or requirements that in
either AT&T's or Spaceconnection's sole judgement,
are unacceptable to either AT&T or Spaceconnection,
or AT&T conditions the provision of the Service upon
conditions or requirements that are in
Spaceconnection's sole judgment unacceptable, then
Spaceconnection may terminate this Agreement upon ten
(10) days written notice to Shop at Home without any
liability to Shop at Home. Such notice shall be given
within thirty (30) days of the FCC order, if
possible. Neither AT&T or Spaceconnection shall be
under an obligation to appeal such order.
2
3
2.3 The general terms and conditions of the Tariff (to be
filed) and the specific terms and conditions of the
Tariff pertaining to the Service, including any
tariff revisions that become effective subsequent to
the date of this Agreement and the provisions of the
agreement between AT&T and Spaceconnection (the "AT&T
Agreement") are hereby incorporated by reference and
made a part of this Agreement only to the extent that
they are operationally or legally necessary to
preserve Spaceconnection's or AT&T's ability to
provide the Service to Shop at Home under this
Agreement. To the extent that the terms and
conditions of this Agreement are inconsistent with
the Tariff or the AT&T Agreement and it is mandatory
that the Tariff or the AT&T Agreement control so that
AT&T's and/or Spaceconnection's ability to provide
the Service is not jeopardized, then the Tariff
and/or the AT&T Agreement shall control. However with
respect to all other provisions, including but not
limited to service rates, billing procedures, default
and cure provisions, limitations of liability and
other provisions solely between the parties to this
agreement and which do not effect AT&T's ability to
provide the Service, the terms and conditions of this
Agreement shall control. AT&T has represented to
Spaceconnection that it shall use all reasonable
efforts to establish and modify the Tariff so that it
is consistent with Spaceconnection's agreement with
AT&T. However, AT&T's actions and conduct in this
regard is not under the control or influence of
Spaceconnection and Spaceconnection assumes no
responsibility with respect thereto. If the FCC, or
any other governmental body, requires AT&T to modify
any material provisions of the Tariff pertaining to
the rates or term of the Service, or the degree of
protection provided for the Service or AT&T
voluntarily requests such a modification or AT&T
otherwise changes the terms and conditions of its
Agreement with Spaceconnection which will require
Spaceconnection to modify the terms and conditions of
this Agreement, Shop at Home may terminate the
Service by providing written notice to
Spaceconnection of Shop at Home's intent to so
terminate the service within thirty (30) days of the
effective date of the AT&T Tariff incorporating such
modification, or within ten (10) days of notice from
Spaceconnection, whichever is later, without further
liability to Spaceconnection. Neither AT&T or
Spaceconnection shall have any obligation to appeal
such ruling or order.
2.4 In the event that the Service is permitted to be
offered under tariff but is subsequently de-tariffed,
the terms and conditions of the applicable provisions
of the AT&T Tariff immediately prior to its
detariffing (excepting the service rate, billing
procedures, default and cure provisions, limitations
of liability and other provisions solely between
Spaceconnection and Shop at Home) shall continue to
be incorporated into this Agreement and made a part
hereof as though set out in full. If any provision of
this Agreement is inconsistent with those of the
Tariff on the date of such incorporation the terms of
the Agreement shall control unless the enforcement of
such terms would jeopardize AT&T's ability to provide
the Service to Spaceconnection.
3
4
2.5 Once incorporated into this Agreement, terms and
conditions contained in the expired Tariff may be
modified or amended only as provided herein.
2.6 Pertinent portions of the applicable AT&T Tariff
which are or will be applicable to this Agreement are
not yet available, but when available, will be a
matter of public record and available to both Parties
hereto and need not be made apart of this Agreement
to be applicable. Both Parties hereto assume the
responsibility of obtaining and reviewing the Tariff.
2.7 The formal written AT&T Agreement was also not
available as of the date this Agreement was prepared
and executed; however, both Parties acknowledge that
the terms and provisions of the AT&T Agreement
necessary to insure Spaceconnection's continued
ability to provide Shop at Home the Service shall be
incorporated herein even though same is not attached
hereto. Spaceconnection shall be the sole judge of
what provisions of the AT&T Agreement shall be
incorporated herein, if any. Spaceconnection shall
give Shop at Home written notice of the effective
terms of the AT&T Agreement and said terms shall
become applicable immediately upon receipt of notice
of same by Shop at Home.
2.8 In the event the Service is offered by AT&T but is
never tariffed, then the terms and conditions of the
AT&T Agreement shall be incorporated herein and
control only to the extent necessary to preserve
Spaceconnection's and/or AT&T's ability to provided
Service (as described above).
3 RATES, PAYMENT, SERVICE AND TERMS
3.1 Shop at Home shall pay for the Service in accordance
with the following schedule:
Quantity: 1 Transponder
Service: Bronze 36MHz 12 Watt
Satellite: 402R
Term: Commencement Date as
defined herein for a three
(3) year term until
termination date
Option to Extend Term: None
Monthly Service rate per
Transponder for each
consecutive year of on
line service: $96,000 for year one
$105,000 for year two
$115,000 for year three
Including tracking,
telemetry and control for
each year service
Security Deposit: $96,000 for year one
4
5
$105,000 for year two
$115,000 for year three
3.2 All monthly Service Rate payments are due and payable
on the twenty fifth (25th) day of the month
immediately preceding each service month.
3.3 All payments by Shop at Home shall be made to
Spaceconnection without set off at its principal
place of business, as designated in Section 10, and
shall be deemed to be made only upon actual receipt
by Spaceconnection. All refunds by Spaceconnection
shall be made to Shop at Home at its principal place
of business as designated in Section 10, and shall be
deemed to be made only upon actual receipt by Shop at
Home.
3.4 All refunds provided for in this Agreement to be made
by Spaceconnection shall be due and paid within
thirty (30) business days of notification to
Spaceconnection of the occurrence of the event giving
rise to such refund.
3.5 Any late payments by Shop at Home of amounts due and
payable hereunder (including but not limited to,
specified payments, security deposit payments,
service rate payments, damages and indemnification)
to Spaceconnection shall be subject to a delinquency
charge at the rate set forth in Section 28 payable
with the amount due and calculated from the date
payment was due until the date it is received by
Spaceconnection.
