EXHIBIT - 4.3
EX - 4.3
AGREEMENT
(EARTH STATION SERVICES)
THIS AGREEMENT ("Agreement"), is made and entered effective the 30th day
of March, I 999, between XXXXX EARTH SEGMENT, INC., a corporation organized
under the laws of Colorado, and having its principal place of business at 0000 X
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 ("Xxxxx") and First Florida
Communication, Inc., a Florida corporation, and having its principal place of
business at 0000 Xxxx Xxxxxxxxxx Xxxx., 0xx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000 d/b/a MB Broadcasting (the "User).
WlTNESSETH:
WHEREAS, Xxxxx desires to provide to User and User desires to obtain
from Xxxxx certain earth station and other services; and
WHEREAS, the parties desire to set forth herein the terms and conditions
under which said earth station services will be provided;
NOW, THEREFORE, the parties, in consideration of the mutual covenants
herein expressed, agree as follows:
ARTICLE I THE SERVICES
1.1 Xxxxx agrees to provide and User agrees to take and pay for the
earth station and other services as described in Exhibit A to this Agreement
(the "Services") in accordance with the terms and conditions set forth in this
Agreement and the specifications for performance of the Services set forth in
Exhibit B to this Agreement (the "Performance Specifications").
ARTICLE 2. PRICE AND PAYMENT
2.1 For the Services, User shall make the payments required of it
pursuant to the Transponder Capacity Agreement of even date herewith between
Xxxxx Space Holdings. Inc. and MB Broadcasting and First Florida Communication.
Inc. (the "Capacity Agreement"). No additional amount is required under this
Agreement, except as set forth on Exhibit A.
ARTICLE 3. TERM
3.1 The term of this Agreement shall begin on the date first-above
written and shall terminate upon the termination of the Capacity Agreement.
ARTICLE 4. LIMITATIONS OF LIABILITY
4.1 EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARTICLE, XXXXX SHALL
HAVE NO LIABILITY FOR DAMAGES OR LOSSES ARISING OUT OF ITS FAILURE OR INABILITY
TO PROVIDE THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT. XXXXX' SOLE LIABILITY
FOR DAMAGES OR LOSSES ARRISING OUT OF MISTAKE,, OMISSIONS, INTERRUPTI()NS,
DELAYS? ERRORS OR DEFECTS OR ANY KIND WITH RESPECT TO ITS PERFORMANCE OF THIS
AGREEMENT OR THE PROVISION OF THE SERVICES OR ANYTHING DONE IN CONNECTION
THEREWITH, REGARDLESS OF WHETHER OCCASIONED BY ITS OWN NEGLIGENCE, SHALL BE
LIMITED TO A REFI JND OR WAIVER AS THE CASE MAY BE, OF THE APPLICABLE CHARGES
UNDER ARTICLE 5 FOR ANY PERIOD THAT SERVICES ARE NOT PROVIDED. CREDITS FOR
INTERRUPTIONS, OUTAGES OR ERRORS SHALL BE DETERMINED IN ACCORDANCE WITH ARTICLE
5 OF THIS AGREEMENT.
4.2 Except as provided in Article 9 of this Agreement, neither party
shall be liable, in connection with this Agreement, or the arrangements
contemplated hereby, for any indirect, incidental, consequential, special or
other similar damages, whether in contract or tort, including but not limited
to, damages resulting from loss of actual or anticipated revenues or profits, or
loss of business, customers or good will.
4.3 Xxxxx shall not be liable for any damages or losses due to the fault
of User or of any third party or the failure or unavailability of satellites,
transponders, facilities, services. software or equipment famished to User or
Xxxxx by any other person which may be used in conjunction with the facilities,
services or equipment of Xxxxx, or any act or omission of any such other person.
