Exhibit 10.3.1
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omissions have been indicated by asterisks ("*****"), and the omitted text has
been filed separately with the Securities and Exchange Commission.
EXECUTED AGREEMENT
T70309257
AGREEMENT BETWEEN
ANDRITA STUDIOS, INC.
AND
LORAL SKYNET(R)(1)
CONCERNING SKYNET SPACE SEGMENT SERVICE
This Agreement is made this 20th day of November, 2003 by and between Andrita
Studios, Inc., a corporation organized and existing under the laws of the State
of California, and having its place of business at 0000 Xxxxxxx Xx., Xxx
Xxxxxxx, XX 00000 (hereinafter referred to as "CUSTOMER", which expression shall
include its successors and permitted assigns), and Loral Skynet, a division of
Loral SpaceCom Corporation, a corporation organized and existing under the laws
of the State of Delaware, and having a place of business at 000 Xxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "SKYNET", which
expression shall include its successors and permitted assigns).
WITNESSETH:
WHEREAS, SKYNET has satellite capacity available on its Telstar 7 satellite for
the purpose of providing service to customers on such satellite; and
WHEREAS, CUSTOMER desires to obtain C-Band space segment capacity service on the
Telstar 7 satellite;
NOW, THEREFORE, CUSTOMER and SKYNET, in consideration of the mutual covenants
expressed herein, agree as follows:
1. SKYNET SERVICES
1.1 SKYNET offers and CUSTOMER hereby orders satellite space segment
service from October 27, 2003 through and including December 31,
2006, with an option to extend for two (2) additional years. Such
service consists of Non-Preemptible C-Band satellite space segment
capacity, consisting of 18.0 MHz of total
----------
(1) SKYNET and its logo are registered trademarks of Loral SpaceCom
Corporation.
LORAL SKYNET PROPRIETARY
Andrita Studios Service Description FINAL
T70309257
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Page 2 of 4
bandwidth allocation (bandwidth and associated power) on a full-time
basis via the Telstar 7 satellite (the "Serving Satellite") along
with Telemetry, Tracking and Control ("TT&C"), and maintenance of
the satellite used to provide the space segment capacity
(collectively, the "Service" or "Services").
1.2 The Service is furnished to CUSTOMER subject to this Agreement,
including terms and conditions set forth in the General Terms and
Conditions, Exhibit A ("Performance Parameters"), and Exhibit B
("Satellite Access Procedures") attached hereto and incorporated
herein by reference.
2. RATES AND TERM OF SERVICE
CUSTOMER shall pay a monthly rate for the Service as set forth in the following
table:
Monthly Rate Per
Quantity Service Satellite Term Space Segment
--------------------------------------------------------------------------------
1 (one) 18.0 MHz Telstar 7 10/27/03 - 12/31/03 *****
Non-Preemptible C-Band
1 (one) 18.0 MHz Telstar 7 1/1/04 - 12/31/06 *****
Non-Preemptible C-Band
3. SECURITY PAYMENT
NONE REQUIRED
4. PAYMENT INSTRUCTIONS
Payment information is detailed in the payment instructions which
accompany all SKYNET invoices. To ensure accuracy CUSTOMER should include
with all payments its SKYNET account number and the invoice number for
which payment is being made.
5. OPTION TO EXTEND
CUSTOMER has the option to extend Service for two additional years, under
the same terms and conditions as expressed herein, with the exception that
Service will not be provided at no charge during the first two months of
any extended term. In order to exercise this option CUSTOMER must notify
SKYNET, in writing, no later than the sixty (60) days prior to expiration
of the current term of service.
6. NOTICES
All notices, demands, requests, or other communications which may be or
are required to be given, served, 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 confirmed
facsimile, confirmed overnight mail, by hand or mailed by
LORAL SKYNET PROPRIETARY
Andrita Studios Service Description FINAL
T70309257
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Page 3 of 4
first-class, registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to CUSTOMER: Andrita Studios, Inc.
0000 Xxxxxxx Xx.
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Phone: 000-000-0000
Facsimile: 000-000-0000
Billing Contact: Same as Above
(ii) If to SKYNET: Loral Skynet
000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Executive Vice President -
Marketing, Sales and Client Services
Phone: 000-000-0000
Facsimile: 000-000-0000
Copy to: Loral Skynet
000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Director, Contract Management
Phone: 000-000-0000
Facsimile: 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 shall be deemed sufficiently given, served or sent for all
purposes three (3) days after depositing such notice in the United States
Mail, or one (1) day after delivery to a nationally recognized overnight
courier for overnight delivery if such notice is properly addressed and
the appropriate fee is prepaid, and the same day as hand delivered or
faxed with confirmation.
7. ENTIRE AGREEMENT
This Agreement, along with written documents incorporated herein by
reference, constitutes the entire agreement between CUSTOMER and SKYNET
relative to the Service, and this Agreement can be altered, amended or
revoked only by an instrument in writing signed by authorized
representatives of both CUSTOMER and SKYNET. CUSTOMER and SKYNET 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.
LORAL SKYNET PROPRIETARY
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Any provision of this Agreement found to be unenforceable or invalid by a
court of competent jurisdiction shall in no way affect the validity or
enforceability of any other provision except that if such invalid or
unenforceable provision provided a material benefit to a party hereto,
such party shall have the right to terminate the Agreement without
liability to the other. Each party represents that it has caused this
Agreement to be executed on its behalf by a representative empowered to
bind that party with respect to the undertaking or obligations contained
herein.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the day and year first above written, and agree to the terms and
conditions set forth herein.