3.6 Shop at Home does not have a right or the option to
extend this Agreement beyond its term.
4 SECURITY DEPOSIT
Shop at Home has paid to Spaceconnection the Security Deposit
of $96,000 the receipt of which is hereby acknowledged. As the rent
increases during the term of this Agreement, Shop at Home shall
increase the security deposit at the beginning of each year to the same
amount as the monthly rental for that year. Accordingly, the security
deposit of the second year of this Agreement shall be $105,000 and for
the third year be $115,000. In the even any portion of the Security
Deposit is applied for any reason during the term of this Agreement,
Shop at Home shall replace the applied portion of said Security Deposit
upon five (5) days written notice from Spaceconnection. The failure to
timely replace the applied portion or any increase of the Security
Deposit shall be treated as a failure to timely pay the Service Rate
and give Spaceconnection the right, but not the obligation, to
terminate Service to Shop at Home as set forth in Section 5 hereof.
This Security Deposit is non-refundable except s otherwise set forth in
this Agreement, and any unapplied portion of the Security Deposit at
the end of this Agreement shall be applied against the payment of the
monthly Service Rate due from Shop at Home to Spaceconnection for the
last month of the Term. Spaceconnection shall apply the unapplied
portion of the deposit remaining on the first day of the last service
month of this Agreement toward the total Service Rate due for the last
month immediately preceding the Termination Date.
5
6
5 TERMINATION RIGHTS, FAILURE TO LAUNCH AND SERVICE TERMINATION
PROCEDURES
5.1 Spaceconnection, upon the occurrence of any Event of
Default (as defined below) and only after any
relevant cure period, may, for so long as such Event
of Default shall continue, declare this Agreement to
be in default (provided, however, that this Agreement
shall be deemed to be in default immediately upon the
occurrence and during the continuation of any Event
of Default under Section 5.2 (iv), (v) or (vi), and
at any time thereafter, Spaceconnection may in its
sole and absolute discretion declare immediately due
and payable all sums due and to become due hereunder
for the full term of this Agreement, require Shop at
Home to redeliver Shop at Home's Transponder(s) to
Spaceconnection as set forth in Section 6.8 hereof,
render Shop at Home's Transponder(s) unusable without
removal, cancel this Agreement, obtain damages
without canceling this Agreement, and exercise any
other right or remedy which is provided for in this
Agreement or which may be available under the
California Uniform Commercial Code or other
applicable law, including without limitation
exercising any right or remedy applicable to default
under Section 10523(I) of the California Uniform
Commercial Code for any Event of Default hereunder
(the "Default Option"). A cancellation hereunder
shall occur only upon written notice from
Spaceconnection to Shop at Home stating that such
cancellation is made and only as to such Transponders
as Spaceconnection, specifically elects to cancel and
this Agreement shall continue in full force and
effect as to the remaining Transponders, if any. No
remedy referred to in this Section 5 is intended to
be exclusive, but each remedy shall be cumulative and
in addition to any other remedy referred to above or
otherwise available to Spaceconnection at law or in
equity. Spaceconnection shall mitigate its damages
should it elect to seek from Shop at Home the full
amount due hereunder in the event of an Event of
Default by Shop at Home as so required under the
California Uniform Commercial Code. As set forth in
Section 25, Spaceconnection's failure in any case to
exercise the Default Option shall not constitute a
waiver of any breach or Event of Default or a
continuing waiver or similar or other breaches or
Events of Default.
5.2 The following events shall constitute "Event(s) of
Default" by Shop at Home (whether any such even shall
arise as a result of the voluntary or involuntary
action or inaction of Shop at Home or come about or
be effected by operation of, or pursuant to or in
compliance with, any law:
(I) Shop at Home shall fail to make any payment
due hereunder when due and such failure
shall continue for five (5) days after
Spaceconnection has given Shop at Home
written notice of such failure; or
(II) Shop at Home shall fail to perform or
observe in any material respect any
covenant, condition or agreement to be
performed or
6
7
observed by it under this Agreement and such
failure shall continue unremedied for a
period of fifteen (15) days following notice
from Spaceconnection; provided, however,
nothing in this Section 5.02(II) shall
restrict Spaceconnection's rights to deny
Shop at Home access pursuant to Section 6
hereof during such fifteen (15) day period
or otherwise; or
(III) Any representation or warranty made by Shop
at Home in this Agreement or in any
statement furnished by Shop at Home in
connection herewith after execution of this
Agreement shall have been incorrect in any
material respect at the time made but only
if such incorrect representation, warranty
or statement shall have a material adverse
effect on Spaceconnection and/or AT&T or
their rights or obligations hereunder and
shall continue un-remedied for a period of
ten (10) days after Spaceconnection has
given written notice to Shop at Home of such
incorrect representation, warranty or
statement; or
(IV) Shop at Home shall consent to the
appointment of, or taking possession by, a
receiver, trustee, custodian or liquidator
of itself or of a substantial part of its
assets, or Shop at Home shall make a general
assignment for the benefit of creditors; or
(V) Shop at Home shall file a voluntary petition
in bankruptcy or a voluntary petition or an
answer seeking reorganization in proceed-
ing under any applicable bankruptcy or
insolvency laws (as now or hereafter in
effect) or an answer admitting the material
allegations of a petition filed against such
person in any such proceeding, or Shop at
Home shall, by voluntary petition,l answer
or consent, seek relief under the provisions
of any now existing or future bankruptcy,
insolvency or other similar law providing
for the liquidation, reorganization or
dissolution of corporations, or providing
for an agreement, composition, extension or
adjustment with its creditors; or
(VI) A receiver, trustee, liquidator or custodian
of Shop at Home or of a substantial part of
its property shall be appointed by court
order and such order shall remain in effect
for more than sixty (60) days; or any
substantial part of the property of Shop at
Home shall be sequestered by court order and
such order shall remain in effect for more
than sixty (60) days; or a petition shall be
filed against Shop at Home under any
bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt,
dissolution or liquidation law of any
jurisdiction, whether now or hereafter in
effect, and shall not be dismissed within
sixty (60) days after such filing.