In addition, Xxxxx shall not be Liable if there is a cessation of the Services
required by governmental action or if required by the satellite operator
ARTICLE 5. CREDITS FOR INTENTIONS OUTAGES AND ERRORS
5.1 User mill receive a credit, as set forth below, for Interruptions,
Outages or Errors. An Outage or Interruption shall be a failure of the Services
to
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meet the Performance Specifications and said failure precludes the use of the
Services for their intended purposes for a period of fifteen (15) minutes or
more. An Outage or Interruption does not include, and there shall no be credit
for, satellite service interruptions caused by the (i) User or User-provided
facilities; (ii) sun transient outage; (iii) rain fade, or (iv) any of the
circumstances set forth in Section 4.3. An Error shall be any material mistake
or omission in the provision of the Services by Xxxxx and which is not an Outage
or Interruption.
5.2 The length of the Interruption, Outage or Error shall be measured
from the time provision of the Services is interrupted. For the purpose of
calculating the credit, a month is considered to have shiny (30) days.
a. INTERRUPTIONS' OUTAGES OR ERRORS OF 24 HOURS OR LESS
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Credit will be allowed as follows:
LENGTH OF TIME CREDIT
Less than 15 minutes $ 0
15 Mins. up to but not including 3 hours $ 292
3 hrs. up to but not including 6 hours $ 583
6 hrs. up to but not including 9 hours $ 875
9 hrs. up to but not including 12 hours $1,167
12 hrs. up to but not including 15 hours $1,458
15 hrs. up to 24 hr. inclusive $2,333
Two Or more Interruptions, Outages or Errors of fifteen ( 15) minutes or
more, during any period up to but not including three (3) hours, shall be
considered as one Interruption, Outage or Error, as the case may be.
b. INTERRUPTIONS OUTAGES OR ERRORS OVER 24 HOURS
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Credit will be allowed in one-fifth (l/5) day multiples for each
three (3) hour period of Interruption. Outage, Error or Faction thereof. No more
than one full day's credit will be allowed for any period of twenty-four (24)
hours.
c. An allowance will not be made under this Agreement where
the Interruption, Outage or Error is a result of, or attributable in whole or in
part, to:
(i) Users negligence or willful act, or the negligence or
willful act of its officers, directions, agents, employees, subsidiaries,
parents, affiliates, customers and viewers, or any of them;
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(ii) The failure of channels, transmission or equipment, if any,
provided by User or by any third party;
(iii) Testing, modification or installation of compression
equipment; provided that if the foregoing should cause an Interruption which
exceeds three (3) hours, Section 5.2a or 5.2b, as the case may be, would be
applicable to the excess period.
(iv) Any interruption of service caused by satellite or
transponder related reasons as contemplated by the Capacity Agreement which
allows for a credit to IJser under the Capacity Agreement.
5.3 In the event of an Interruption, Outage or Error, Xxxxx will use its
commercially reasonable efforts to restore service as soon as feasible.
ARTICLE 6. FORCE MAIEURE
6.1 Neither party shall be liable TO THE other for any failure of or
delay in performance hereunder due to causes beyond its reasonable control.
These causes include but are not limited to acts of God, fire, flood or other
natural catastrophes, the need to comply with any law or any rule, order,
regulations or direction of the United States Government, or of any other
government, including state and local governments having jurisdiction over
either party, or of any department, agency, commission, bureau, court or other
instrumentality thereof, or of any civil or military authority, national
emergencies, insurrections, riots, acts of ever, quarantine restrictions,
embargoes, or strikes, lockouts, work stoppages or labor difficulties.
ARTICLE 7. CONFIDENTIALITY AND NONDISCLOSURE
7.1 Both parties shall hold in strict confidence and neither party shall
disclose to third parties the prices, payment terms and other material terms and
conditions of this Agreement, without the prior written consent of the other
party. The restrictions on disclosure hereunder shall not apply to disclosures
to a party's parent, subsidiaries or companies under common control with a party
("affiliates"), or to their respective EMPLOYEES, agents, independent auditors
or legal counsel, PROVIDED, THAT each party's parent, subsidiaries and
affiliates (including their respective employees, agents, independent auditors
Or legal counsel) shall be subject to the same restrictions on disclosure to
third parties as apply to the party itself.