ANDRITA STUDIOS, INC. LORAL SKYNET, A DIVISION OF
LORAL SPACECOM CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxx
---------------------- ----------------
Print:Xxxxxxxxx Xxxxxxx Print: Xxxxxx Xxxxx
----------------- -------------
Title:SVP Title: Director, Contract Management
--- ------------------------------
Date:11-25-03 Date: 1 Dec 03
-------- ---------
LORAL SKYNET PROPRIETARY
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Page 1 of 19
GENERAL
TERMS AND CONDITIONS
OF THE
AGREEMENT BETWEEN
CUSTOMER
AND
LORAL SKYNET
CONCERNING SKYNET(R) LEASED SPACE SEGMENT CAPACITY
FOR TELSTAR CHANNELIZED SERVICES
1. WARRANTY EXCLUSIONS
SKYNET WARRANTS TO CUSTOMER THAT SKYNET WILL PERFORM THE SERVICES DEFINED HEREIN
IN ACCORDANCE WITH GENERALLY ACCEPTED INDUSTRY STANDARDS AND IN ACCORDANCE WITH
THE PERFORMANCE PARAMETERS ATTACHED HERETO AS EXHIBIT A. SUBJECT TO THE ABOVE,
SKYNET, ITS PARENT, THEIR SUBSIDIARIES AND THEIR AFFILIATES, SUBCONTRACTORS AND
SUPPLIERS MAKE NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PERFORMANCE OF THE
SERVICE, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
2. PAYMENT OF CHARGES
Service charges begin on the first day Service starts pursuant to Section 1 of
the Service Description (SKYNET SERVICES) and continue through the last day
Service is provided. For Partial-month Service, SKYNET calculates daily rates
using a thirty (30) day month and bills customers in one (1) day increments for
each day Service is provided. If Service is provided for any part of a day
(beginning and ending as determined by Eastern Standard / Daylight Savings
Time), a full day's payment will be charged. Service charges are billed to the
CUSTOMER before or during the first week of each month in which Service is
provided to the CUSTOMER or as soon as is practicable following the start of
Service in the event Service begins at some time other than the first day of the
month. Payment for Service is due from CUSTOMER to SKYNET as specified on
SKYNET's invoices. For a full calendar month of Service, payment is due no later
than the first day of the following month. Service may be discontinued for
nonpayment of a xxxx fifteen (15) days beyond notice from SKYNET to CUSTOMER of
payment past due. All payments by CUSTOMER to SKYNET shall be: (i) made in U.S.
dollars, and (ii) shall be considered paid upon receipt of collected funds by
SKYNET. Any and all fees associated with the payment of the xxxx are the
responsibility of the CUSTOMER.
Form TC/SR-04 Rev. G 8/04/03
----------------------------------------------------------------------------
SKYNET and its logo are registered trademarks of Loral SpaceCom Corporation.
LORAL SKYNET PROPRIETARY
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Page 2 of 19
2.1 SECURITY PAYMENT
To safeguard its interests, SKYNET may require customers to remit a security
payment. The amount of the security payment and the date due are as specified in
Section 3 of the Service Description (SECURITY PAYMENT). During the term of this
Agreement, additional security payment may be required, at SKYNET's discretion,
based on CUSTOMER's payment history and/or increases in the amount of capacity
provided under this Agreement. In the event SKYNET requires additional security
payment, the amount of such additional security payment shall be due and payable
on or before the date specified on the invoice for such additional security
payment. Remittance of security payment does not relieve CUSTOMER of the
responsibility for the prompt payment of bills upon presentation. All security
payments paid pursuant to this Agreement will be held as a guarantee for the
payment of any and all charges due hereunder and shall be applied to customer's
final xxxx(s). Any security payment remaining after such application will be
refunded to CUSTOMER upon the expiration or earlier termination of this
Agreement. Failure to remit a required security payment, including but not
limited to any additional security deposit required after the effective date of
this Agreement, in a timely manner shall be considered a material breach of this
Agreement.
3. INTEREST ON LATE PAYMENTS
Any late payments by CUSTOMER of amounts due and payable hereunder (including,
but not limited to, specified payments, damages, and indemnification) to SKYNET
shall be with interest at the rate of eighteen percent (18%) per annum, or the
highest legally permissible rate of interest, whichever is lower, and all
interest or discounting shall be compounded on a monthly basis. Such late
payments, including interest, shall be payable with the amount due and
calculated from the date payment was due until the date it is received by
SKYNET.
4. TAXES
4.1 CUSTOMER shall be financially responsible for, and shall pay, all
Taxes (as defined below) imposed on, or otherwise related or
attributable to, the Services or amounts payable by CUSTOMER to
SKYNET pursuant to this Agreement, whether or not any such Taxes are
actually charged or separately stated by SKYNET.
4.2 For purposes of this Paragraph 4, the term "Tax" or "Taxes" shall
mean all federal, state, local, foreign, tribal or provincial taxes,
charges, fees, levies, imposts, duties, tariffs, surcharges, or
other assessments, including, without limitation, sales, use,
transfer, gross receipts, excise, withholding, Universal Service
Fund assessments or any similar charges or assessments, value added,
goods and services, government and/or signatory "xxxx-up" on space
segment, and all taxes, charges, fees, levies, imposts, duties,
tariffs, surcharges, or other assessments placed by, or replacing,
any of the above, or other tax or governmental fee of any kind
whatsoever imposed by any governmental authority in connection with
the Service, including any interest or penalties or additions
thereto, whether disputed
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or not, provided, however, that the term Tax or Taxes shall not
include any taxes imposed on SKYNET's net income.
4.3 CUSTOMER shall provide SKYNET with all applicable certificates of
waiver, exemption, relief, or other reasonably satisfactory evidence
of waiver, exemption or relief that may be required by any federal,
state, local or foreign Tax authority pursuant to which SKYNET would
be relieved of its obligation to charge CUSTOMER Tax in connection
with this Agreement.
4.4 Taxes will be separately stated on CUSTOMER's invoice or statement
of account. CUSTOMER may in good faith and by appropriate legal
proceedings contest the validity, applicability or amount of any
Taxes assessed or levied under the foregoing provisions, and SKYNET
agrees to cooperate with CUSTOMER in any such contest and will
permit CUSTOMER to contest the same at CUSTOMER's cost and expense.
If any Taxes increase the CUSTOMER's annual cost of the Service
provided hereunder by more than twenty-five percent (25%), the
CUSTOMER may terminate the Service upon not less than thirty (30)
days written notice to SKYNET. Any notice of termination must be
delivered no more than thirty (30) days after CUSTOMER has been
notified of the imposition of such Taxes that will result in
increasing the CUSTOMER's annual cost of Service.
4.5 Notwithstanding anything to the contrary contained in this
Agreement, the nonpayment of any such contested Taxes by CUSTOMER in
connection with such contest shall not be deemed a default hereunder
until final determination (including appeals) in such contest and
expiration of any date established for filing an appeal therein.