5.3 Spaceconnection has a right to transfer use of the
Transponder(s) for non-payment:
7
8
5.3.1 If, for any reason whatsoever, Shop at Home
does not make the payments in the amounts
and on the dates set forth in (and in
accordance with) Section 3 and Shop at Home
fails to cure such default as set forth in
Section 5.2, then, in addition to all of its
other remedies at law or in equity,
Spaceconnection shall be entitled to
Transfer Shop at Home's Transponder(s) and
the use thereof immediately to whomever
Spaceconnection sees fit, Shop at Home shall
not be entitled to any equitable or other
relief as a result thereof, and Shop at
Home's exclusive remedy shall be limited to
recovery, without interest, of any lease
payments actually paid by Shop at Home to
Spaceconnection pursuant to Section 3, less
any claim Spaceconnection has against Shop
at Home by reason of Shop at Home's default.
5.3.2 If, for any reason whatsoever, Shop at Home
does not make the payments in the amounts
and on the dates set forth in (and in
accordance with) Section 4 with respect to
Transponders provided hereunder other than
Shop at Home's Transponder(s) and Shop at
Home fails to cure such default as set forth
in Section 5.2, then, in addition to all of
its other remedies at law or in equity,
Spaceconn- ection, if it has obtained the
rights to such Transponders shall be
entitled to Transfer such Transponder(s)
immediately to whomever Spaceconnection sees
fit, Shop at Home shall not be entitled to
any equitable or other relief as a result
thereof, and Shop at Home's exclusive remedy
shall be limited to recovery, without
interest, of any lease payments actually
paid by Shop at Home to Spaceconnection,
pursuant to Section 4, less any claim
Spacecon- nection has against Shop at Home
by reason of Shop at Home's default.
5.3.3 AT&T "Bronze" Service is service that is not
protected in the event of a transponder
failure. Bronze Service may be preempted on
a permanent or temporary basis to restore
protected service in accordance with the
procedures set forth in the Tariff. Bronze
Service may also be preempted on a temporary
basis as set froth in the Tariff. If Shop at
Home continues to use Bronze Service longer
than five minutes following notification or
attempted notification by Spaceconnection or
AT&T of preemption to restore a protected
service, a Preemption Notification Charge
shall apply at twice the rate specified in
the AT&T Tariff at the time of the
preemption, currently the Tariff rate
is $1,102.00 per minute, or each fraction
thereof, for each minute after such five
minute period. For purposes of notification
concerning preemption of Bronze Service,
Shop at Home shall specify a telephone
number of numbers where designated Shop at
Home personnel may be reached by Spaceco-
nnection or AT&T. Until further notice is
given by Shop at Home, the specified Shop at
Home contact is Xxxx X. Xxxxxx, telephone
number (000) 000-0000 or any Vice President,
Shift Supervisor or
8
9
engineer in charge at 000-000-0000. The five
minute notification period specified above
shall begin to run from the time the
telephone call is completed with the Shop at
Home representative or from the time of
attempted notification of Shop at Home if
there is no answer at the above telephone
number. Nothing in this Agreement shall
prevent AT&T or Spaceconnection from taking
any action which they are required by law to
take in accordance with the provisions of
Section 706 of the Communications Act of
1934, as amended, 47 U.S.C. 1606. If Bronze
Service is preempted Shop at Home will be
credited for the period of interrupted
service as follows: The effective rate of
each transponder for the purposes of
calculating credit due to preemption shall
be the current monthly service rate set
forth in this Agreement divided by the
number of transponders being furnished at
the time. The actual amount credited shall
be prorated based on the actual time Shop at
Home is without the transponder service.
5.4 In the event that 402R is not successfully
launched by February 1, 1996, either Party
may terminate this Agreement and upon such
termination, all consideration shall be
returned and neither party shall owe any
further obligation, responsibility or duty
to the other Party hereto.
6 RIGHT TO DENY ACCESS
6.1 If, in connection with using Shop at Home's
Transponder(s):
(I) "User" (as defined below) is
indicted or is otherwise charged as
a defendant in criminal proceeding
based upon, or is convicted under,
any Obscenity Law or has been found
by any Governmental Authority to
have violated any such law;
(II) Based on any User's use of Shop at
Home's Transponder(s) AT&T and/or
Spaceconnection are indicted or
otherwise charged as a criminal
defendant, becomes the subject of a
criminal proceeding or a
governmental action seeking a fine,
license revocation or other
sanctions, or any Governmental
Authority seeks a cease and desist
or other similar order or filing;
(IV) Spaceconnection and/or AT&T obtains
a court order pursuant to Section
6.3, below, or a court or
Governmental Authority of competent
jurisdiction orders Spaceconnection
or AT&T to deny access to User or
orders User to cease transmission;
or
9
10
(V) Spaceconnection and/or AT&T
receives notice (the "Illegal
Programming Notice"), written or
oral, from a Governmental Authority
that such authority considers Shop
at Home and/or any other User's
programming to be in violation of
Obscenity Laws (the "Illegal
Programming"), and that if AT&T
and/or Spaceconnection does not
cease transmitting such Illegal
Programming, then AT&T and/or
Spaceconnection and/or their
Affiliates and/or any of their
executives will be indicted or
otherwise charged as a criminal
defendant, will become the subject
of a criminal proceeding or a
governmental action seeking a
fine, license revocation or other
sanctions, or that such
Governmental Authority will seek a
cease and desist or other similar
order or filing (with AT&T and/or
Spaceconnection being obligated, to
the extent permitted by law, to
provide Shop at Home with a copy of
such Illegal Programming Notice. If
written, or with other
verification, including the details
thereof, if oral); then, upon
notice from Spaceconnection and/or
AT&T to Shop at Home (the "Denial
of Access Notice"), User shall
cease using Shop at Home's
Transponder(s) immediately, in the
case of a denial of access pursuant
to subparagraphs (I), (II), (III)
or (IV) above, or within 24 hours
following receipt of such notice,
in the case of a denial of access
pursuant to subparagraph (V),
above; and if User does not
voluntarily cease using such
capacity at the appropriate time,
then Spaceconnection shall have the
right to take such steps as
Spaceconnection and/or AT&T deems
necessary to prevent User from
accessing Shop at Home's
Transponders. Provided, however,
that if User has more than one
programming service, then the
denial of access by Spaceconnection
and/or AT&T shall apply only to
the Transponder used to provide the
Illegal Programming service; and
provided further, however, that if,
upon receipt of the Denial of
Access Notice from Spaceconnection
and/or AT&T, User does not
immediately cease transmission of
such Illegal Programming service,
then Spaceconnection and/or AT&T
shall have the right to take such
steps as either AT&T and/or
Spaceconnection deems necessary to
prevent User from accessing the
transponder used to transmit such
Illegal Programming service (and
if, thereafter, Shop at Home
transmits such Illegal Programming
Service using any of Shop at Home's
Transponders, then Spaceconnection
and/or AT&T shall have the
immediate right, without further
notification, to take such steps as
either AT&T and/or Spaceconnection
deems necessary to prevent Shop at
Home from accessing any of Shop at
Home's Transponders). As used
herein, "User" shall mean Shop at
Home and any person to whom Shop at
Home transfers all or part of
10
11
its right to use Shop at Home's
Transponders or Galaxy Backup
Transponders, including without
limitation, a Shop at Home, licensee
or assignee. Shop at Home agrees to
maintain a properly operating
facsimile machine at all times to
receive a Denial of Access Notice
(or any other notice which can be
given to Shop at Home under the
terms of this Agreement) from
Spaceconnection and/or AT&T.