7.2 If a party discloses to the other party any information which it
considers proprietary, the disclosing party shall identify such information as
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proprietary by marking it clearly as proprietary information. Any proprietary
disclosure to either party if made orally, shall be promptly confirmed in
writing and identified as proprietary information. Any such information
disclosed under this Agreement shall be used by the recipient thereof only for
the purpose of its performance under this Agreement. Neither party shall be
liable for disclosure or use of such information marked as proprietary
information as provided above which.
(i) is or becomes available to the public from a source other
than the receiving party before or during the period of this Agreement; or
(ii) is released without restrictions in writing by the
disclosing party; or parties; or
(iii) is lawfully obtained by the receiving party from a Bird
party or
(iv) is known by the receiving party prior to such disclosure; or
(v) is at any time developed by the receiving party completely
independently of any such disclosure or disclosures from the disclosing party.
7.3 A party shall not be liable for the disclosure of any information if
such disclosure is made pursuant to (i) judicial action or decree or (ii) any
requirement of any Government or any agency or department thereof, having
jurisdiction over such party, or (iii) a public or private offering of
securities by such party or an affiliate thereof, provided. that such party to
the extent reasonably practicable shall have given the other party notice prior
to such disclosure.
7.4 Neither party shall issue a public notice or a news release
concerning this Agreement and the transactions contemplated hereby without the
approval of the other.
ARTICLE 8. PROGRAMMING CONTENT
8.1 User agrees that it will not itself use the Services, and will not
authorize or permit others to use the Services to transmit unlawfu1
prograrnrning of any nature. User further agrees that Xxxxx shall have the right
and without liability to User, to interrupt, discontinue or terminate The
Services for any breach of the foregoing provision. Xxxxx shall give User notice
by facsimile at least twenty-four (24) hours before any such interruption,
discontinuance or termination
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8.2 Xxxxx may terminate, prevent or restrict any programming using the
Services as a means of transmission if such actions are at the direction of
governmental agency or are taken as a result of criminal, civil or
administrative proceedings or investigations based upon the content of such
programming.
ARTICLE 9. INDEMNIFICATION
9.1 Xxxxx shall be indemnified and held harmless by User from and
against all loss liability. damage and expense, including reasonable counsel
fees and disbursements ,arising cut of or due to:
(i) Claims for libel, slander, infringement of copyright
or other intellectual property rights arising from
material received or transmitted by Use; or
(ii) Any other claim arising from any use of the Services
by User,
(iii) Breach by User of the provisions of Section 8.1 of
this Agreement
9.2 User shall promptly defend any claims against Xxxxx pursuant to this
Article with counsel of the User's choice at its own cost and expense. Xxxxx
shall cooperate with, and assist as reasonably requested by, User in the defense
of any such claim, including the settlement thereof (with User being responsible
for all costs and expenses of defending such claim or making such settlement);
PROVIDED, HOWEVER that (i) User will not without the consent of Xxxxx. settle or
compromise any claim or consent to any entry of judgment which does not include
the giving by the claimant or the plaintiff to Xxxxx of an unconditional release
from all liability with respect to such claim and (ii) Xxxxx shall be entitled
to participate at its sole expense in support of the User's action in the
defense of any such claim and to employ counsel at Xxxxx' own expense to assist
in the handling of such claim.
ARTICLE 10. NOTICES
10.1 Notice of Interruptions, Outages, Errors, or of other technical or
operational matters requiring immediate attention, shall be given by telephone.
Xxxxx will designate a point or points of contact where User may call on a
7-day-a-week, 24 hour-a-day basis. Any notice given verbally will be confirmed
in writing as soon as practicable thereafter pursuant to the procedures set out
in the following paragraph.