CUSTOMER agrees to indemnify SKYNET for any interest or penalty
assessed on Taxes finally adjudged to be due and owing by the
appropriate local, state, or federal tax authority.
5. TYPES OF SPACE SEGMENTS
FULLY PROTECTED SPACE SEGMENTS (If Applicable)
Except where the failure is caused directly and solely by the actions or
inaction's of CUSTOMER not pursuant to directions of SKYNET, "Fully Protected"
space segments, in the event of failure, shall be restored using spare equipment
that may be available on the satellite at the time of failure, or on a
comparable space segment on the same satellite, or on another SKYNET satellite
then in orbit pursuant to Paragraph 7 ("RESTORATION OF A FULLY PROTECTED FAILED
SPACE SEGMENT") hereof. Fully Protected space segments are Non-Preemptible and
protected.
NON-PREEMPTIBLE / NON-PROTECTED SPACE SEGMENTS (If Applicable)
"Non-Preemptible" space segments are not protected in the event of failure, and
are not subject to preemption (Non-Preemptible) to restore any other
customers protected service.
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LORAL SKYNET PROPRIETARY
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PREEMPTIBLE / NON-PROTECTED SPACE SEGMENTS (If Applicable)
"Preemptible" space segments are not protected in the event of failure.
Preemptible space segments may be preempted on a permanent or temporary basis to
restore protected service. If CUSTOMER continues to use any Preemptible space
segment longer than five (5) minutes following notification or attempted
notification by SKYNET of its preemption to restore a protected service, a
Preemption Notification Charge shall apply at the rate of eleven hundred dollars
($1,100.00) per minute or each fraction thereof for each minute after such five
(5) minute period. For purposes of notification concerning preemption of any
Preemptible space segment CUSTOMER shall specify, in writing to SKYNET prior to
the start of Service provided under this Agreement, a telephone number or
numbers where designated CUSTOMER personnel may be reached by SKYNET. Such
contact telephone number(s) and CUSTOMER personnel shall remain in effect until
further written notice is given, if ever, by CUSTOMER, changing the designated
contact telephone number(s) and/or personnel. The five (5) minute notification
period specified above shall begin to run from the time the telephone call is
completed with the CUSTOMER representative or from the time of attempted
notification of CUSTOMER if there is no answer at the CUSTOMER designated
telephone number. Nothing in this Agreement shall prevent SKYNET from taking any
action that is 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. 606 if
Preemptible Service is temporarily preempted CUSTOMER will be credited for the
period of interrupted service as follows. The effective rate of each Preemptible
space segment for the purpose of calculating credit due to preemption shall be
the monthly rate of the space segment divided by the number of space segments
being furnished at that time. The actual amount credited shall be pro rated
based on the actual time CUSTOMER is without the space segment Service.
Notwithstanding anything in this Agreement, to the extent CUSTOMER does not
comply with any permitted preemption, SKYNET shall have the right to prevent
CUSTOMER's use of the preempted Service, including SKYNET's right to deny,
temporarily suspend, or terminate the Service permanently without further
notice.
6. SPACE SEGMENT INTERRUPTION OR FAILURE
6.1 Interruption - for the purpose of this Agreement; (i) an
interruption ("Interruption") shall be defined as any period during
which a space segment fails to meet the Performance Parameters set
forth in Exhibit A ("PERFORMANCE PARAMETERS") attached hereto and
incorporated by reference, as measured by SKYNET at its earth
station in Hawley, Pennsylvania, such that the space segment is
precluded from being used for its intended commercial purpose.
6.2 Failure - for the purpose of this Agreement a failure ("Failure")
shall be defined as any of the following:
a) the inability, for any period of sixty (60) consecutive
minutes, to pass signals through a space segment when it is
illuminated with any authorized transmitted carrier, or
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Page 5 of 19
b) an Interruption for any period of twenty-four (24) consecutive
hours.
c) ten (10) or more Interruptions of at least one (1) minute or
longer per occurrence within any period of thirty (30)
consecutive days
For purposes of this Paragraph 6 ("SPACE SEGMENT INTERRUPTION OR FAILURE"),
measurement of periods of Interruption or Failure shall commence only upon
CUSTOMER's written or verbal notification to SKYNET's Xxxxxx earth station and
CUSTOMER having vacated its signal from the affected space segment to permit
SKYNET's verification of the existence of the Interruption or Failure.
7. RESTORATION OF A FAILED SPACE SEGMENT
FULLY PROTECTED SPACE SEGMENT (If Applicable)
In the event any Fully Protected space segment provided hereunder fails,
pursuant to Paragraph 6 ("SPACE SEGMENT INTERRUPTION OR FAILURE") above, and if
SKYNET is unable to restore Service on the affected space segment by switching
in spare equipment that may be available on the satellite at the time of such
failure, then SKYNET shall restore such Service either (1) on a space segment of
the same frequency band, having the same bandwidth and the equivalent power as
the failed space segment, on the same satellite or (2) on a space segment of the
same frequency band, having the same or greater bandwidth, the same or different
power, the same or greater EIRP, and substantially equivalent domestic
footprint, but no less than the same number of States included in the failed
transponder footprint, on another SKYNET satellite then in orbit. Such space
segment will then become the Fully Protected space segment.
NON-PROTECTED SPACE SEGMENT (If Applicable)
In the event any non-protected space segment provided hereunder fails pursuant
to Paragraph 6 ("SPACE SEGMENT INTERRUPTION OR FAILURE") hereof SKYNET may, in
the sole discretion attempt to restore Service of the affected space segment
using spare equipment on the satellite. If SKYNET is unable to restore Service
on the affected space segment by switching in spare equipment that may be
available on the satellite at the time of such failure, then SKYNET may, in its
sole discretion, offer to restore the Service on an available space segment of
the same frequency band, having the same bandwidth and the same or different
power as the failed space segment, on the same satellite or on another SKYNET
satellite then in orbit. Such space segment will then become the non-protected
space segment; provided however, if SKYNET offers to restore the affected space
segment Service on a satellite other than the satellite on which the failed
space segment was provided, then CUSTOMER may reject Service on such space
segment with notice to SKYNET within twenty-four (24) hours of SKYNET having
offered such space segment to CUSTOMER. If SKYNET does not attempt to or restore
Service, or CUSTOMER rejects all as provided for in this Paragraph 7
("RESTORATION OF A NON-PROTECTED FAILED SPACE SEGMENT") such service on the
affected space segment(s) will terminate as of the moment of the failure.
Form TC/SR-04 Rev. G 8/04/03
LORAL SKYNET PROPRIETARY
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8. USE OF THE SERVICE
The monthly rate as set forth in Section 2 ("RATES AND TERM OF SERVICE") of the
Service Description includes management for the uplink of carriers to the space
segment(s) provided hereunder for CUSTOMER's initial loading plan ("Initial
Loading Plan"). If CUSTOMER desires to transmit to CUSTOMER's space segment in
any manner different ("Different Loading Plan") than its Initial Loading Plan,
then the following conditions shall apply: (i) SKYNET shall coordinate such
proposed Different Loading Plan to determine if its use could reasonably be
expected to result in either intrasatellite or intersatellite interference, and,
(ii) based on the results of such coordination, SKYNET shall either authorize or
reject, the use of such proposed Different Loading Plan, in a timely fashion, in
writing to CUSTOMER. Such authorization shall not be unreasonably withheld.
(i) If the Different Loading Plan involves digital carriers, whose
uplink and downlink spectral densities are the same as in the
initial loading plan, then CUSTOMER shall provide the Different
Loading Plan to SKYNET, no later than fourteen (14) days prior to
the start date of such Different Loading Plan, identifying its
characteristics, and
(ii) If the Different Loading Plan involves the addition of or changes to
analog carriers or the addition of digital carriers whose uplink and
downlink spectral densities are different than what is in the
initial loading plan, then CUSTOMER shall provide a written request
to SKYNET, no less than sixty (60) days prior to the desired start
date of such Different Loading Plan, identifying the
characteristics, and the desired start date of such Different
Loading Plan.
(iii) Notwithstanding anything in this Agreement to the contrary, CUSTOMER
may obtain SKYNET's authorization for more than one Different
Loading Plan for any space segment provided hereunder, for any
period of time, during the term of this Agreement.
(iv) In the event that CUSTOMER uplinks to any space segment in any
manner different from that authorized by SKYNET ("Unauthorized
Loading Plan") pursuant to either its Initial Loading Plan or any
other authorized Different Loading Plan for the affected space
segment, whether analog or digital, SKYNET may, in its sole
discretion, require CUSTOMER to discontinue the use of such
Unauthorized Loading Plan until such time as SKYNET authorizes the
use of such uplink such that it becomes a Different Loading Plan
pursuant to the provisions of this Agreement, including by way of
illustration and not of limitation, Paragraph 8 hereof ("USE OF THE
SERVICE).
Form TC/SR-04 Rev. G 8/04/03
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9. LIMITATION OF LIABILITY
9.1 SKYNET'S LIABILITY, IF ANY, FOR ITS WILLFUL MISCONDUCT IS NOT
LIMITED BY THE AGREEMENT. WITH RESPECT TO ANY CLAIM OR SUIT, BY
CUSTOMER OR BY ANY OTHERS, FOR DAMAGES ASSOCIATED WITH THE
INSTALLATION, PROVISION, TERMINATION, MAINTENANCE, REPAIR OR
RESTORATION OF SERVICE, AND SUBJECT TO PARAGRAPHS 9.2. AND 9.5.
FOLLOWING, SKYNET'S LIABILITY IF ANY SHALL NOT EXCEED AN AMOUNT
EQUAL TO THE PROPORTIONATE CHARGE PROVIDED FOR UNDER THIS AGREEMENT
FOR THE SERVICE FOR THE PERIOD DURING WHICH THE SERVICE WAS
AFFECTED, BUT IN NO CASE SHALL EXCEED AN AMOUNT EQUAL TO THREE (3)
TIMES THE APPLICABLE MONTHLY RATE FOR THE AFFECTED SERVICE. THIS
LIABILITY FOR DAMAGES SHALL BE IN ADDITION TO ANY AMOUNTS THAT MAY
OTHERWISE BE DUE CUSTOMER UNDER THIS AGREEMENT AS A CREDIT ALLOWANCE
FOR INTERRUPTIONS DESCRIBED HEREIN.
9.2 SKYNET IS NOT LIABLE FOR DAMAGES ASSOCIATED WITH SERVICE, SPACE
SEGMENTS, OR EQUIPMENT, WHICH IT DOES NOT FURNISH.
9.3 SKYNET, ITS PARENT, THEIR SUBSIDIARIES AND AFFILIATES, AND THE
DIRECTORS, EMPLOYEES, AGENTS AND SUBCONTRACTORS OF ALL OF THEM,
SHALL BE INDEMNIFIED, DEFENDED, AND HELD HARMLESS BY CUSTOMER
AGAINST ALL CLAIMS, LOSSES, OR DAMAGES RESULTING FROM THE USE OF
SERVICES FURNISHED PURSUANT TO THIS AGREEMENT, INVOLVING:
9.3.1 CLAIMS FOR LIBEL, SLANDER, INVASION OF PRIVACY, INFRINGEMENT
OF COPYRIGHT, OR ANY CLAIM BASED ON THE CONTENT OF ANY
TRANSMISSION ARISING FROM ANY COMMUNICATION;
9.3.2 CLAIMS FOR PATENT INFRINGEMENT ARISING FROM COMBINING OR USING
THE SERVICE FURNISHED BY SKYNET IN CONNECTION WITH FACILITIES
OR EQUIPMENT FURNISHED BY OTHERS; OR
9.3.3 ALL OTHER CLAIMS ARISING OUT OF ANY ACT OR OMISSION OF OTHERS
RELATING TO SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.
9.4 NO LICENSE UNDER PATENTS (OTHER THAN THE LIMITED LICENSE TO USE) IS
GRANTED BY SKYNET OR SHALL BE IMPLIED OR ARISE BY ESTOPPEL, WITH
RESPECT TO ANY SERVICE OFFERED UNDER
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THIS AGREEMENT. SKYNET WILL DEFEND CUSTOMER AGAINST CLAIMS OF PATENT
INFRINGEMENT ARISING SOLELY FROM THE USE BY CUSTOMER OF SERVICES
OFFERED UNDER THIS AGREEMENT AND WILL INDEMNIFY CUSTOMER FOR ANY
DAMAGES AWARDED BASED SOLELY ON SUCH CLAIMS.
9.5 SUBJECT TO THE PROVISIONS OF PARAGRAPH 11 OF THESE GENERAL TERMS AND
CONDITIONS ("CREDIT ALLOWANCES"), SKYNET'S FAILURE TO PROVIDE OR
MAINTAIN SERVICES UNDER THIS AGREEMENT SHALL BE EXCUSED BY LABOR
DIFFICULTIES; LAWS, REGULATIONS, ORDERS, OR OTHER ACTIONS OR
INACTIONS OF ANY GOVERNMENTAL AUTHORITY; CIVIL COMMOTIONS; ACTS OF
GOD EXTERNAL INTERFERENCE AND OTHER CIRCUMSTANCES BEYOND SKYNET'S
REASONABLE CONTROL. EACH SUCH EVENT SHALL CONSTITUTE A FORCE
MAJEURE.
9.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY, SKYNET SHALL NOT BE LIABLE
FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR
LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT SKYNET
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INTER-PARTY WAIVER OF THIRD PARTY LIABILITY
CUSTOMER, on behalf of itself and its officers, employees, affiliates, agents,
insurers, owners and customers, agrees to accept the inter-party waiver and
related indemnity provisions required by the applicable "Launch Services
Agreement", which is defined as the contract between the satellite manufacturer
and the launch service provider for the launch of any satellite(s) contemplated
by this Agreement and modified so as to apply to the CUSTOMER and the launch
services provider. Copies of these provisions will be furnished to the CUSTOMER
for review prior to and upon execution of a Launch Services Agreement for any
such satellite. SKYNET likewise, on behalf of itself and its officers,
employees, affiliates, agents, insurers, owners and customers, agrees to accept
the inter-party waiver and related indemnity provisions required by the
applicable Launch Services Agreement for a launch of any satellite(s)
contemplated by this Agreement and modified so as to apply to SKYNET and the
launch services provider. In no event shall such inter-party waiver and related
indemnity provisions have any effect on the rights, obligations and liabilities
of and between CUSTOMER and SKYNET under this Agreement.
11. CREDIT ALLOWANCES
Credit allowances, may be given to CUSTOMER for Interruptions and/or Failures as
defined in Paragraph 6 ("SPACE SEGMENT INTERRUPTION OR FAILURE") above. These
credit allowances will be applied against amounts not yet paid or in the event
of such interruption or failure during the final month of Service will result in
a refund equal to the amount of the credit allowance. An Interruption or Failure
period begins when CUSTOMER reports the Service to a
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space segment to be interrupted or failed and releases the affected space
segment for testing and repair. An Interruption or Failure period ends when the
affected space segment is operative. If CUSTOMER reports a space segment to be
interrupted or failed but declines to release it for testing and repair, it is
considered to be impaired, but not interrupted or failed. An impaired Service is
one which the customer has chosen to operate and as such is not entitled to any
service or billing credit for the period of time CUSTOMER is using the impaired
Service. All credit allowances are calculated on the basis of a thirty (30) day
month, not on the actual number of days in a given month. Credit allowances are
given for each incidence of Interruption or Failure of more than thirty (30)
minutes and are given in one (1) minute increments. Specific one minute Credit
Allowances will be calculated based on the monthly charge for the affected space
segment. Credit Allowances will not be given for Interruptions or Failures that
are a result of any of the following reasons:
(1) Interruptions or Failures caused by the action or failure to act of
CUSTOMER or others authorized by CUSTOMER to use the affected space
segment, not pursuant to the directions of SKYNET.
(2) Interruptions or Failures during periods when CUSTOMER elects not to
release the affected space segment for testing.
(3) Interruptions or Failures due to the effects of sun transit on
receiving earth stations.
(4) Interruptions or failures due to service affecting atmospheric
conditions.
12. CONTENT OF TRANSMISSIONS
CUSTOMER is solely responsible for the content of transmissions using the space
segment.
13. SCRAMBLING
Prior to commencing use of the Service provided under this Agreement, CUSTOMER,
at its expense, shall provide SKYNET with any unscrambling devices that may be
required for signal monitoring. CUSTOMER shall not use, or allow the use of, the
Service provided hereunder for distribution of program material of a sexual or
adult-oriented nature, to television viewers unless the programming is scrambled
such that television viewers can receive the programming only through the use of
an unscrambler authorized by CUSTOMER or CUSTOMER's authorized agent.
14. REFUSAL OF SERVICE
SKYNET may terminate, prevent or restrict any communications using the Service
provided hereunder as a means of transmission if such actions (1) are undertaken
at the direction of a governmental agency with colorable jurisdiction (including
the Federal Communications Commission) or (2) are taken subsequent to the
institution against SKYNET or any of its
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permitted assignees, any legal entity affiliated with any of them, or any of the
directors, officers, agents or employees of them, of criminal or administrative
proceedings or investigations based upon the content of such communications,
other than civil proceedings or (3) are taken as a result of a judgment on the
merits against CUSTOMER or any permitted assignee of CUSTOMER, of criminal
liability based upon the content of such communications. SKYNET will not
terminate, prevent or restrict CUSTOMER's transmissions pursuant to such clause
if, promptly upon notification by SKYNET of the institution of such proceedings
or investigations, CUSTOMER is able to satisfy SKYNET, subject to SKYNET's sole
and reasonable discretion, that within forty-eight (48) hours the aforementioned
proceedings will be resolved to SKYNET's satisfaction or the relevant
transmissions will terminate in the relevant jurisdiction and that they will not
re-occur in the relevant jurisdiction. Nothing in this Paragraph shall affect
any other term or condition hereof including without limitation any obligation
under Paragraph 9 (LIMITATION OF LIABILITY) or any obligation to pay the rates
in Section 2 (RATES AND TERM OF SERVICE) of the Service Description throughout
its period.
15. ASSIGNMENT / RESALE
15.1 ASSIGNMENT
CUSTOMER acknowledges and agrees that notwithstanding anything to the
contrary contained in this Agreement, CUSTOMER shall not transfer or
assign any of its rights or obligations under this Agreement to any third
parties without SKYNET's consent, which shall not be unreasonably
withheld. SKYNET and CUSTOMER expressly 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
SKYNET or CUSTOMER, or in connection with the merger or acquisition of
their business.
15.2 RESALE
To the extent not otherwise prohibited by rule, regulation, or law, in the
event CUSTOMER desires to publicly advertise or market all or any part of
the Service to a third party, CUSTOMER shall notify SKYNET in writing no
less than thirty (30) days prior to commencing any such advertising or
marketing. In addition, to the extent not otherwise prohibited by rule,
regulation, or law, in the event CUSTOMER desires to resell all or any
part of the Service to a third party, CUSTOMER shall notify SKYNET in
writing no less than thirty (30) days prior to the scheduled date of any
such resale that CUSTOMER has an agreement to permit a third party to use
all or any part of the Service. SKYNET shall notify CUSTOMER in writing
within fifteen (15) days of receipt of the aforementioned notification,
advising CUSTOMER of SKYNET's decision to either allow the advertising,
marketing, or resale, as the case may be, or not to allow the advertising,
marketing, or resale. SKYNET's consent to the above activities shall not
be unreasonably withheld CUSTOMER shall be solely responsible for any
permitted resale and shall indemnify and hold SKYNET harmless from any
claim or liability for damages made by any third party in connection with
such resale.
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To the extent CUSTOMER obtains a premium for the assignment or resale of
this Agreement or capacity under this Agreement, CUSTOMER shall pay SKYNET
fifty percent (50%) of CUSTOMER's net receipts for such premium after
deducting any service charges paid by CUSTOMER for SKYNET Services
provided during months in which the Service provided under this Agreement
was not utilized by CUSTOMER or CUSTOMER's end-users.
16. NON-INTERFERENCE
CUSTOMER's radio transmissions (and those of its uplinking agents) to the
satellite shall comply, in all material respects, with all governmental (whether
national, 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") applicable to it
regarding the operation of the satellite, transponder, space segment, and any
backup satellite, transponder or space segments to which CUSTOMER is given
access pursuant to this Agreement. CUSTOMER shall not interfere with the use of
other transponders on board, or cause harm to the satellite, or any back-up
satellites that the CUSTOMER is given access pursuant to this Agreement.
Further, CUSTOMER will coordinate with (and will require its uplinking agents to
coordinate with) SKYNET, in accordance with procedures reasonably established by
SKYNET and uniformly applied to all users of space segments on the satellite,
its transmissions to the satellite, so as to minimize adjacent space segment and
adjacent satellite interference. For purposes of this Paragraph 16, interference
shall also mean acts or omissions, which cause a space segment to fail to meet
its space segment performance parameters. Without limiting the generality of the
foregoing, CUSTOMER (and its uplinking agents) shall comply with all FCC rules
and regulations regarding use of automatic transmitter identification systems
(ATIS).
17. IMPROPER ILLUMINATION
In the event improper illumination of any transponder provided under this
Agreement is detected by SKYNET, CUSTOMER shall be notified and CUSTOMER shall
take immediate corrective action to stop the improper illumination within five
(5) minutes of notification from SKYNET. A charge of eleven hundred ($1,100.00)
dollars per minute will apply for improper illumination that continues beyond
the five minute period after notification, or attempted notification if there is
no answer at the telephone number provided by CUSTOMER. Furthermore, if
immediate corrective action is not taken by CUSTOMER, SKYNET shall have the
right to take immediate action to protect its services or its interests,
including but not limited to suspending or terminating CUSTOMER's service on the
affected transponder.
18. GENERAL OBLIGATIONS
Nothing contained in this Agreement shall preclude SKYNET from seeking
injunctive relief to prevent a willful breach or to compel performance in the
event of a willful failure to comply with this Agreement.
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19. TERMINATION
This Agreement may be terminated prior to the end of its term as follows:
19.1 In the event of the breach of any of the material terms and
conditions, representations and warranties contained herein, the
non-breaching party may terminate upon written notice to the other
with fifteen (15) days prior written notice citing the cause of such
termination, which period may be used to cure.
19.2 In the event that the satellite that the Service is intended to be
provided on fails to reach and maintain a satisfactory orbit in the
appropriate orbital position, or a failure by said satellite to go
into satisfactory operation after achieving satisfactory orbit in
the appropriate orbital position (any or all of the foregoing in
this Paragraph 19.2 being referred to herein as a "Launch Failure"),
either party may terminate this Agreement with written notice to the
other party and neither party will have any further liability to the
other party except for SKYNET's liability to refund to CUSTOMER any
monies paid to SKYNET for Service not received.
20. EARLY TERMINATION CHARGE
Subject to Paragraph 19 ("TERMINATION") hereof, no early termination date is
provided under this Agreement. Therefore in the event CUSTOMER orders the
discontinuance of Service effective on any date prior to the termination date
set forth in Section 1 ("SKYNET SERVICES") of the Service Description, or if
this Agreement is terminated by SKYNET due to CUSTOMER's breach with respect to
the Service provided under this Agreement prior to the termination date set
forth in Section 1 ("SKYNET SERVICES") of the Service Description, an early
termination charge ("Early Termination Charge") shall apply as follows: The
Early Termination Charge shall be an amount equal to the lesser of (i) the
aggregate monthly rate then in effect for twelve (12) months of Service on the
affected space segment(s) or (ii) the aggregate rate for Service through the
term of service for the affected space segment(s). Early Termination Charges
shall be due and payable upon receipt by CUSTOMER of an invoice for such
charges. Early termination charges apply regardless of whether or not Service
has begun and are in addition to any other rights SKYNET may have hereunder.
21. CHANGES IN OPERATIONS OR PROCEDURES
Nothing herein shall be construed as preventing SKYNET from changing its
operations, procedures or Satellite Access Procedures, provided that such
changes are required: (i) to comply with changes mandated by any authorized
government agency with jurisdiction, (ii) as a result of inter-satellite
coordination (iii) to switch equipment as required to protect the health of the
satellite, (iv) for transmission path component replacement, (v) to move the
satellite for debris avoidance, (vi) for CUSTOMER application specific
coordination changes or (vii) to modify uplink operation to protect the health
of the satellite. SKYNET is not responsible to CUSTOMER if any such changes in
operations, procedures, or Satellite Access Procedures (I)
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affects any facilities, CUSTOMER equipment or CUSTOMER communications system in
any way, or (ii) requires their modification in order to be used with any
transponder provided pursuant to this Agreement. However, if such changes can be
reasonably expected to materially affect the operating or transmission
characteristics of the Service, or render any CUSTOMER equipment or CUSTOMER
communications system incompatible with the Service, SKYNET shall use reasonable
efforts to provide adequate notice, in writing, to allow CUSTOMER an opportunity
to maintain uninterrupted Service. However, if both parties agree that such
changes would materially affect CUSTOMER's use of the Service, CUSTOMER with
respect to monthly paid Service, shall have the right, at its option, within
sixty (60) days after its receipt of notice of such change, and upon thirty (30)
days notice to SKYNET, to terminate this Agreement without liability except for
such Service as has already been rendered. Provided, however, if SKYNET
eliminates such material effects within the thirty (30) days notice period, this
Agreement will not terminate.
22. SPACE SEGMENT ASSIGNMENT
Assignment of the specific space segments to be used for the Service remains the
sole prerogative of SKYNET. During the term of this Agreement SKYNET shall have
the right to change any of the transponder and / or satellite assignments, but
shall do so only if there is an operational concern, interference caused by
CUSTOMER, or, in order to protect the health of the satellite on which Service
is being provided. If required, such assignment change shall be made with not
less than thirty (30) days prior written notice to CUSTOMER. Upon the
effectiveness of such assignment change, the CUSTOMER must vacate the previously
occupied frequencies.
23. FAILURE TO VACATE THE SERVING SATELLITE
Notwithstanding anything in this Agreement to the contrary, if, without SKYNET's
written consent, CUSTOMER fails to cease transmission to or otherwise attempts
to use any space segment/transponder Service provided hereunder at or after the
expiration or sooner termination of such Service or of this Agreement, as
applicable (an "Unauthorized Usage"), then in addition to all other rights and
remedies available to SKYNET at law or equity or otherwise, CUSTOMER shall pay
to SKYNET, not as a penalty but as liquidated damages, an amount equal to three
(3) times the prorated daily rate in effect at the time of the
expiration/termination of the affected Service (i.e., the applicable monthly
rate set forth herein for such Service divided by thirty (30) and then
multiplied by three (3) for each day or partial day that CUSTOMER continues its
Unauthorized Usage of such Service). Amounts assessed under this Paragraph shall
be due and payable immediately upon receipt of SKYNET's written demand for such
charges; payment shall be effected in the manner specified in Paragraph 2
(Payment of Charges). In addition, notwithstanding anything in this Agreement to
the contrary, with respect to any claim or suit, by CUSTOMER or by any other(s),
for damages associated with any action or inaction involving the installation,
provision, termination, maintenance, repair, or restoration of Service during
any period of CUSTOMER's Unauthorized Usage thereof, SKYNET shall have no
liability whatsoever and CUSTOMER shall indemnify, hold harmless and defend
SKYNET (at SKYNET's request) from and against any such damages. The obligations
and agreements set forth in this clause only come into effect upon the
expiration or sooner termination of this
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Agreement and will survive the expiration, cancellation, or termination of this
Agreement or any other related agreement.
24. NO POSSESSORY INTEREST, BANKRUPTCY
CUSTOMER has, and will have, no possessory or other interest in the space
segment(s) provided pursuant to this Agreement. CUSTOMER acknowledges that: (1)
it has been advised of and fully understands the conditions and the
consideration pursuant to which SKYNET provides and CUSTOMER accepts the Service
and (2) the rates for the Service, as well as the termination charges as
provided for in Paragraph 20 ("EARLY TERMINATION CHARGE") hereof, are fair and
reasonable at the market on the date of commitment to the Service and the date
of this Agreement. CUSTOMER recognizes that space segment space for the
provision of the service contemplated under this Agreement is a commodity in
limited supply and that those using full time space segment service, similar to
the Service provided under this Agreement, usually enter into long-term
commitments with service providers. Therefore, CUSTOMER understands that its
acceptance of the Service precludes SKYNET from accepting any other customer for
service on the space segment(s) being used to provide Service to CUSTOMER.
Because of this, CUSTOMER concedes that a failure to fulfill CUSTOMER's
obligations under this Agreement would irreparably harm SKYNET. Therefore, in
the event of any bankruptcy or similar proceeding on the part of CUSTOMER,
CUSTOMER agrees that it will petition any relevant court for prompt action to
accept or reject this Agreement, and to authorize the scheduled payments in
full, prior to resolution of matters affecting this Agreement.
25. THIRD PARTY BENEFICIARIES / INDEPENDENT CONTRACTOR
Nothing herein contained shall be deemed or construed by either party hereto or
by any third party to create any rights, obligations, or interests in any third
party, or to create any association, partnership, joint venture, the relation of
principal and agent, the relation of employer and employee, or any fiduciary
relationship of any kind between the parties hereto, it being understood that
SKYNET shall perform all services hereunder as an independent contractor.
26. PUBLICITY AND ADVERTISING
26.1 CUSTOMER shall not in any way or in any form publicize or advertise
in any manner the fact that it is obtaining services from SKYNET
pursuant to this Agreement, without the express written approval
(which shall not be unreasonably withheld) of SKYNET, obtained in
advance, for each item of such 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 SKYNET; and approval, in each instance,
shall be effective only if in writing and signed by said
representative. Notwithstanding the foregoing, CUSTOMER may refer to
the fact that it is securing services from SKYNET without SKYNET's
prior approval so
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long as such statements are limited to a statement of such fact and
are not an endorsement of any product or service by SKYNET.
26.2 SKYNET shall not in any way or in any form publicize or advertise in
any manner the fact that it is providing services to CUSTOMER
pursuant to this Agreement, without the express written approval
(which shall not be unreasonably withheld) of CUSTOMER, 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 CUSTOMER; and approval, in each instance, shall be
effective only if in writing and signed by said representative.
Nothing herein shall prevent SKYNET from providing the FCC or any
other governmental agency, information concerning this Agreement as
required by Law or in response to a request for information by such
Governmental Agency. Notwithstanding the foregoing, SKYNET may refer
to the fact that it is providing the Service to CUSTOMER without
CUSTOMER'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 CUSTOMER.
27. CONFIDENTIALITY
27.1 This Agreement shall be kept strictly confidential, except for
disclosure: (i) to the extent required by the law or legal process,
in which case the parties shall seek confidential treatment of the
document and the information contained herein, (ii) as a part of
normal accounting and/or auditing procedures, (iii) to each Party's
parent company, or (iv) to investment bankers, to bona fide
potential or actual lenders, and to a bona fide potential purchaser
of the applicable business, provided any such party shall have
agreed to keep this Agreement confidential pursuant to an agreement
containing terms substantially similar to those in Paragraph 28
(NONDISCLOSURE OF INFORMATION).
27.2 Notwithstanding anything to the contrary in this Agreement, either
Party (and each employee, representative, or other agent of such
Party) may disclose to any and all persons, without limitation of
any kind, statements received (whether written or oral) related to
the Tax Treatment and Tax Structure, as defined below, of this
transaction or the transaction contemplated by this Agreement as
well as all materials of any kind (including tax opinions and tax
analyses) that are provided to either Party relating to such Tax
Treatment or Tax Structure. For purposes of this Section, Tax
Treatment is defined as the purported or claimed Federal income tax
treatment of the transaction that may result from this Agreement and
Tax Structure is limited to any fact that may be relevant to
understanding the purported or claimed Federal income tax treatment
of the transaction.
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28. NON-DISCLOSURE OF INFORMATION
28.1 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 ("Information"). Such
Information may include but is not limited to, engineering,
hardware, software or other technical information concerning the
project or the SKYNET network, and financial, accounting or
marketing reports, analysis, forecasts, predictions or projections
relating to this project or the business of SKYNET or CUSTOMER
generally.
28.2 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.
28.3 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. With respect to Information, the party to whom
the Information is disclosed and its employees shall:
a. 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;
b. restrict disclosure of the information solely to those
employees with a need to know and not disclose it to any other
persons;
c. advise those employees of their obligations with respect to
the information; and
d. 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.
28.4 The party to whom Information is disclosed shall have no obligations
to preserve the proprietary nature of any Information that:
a. was previously known to it free of any obligations to keep it
confidential;
b. is disclosed to third parties by the disclosing party without
restriction;
c. is or becomes publicly available by other than unauthorized
disclosure; or
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d. is independently developed by the receiving party.
28.5 The receiving party may disclose the Information pursuant to a court
order or other governmental or regulatory compulsion provided that
the disclosing party shall be given prompt notice of the receipt of
such order or other compulsion.
28.6 The receiving party agrees that all of its obligations undertaken
under this non-disclosure agreement shall survive and continue after
any termination of this Agreement.
The Information shall be deemed the property of the disclosing party and, upon
request the other party will return all Information that is in tangible form to
the disclosing party or destroy all such information.
29. NO WAIVER / CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of any party, of
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
30. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the State of
New York, without giving effect to its conflict of law principles.
31. SUCCESSION
This Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties hereto.
32. 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.
33. RETIREMENT OF SATELLITE
SKYNET shall be entitled to retire the serving satellite without liability (i)
if fifty percent (50%) or more of the transponders on the satellite have failed
or are unusable for any reason; (ii) in the event that the satellite's
station-keeping fuel, required to meet + 0.05 degrees, becomes depleted to a
level sufficient only to ensure removal of the serving satellite from its
assigned orbital position; (iii) if required to do so by any governmental
authority with appropriate jurisdiction; or (iv) if SKYNET reasonably determines
that (ii) above can be delayed by moving such serving
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satellite into an inclined orbit; or (v) if special circumstances require
retirement, and such FCC authority as is required for retirement is obtained.
SKYNET will use all reasonable efforts to provide CUSTOMER written notice of a
decision to retire the serving satellite prior to the expiration of this
Agreement as far in advance of the date of retirement as circumstances allow.
Upon retirement of the serving satellite, all subsequent performance obligations
of the parties under this Agreement shall terminate.
Notwithstanding the foregoing, in the event of the retirement of a satellite the
terms of Paragraph 7 of these General Terms and Conditions ("RESTORATION OF A
FAILED SPACE SEGMENT") will apply.
34. EXPORT CONTROL
The parties acknowledge and agree that SKYNET's obligation to provide certain
products, information or services is subject to the laws, rules and regulations
of the United States regarding export restrictions ("U.S. Export Laws"),
including without limitation the XXXX, 00 XXX xx.xx. 120-130, and that the
export of such products, information or services by SKYNET to Foreign Persons
(as defined in the ITAR, ss. 120.16 and including CUSTOMER's employees,
subsidiaries and affiliates) may be prohibited, limited or delayed without a
proper export license. If required, CUSTOMER agrees to cooperate fully with
SKYNET to obtain such a license. CUSTOMER will not use, distribute, transfer or
transmit any products, information or services provided under this Agreement
except in compliance with U.S. Export Laws. In no event shall SKYNET be
obligated under this contract to provide access to or furnish any products,
information or services to any person except in compliance with applicable U.S.
Export laws, policies and license conditions, as construed by SKNYET. The
obligations stated above in this clause will survive the expiration,
cancellation or termination of this Agreement or any other related agreement.
35. ARBITRATION
All disputes arising in connection with the present Agreement shall be finally
settled under the Rules of Conciliation and Arbitration of the American
Arbitration Association ("AAA Rules") by one or more arbitrators appointed in
accordance with said
AAA Rules. The arbitration shall take place in New York City, United States of
America, and shall be conducted in English. The arbitrator shall apply the
substantive (not the conflicts) law of the state specified in the choice of law
provision set forth elsewhere in this Agreement. The arbitrator shall not limit,
expand or modify the terms of this Agreement nor award damages in excess of
compensatory damages, and each party waives any claim to such excess damages.
The award shall be in United States dollars. Judgement upon the award rendered
in the arbitration may be entered in any court having jurisdiction thereof. Each
party shall bear its own expenses (including attorney's fees) and an equal share
of the expenses of the arbitrator and the fees of the arbitration. Nothing in
this Agreement shall be construed to preclude any party from seeking injunctive
relief in order to protect its rights pending arbitration. A request by a party
to a court for such injunctive relief shall not be deemed a waiver of the
obligation to arbitrate.
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36. COUNTERPARTS
This Agreement may be executed in two identical counterparts; and the signature
of each party shall appear on each counterpart. Either counterpart shall
constitute an original, binding version of this Agreement. Facsimile signatures
shall be considered valid signatures as of the date hereof, although the
original signature pages shall thereafter be appended to this Agreement.
Form TC/SR-04 Rev. G 8/04/03
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