6.2 If Spaceconnection and/or AT&T denies, or
has given Shop at Home (or Spaceconnection)
notice of their intent to deny access to
Shop at Home's Transponder(s) pursuant to
the provisions of this Section 6, and if
Shop at Home does not believe the conditions
set forth in this Agreement to
Spaceconnection's and/or AT&T's denial of
access have been met, then Shop at Home
shall have the immediate right to seek
injunctive relief, including a temporary
restraining order on notice of four (4)
hours or more to prevent the denial or
continuing denial of such access by
Spaceconnection and/or AT&T.
6.3 Spaceconnection and/or AT&T shall also have
the right to seek: (I) injunctive relief,
including a temporary restraining order on
notice of four (4) hours or more to Shop at
Home, to prevent, suspend or otherwise
limited User's continued access to Shop at
Home's Transponders where Spaceconnection
and/or AT&T believe such use has resulted or
will result in a violation of any Obscenity
Law; or (II) declaratory relief to establish
its right to deny Users access to Shop at
Home's Transponders under this Agreement
and/or AT&T's agreement with
Spaceconnection.
6.4 Either party shall be entitled to oppose the
other's attempt to obtain equitable relief.
However, in order to enable either party to
obtain a resolution of any such dispute as
expeditiously as possible and subject to
Section 23 hereof, both parties hereby agree
that: (I) neither party will contest the
jurisdiction of, or the venue of, any action
from equitable relief brought by the other
party in the following court and the U.S.
District Court of the Central District of
California; (II) the party opposing
equitable relief (the "Opposing Party") will
make itself available to accept service by
telecopy or personal delivery on a 24
hour-a-day basis for five (5) consecutive
days following receipt by the Opposing Party
of the other party's notice of its intent to
seek such equitable relief; and (III) if
either party seeks a temporary restraining
order and provides notice to the Opposing
Party at least four (4) hours before the
scheduled court hearing, then the Opposing
Party will not challenge the timeliness of
such notice.
6.5 If it is determined by final judgment order
that Spaceconnection and/or AT&T prevented
Shop at Home from accessing any or all of
11
12
Shop at Home's Transponders at a time when
either did not have the right to do so,
pursuant to Section 6, then Shop at Home's
sole and exclusive remedy shall be
Spaceconnection's payment to Shop at Home of
liquidated damages equal to two (2) times a
prorated amount of Shop at Home's monthly
Base Lease Rate or the Monthly Lease Rate,
as applicable, for the terminated capacity,
such pro-ration to be based on the period of
time of loss of use of such capacity.
6.6 All remedies of Spaceconnection and/or AT&T
set forth in this Section 6 shall be
cumulative and in addition to, and not in
lieu of any other remedies available to
Spaceconnection and/or AT&T at law, in
equity, elsewhere in this Agreement or
otherwise, and may be enforced by
Spaceconnection and/or AT&T concurrently or
from time to time.
6.7 In addition to any other indemnification
obligations found elsewhere in this
Agreement, Shop at Home shall indemnify and
save AT&T and/or Spaceconnection, their
directors, officers, employees, and their
affiliates from any liability or expense
arising out of or related to User's use of
Shop at Home's Transponder(s) under this
Section 6. Shop at Home shall pay all
expenses (including reasonable attorney's
fees) incurred by Spaceconnection and/or
AT&T in connection with all legal or other
formal or informal proceedings, instituted
by any private third party or any
Governmental Authority, and arising out of
or related to User's use of Shop at Home's
Transponders under this Section 6, and Shop
at Home shall satisfy all judgments, fines,
penalties, costs, or other awards which may
be incurred by or rendered against
Spaceconnection and/or AT&T as a result
thereof, as and to the extent permitted by
law.
6.8 Upon the expiration, termination, or
cancellation of this Agreement as to any
Transponder for any reason whatsoever
(including, without limitation, expiration
of this Agreement in accordance with its
terms and cancellation by Spaceconnection as
a result of an Event of Default by Shop at
Home), such Transponder shall be deemed,
without any further action by any party, to
be redelivered to Spaceconnection and
Spaceconnection shall be entitled to
immediate possession thereof.
Spaceconnection shall thereafter have the
right to utilize such redelivered
Transponder in any manner it determines.
7 CONTENT OF TRANSMISSIONS
7.1 Shop at Home is solely responsible for the
content of transmissions using the
Transponder(s) and related service and
agrees to defend, indemnify and hold
harmless Spaceconnection, its parents,
12
13
and its parents subsidiaries and affiliates
and the directors, officers, employees,
agents and subcontractors of all of them
from and against any and all loss, cost,
damage, expense (including, but not limited
to, reasonable attorney's fee's) claims and
demands by any person based on the content
of any transmission.
7.2 Spaceconnection may terminate, prevent or
restrict any programming containing "Adult
Material" using the Service provided
hereunder as a means of transmission if such
actions (1) are undertaken at the request or
direction of AT&T or a governmental agency
(including, but not limited to the FCC) or
(2) are taken subsequent to the institution
against Spaceconnection and/or AT&T Shop at
Home, or Shop at Home's Designee(s), any
legal entity affiliated with any of them, or
any of the directors, officers, agents or
employees of the Parties, the Designees or
their affiliates, of criminal, civil or
administrative proceedings or investigations
based upon the content of such programming.
7.3 Spaceconnection may terminate, prevent or
restrict any programming containing "Adult
Material" using the Service provided
hereunder as a means of transmission if, in
the sole judgment of Spaceconnection's legal
counsel, (1) such actions are reasonably
appropriate and/or necessary to avoid
violation of applicable law, or (2) there is
a reasonable risk that criminal civil or
administrative proceedings or investigations
based on the content of such programming
will be instituted against Spaceconnection
and/or AT&T, their affiliates, parent
companies, subsidiaries, directors,
officers, agents or employees, or (3) such
programming will expose Spaceconnection
and/or AT&T to costs, expenses, liability,
damages, fines or other penalties from which
Spaceconnection and/or AT&T are not
adequately protected by the arrangement for
compensation, indemnity and insurance
provided by Shop at Home. Not withstanding
the foregoing and without limiting same,
Spaceconnection may, at its sole option,
agree to allow the transmission of such
"Adult Material" at a substantially
increased Service Rate. The substantially
increased Service rate shall be set by
Spaceconnection, in its sole discretion, and
the offer to continue Service on such basis
shall not at as a bar to prevent termination
of Service by Spaceconnection in the event
such offer of continued Service on proposed
revised Service rate basis is not acceptable
or accepted by Shop at Home.
7.4 Shop at Home's transmissions (and those of
its uplinking agents) to the Satellite(s)
shall comply, in all material respects, with
AT&T's Tariff and all FCC and all other
governmental (whether international,
federal, state, municipal, or otherwise)
statutes, laws, rules, regulations,
ordinances, codes, directives and orders, of
any such governmental agency, body, or court
(collectively, "Laws") applica-
13
14
ble to it regarding the operation of the
Satellite(s), Shop at Home's Transponder(s)
to which Shop at Home is given access
pursuant to this Agreement and shall not
interfere with the use of any other
Transponder. Shop at Home shall not utilize
(or permit or allow any of its uplinking
agents to utilize) Shop at Home's
Transponder(s) to which Shop at Home is
given access pursuant to this Agreement in a
manner which will or may interfere with the
use of any other Transponder or cause
physical harm to Shop at Home's
Transponder(s) to which Shop at Home is
given access pursuant to this Agreement, any
other Transponders, or to the Satellite(s).
Further, Shop at Home will coordinate (and
will require its uplinking agents to
coordinate) with AT&T and Spaceconnection or
their designee, in accordance with
procedures established by AT&T and/or
Spaceconnection to control and supervise its
transmissions to the Satellite(s), so as to
minimize adjacent channel and adjacent
satellite interference. For purposes of this
Section 7.4, interference shall also mean
its Transponder Performance Specifications.
Without limiting the generality of the
foregoing, Shop at Home (and its uplinking
agents) shall comply with AT&T's Tariff and
all FCC and AT&T rules and regulations
regarding use of automatic transmitter
identification systems.
8 LIMITATION OF LIABILITY
8.1 Any and all express and implied warranties,
including, but not limited to, warranties of
merchantability or fitness for any purpose
or use, are expressly excluded and
disclaimed except to the extent specifically
and expressly provided for in this
agreement. It expressly is agreed that
Spaceconnection's and/or AT&T's sole
obligations and liabilities resulting from a
breach of this agreement, and Shop at Home's
exclusive remedies for any cause whatsoever
(including, without limitation, liability
arising from negligence) arising out of or
relating to this agreement and/or the
transactions contemplated hereby, are
limited to those set forth in this agreement
and/or any applicable tariff, and all other
remedies of any kind are expressly excluded,
including, without limitation, all rights
and remedies of Shop at Home under division
10, Chapter 5, Article 2 and Sections 10209,
10406 and 10504 of the California Uniform
Commercial Code.
8.2 In no event shall Spaceconnection and/or
AT&T be liable for any incidental or
consequential damages, whether foreseeable
or not, occasioned by any defect in the
Transponder(s), delay in delivery or
provision of the Transponder(s), failure of
the Transponder(s) to perform or any other
cause whatsoever. Spaceconnection and/or
AT&T make no warranty, express or implied,
to any other person or entity concerning the
Transponder(s) or the Satellite(s) and user
shall defend and indemnify Spaceconnection
and AT&T from any
14
15
claims made under any warranty or
representation by user to any third party.
The limitations of liability set forth
herein shall also apply to all affiliates of
Spaceconnection and AT&T.
8.3 Notwithstanding the limitations of this
Section above, Shop at Home and
Spaceconnection each shall have the right to
obtain injunctive relief, if necessary, in
order to prevent the other party from
willfully breaching is obligations under
this Agreement or to compel the other party
to perform its obligations under this
Agreement.
8.4 To the extent that AT&T has any liability to
Spaceconnection as a result of the services
that it provides pursuant to its agreement
with Spaceconnection, AT&T has required that
its sole liability for its act or omissions
under this Agreement shall be determined in
accordance with the limitation of liability
provision contained in Section 2.4.I of the
Tariff, or its successor or replacement
tariff. If the FCC requires or permits the
Service to be provided without a tariff, the
limitation of liability provision contained
in Section 2.4.I of the Tariff at the time
of initial tariff revisions are filed shall
be incorporated int this Agreement and made
a part hereof as though set out in full.
Neither AT&T or Spaceconnection shall have
any liability in excess of that set forth
above except as set forth herein as to
Spaceconnection alone.
9 ASSIGNMENT AND TRANSFER
9.1 Shop at Home may assign this Agreement in
its entirety, including all of its rights,
duties and obligations hereunder, either in
connection with the sale of all or
substantially all of its assets or to its
parent corporation or to any wholly owned
subsidiary.
9.2 Shop at Home shall remain jointly and
severally liable with the replacement
customer for all charges for the Service
incurred on or before the date of such
transfer or assignment. If, in
Spaceconnection's sole judgment, the
proposed transferee or assignee replacement
customer represents a greater credit risk
than Shop at Home, Spaceconnection may
condition its consent to such transferee or
assignment upon Shop at Home remaining
jointly and severally liable for all charges
for the Service over the remaining term.
9.3 Spaceconnection shall have the right to
assign this Agreement including its rights,
duties and obligations hereunder, to its
parent corporation or any present or future
affiliate or subsidiary of Spaceconnection,
or in connection with the merger or
acquisition of its satellite business.
15
16
9.4 Except as specifically set forth in this
Section 9, Shop at Home shall not transfer
any of its rights or obligations under this
Agreement except with the prior written
consent of Spaceconnection, which consent
may be given or withheld in
Spaceconnection's sole and absolute
discretion.
10 NOTICES
All notices, demands, requests, or other
communications which may be or are required to be given,
serviced, or sent by one party to the other party pursuant to
this Agreement (except as otherwise specifically provided in
this Agreement) shall be in writing and shall be delivered by
and or mailed by first-class, registered or certified mail,
return receipt requested, postage prepared, addressed as
follows:
(I) If to Spaceconnection:
B&P The Spaceconnection, Inc.
Ms. Xxxxxxxxx Xxxxx
00000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
(II) If to Shop at Home:
Shop at Home, Inc.
0000 Xxxxxxxx Xxxx
X.X. Xxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Either party may designate by notice in writing a new
address or addressee to which any notice, demand, request, or
communication may thereafter be so given, served or sent. Each
notice, demand, request, or communication which shall be
delivered to a telegraph company, shall be deemed sufficiently
given, served, sent or received for all purposes at such time
as it is delivered to the addressee named above as to each
party, with the signed messenger receipt, return receipt, or
the delivery receipt being deemed conclusive evidence of such
delivery, or with respect to a telex, the answer each being
presumptive evidence of such delivery, or at such time as
delivery is refused by the addressee upon presentation.
11 INDEPENDENT CONTRACTOR
Nothing herein contained shall create any association,
partnership, joint venture, the relation of principal and agent, or the
relation of employer and employee between the parties hereto or AT&T
and that AT&T shall perform all services hereunder as an independent
contractor.
16
17
12 PUBLICITY AND ADVERTISING
12.1 Shop at Home shall not in any way or in any form
publicize or advertise in any manner the fact that is
obtaining services from Spaceconnection or AT&T
pursuant to this Agreement, without the express
written approval (which shall not be unreasonably
withheld) of Spaceconnection, obtained in advance,
for each item of such advertising or publicity.
Spaceconnection may have to obtain AT&T's permission
in this regard and the Parties agree that any
decision AT&T may make with respect to publicity
and/or advertising issues will be final and binding
on the Parties. The foregoing prohibition shall
include but not be limited to news releases, letters,
correspondence, literature, promotional materials or
displays of any nature or form. Each request for
approval hereunder shall be submitted in writing to
the representative designated in writing by
Spaceconnection; and approval, in each instance,
shall be effective only if in writing and signed by
said representative. Notwithstanding the foregoing,
Shop at Home may refer to the fact that it is
securing services from Spaceconnection without
Spaceconnection's prior approval so long as such
statements are limited to a statement of such fact
and are not an endorsement of any product or service
by AT&T or Spaceconnection.
12.2 Spaceconnection shall not in any way or in any form
publicize or advertise in any manner the fact that it
is providing services to Shop at Home pursuant to
this Agreement, without the express written approval
(which shall not be unreasonably withheld) of Shop at
Home, obtained in advance, for each item of
advertising or publicity. The foregoing prohibition
shall include but not be limited to news releases,
letters, correspondence, literature, promotional
materials or displays of any nature or form. Each
request for approval hereunder shall be submitted in
writing to the representative designated in writing
by Shop at Home; and approval, in each instance,
shall be effective only if in writing and signed by
said representative. Nothing herein shall prevent
AT&T or Spaceconnection from providing the FCC or any
other governmental agency, information concerning
this Agreement or the Tariff implementing this
Agreement as required by Law or in response to a
request for information by such governmental agency.
Notwithstanding the foregoing, Spaceconnection may
refer to the fact that it is providing the service to
Shop at Home without Shop at Home's prior approval so
long as such statements are limited to a statement of
such fact and are not an endorsement of any product
or service by Shop at Home.
13 NONDISCLOSURE OF INFORMATION
13.1 Each Party to this Agreement may find it beneficial
to disclose to the other party documentation or other
information which the disclosing Party considers
proprietary or is under a duty to protect
("Information"). Such Information may include but is
not limited to, engineering, hardware,
17
18
software or other technical information concerning
the project or the business of AT&T, Spaceconnection
or Shop at Home generally.
13.2 It is specifically understood and agreed that
Information disclosed pursuant to this Agreement
shall be considered proprietary either because 1) it
has been developed internally by the disclosing
party, or because 2) it has been received by the
disclosing Party subject to a continuing obligation
to maintain the confidentiality of the Information.
13.3 Information that is provided in a Tangible form shall
be marked in a manner to indicate that it is
considered proprietary or otherwise subject to
limited distributions provided herein. If the
Information is provided orally, the disclosing party
shall clearly identify it as being proprietary at the
time of disclosure, and within five (5) working days
of such disclosure, confirm the disclosure in writing
to the other party.
13.4 With respect to Information, the Party to whom the
Information is disclosed and its employees shall:
(I) hold the Information in confidence and
protect it in accordance with the security
regulations by which it protects its own
proprietary or confidential information,
which it does not wish to disclose;
(II) restrict disclosure of the Information
solely to those employees with a need to
know and not disclose it to any other
persons;
(III) advise those employees of their obligations
with respect to the Information, and
(IV) use the Information only in connection with
implementing this Agreement and in
continuing discussions and negotiations
between the parties concerning the Service;
except as may otherwise be agreed upon in
writing.
13.5 In the event a party to whom Information has been
disclosed proposes to disclose that Information to an
outside consultant or agent, it shall obtain the
consent of the party from whom the Information was
originally received and arrange for the execution by
the consultant or agent for a nondisclosure agreement
for a form satisfactory to the party from whom the
Information was originally received.
13.6 The party to whom Information is disclosed shall have
no obligations to preserve the proprietary nature of
any Information which:
(I) was previously known to it free of any
obligations to keep it confidential;
18
19
(II) is disclosed to third parties by the
disclosing party or the third party
requiring such protection (such as AT&T)
without restriction;
(III) is or becomes publicly available by other
than unauthorized disclosure; or
(IV) is independently developed by the receiving
party.
13.7 The Information shall be deemed the property of the
disclosing party and, upon request, the other party
will return all Information which is in tangible form
to the disclosing party or destroy all such
information.
14 SPECIAL OBLIGATIONS OF SPACECONNECTION
Spaceconnection confirms and affirms its obligation to keep
its obligations to AT&T pursuant to the terms of its service agreement
with AT&T current and fulfilled so that the use of the Designated
Transponder(s) used by Shop at Home or its permittee is not jeopardized
or subject to interference was a result of the action or inaction of
Spaceconnection with respect to its lease with AT&T.
15 SPECIAL ACKNOWLEDGMENTS OF SHOP AT HOME
Shop at Home confirms and affirms to Spaceconnection its
understanding that:
(I) Spaceconnection is not the operator or owner
of the satellite, and consequently it is not
responsible for operational failures or
representations or the failure of AT&T to
perform any of its obligations to
Spaceconnection pursuant to the terms of
their lease/service agreement or related
agreements with respect to the Designated
Transponder(s). Regardless of whether said
obligations are referred to in this
Agreement.
(II) Spaceconnection is a lessee/customer of AT&T
with respect to the Designated
Transponder(s) and has acquired whatever
rights it has with respect to same as a
result of its lease/service agreement with
AT&T. Spaceconnection's rights an Shop at
Home's rights are limited by that agreement
and any applicable Tariff.
16 OBLIGATIONS OF SHOP AT HOME'S PERMITTEES
Prior to authorizing or permitting the use of the Designated
Transponder(s) by any permittee, Shop at Home shall secure AT&T's and
Spaceconnection's written approval and said permittee's written
agreement to be bound by all of the provisions of this Agreement
including, but not limited to, those which relate to Shop at Home's
obligations hereunder with respect to (I) the indemnification of
Spaceconnection and AT&T and (II) Shop at Home's responsibility for
damages to any party as a result of its or its permittee's breach of
any of the provisions of this Agreement as set forth herein. Said third
party permittee shall also agree to be bound by all of the provisions
regarding the operation
19
20
of the Satellite(s) and the use of the Transponder(s), including
without limitation, Sections 2, 5, 6, 7, 8, 15, 16, 17, 18, 21 and 23
of this Agreement as though the permittee were Shop at Home. Said
permittee must also be able to meet Spaceconnection's and AT&T's legal,
technical and operational requirements as set forth in the Tariff and
herein.
17 INDEMNIFICATION
Shop at Home, and any of its permittees (collectively referred
to in this Agreement as "Shop at Home"), agree to indemnify and hold
harmless Spaceconnection and AT&T, their officers, agents, servants,
representatives, employees, and the affiliated companies and
corporations specified in this Agreement (collectively the "Indemnified
Parties") from all liability disclaimed by Spaceconnection and/or AT&T,
as specified in this Agreement, to the extent such liability arises in
connection with the provision by Spaceconnection and/or AT&T of the
Designated Transponder or Shop at Home's use of such Designated
Transponder(s) pursuant to this Agreement. Shop at Home shall pay all
expenses (including attorneys fees) incurred by the Indemnified Parties
in connection with all legal or other formal or informal proceedings
concerning claims of third parties, and Shop at Home shall satisfy all
judgments, costs, or other awards which may be incurred by or rendered
against the Indemnified Parties. Shop at Home shall also pay any
settlement of any such claim or legal or other formal or informal
proceeding, but Shop at Home shall not agree to any such settlement
without first giving thirty (30) days prior written notice of the terms
and conditions of such settlement to the Indemnified Parties involved
and obtaining the consent of such Indemnified Parties to such
settlement, which consent shall not be unreasonably withheld.
18 EXPRESS COVENANT OF GOOD FAITH AND FAIR DEALING
The Parties to this Agreement expressly confirm and represent
to each other that each will deal with the other in all matters
pertaining to this Agreement, in good faith.
19 TIME IS OF THE ESSENCE
Time is expressly declared to be of the essence in connection
with the obligations of the Parties as set forth in this Agreement.
20 TAXES
If any property or sales taxes are asserted against
Spaceconnection and/or AT&T after, or as a result of, delivery, by any
local, state, national or international, public or quasi-public
governmental entity, in respect of Shop at Home's transponder(s) or the
lease to or use thereof by Shop at Home, or are asserted in respect of
the provision of any other Transponder(s) provided hereunder, Shop at
Home shall be solely responsible for such taxes. If any taxes, charges
or other levies are asserted by reason of the use of the point in space
or the frequency spectrum at that point in space in which the satellite
containing Shop at Home's Transponders is located, or the use or
ownership of such Satellite (excluding any FCC license fee imposed on
the Satellite itself, as compared to the Transponders, which license
fee is the responsibility of AT&T, and such taxes are not specifically
allocated among the various components of such Satellite, then Shop at
20
21
Home on behalf and through Spaceconnection, AT&T and the other Owners
and/or Users of such Transponders shall each pay a proportionate amount
of such taxes based on the number of Transponders each of them owns,
uses and/or leases.
21 NO THIRD-PARTY BENEFICIARY
The provisions of this Agreement are for the benefit only of
the Parties hereto and AT&T, and no third party other than AT&T may
seek to enforce, or benefit from, these provisions, except that both
Parties acknowledge and agree that the provisions of Sections 6.1, 7.1
and 7.4, are intended for the benefit of both Spaceconnection and all
other Owners. Both Parties agree that any other such Owner shall have
the right to enforce, as a third-party beneficiary, the provisions of
Sections 6.1, 7.1 and 7.4, against Shop at Home directly, in an action
brought solely by such other owner, or may join with Spaceconnection or
any other owner, in bringing an action against Shop at Home for
violation of such sections. Further, AT&T is the owner and operator of
the satellite and the designated Transponder(s), consequently, AT&T may
enforce any rights conferred upon it directly or any and all rights of
Spaceconnection and/or obligations of Shop at Home to which it has been
made a beneficiary thereto by the terms of this Agreement.
22 FORCE MAJEURE
22.1 Any failure or delay in the performance by
Spaceconnection of its obligations to deliver or
provide any Transponders shall not be a breach of
this Agreement if such failure or delay results from
any acts of God, governmental action or law (whether
in its sovereign or contractual capacity) or any
other circumstances reasonably beyond the control of
Spaceconnection, including, but not limited to,
weather or acts or omissions of Shop at Home or any
third parties (including the AT&T and all of its
direct and indirect subsidiaries, and any other
affiliates of AT&T or any company with whom AT&T
contracts for any components of the satellites or any
services with respect thereto).
22.2 Any failure in the performance of the Transponders,
once delivered or provided, shall not be a breach of
this Agreement if such failure results from acts of
God, governmental action or law (whether in its
sovereign or contractual capacity) or any other
circumstances reasonably beyond the control of
Spaceconnection AT&T, including, but not limited to,
earth station sun outage, weather, or acts or
omissions of Shop at Home or any third parties
(including AT&T and all of its direct and indirect
subsidiaries, and any other affiliates of AT&T or
companies with whom AT&T contracts with for any
components of the satellite(s) or any services with
respect thereto).
23 GOVERNING LAW, VENUE AND FORUM SELECTION
This Agreement shall be considered as entered into in and
governed by and construed under the laws of the State of California.
Shop at Home shall comply (and shall require its uplinking agents to
comply), in all material respects, with all laws
21
22
applicable to it regarding the operation or use of the satellite(s),
Shop at Home's Transponder(s) to which Shop at Home is given access
pursuant to this Agreement. All legal actions must be brought in the
federal courts for the Central District of California or the Superior
Courts of the State of California, county of Los Angeles. By executing
this Agreement, Shop at Home is submitting to the jurisdiction of the
State of California with respect to any dispute which may arise out of
this Agreement.
24 HEADINGS
The headings used throughout this Agreement are for
convenience only and are not a part of this Agreement and shall have no
effect upon the construction and interpretation of this Agreement.
25 WAIVERS
A waiver by either party or any of the terms and conditions of
this Agreement in any instance shall not be deemed or construed to be a
waiver of such terms or condition for the future, or of any subsequent
breach thereof. Either party hereto may specifically waive any breach
of this Agreement (including an Event of Default) by the other party,
provided that no such waiver shall be binding or effective unless in
writing and no such waiver shall constitute a continuing waiver of
similar or other breaches, a waiving party, at any time, and upon
notice given in writing to the breaching party, may direct future
compliance with the waived term or terms of this Agreement, in which
event the breaching party shall comply as directed from such time
forward.
26 LEGAL COUNSEL AND INTERPRETATION
Each party hereto has consulted its own legal counsel in
connection with the negotiation and drafting of this Agreement. Counsel
for Spaceconnection has prepared this Agreement; however, the parties
acknowledge that each party and its counsel have reviewed and revised
this Agreement, and 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.
27 DELINQUENCY CHARGE
If any payment of any sum due from User shall not be received
by Spaceconnection with five (5) days after such payment is due, then
such overdue amount shall be subject to delinquency charge (liquidated
damages under California Civil Code Section 1671) at the rate of
interest equal to eighteen percent (18%) per annum from the date such
overdue amount was actually due until the date it is actually received
by Spaceconnection. User acknowledges that such delinquency charge is
reasonable under all the circumstances existing at the time this
Agreement is entered into. User agrees that acceptance of all or any
portion of such delinquency charge by Spaceconnection shall in no event
constitute a waiver by Spaceconnection of User's default with respect
to such overdue amount, nor shall it prevent Spaceconnection from
exercising any or all other rights or remedies which Spaceconnection
may have. User further acknowledges that failure to make payments when
due shall give Spaceconnection the right, but not the
22
23
obligation, to terminate service to User as set forth in Section 5
hereof. The term "prorated" shall mean an allocation on a straight line
basis based on a number of days. All present value analyses shall use a
18% annual discount rate, compounded monthly. Any delinquency charge,
discount rate and/or interest rate set forth herein shall be charged or
applied at the rate set forth herein or the maximum rate allowed by
law, whichever is lower.
29 SEVERABILITY
Nothing contained in this Agreement shall be construed so as
to require the commission of any act contrary to any laws, and wherever
there is any conflict between any provision of this Agreement and any
law, such law shall prevail; provided, however, that in such event, the
provisions of this Agreement so affected shall be curtailed and limited
only to the extent necessary to permit compliance with the minimum
legal requirement yet permit the implementation of the intent of the
Parties and the spirit of the Agreement. To the extent possible, such
interpretation shall minimize the extent other provisions of this
Agreement shall be affected thereby and shall confirm that all other
provisions of this Agreement shall continue in full force and effect.
30 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties contained herein or made by
Spaceconnection or Shop at Home in connection herewith shall survive
any independent investigation made by Spaceconnection or Shop at Home.
31 COUNTERPARTS
This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and all such counterparts
together shall constitute but one and the same instrument.
32 DOCUMENTS
Each party hereto agrees to execute and, if necessary, to file
with the appropriate governmental entities, such documents as the other
party hereto shall reasonably request in order to carry out the
purposes of this Agreement and to notify the other party of any such
filing.
33 ENTIRE AGREEMENT AND AMENDMENT
This Agreement, along with matters incorporated herein by
reference, constitutes the entire Agreement between Shop at Home and
Spaceconnection relative to the service, and this Agreement can be
altered, amended or revoked only by an instrument in writing signed by
both Shop at Home and Spaceconnection. Shop at Home and Spaceconnection
agree hereby that any prior or contemporaneous oral and written
agreements between and among themselves and their agents and
representatives relative to the subject of this Agreement are
superseded and replaced by this Agreement.
23
24
IN WITNESS WHEREOF, the Parties have signed this Agreement on the day
and year first above written.
B&P THE SPACECONNECTION, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
-----------------------------
Title: Executive Vice President
Date: June 29, 1995
SHOP AT HOME, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Title: President/CEO
Date: June 29, 1995
24