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10.2 Except as otherwise provided in Section 9.1, all notices, demands,
reports, orders and requests required hereunder to be given by one party to the
other shall be in writing and deemed to be duly given on the same business day
if sent by electronic means (i e., telex, electronic mail or facsimile) or
delivered by hand during; the receiving party's regular business hours, or on
the date of receipt if sent by pre-paid overnight, registered or certified mail,
and addressed as follows:
If to be given to Xxxxx: with a copy to:
Xxxxx learn Segment, Inc. Legal Department
0000 X Xxxxxxx Xxxxxx Xxxxx Intercable, Inc.
Englewood, Colorado 801 lo 0000 X. Xxxxxxx Xxxxxx
fax No. (000) 000-0000 Xxxxxxxxx, Xxxxxxxx 0(x000
Phone No. (000) 000-0000 Fax No. (3()3) 000-0000
Phone No. (000) 000-0000
With a Copy to: If to be given to User:
First Florida Communication, Inc. MB Broadcasting
0000 Xxxx xxxxxxxxxx Xxxx., 0xx Xxxxx 00 Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 Xx. Xxxxxx, Xxxx 00000
Fax No. (000) 000-0000 Fax No (4353 673-829g
Phone No. (000) 000-0000 Phone No. (43~) 000-00X0
10.3 A party may, on written notice to the other, specify another
address or individual to serve as a point of contact for that party.
ARTICLE 11. GENERAL PROVISIONS
11.1 Nothing contained in this Agreement shall be deemed or construed
to create any rights, obligations or interests in third parties; or to create
the relationship of principal and agent. partnership or joint venture or any
other fiduciary relationship or association. between the parties.
11.2 No failure on the part of either party to notify the other party of
any noncompliance hereunder, and no failure on the part of either party to
exercise its rights hereunder shall prejudice any remedy for any subsequent
noncompliance, and any waiver by either party of any breach or noncompliance
with any term or condition of this Agreement shall be limited to the particular
instance and shall not operate or be deemed to waive any fixture breach or
noncompliance with any term or condition. All remedies and rights hereunder and
those available in law or in equity
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shall be cumulative and the exercise by a party of any such right or remedy
shall not preclude Me exercise of any other right or remedy available under this
Agreement in law or in equity.
11.3 This Agreement shall be construed and enforced in accordance with
the internal laws of the State of Colorado. The parties hereby consent to and
submit to the jurisdiction of the federal and state courts located in the State
of Colorado, and any action or suit under this Agreement may be in any federal
or state court with appropriate jurisdiction over the subject matter sitting in
the State of Colorado. 'Xxx parties shall not raise in connection therewith, and
hereby waive, any defenses based upon the venue, the inconvenience of the forum,
the lack of personal jurisdiction the sufficiency of service of process in any
such action or suit brought in the State of Colorado.
11.4 All titles and headings in this Agreement are inserted as a matter
of convenience and for reference purposes only.
11.5 This Agreement may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon the same
Agreement.
11.6 This Agreement is subject to all applicable laws and regulations,
including without limitation the Communications Act of 1934 as amended, and the
rules and regulations of the Federal Communications Commission.
11.7 Each party shall bear its respective costs and expenses in
connection with the preparation, execution, delivery and performance of this
Agreement.
11.8 This Agreement, including all exhibits, represents the entire
understanding and agreement between the panics with respect to the subject
matter hereof, supersedes all prior negotiations and agreements between the
parties concerning that subject matter, and can be amended, supplemented or
changed only by a writing which is signed bar both parties.
11.9 Each park represents that all negotiations relative to this
Agreement and the transactions contemplated shall not give rise to any claim,
against the other party for a fender's fee, brokerage commission or similar
payment.
11.10 User shall not assign its rights or obligations under this
Agreement without first obtaining the written consent of Xxxxx. No permitted
assignment or transfer shall relieve User of its obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective
on the date first above written.
XXXXX EARTH SEGMENT, INC
By:
Name
Title
FIRST FLORIDA COMMUNICATION, INC.
By:
Name:
Title:
